Wednesday, March 28, 2012

More on "limiting principles"

Sandy Levinson

Needless to say, I think that Jack's posting is brilliant. One response I've had to the search for limiting principles is to feel that I'm stuck in a Philosophy 101 class full of bad first-year undergraduates in philosophy 101 who believe that there is one and only one correct way of confronting the world and that competitors can be defeated with a single knock-down example. So, for example, there's nothing more to say about utilitarianism once one points out that under some formulations, that allows the torture of babies. Or Kant is sent to woodshed once someone can't explain why we can’t explain why we can’t like to Nazis asking where our friends are hiding. Isn’t life more complex than that? (Isn't one common feature of Ronald Dworkin, Charles Fried, and Robert Nozick, for example, that they all turn into Schmittians when a "catastrophe" threatens. I.e., they're not willing to adhere to their favorite single principle if the heavens really would fall (unless one can make a plausible argument that the principle is so completely important that it's worth the destruction of the world, which returns us to Philosophy 101 and the question whether one would commit incest in order to repopulate the world after a nuclear attack or some such absurd hypothetical). I assume, incidentally, that all of the Republican
Five reject Isaiah Berlin and other pluralists who find it impossible to reduce the world to a single dominant principle that one applies to the bitter end.

Consider Justice Stone’s canonical dissent in US v Butler:

A tortured construction of the Constitution is not to be justified by recourse to extreme examples of reckless congressional spending which might occur if courts could not prevent—expenditures which, even if they could be thought to effect any national purpose, would be possible only by action of a legislature lost to all sense of public responsibility. Such suppositions are addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern. Congress and the courts both unhappily may falter or be mistaken in the performance of their constitutional duty. But interpretation of our great charter of government which proceeds on any assumption that the responsibility for the preservation of our institutions is the exclusive concern of any one of the three branches of government, or that it alone can save them from destruction is far more likely, in the long run, “to obliterate the constituent members” of “an indestructible union of indestructible states” than the frank recognition that language, even of a constitution, may mean what it says: that the power to tax and spend includes the power to relieve a nationwide economic maladjustment by conditional gifts of money.

Would Stone recognize the current majority as the “worthy” successors of the Four Horsemen? And, frankly, doesn't the demise of the ACA, if it should happen, expose us as a more truly ungovernable country than was the case even during the heyday of 1936-37.

Once more on "limiting principles": If there is no way, as Rick Santorum suggests, to stop short ofsupporting bestiality if one supports same-sex marriage, is there any way to stop short of the state's assigning us marriage partners once we allow it to restrict the "marriage market" at all by telling us we can't marry a variety of people? Why is it only proponents of same-sex marriage who have to answer all sorts of absurd hypotheticals and not proponents of restricting the market. Presumably, the latter would offer the "practical" answer that we still have, say, 5 million people availble to us instead of 6 millions, but what PRINCIPLE says that that is legitimate. What if it were only 4 million, 2 million, 100,000, or 25?

Is the Court going to return us to the old days of John Marshall and the use of categorical rule-like on-off switche?. If, after all, "the power to tax is the power to destroy," why does the state have the power to tax/destroy anyone at all? That's really a stupid slogan, since, as Holmes said, taxes are the price we pay for civilization (even if we recognize the possibility of taxes being excessive). Don't we have to live in an unfortunately complex world?


"Would Stone recognize the current majority as the “worthy” successors of the Four Horsemen? And, frankly, doesn't the demise of the ACA, if it should happen, expose us as a more truly ungovernable country than was the case even during the heyday of 1936-37."

A more truly ungovernable country? I sincerely hope so.

The role of the government is to enact the will of the people in that limited sphere of preventing people from substantially harming one another and to otherwise protect our individual liberty. It is most decidedly not the role of our elected officials to govern how we live our lives.

This is the founding principle of our Republic:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government...

After 80 years of the Court abdicating its duty to secure our liberty and consenting to ever expanding government, maybe, just maybe, the gross overreach of Obamacare might prompt the Court to do its damn job for once.

I will believe it when I read a Kennedy written opinion reestablishing some semblance of enumerated powers and striking down Obamacare in its entirety.

I agree with Sotomayor's reference to Gibbons v. Ogden:

"If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects"

is the rule. This is not "plenary police power," since it is tied to specific powers. Also, and not even just the BOR, various limits in the text of the Constitution and some other overall principles like found in Printz v. U.S.

And, though it might not impress the judiciary, political limits, which even Scalia cited today, noting the reality of the filibuster.

But, Prof. Balkin like SG Verilli realizes the five want to "make shit up" so have to find yet more. Justices Souter and O'Connor are concerned about teaching students civics. I think that is too narrow of an audience.

I cited Prof. Balkin some place else and someone answered to his "are they listening" point, "no they are not." Hopefully at least one listens a tad.

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My take on Justice Kennedy swinging against the ACA based upon his abortion stance, and why the broccoli/car analogies are a joke:

SCOTUS' Unprincipled Limits?

1. Actual votes don't count. (Bush v. Gore, 5-4)

2. Corporations are people and their money talks - loudly and often. (Citizens United, 5-4)

3. Liberty trumps healthcare mandate even if death results. (Obamacare, ?-?) [To paraphrase Patrick Henry: "Give me liberty and give me death."]

(Or like the "Slippery Slope" might Medicare, Medicaid and Social Security follow?)

Back in the fall of 1952, my favorite class at law school was ConLaw taught by Thomas Reed Powell. The class focused primarily on the Commerce Clause as this preceded the Warren Court. One day between classes I asked Prof. Powell how he thought the Supreme Court might rule on an issue making its way through lower courts (that I think involved baseball), and he responded substantially as follows: "I stopped trying to figure out a long time ago how those bozos might decide." (The word "bozo" was not an active part of my vocabulary back then, but I recall him using it. But now at age 81, I am well aware that the memory is the second thing to go.)

Prof. Powell knew many of the members of the Court during his long career as a constitutional scholar, socially, professionally, etc. His views were well expressed in his 1955 Carpentier Lectures at Columbia published posthumously in 1956 as "Vagaries and Varieties in Constitutional Interpretation" by Columbia University Press. I was not aware of these Lectures until after my retirement, learning of them via the Internet. I was able to purchase a "library" copy for a few dollars.

I could hear Prof. Powell's voice as I read the book. Originalism was not yet in vogue and the Warren Court had only been sitting less than two years at the time. So Prof. Powell did not have much to say about the Warren Court. Prof. Powell did refer to specific justices - without actually referring to them as "bozos" - regarding certain decisions.

I don't know if this book has been "published" on the Internet by Google. It is difficult to come by on the used book market. I don't know how many libraries have it actively shelved. But it's a shame that it is not more readily available.

I bring this up because of the current minute-to-minute unlimited discussions of ACA on the Court's oral arguments. It's like the Roman Coliseum Days or the new fighting style of "Roberts'" [CJ] Rules. Imagine how more incisive the questions might be live on TV with the ability to observe Justices' body language (even though limited by their robes). Consider the pressures on the Justices regarding outcomes of the eventual decision on the health of many otherwise uninsured and unprotected.

So, I'm not going to predict what those "bozos" might do. Yesterday's Boston Globe front page featured photos of eight of the Justices, each accompanied by a quote during orals on Tuesday. This brought to mind the silence of the Court's doubting Thomas, which may be deafening in comparison, as it seems quite clear that he would vote against ACA.

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Edward Samuel Corwin's "The Constitution of the United States of America: Analysis and Interpretation Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952" is free for Kindle download and that too is informative.

The book Shag speaks of is available as a "Google play" e-book for $10 with a short sample provided. One review online provided the alternate title: "The Wit and Wisdom of Thomas Reed
Powell." Did he have pet names for people too?

Joe, thanks for the info on Prof. Powell's book. I paid less than $10 for the discarded library edition.

I don't recall Powell using nicknames in his Lectures. But "Chapter II. Professions and Practices in Judicial Review" includes many references to individual Justices and their opinions, some flattering, some not. Here's a short paragraph (at pages 44-45):

"Of course, judges may have passions and prejudices as do men of lesser breed without the law. Judges argue from undisclosed assumptions, as may you and I. Judges seek their premises from facts, as do you and I. They have preferences for social policies, even as you and I. They form their judgments after the varying fashions in which you and I form ours. They have hands, organs, dimensions, senses, affections, passions. They are warmed and cooled by the same summer and winter and by the same ideas as a layman is. This is one reason why it is well to have a bench of nine Justices instead of only one. A composite judgment is likely to be safer and wiser than any possible product of an individual whim. One would hate to think of what might be said and done, if the issue were left exclusively to a counterpart of Mr. Justice McReynolds. And there have been other Justices who might be preferred as one of a group rather than as a sole dispenser of judicial divination."

I suspect in private that Powell may have had nicknames at least pre-appointment of Justices who had been his student or fellow professor. For several years, I have been awaiting a bio of Powell that a legal academician had noted on the Internet as in the works.

As for Powell's wit and wisdom, I can attest to that in the fall of 1952 with his occasional comments on the presidential race between Ike and Adlai Stevenson, including on Ike's running mate Richard M. Nixon that proved true years later with Watergate.

It's mind-boggling to me that so few people have noted the obvious: the tax penalty specified in the law acts in exactly the same way as a tax incentive. If the penalty were thought of as a tax which you get a full credit for if you have health insurance (via your employer or privately purchased), then it would function in PRECISELY the way specified in the law. There are no criminal penalties whatsoever. So in what sense is this a "mandate" --- it's not a mandate. It's a tax incentive.

Tax incentives are manifestly constitutional.

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