Balkinization  

Sunday, April 01, 2007

"It's all politics": Ideological drift and CLS

Sandy Levinson

One of the valuable notions contributed by Jack Balkin is that of "ideological drift," the migration of ideas of ideas associated with one side of the great political divide by the opposition (e.g., the adoption of an "absoluitist" firsti-amendment position by devotees of big business with regard to corporate advertising, even as leftish devotees of campaign finance regulation or hate-speech prohibition renounce "absolutism"). I think we are seeing an example of such drift right now with regard to the debate about US attorneys. The defense of the Bush Administration boils down to some version of "it's all poltiics." Thus Kyle Sampson, formerly of the DOJ, has stated that the "distinction between political and performance-related reasons for removing a U.S. attorney is, in my view, largely artificial." Most defenders of the Administration's purge of insufficiently zealous Bushies, including discussants on Balkinization, argue that it's simply naive to expect US Attorneys to be committed to some relatively non-partisan notion of "the rule of law." Instead, they are put in office explicitly to enforce the political agenda of the President by prosecuting political enemies and, implicitly, being kinder to political friends. I'm surprised that defenders of the Administration have not pointed to the obsession by the Kennedy Justice Department with Jimmy Hoffa, who was, of course, convicted and imprisoned for jury tampering, thanks in part to the use of dubious (albeit legal, according to the courts) methods of gaining evidence. Hoffa was viewed as the moral equivalent of a contemporary terrorist, and the Kennedy DOJ did functionally "whatever was necessary" to put him behind bars and remove him from power.

It's hard for people like me--i.e., fellow travellers (and at one time adues paying member) of the late Conference on Critical Legal Studies--to get a leverage point to criticize the Administration. As I've argued in an earlier post, I don't think that "we" have a language adequate to analyzing the extent to which political considerations do indeed pay a proper role in the administration of justice, as against the point at which paying attention to such considerations counts as corruption. It is, I think, significant that my Balkinization colleague Brian Tamahana and, indeed, Jack himself, with his "converstion" to a form of originalism, are indeed articulating the importance of taking "the rule of law" seriously even as the Administration and its defenders seem ever more to adopt a language linked in earlier decades with CLS. The "drift" is running in both directions, as people identified with the left (and, in Jack's case, with post-modernist impulses) are trying to revive some central classical-liberal verities.

This is obviously too simplistic an analysis. Bushies will quickly emphasize their ostensible desire to nominate judges who will simply "enforce" the law rather than make it up. This is what they say. The problem, of course, is that for many of us, the contemporary "law" of federalism, including immunities doctrine, is completely fabricated by zealous conservatives. And the ostensible commitment to "judicial restraint" is belied by the call for judicial invalidation of any and all use of race in public policy (see, e.g., the current Seattle and Louisiville cases before the Supreme Court), which would be nothing more than the reading of a particular political view (which, arguendo, may even be defensible) into the "majestic generalities" of the Fourteenth Amendment. If Roberts joins in a majority opinion striking down the policies of those two school systems, every Roberts-besotted writer who seems him as committed to "restraint" and reducing conflict on the Court should engage in a public apology.

Among such writers is Jan Crawford Greenburg, whose new book Supreme Conflict, though an enjoyable read, is marred by the lack of any real analysis of some of her arguments. Thus she seems to take seriously that Republicans are seeking judges committed to "restraint,," even as she herself notes that they loathe O'Connor for her not pulling the plug on affirmative action in Grutter, which would scarcely have counted as "restraint." As many people have noted, there is not a single justice on the current Court who can be described as a Frankfurterian "restraint" buff; it is simply that they differ as to the particular issues on which they want the Court to intervene in ordinary politics.

To accuse the Bushies of hypocrisy, however true that may be, does not really lead to progress in trying to figure out how, in the 21st century, after most of us have absorbed various lessons of American Legal Realism, Critical Legal Studies, etc., we articulate a language of "respect for law" that doesn't sound equally hypocritical to those on the other side. Wasn't it at least in part his inability to find such a language that led Laurence Tribe to give up his monumental treatise, since he presumably didn't want to envision himself as writing a merely partisan tract rather than an approach to constitutional law that could transcend, in some measure, partisan divisions?

We are, I believe, in a triple "constitutional crisis." One, of course, involves the dysfunctionality of our hard-wired Constitution, and I trust that my views on this point are familiar to readers of Balkinization by this point. Another is the abuse of constitutional norms by the Bush Administration, particularly its near-dictatorial conception of the presidency and its seeming disdain for the proposition that Congress is a partner in governance. But the third is the inability of our standard-form "constitution-talk" really to work as a mode of constructing arguments that can, for more than a moment (if even for that long), still the confident assertion that "it's all politics."

Ironically enough, I'm most confident that "it's not all politics" with regard to the parts of the Constitution I am increasingly interested in, i.e., the "hard-wired" clauses. But they, of course, are the parts of the Constitution that get almost no attention. Ostensibly serious people in the Democratic Party seem to believe that it makes more sense to advocate a new "Women's Rights Amendment," the need for which is close to impossible to demonstrate given current decisions of the US Supreme Court, than even to consider the possibility that we are disserved by any of the hard-wired clauses. Is it too unfair to describe this as a form of fiddling while Rome burns?

Comments:

As for Sampson's statement on "artificial distinctions:"

1. Sampson is an inexperienced political hack. Are his "observations" useful as point of departure?

2. Sampson's comment reinforces the typical Bushian transformation, when they endure distress, from "moral clarity" to moral relativism.

3. Sampson uses the word "political" in a deliberately ambiguous way. That term has at least two distinct meanings in this context: 1. USA's should support and implement the basic political priorities of the administration, whether it be civil rights or pornography, albeit consistent with accepted practices under the rule of law; or 2. USA's should use their office to punish political opponents of the administration through harrassing prosecutions, or use their office to influence voter turnout, regardless of the particular facts or merits of the cases.

4. Is it useful to credit any behaviors, statements, or practices of this administration in a consideration of any general theory? Is it not more salient to observe that this administration is an aberration, and will be remembered as such?
 

If you understand the meaning of the truism "a nation of laws and not of men," then the term "judicial restraint" simply means that judges will follow the law and not make their own.

Genuine conservatives believe that Courts should adhere as closely as possible to the plain meaning of the Constitution and statutes. By necessity, this approach requires reversing prior Court decisions which ran far afield of the plain meaning of the Constitution and statutes.

I would suggest that adherence to stare decisis when faced with precedent which runs far afield of the plain meaning of the Constitution and statutes is not an example of judicial restraint. Rather, respect for such decisions simply preserves past and enables future outlaw judicial legislation.

O'Connor is a perfect example of an enabler of outlaw judicial legislation. In Casey and Grutter, she reaffirmed past decisions by judges writing their policy preferences for abortion and racial discrimination into the Constitution. This is hardly an example of judicial restraint or a nation based on laws and not men.
 

I realize that this is a bit like hitting one's head against a wall, but I must reiterate, once more, that there is no "plain meaning" to the 14th Amendment that requires "colorblindness" re race and not, say, re any other category by which satutes differentiate. Even if one chooses to interpret the text via historical materials, one still cannot plausibly get to a "colorblindness" view, not least, of course, because proponents of the amendment assured their adversaries that it would not affect school segregation or jury discrimination. And, as Robert Bork noted in his testimony, even if one can use the Fourteenth Amendment to justify Brown, there is scarcely any textual or historical warrant to use the 5th Amendment to justify Bolling.

I obviously do not oppose such decisions as Brown and Bolling. I presume that Mr. DePalma supports them as well, though if so, I'm not sure on what basis. The one thing he cannot do is justify them via text or history. (He might accept Michael McConnell's originalist defense of Brown, of course, but that doesn't generate Bolling, nor does it provide any succor for women seeking aid under the Fourteenth Amendment.)
 

Professor Levinson:

I realize that this is a bit like hitting one's head against a wall, but I must reiterate, once more, that there is no "plain meaning" to the 14th Amendment that requires "colorblindness" re race...

Let us go to the text and see whether the 14th Amendment is vague or confusing in this regard:

...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"Equal" has a plain meaning to me. Equal means equal. Either the government can or it cannot deny a person "equal protection of the laws" based on the melanin content of his or her skin. It is just that simple.

Generally, the original intent of particular persons involved in enacting a provision of the Constitution is irrelevant. This is the equivalent of parol evidence in contract law. Therefore, the horse trading and promises going on in Congress before the vote enacting the 14th Amendment do not change the plain meaning of the word "equal."

The plain meaning of the 14th Amendment can pretty easily support the Brown Court's rejection of the "separate but equal doctrine" on the ground that the schools were in fact not close to being equal nor were they likely ever to be equal.

However, I agree with Judge Bork's view that there is scarcely any textual or historical warrant for the Bolling decision. States mean states in the 14th Amendment and the District of Columbia is not a state.

Whether or not I or the Warren Court supported the policy goal advanced in Bolling is irrelevant. Courts can only enforce the law as it is written. The democratic branches of the government are responsible for changing the law if it is unfair.
 

The reason I have absolutely no patience with pseudo-textual arguments like Mr. DePalma's is that if one takes them seriouslyy--and no one possibly could--then it would also be unconstitutional to differentiate, say, between the sighted and the blind when allocating drivers' licenses. What laws do is to "discriminate." What the 14th Amendment prohibits is "invidious discrimination." Unfortunately, it provides not the slightest scintilla of a clue, at least in Section One, as to how to tell the difference between legitimate discrimination and "invidious" discrimination. (Perhaps one can mine Section 2, which appearsl to legitimate gender discrimination but not discrimination against male African-Americans in the franchise. But that is a stretch, not least because the 15th Amendment was thought "necessary" even after the 14th.)

There are good arguments available for Mr DePalma's overall position. Unfortunately for him, the text of the 14th Amendment, no matter how often he quotes it, isn't one of them.
 

Bart, either wittingly or unwittingly you have exposed what I take to be the central point of Prof. Levinson's post: it many times feels like we've run out of ways to make constitutional *law* arguments without the other side retorting that it's more like constitutional *politics*. Your posts (which I enjoy, btw, and not because I agree with them, but I respect the fact that you steadfastly make the conservative argument) read like the talking points from a FedSoc memo -- e.g., "Genuine conservatives believe that Courts should adhere as closely as possible to the plain meaning of the Constitution and statutes. By necessity, this approach requires reversing prior Court decisions which ran far afield of the plain meaning of the Constitution and statutes."

I don't mean the above as disrespect. My ideological priors run in the opposite direction of yours. This means of course that my "far afield" and your "far afield" and are, as it were, "far afield" from each other. I'm guessing that you don't support Roe based exactly on an argument such as that quoted above. Of course, I think that there are many plausible, if not entirely unproblematic, ways to massage right to abortion out of Griswold, Harlan's (lyrical) Poe v. Ullman dissent, Skinner, Pierce, even Calder v. Bull.

But to get back to Prof Levinson's larger point: we are indeed, I think, on the precipice of a crisis (read Prof Tamanaha's "Law as a Means to an End" if aren't convinced yet) and that we (those on both sides of the ideological fence) need to find *some* common ground on which we can agree that we're making legal arguments instead of just political ones. I would argue that one place to start is to rely more heavily on empirical evidence. That is, place the normative gloss on what the empirical evidence tells us rather than jump straight to, as many justices/judges/scholars do, the normative theorizing (which lends itself to the "politics" charge). This, I fully realize is not without it's problems, but I think it's a step in the right direction. As one quick example, shoudln't the starting point for arguments concerning the restriction of Medicaid funding of abortion mention that economists have shown us that it leads to a rise in the female suicide rate? This should be where the legal arguments (the normative gloss) start. Rather than pen another paean to poverty isn't it more convincing to start with this startling fact? And isn't it a better retort to the argument that you'll no doubt make that such restrictions are constitutional? (because it seems to be less forceful to defend a policy that leads directly to a higher suicide rate among women of a low socio-economic background). I'm not saying it solves the problem, but it takes the debate to a (somewhat) higher level.
 

Professor Levinson:

The "equal" in the EPC has been reasonably held to require that the law treat similarly situated persons similarly. I never posted otherwise and this holding does not change the essential plain meaning of the term "equal." To restate the similarly situated rule, equally situated people should be treated equally.

The blind and the sighted are not similarly situated. Unless you are claiming that two persons can be differently situated because of the color of their skin, then I fail to see the analogy.

You say you have no patience with my "pseudo-textual" argument that the term "equal" in the EPC clause has a plain generally understood meaning.

In that case, do you actually claim that the term "equal" has a different meaning which would allow the government to favor one race over another under the law? If so, I would love to see this definition and its source.

Perhaps, you are arguing that "equal" has no meaning except that given to it by a lawyer in black robes like Justice O'Connor? If so, then please tell me so we can just dispense with the pretense of interpreting the Constitution or claiming that it has any objective meaning.

I could understand your argument if we were discussing the Due Process Clause. Due process can legitimately cover any rule of court procedure and was essentially an invitation to the Courts to set their own rules of procedure.

In contrast, the term "equal" has a pretty definite meaning. While it is true that the New Deal Court in Carolene Products gutted enforcement of the EPC against business regulations and the like, even that Court recognized that the term "equal" in the EPC still applied to laws which discriminated on the basis of race.
 

Sampson is an inexperienced political hack. Are his "observations" useful as point of departure?

Not necessarily, but they're convenient and representative of Bush-think (for the reasons you suggest and probably more). For a more extreme example of just how corrupt their thinking has become, see this column by Glenn Greenwald.
 

Bart,

For better or worse, equal doesn't mean equal in our wonderful system of interpretation. Even the toughtest test, strict scrutiny isn't "fatal in fact." (though I think it should be).

And, yes, I wouldn't be surprised if the Professor thinks the EP clause allows the government to favor one race over another. Look at the distinctions of "benign" and "invidious" discrimination drawn by Brennan. They never commanded a majority, but I'd be surprised if they received a hostile reception here.
 

Levinson writes: one still cannot plausibly get to a "colorblindness" view, not least, of course, because proponents of the amendment assured their adversaries that it would not affect school segregation...

Assurances that it would not require school desegregation are only dispositive under expectations originalism, which is almost entirely discredited. Under original public meaning originalism, the issue is whether the original overriding legal import of the text mandates an outcome when that rule is applied to the known facts of a contemporary controversy. To support the argument that an originalist meaning does not mandate colorblindness, you must accept that the framers' conceptions of equality can be fulfilled, in fact, without an absolute prohibition of racial discrimination.

... or jury discrimination.

Jury service was a political right, not a civil right, and therefore not secured by the 14th amendment, just as the inseparable right to vote was not secured until the 15th amendment.

And, as Robert Bork noted in his testimony, even if one can use the Fourteenth Amendment to justify Brown, there is scarcely any textual or historical warrant to use the 5th Amendment to justify Bolling.

The issue with an originalist reading of Bolling comes down to whether, in applying their vision of the fundamental rights of U.S. citizens against the governments of the states, the framers of the 14 amendment altered those fundamental rights as they had been applied against the federal government. Since that question involves the first clause of the amendment's second sentence — one which Bork thinks Judges should pretend does not exist — it is not surprising that Bork thinks Bolling is unjustified.

If the 14th amendment does not implicitly alter the antebellum bill of rights, then how should we read the 11th amendment? That the Judicial Power actually does have the ability to breach Sovereign Immunity, but government officials just can't "construe" it that way? Isn't it simpler just to say that the 11th amendment implicitly constitutionalizes Sovereign Immunity even though it never explicitly says more than "construe?"

Levinson writes: There are good arguments available for Mr DePalma's overall position. Unfortunately for him, the text of the 14th Amendment, no matter how often he quotes it, isn't one of them.

That first sentence seems to give more ground that your previous post. And what does it mean to say that the text itself does support the reading? A German text supports no reading if you don't understand German words. Similarly, the 14th amendment supports no meaning if you don't understand the terms of art it uses. Are you just arguing that? Or are you dismissing the value of those terms of art? — which would render much of the amendment quite meaningless.
 

Calvin TerBeek writes: I would argue that one place to start is to rely more heavily on empirical evidence.... Shoudln't the starting point for arguments concerning the restriction of Medicaid funding of abortion mention that economists have shown us that it leads to a rise in the female suicide rate?

Doesn't that depend on whether that empirical evidence is relevant? I would suggest that we must first answer that question of what a "protection" is before we know whether that data counts. For instance, if protection leans more toward providing equality before the law, then it isn't relevant, because there is no discrimination, invidious or otherwise, in not funding abortion. If "protection" leans sufficiently toward government intervention toward creating similar outcomes for similarly situated people, then it is relevant.

I suspect you and I have different inclinations about how the word leans, though not entirely. I would think, for instance, that even though the protection granted to the first black children who enrolled in forcibly desegregated schools was not equal to the protection granted to other students in that school in the sense that it cost a lot more, and in the sense that other students didn't have federal agents following them around, that it was still mandated by the constitution because it was needed in order to give the outcome of equal levels of safety.

I would also point out that any position on what the constitutional actually says with respect to abortion, beyond just a position on what interpretation a judge should be able to make about it, must rest on the answer to the question of when the government either can or must treat a developing organism that is human as one of the recipients of equal protection. Once an once a human being has rights, the circumstances when it can be killed don't seem to leave the small but potent sphere of reasonable self-defense.
 

Levinson in the original post asks:

Ostensibly serious people in the Democratic Party seem to believe that it makes more sense to advocate a new "Women's Rights Amendment," the need for which is close to impossible to demonstrate given current decisions of the US Supreme Court, than even to consider the possibility that we are disserved by any of the hard-wired clauses. Is it too unfair to describe this as a form of fiddling while Rome burns?

Neither seems to be an especial priority for the Democrats, and with the limited amounts of political power they possess to deal with the immediate and pressing issues of the country, it is hard to blame them for that.

On the issue of the Women's Rights Amendment, I don't know that current case law is terribly relevant. The constitution is more than a means to a legalistic end, it is also the heart and soul of this country, an embodiment of our existence as a creedal nation that has long been viewed as being just as much as a repository of our national values as of legal rules. If I did not believe that the actual meaning of the fourteenth amendment supports much of current case law, I too would be advocating a remedy for that blemish on our written national conscience. The "need" for such an amendment would be philosophical, not practical.

And do people really fail to "even consider" that the more utilitarian aspects of the constitution could be improved? I suspect that most either find such arguments unconvincing, or think that a session of playing constitutional convention would lead to new structural configurations that they like even less than the current ones. If you think that we are likely to get better rules by changing the hard-wired aspects of our government now, then you are either more optimistic than I about the safety of liberty in the era of the War of Terror, or even more pessimistic about the future of politics.

Finally, this question may reflect me mixing up your objections with someone else's, but: How many of your objections are ones that cry out to address practical problems, and how many are idealogical? For instance, if you want the constitution to be more democratic because democracy is an important value to you, not because it solves a practical purpose, your position is perfectly defensible, but not terribly different from my position in wanting the constitution to include my values.
 

Calvin TerBeek said...

Your posts (which I enjoy, btw, and not because I agree with them, but I respect the fact that you steadfastly make the conservative argument) read like the talking points from a FedSoc memo...

I don't mean the above as disrespect. My ideological priors run in the opposite direction of yours. This means of course that my "far afield" and your "far afield" and are, as it were, "far afield" from each other.


I do not take disagreement as disrespect and I hope folks like Professor Levinson feel the same way. Indeed, I seek disagreement by posting at blogs which take different positions than I do so I can test my own positions against those taken by interesting and intelligent people.

You cannot have a genuine marketplace of ideas if you spend your time preaching to a choir of similar viewpoints.
 

"Bart" DePalma:

If you understand the meaning of the truism "a nation of laws and not of men," then the term "judicial restraint" simply means that judges will follow the law and not make their own.

You ignored it the last time I brought it up. Care to explain where in the Eleventh Amendment it says that states are immune to suit by their own citizens in federal court?

An honest answer would be appreciated.

Your "strict constructionism" would seem to be of a "situational" type....

Cheers,
 

Prof. Levinson:

I obviously do not oppose such decisions as Brown and Bolling. I presume that Mr. DePalma supports them as well, though if so, I'm not sure on what basis.

Ummm, "Bart" opposed the Brown II decision at the very least, because it "held that courts may legislate forced bussing of students to achieve desegregation" (see here and preceding comments by "Bart"). Needless to say, though, that's a losing argument in court; judges don't take too kindly to mis-citing law (which makes me wonder what the judges in Colorado Springs think about "Bart"....).

Cheers,
 

"Bart" DePalma:

...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"Equal" has a plain meaning to me. Equal means equal.


Which means that Dubya can go to federal court and claim that he has standing to sue to block the Florida recounts because his vote in Florida has been 'diluted' because all these 'illegal" ballots are being counted ... oh, wait....

Cheers,
 

"Bart" DePalma thinks that a misreading of the "parol evidence" rule is going to save him:

Generally, the original intent of particular persons involved in enacting a provision of the Constitution is irrelevant. This is the equivalent of parol evidence in contract law.

Right:

The parol evidence rule enacts a principle of the common law of contracts that presumes that a written contract embodies the complete agreement between the parties involved. The rule therefore generally forbids the introduction of extrinsic evidence (i.e., evidence of communications between the parties which is not contained in the language of the contract itself) which would change the terms of a later written contract.

In order for the rule to be effective, the contract in question must be an integrated writing; it must, in the judgment of the court, be the final agreement between the parties (as opposed to a mere draft, for example). One way to ensure that the contract will be found an integration is through the inclusion of a merger clause, which recites that the contract is, in fact, the whole agreement between the parties. However, many modern cases have found merger clauses to be only a rebuttable presumption.

An integrated agreement is either a partial or complete integration. If it contains some, but not all, of the terms as to which the parties have agreed then it is a partial integration. This means that the writing was a final agreement between the parties (and not mere preliminary negotiations) as to some terms, but not as to others. On the other hand, if the writing were to contain all of the terms as to which the parties agreed, then it would be a complete integration. The importance of this distinction is relevant to what evidence is excluded under the parol evidence rule. For both complete and partial integrations, any evidence contradicting the writing is excluded under the parol evidence rule. However, for a partial integration, terms that do not contradict the writing but merely add to it are not excluded.

There are a number of exceptions to the parol evidence rule. Extrinsic evidence can always be admitted for the following purposes:

* To work out the subject matter of the contract.
* To resolve an ambiguity in the contract.[1]
* To show that an unambiguous term in the contract is in fact a mistaken transcription of a prior valid agreement. Such a claim must be established by clear and convincing evidence, and not merely by the preponderance of the evidence.
* To show fraud, duress, mistake, or illegal purpose on the part of one or both parties.
* To show that consideration has not actually been paid. For example, if the contract states that A has paid B $1,000 in exchange for a painting, B can introduce evidence that A had never actually conveyed the $1,000.
* To identify the parties, especially if the parties have changed names.
* To imply or incorporate a term of the contract.


Outside of that, the extension of contract law to legislation where the terms bind persons not party to any "negotiations" is of course laughable.

Cheers,
 

"Bart" DePalma:

However, I agree with Judge Bork's view that there is scarcely any textual or historical warrant for the Bolling decision. States mean states in the 14th Amendment and the District of Columbia is not a state.

Huh?!?!? "Bart", did you even read the Bolling case?!?!? Do you even know what they said?

As pointed out in my link above, listening to "Bart" opine cluelessly on "equal protection" cases is more annoying than fingernails on a blackboard.....

"Bart" really needs to STFU on "equal protection" cases until he reads a few of them and knows even the slightest smidgen about what he's talking about.

Cheers,
 

"Bart" DePalma:

The "equal" in the EPC has been reasonably held to require that the law treat similarly situated persons similarly. I never posted otherwise and this holding does not change the essential plain meaning of the term "equal." To restate the similarly situated rule, equally situated people should be treated equally.

The blind and the sighted are not similarly situated. Unless you are claiming that two persons can be differently situated because of the color of their skin, then I fail to see the analogy.


Talk about missing the boat. That's what Prof. Levinson was saying about "invidious discrimination". Discrimination based on animus (racial [particularly] or otherwise) is frowned upon, but otherwise, rational distinctions can be upheld. No one (outside fo racists) is claiming that skin colour (or racial background) is a rational reason for treating someone differently. The black and the Caucasian are not "similarly situated", particularly if one is being discriminated against because of that difference. But this is not a permissible distinction, unlike visual acuity (at least for jobs, e.g., that might require good vision).

As Prof. Levinson pointed out, not all people have to be treated 100% equally. But they have to be treated equally absent a good reason for the unequal treatment (particularly for distinctions which have a particular history of animus, which are looked at with "strict scrutiny" t ensure no invidious discriminatory purpose or effect).

Cheers,
 

"Bart" DePalma:

In contrast, the term "equal" has a pretty definite meaning. While it is true that the New Deal Court in Carolene Products gutted enforcement of the EPC against business regulations and the like, even that Court recognized that the term "equal" in the EPC still applied to laws which discriminated on the basis of race.

Either "Bart"'s trolling, or he never passed first year ConLaw.

Carolene had nothing to do with "gutt[ing] enforcement of the EPC against business regulations and the like". It had to do with "filled milk". There never was such an "enforcement", and the argument was spurious (arguing as it did that vegetables were being unfairly discriminating against, in violation of their "equal protection" rights, in favour of the much more pleasantly coloured butterfat). <*SHEESH*> Whatta maroon.....

Cheers,
 

I appreciate the tone of Mr. DePalma's reply, and I will try to answer in the same spirit:

Whether whites and African-Americans are "similarly situated" is, of course, the basic question posed by the 14th Amendment itself. I would agree with Mr. DePalma that if one believes they are, then it follows that categorization based on race would be invidious discrimination rather than acceptable discrimination. I am inclined to believe that the ravages of racialist slavery are not yet so completely extirpated as to invalidate "benigh" racial classifications designed to assure the full inclusion of African-Americans into all institutions of American society. (I am curious if Mr. DePalma believes that the present admissions policies of all of the US service academies are unconstitutional and if he rejects the "military brief" that was submitted in Grutter as to the importance of taking race into attention with regard to creating an officer corps.) I really do recognize that reasonable people can disagree on the issue, as a policy matter. What I am most vociferous about is rejecting the view that the Constitution speaks with sufficient clarity on the point to justify judicial intervention vis-a-vis politically accountable institutions. After all, California and Michian prove, for better or for worse, that "the people" have more than enough practical power to eliminate affirmative action is that is their wish.
 

Levinson writes: "Whether whites and African-Americans are "similarly situated" is, of course, the basic question posed by the 14th Amendment itself.
...
What I am most vociferous about is rejecting the view that the Constitution speaks with sufficient clarity on the point to justify judicial intervention vis-a-vis politically accountable institutions.
"

Isn't there more than that, though? Doesn't the amendment speak to which state aims are legitimate, and to how classifications can be made? Is race really specific enough to the individual to be a valid method of classification?

I recognize that none of the answers to these questions are self-evident, but they make it difficult to dismiss the possibility that colorblindness is a consequence of the constitution.

You don't do that exactly, you only state that the constitution is unclear enough to warrent judicial inaction, but I wonder how far you would extend that principle. It seems like there are a significant number of major liberal precidents that are constitutionally plausible, but where the constitution does not speak with any greater clarity than in this case.
 

Prof. Levinson:

I appreciate the tone of Mr. DePalma's reply, and I will try to answer in the same spirit....

I can understand that distinction. I see little substance there. What I don't understand is why you think that conversations with alleged lawyers that miscite Brown II (and refuse to admit they did so) and who misunderstand Bolling's rationale are worth discussing the fine points of equal protection law with.

Were "Bart" a layman, and not in theory educated on the law (or at least informed of the duty to look up the law when he doesn't know it), I could understand your efforts to stimulate conversation. But any rational discourse is bound to get dragged down into the muck or worse when he just makes sh*te up..... Believe me, I've been dealing with his nonsense for way too long now. Telling him he's just flat-out wrong on the facts don't cut it; you're talking to a pet rock. Just a FYI.

And pardon me for being harsh and disparaging to a guest on your blog, but: There comes a time when you have to say, "Please, can we at least start on an agreed factual basis, even if we disagree on policy?" Wilfully misstating plain language of prominent (if not landmark) opinions would seem to be a fairly low bar. His comments about Bolling and the Fourteenth Amendment show just such wilfull ignerrence, when one of the defining features of Bolling (and the reason it was a separate opinion from Brown) was the fact that they recognised that the Fourteenth didn't apply and they used a Fifth Amendment rationale:

"We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states.
...
In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution."

For "Bart" to suggest that they were wrong to apply the Fourteenth Amendment is just plain legal malpractise (or plain stoopid ignerrence) in my book. When we leave any semblance of real law out of the discussion, I for one simply don't care what "Bart"'s misinformed personal opinion is.

Cheers,
 

Arne Langsetmo wrote: "For "Bart" to suggest that they were wrong to apply the Fourteenth Amendment is just plain legal malpractise (or plain stoopid ignerrence) in my book."

The court applied a non-existant provision of the Fifth Amendment that had been reverse-incorporated from the 14th Amendment. Arguing about about which Amendment was implicated is like arguing about whether it is the First or 14th Amendment that is being applied when the court strikes down State law abridgements of free speech. Sure you can be technically right, but you are just obscuring the broader constitutional theory.

I'd also point out that Bart (sans quote marks) is the only one here to have gotten Professor Levinson to respond on this thread. Considering that people come to this blog to read the profs who post here, I think it is safe to say that other readers probably appeciate the comments that Mr. Depalma got out of Professor Levinson.
 

For the record, I don't "dismiss" the possibility that "colorblindness" is part of the Constitution. As I think my students at both Yale and UT, where I have taught the same con law course this year, would attest, I spend lots of time on Srauder v. W. Va. precisely because it captures so perfectly the tension between what would later be called a "colorblindness" view and a view of the Fourteenth Amendment that instead emphasizes only "unfriendly actions" designed to return African-Americans to their former condition as a subject race. This is why, in the 125 years since Strauder, there has in fact been no consensus on the Court as to what the Fourteenth Amendment actually means with regard to the legitimacy of racial classifications. One can cherrypick a variety of sentences from a variety of cases, but this doesn't add up to a coherent doctrine.

The best reason to adopt a "colorblind" view, I believe, has nothing to do with the text or history of the Amendment, but rather, is as a prophylactic rule expressing the deep mistrust of any and all decisionmakers who use racial classifications. By definition, "prophylactic rules" go beyond what might termed a "strict" view of "constitutional necessity" and instead are based on administrative considerations. This is the rationale for Miranda and, some have argued, for the law we have concerning legislative districting every ten years to take account of population shifts.

Good analyses of prophyactic rules have been offered by, among others, my colleague Mitch Berman and Harvard Prof. Richard Fallon.
 

Arne Langsetmo said...

You ignored it the last time I brought it up. Care to explain where in the Eleventh Amendment it says that states are immune to suit by their own citizens in federal court?

Nowhere. That reading is an invention of the courts.

You know this as well as I, which is why I ignored the question the first time around.
 

Sandy Levinson said...

Whether whites and African-Americans are "similarly situated" is, of course, the basic question posed by the 14th Amendment itself. I would agree with Mr. DePalma that if one believes they are, then it follows that categorization based on race would be invidious discrimination rather than acceptable discrimination. I am inclined to believe that the ravages of racialist slavery are not yet so completely extirpated as to invalidate "benigh" racial classifications designed to assure the full inclusion of African-Americans into all institutions of American society.

Are you arguing that African Americans are not similarly situated to Americans of other races because their ancestors were treated reprehensibly?

(I am curious if Mr. DePalma believes that the present admissions policies of all of the US service academies are unconstitutional and if he rejects the "military brief" that was submitted in Grutter as to the importance of taking race into attention with regard to creating an officer corps.)

Yes. I truly believe that the Constitution means what it says, no matter who's ox is being gored.

I served under non commissioned and commissioned officers of various races who earned their rank and position. Racial preferences simply undermined the respect and authority these leaders have earned by their actions and "the content of their character."

After all, California and Michian prove, for better or for worse, that "the people" have more than enough practical power to eliminate affirmative action is that is their wish.

Professor, I cannot agree that democracy is a remedy for discrimination. I would instead contend that the 14th Amendment, not to mention the Bill of Rights, was enacted in part to protect minorities of the population from the "tyranny of the majority."
 

arne:

For "Bart" to suggest that they were wrong to apply the Fourteenth Amendment is just plain legal malpractise (or plain stoopid ignerrence) in my book.

This kind of willful misrepresentation of my posts is why I generally ignore you.

The subject of this thread and my series of posts was the meaning of the EPC of the 14th Amendment.

During our discussion, Professor Levinson observed:

And, as Robert Bork noted in his testimony, even if one can use the Fourteenth Amendment to justify Brown, there is scarcely any textual or historical warrant to use the 5th Amendment to justify Bolling.

I obviously do not oppose such decisions as Brown and Bolling. I presume that Mr. DePalma supports them as well, though if so, I'm not sure on what basis.


In response, I posted:

The plain meaning of the 14th Amendment can pretty easily support the Brown Court's rejection of the "separate but equal doctrine" on the ground that the schools were in fact not close to being equal nor were they likely ever to be equal.

However, I agree with Judge Bork's view that there is scarcely any textual or historical warrant for the Bolling decision. States mean states in the 14th Amendment and the District of Columbia is not a state.


I agreed with Judge Bork's view as expressed by Professor Levinson. I am sorry I did not repeat the magic words "5th Amendment" in my agreement.

Once we have eliminated the 5th Amendment as the source for the Bolling holding, we have to return to the 14th Amendment, which was the subject of the conversation. Hence my observation that the 14th Amendment by its own words is only enforced against the States and DC is not a state.

If you want a clarification of what I meant by a post, have the basic consideration to ask for it.

However, I strongly suspect that you delight in intentionally taking any ambiguity in my posts and misrepresenting it as an assertion of fact on my part in order to play a sick game of virtual gotchya.

This is why I generally ignore you and your slanders.
 

"Bart" DePalma:

Arne Langsetmo said...

You ignored it the last time I brought it up. Care to explain where in the Eleventh Amendment it says that states are immune to suit by their own citizens in federal court?

Nowhere. That reading is an invention of the courts.

You know this as well as I, which is why I ignored the question the first time around.


But, I thought you'd argued just that in your excellent brief done for $7.50/hour for the University in Kimel....

So, if that's not what you argued for, then how did you justify your read of the Eleventh Amendment here

"At that time, a group of older professors filed an age discrimination suit (Kimel v. Florida Board of Regents) against the university system pursuant to the Age Discrimination in Employment Act of 1967 (ADEA) because Florida Universities were often paying younger professors more to attract them in a competitive market. The State filed and lost a perfunctory motion to dismiss under an Eleventh Amendment sovereign immunity theory.
...
My "hopeless" Eleventh Amendment argument won at the 11th Circuit and then again before the Supremes. Kimel v. Florida Board of Regents, 521 U.S. 507 (1997)."

You're saying that "an invention of the courts" is just fine by you ... as long as it's an invention that you approve of? I'm shocked ... shocked. LMAO.

Cheers,
 

jimm47:

Arne Langsetmo wrote: "For "Bart" to suggest that they were wrong to apply the Fourteenth Amendment is just plain legal malpractise (or plain stoopid ignerrence) in my book."

The court applied a non-existant provision of the Fifth Amendment that had been reverse-incorporated from the 14th Amendment.


You can argue that they were wrong in extending a principle derived from their Fourteenth Amendment jurisprudence (or which perhaps was a deeper principle that animated their Fourteenth Amendment analysis) to other areas of the Constituton, but they explicitly disavowed the applicability of the Fourteenth. There may have been deficiencies in their analysis and their opinion (and we can argue those ... somewhere), but it certainly wasn't the mistake of applying the Fourteenth Amendment to the federal gummint.

Cheers,
 

"Bart" DePalma:

[Arne]: For "Bart" to suggest that they were wrong to apply the Fourteenth Amendment is just plain legal malpractise (or plain stoopid ignerrence) in my book.

This kind of willful misrepresentation of my posts is why I generally ignore you.


Here's what you said (for. what is it, the third time now?):

["Bart"]: However, I agree with Judge Bork's view that there is scarcely any textual or historical warrant for the Bolling decision. States mean states in the 14th Amendment and the District of Columbia is not a state.

As pointed out (and as quoted from the actual decision), the Bolling court was quite aware that DC was not a state.

The subject of this thread and my series of posts was the meaning of the EPC of the 14th Amendment.

But it was you (yes, you), that used that word "Bolling" above.

During our discussion, Professor Levinson observed:

[Prof. Levinson]: And, as Robert Bork noted in his testimony, even if one can use the Fourteenth Amendment to justify Brown, there is scarcely any textual or historical warrant to use the 5th Amendment to justify Bolling.


True. But that's a different issue.

[Prof. Levinson]: I obviously do not oppose such decisions as Brown and Bolling. I presume that Mr. DePalma supports them as well, though if so, I'm not sure on what basis.

In response, I posted:

The plain meaning of the 14th Amendment can pretty easily support the Brown Court's rejection of the "separate but equal doctrine" on the ground that the schools were in fact not close to being equal nor were they likely ever to be equal.

However, I agree with Judge Bork's view that there is scarcely any textual or historical warrant for the Bolling decision. States mean states in the 14th Amendment and the District of Columbia is not a state.


WTF is this "states mean states in the 14th Amendment" crapola then (outside of igenrrence as to what Bolling said, particularly since they said the same thing)?

I agreed with Judge Bork's view as expressed by Professor Levinson. I am sorry I did not repeat the magic words "5th Amendment" in my agreement.

I wouldn't have faulted you for omitting reference to the Fifth Amendment. That could have been ignerrence or just lack of care. It was your inclusion of the words "states means states" that showed that you don't have a clue. You can't carelessly include something that doesn't belong there. Rather, that inclusion of an inapproprate "issue" indicates that you just are ignerrent of the leagl landscape in EP law. But this I have demonstrated before. Sad to say, there, once again, you persisted in stoopidity after I had spelled out the legal landscape in the thread, but you just ignored it. And I've even told you that you need to read Kluger's "Simple Justice" so you can get a clue before you start mouthing off again.

Once we have eliminated the 5th Amendment as the source for the Bolling holding, we have to return to the 14th Amendment, which was the subject of the conversation.

Or not decide Bolling as they did. You refuse to grant them that option. But it seems, on their very own words, that this is something they might very well have leaned towards.

... Hence my observation that the 14th Amendment by its own words is only enforced against the States and DC is not a state.

But it was not an argument that anyone had ever made. I know you like "straw men" (as being close to the only foes outside of windmills that youcan vanquish), but you'll pardon me if I don't stand up and applaud your gallantry.

If you want a clarification of what I meant by a post, have the basic consideration to ask for it.

OK. Clarify all your posts. They, like Ivory soap, seem to be 99.44% pure ... garbage.

However, I strongly suspect that you delight in intentionally taking any ambiguity in my posts and misrepresenting it as an assertion of fact on my part in order to play a sick game of virtual gotchya.

As I said, keep your nonsense down to one glaring mistake or confoozion per post, and I'll be glad of the respite.

This is why I generally ignore you and your slanders.

What slanders?

Cheers,
 

And here's your update: "Former Justice Department chief of staff D. Kyle Sampson routinely broke the law by conducting political litmus tests on candidates for jobs as immigration judges and line prosecutors, according to an inspector general's report released today." Washington Post

So apparently the distinctions weren't all arbitrary.

Apparently some of them were, how do we say, the law.
 

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