Balkinization: Final Exam Question, Con Law I

Final Exam Question, Con Law I

Recently Ramesh Ponnuru made the following argument against the Iowa Supreme Court's recent decision invalidating a 1998 statute and holding that its Equal Protection Clause forbade the state from treating gays and straights differently with respect to access to state created marriage rights. Here is his argument in full:

Iowa's supreme court has ruled that its constitutional guarantee of "equal protection" for all people requires the state to recognize same-sex marriage. The court overturned a law passed in 1998.

In a democratic system such as ours, it can be perfectly appropriate for courts to set aside laws. Constitutions reflect the permanent will of the people, which trumps the temporary will of the people as expressed in ordinary statutes (if a court is forced to choose between these sources of law to decide a case).

But nobody can plausibly claim that Iowans meant to ratify same-sex marriage when they approved a constitution including equal-protection language. Nor can anyone plausibly claim that Iowans meant to authorize judges to decide such matters as marriage policy when they approved that language.

The court's ruling thus has no democratic or constitutional legitimacy. Whether or not same-sex marriage is a good idea, the decision by Iowa's court to impose it on the state is an outrage.

What do you think?

Replace the word "Iowans" with "Americans" and "Iowa's court" with "the U.S. Supreme Court." Now consider the following series of claims based on the logic of Ponnuru's argument:

1. But nobody can plausibly claim that Americans meant to ratify interracial marriage when they approved a constitution including equal-protection language. Nor can anyone plausibly claim that Americans meant to authorize judges to decide such matters as marriage policy when they approved that language.

The court's ruling in Loving v. Virginia thus has no democratic or constitutional legitimacy. Whether or not interracial marriage is a good idea, the decision by the U.S. Supreme Court to impose it on the nation is an outrage.

2. But nobody can plausibly claim that Americans meant to ratify sex equality for married women when they approved a constitution including equal-protection language. Nor can anyone plausibly claim that Americans meant to authorize judges to decide such matters as the constitutionality of common law coverture rules when they approved that language.

The court's ruling in Frontiero v. Richardson thus has no democratic or constitutional legitimacy. Whether or not sex equality is a good idea, the decision by the U.S. Supreme Court to impose it on the nation is an outrage.

3. But nobody can plausibly claim that Americans meant to protect nudity in motion pictures when they approved a constitution including a Free Speech Clause. Nor can anyone plausibly claim that Americans meant to authorize judges to decide such matters as the boundaries of public morality when they approved that language.

The court's ruling in Jenkins v. Georgia thus has no democratic or constitutional legitimacy. Whether or not protection of nudity in films-- including art films-- is a good idea, the decision by the U.S. Supreme Court to impose it on the nation is an outrage.

4. But nobody can plausibly claim that Americans meant to protect the right to use contraceptives when they approved a constitution including a Privilege or Immunities Clause or a Ninth Amendment. [N.B. note my considered view that the Due Process clause is the wrong clause] Nor can anyone plausibly claim that Americans meant to authorize judges to decide such matters as the boundaries of permissible regulation of sexual conduct when they approved that language.

The court's rulings in Griswold v. Connecticut and Eisenstadt v. Baird thus have no democratic or constitutional legitimacy. Whether or not protection of sexual autonomy is a good idea, the decision by the U.S. Supreme Court to impose it on the nation is an outrage.

5. But nobody can plausibly claim that Americans meant to protect the right to abortion when they approved a constitution including a Privilege of Immunities Clause, an Equal Protection Clause, or a Ninth Amendment. Nor can anyone plausibly claim that Americans meant to authorize judges to decide such matters as the boundaries of permissible regulation of abortion when they approved that language.

The court's ruling in Roe v. Wade thus has no democratic or constitutional legitimacy. Whether or not protection of abortion rights is a good idea, the decision by the U.S. Supreme Court to impose it on the nation is an outrage.

6. But nobody can plausibly claim that Americans meant to protect the right to immunity from defamation against public figures absent a showing of actual malice when they approved a constitution including a Free Speech Clause. Nor can anyone plausibly claim that Americans meant to authorize judges to decide that common law tort rights violate the Constitution when they approved that language.

The court's rulings in New York Times v. Sullivan and Gertz v. Robert Welch thus have no democratic or constitutional legitimacy. Whether or not protection of defamatory speech is a good idea, the decision by the U.S. Supreme Court to impose it on the nation is an outrage.

7. But nobody can plausibly claim that Americans meant to protect advertising from ordinary police power regulation when they approved a constitution including a Free Speech Clause. Nor can anyone plausibly claim that Americans meant to authorize judges to decide that restrictions on advertising by cigarette and liquor companies violate the Constitution when they approved that language.

The court's ruling in 44 Liquormart Inc. v. Rhode Island thus has no democratic or constitutional legitimacy. Whether or not protection of commercial speech is a good idea, the decision by the U.S. Supreme Court to impose it on the nation is an outrage.

Questions:

1. Rate the arguments 1 through 7 in their order of plausibility to you. Which seem the most plausible and which seem the least plausible and why?

2. To what extent does the plausibility of each argument rest primarily on your knowledge of what the people who drafted the constitutional rights in question actually meant, in the sense of how they expected that their words would be applied by future generations?

3. To what extent does the plausibility of the argument rest on your sense of current decisional law and reasonable inferences that can be drawn from it?

4. To what extent does the plausibility of the argument rest on your sense of the rights that Americans should have (and should not have)?

5. What do your answers to the above questions tell you about your own philosophy of constitutional interpretation?

6. Good Luck!

Posted 7:42 AM by JB [link]