A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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October 27, 2005A few last words regarding MiersI had been in Indianapolis all day, and in communicado at that, and therefore only learned the joyous news of Miers' departure on arriving home this evening. The Hotline has the whole sordid timeline. For the record, kudos must go to Charles Krauthammer, whose sword she either fell - or was pushed - onto. The sense of relief is palpable. While not wanting to retread ground previously covered by Rick, I cannot resist adding my two cents. [I apologize in advance if this does not seem entirely "centrist," although I cannot fully articulate the delight at a commenter here at Centerfields offering a good rationale a couple of weeks ago as to why my seeming hard line stance on Originalism and otherwise moderate approaches are less of a Jeckyl-and-Hyde transformation than I had thought.] In any case, to do so, I will cannibalize a few entries from my own blog. First, there should not be any lack of clarity on my position on Harriet Miers. I was sceptical from the word go, and explained why in two posts here and here. I defended the need for a Justice who was pursuasive rather than just a vote here, and scepticism finaly gave way to outright hostility 10/7/05 here. Her unceremonious withdrawal (or, more accurate, if less kindly, the delayed realization that her highly speculative nomination had disintegrated on contact with reality) in the face of impending rejection by the Senate is a victory for none, a defeat for a few, and a relief for everyone (except the Democrats, who, needless to say, are now beginning to canonize Miers in anticipation of a Michael Luttig or Edith Jones nomination). It is not a victory, in the sense that one would not usually celebrate preventing a friend from making a fatal mistake by shooting him in the leg as a "victory;" it simply is what it is, and what was done was what was necessary. But it is not yet a victory in a more important sense: the goal of the anti-Miers forces was never limited to kericking (or, if necessary, borking) her nomination. While different opponents had different goals, mine was always fulfilment of the President's campaign pledge to appoint Justices in the mold of Justice Scalia (who, incidentally, has a very fine book review just released in First Things) or Justice Thomas. The champaign corks will pop here only when Bush nominates - and the Senate confirms - such a Justice, regardless of what color their skin is, what their religious beliefs are, what gender they are, or which school they went to. Laura Ingraham is right to point out today that "[i]f the President bows to...pressure and shies away from a verifiable judicial conservative, we will be back to square one;" or, as Captain Ed gracefully puts it today, "[n]ow can we nominate a candidate whose qualities and track record presumes we control the Senate?" Quite. I would add, could we have a nominee who does not imply that conservatives are so ashamed of their legal philosophy as to refuse to publically defend it, so much so as to disavow membership of the Federalist Society as if it were the League of Shadows? In that vein, it seems to me that Dahlia Lithwick - albeit, doubtless, with a heavy heart (Lithwick being not just pro-choice but pro-Roe) - offers the best-case scenario for the post-Miers world: "[With the Miers nomination] movement conservatives weren't willing to settle for a coded message anymore. They have built up a strong and capable stable of thinkers and jurists who are not speaking in half-promises or symbols. And they wanted a nominee with the brains and brawn to overturn Roe because it's bad law rather than just because it's "a sin." The code also didn't suffice because the right had heard the same coded promises about Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter—and had dejectedly watched them go on to uphold Roe. Sick and tired of ambiguous messages and middle-of-the-road nominees, they would not be placated by anyone who wasn't willing to say, as are Janice Rodgers Brown or Priscilla Owen or Edith Jones, that Roe must die now.I hope that Dahlia is right, because as I explained last week: "[GOP judicial nominees] should be going in [to Senate confirmation hearings] and calmly, dispassionately and respectfuly explaining precisely why Roe was wrongly decided, demolishing the myths that surround the case (and, following from that, what precisely overruling it would do, in practical terms [q.v. at part I.a]), and commit themselves to upholding the Constitution of the United States, a pledge which inherently and inescapably requires their vote to reverse Roe."Are we to fete outsider status or something? The liberal charge that those with an Originalist or textualist judicial philosophy are "outside the mainstream" simply isn't going to go away unless and until we are willing to stand up and publically defend those theories, and to explain in the public forum why living documentarian theories of adjudication are vacuous, asinine, deeply undemocratic, irretrievably flawed, and must therefore be discarded into the dustcan of history. Even honest liberals such as Akhil Amar yield as much. I am not ashamed of my judicial philosophy, nor so worried for its stability as to protect it from public scrutiny. I have previously worried that the most pernicious aspect of Miers' nomination was its stiffling effect on the intellectual debate around jurisprudence. Her removal from the board seems to repudiate this view. This is a debate that should be had candidly and honestly, in the public square. Which leads us to the final matter, being who is to follow. I have previously cheered for candidates such as Sam Alito, Maura Corrigan, or Edith Jones; having read his opinion in County of Wayne v. Hathcock, 471 Mich. 445 (2004), a case which tackled essentially the same problem as the dreaded Kelo v. New London, but with a far more sound approach, I have become a fan of Justice Robert Young of the Michigan Supreme Court. I would prefer to keep in in reserve, though, until Justice Stevens retires, as I feel that the replacement of the author of Kelo with the author of Hathcock would be the stearnest and most visible repudiation of the former decision. I would also offer Judge Diane Sykes, formerly of the Wisconsin Supreme Court, currently of the Seventh Circuit Court of Appeals. Jessica McBride is leading the charge, and makes many good points in favor of Sykes. out of a desire for consistency or at least self respect - one or the other - we must be carefull to avoid favoring a nominee who exhibits the same problems we criticize in Miers. The problem for Miers is the absence of a paper trail, the total lack of relevant experience, and most of all, the complete lack of any substantiable commitment to originalism and textualism as the underpinnings of a consistent judicial philosophy (more of my views on which here). It appears, at first blush, that Sykes does not suffer from these problems. She has a decent-sized paper trail, and has said, in her own words, that: "I generally follow a textualist approach to statutory interpretation and look to text and history in constitutional interpretation. I have been cautious about the expansion of the common law and generally have not been in favor of recognizing new causes of action or expanding existing theories of liability unless there is a sound, compelling reason to do so and a clear set of governing legal principles can be articulated to define the claim or scope of liability"(source) - encouraging stuff! In terms of potential Scalia-ability (if Specter gets to coin semi-coherent neologisms, so do I), Chairman Hatch asked her during her previous confirmation hearings where we could expect biting dissents, to whit she replied "Well, biting, no. But strong and forceful perhaps" (source); well, her dissent in Wisconsin v. Oakley, 239 Wis. 2d 235, 619 N.W.2d 308 (at ¶65) suggests a decent level of potential Scalia-ability. Praise be, the mistake is half-rectified. Let us go forward together and finish the job. Posted by Simon at October 27, 2005 10:45 PMComments
Now can we nominate a candidate whose qualities and track record presumes we control the Senate? Is Captain Ed speaking as a Republican or as an origialist/textualist? Or, rather, is he simply trying to cleverly conflate the two? I think it's a very debatable question as to whether or not there are currently 51 senators who truly want a Scalia clone to replace O'Connor. And the notion that all 55 senators are bound by George Bush's hallowed promise is both absurd, and wishful thinking. As consenters to a scotus nomination,Senators are bound by their political/philosophical conscience and respect for THEIR constituents. Not by party-line loyalty. Unless the idea that the GOP is a big tent that can tolerate dissent on issues of conscience is just a steaming pile of convenient horsepoop. The story of a hardcore wing spoiling for the ultimate fight for final ideological victory while the more realistic members who remember the wilderness counsel lowered expectations is not a new story. Since everyone ignored my post on the pew coverage of a series of abortion polls, here's an excerpt which should be food for thought for those who counsel direct saber-rattling to overturn Roe: The public has long been strongly supportive of the landmark Roe v. Wade decision, which established a woman's right to abortion. In July, the Pew Research Center found that by more than two-to-one (65%-29%), the public opposed completely overturning Roe. That is in line with surveys conducted by Pew and the Gallup Organization dating back to 1989. Now Simon, I understand that you point is that the best hope for future progress for your views is unashamedly defending them, and trying to persuade. Fair enough. My point, in response to yours, is simply "OK, good luck with loudly supporting an idea that about 60% of the people will have a seriously negative reaction to, and who won't listen closely AT ALL to your in-depth and nuanced legal argument." Posted by: bk at October 28, 2005 09:36 AM All the focus on Roe may be cause to question the what is supposed to be a process-oriented legal principle. It makes one wonder if originalism is simply a means to an end, a process-oriented cover for a results-based agenda. Posted by: WHQ at October 28, 2005 10:02 AMAs for what we should expect in a SCOTUS appointee: how about a commitment to forming a more perfect Union, establishing Justice, insuring domestic Tranquility, providing for the common defence, providing for the general Welfare, and safeguarding the blessings of Liberty. I question the "Originalists" commitment to those principles. For instance, how does dictating that the federal government has no authority to spend money on social welfare programs, as some construe the federal government's authority under Art. I, help provide for the general Welfare? How does expansion of the states' immunity under the 11th Amendment either establish Justice or insure domestic Tranquility? Posted by: Scott Smith at October 28, 2005 10:11 AMI will respond to all the points above, but this being a busy morning, it may take a couple of hours, and they may be out of order. ;) To begin with WHQ's note: All the focus on Roe may be cause to question the what is supposed to be a process-oriented legal principle. It makes one wonder if originalism is simply a means to an end, a process-oriented cover for a results-based agenda.I think there are two responses to this. First, I should point out that far from all - I would allow that, I suspect, not even a majority - of the opposition to Miers came from legal conservatives - originalists, textualists, really anyone interested in process. I think it's fair to say that a lot of people "in country," if you will, are only concerned with results, and were concerned that Miers would not deliver the results they wanted. While this does indeed make for strange bedfellows, provided they were willing to help defeat the Miers nomination, I think a temporary alliance profitable. Second, owever, from my perspective - which is decidedly not that of a theocon - it turns out that Roe is actually a very good litmus test for a judicial nominee. Asking about Roe will at once provide a candidate with an opportunity to discuss two matters which ARE important to textualists: their view on substantive due process (or, indeed, any other grounds they feel they might rest unenumerated -- which is to say, nonexistant -- constitutional provisions upon), and their views on stare decisis, and when (or if) it might protect a decision that was wrongly decided as an original matter (on which matter, I offer these thoughts; cf. notes here). I find the shadow puppetry in which references to Roe are couched these days to be silly, insulting and counterproductive. I would much rather see an honest debate, in which it can be explained that Roe stands for a jurisprudence which is, at root, incompatible with the democratic system, and statutory law, even. If a candidate is willing to sustain Roe, it tells us one (or more) of the following things about them: either they believe that Roe was correctly decided as an original matter (which is to say, they embrace the living constitution theory), or they believe that a national consensus has evolved around Roe (as it has around, for example, Hans v. Louisiana or Miranda v. Arizona) such that it should be protected by stare decisis (in which case, a, they have a very odd view of the separation of powers, b, they believe in an extremely strong form of horizontal stare decisis, and c, they really haven't been paying attention to the world outside the courtroom or legal academy), or, they are so strongly committed to a woman's freedom to choose to abort their child that they don't care about what the Constitution says, and will thus declare that it says anything, no matter how tenuous the proposition, in order to safeguard that freedom (n1). I cannot think of anything else one could conclude from a willingness to retain Roe (if anyone can think of something else, please feel free, the floor is yours), and I think that any of those three propositions would be sufficient to bar someone from becoming a Judge. So I do think that Roe is a pretty good litmus test, even from a non-judicial activist's point of view. ................ Simon, who said Roe wasn't a good litmus test from an originalist perspective? ... the assumption that privacy actually is protected, as a general matter, by the Constitution. Desirable? Maybe, but not true. First, currently this is actually legally true as a matter of law, even if it's arguablby also true that the matter is not specifically included in the text of the consitution. Further, for a substantial majority of the public, the fact that this right to privacy is both desirable, and currently truly exists legally according the ruling of SCOTUS which currently governs our system of law, is more than good enough. The number of Americans who are troubled that the right o privacy exists in a fashion in which some T's are uncrossed and some I's undotted is a small number. I won't insult you Simon by saying that you fail to appreciate this, but since you seem entirely (if patiently) unabashed by it, I must view your pursuit as quixotic. Dude, you ARE the man of la mancha. And since you are trumpeting the notion that originalists have embraced their last half or 3/4 loaf nominee in Roberts makes me think you might be chomping on a rubber biscuit. "If it don't bounce back, you go hungry, Bow, bow, bow." An unwillingness to embrace compromise is the main street back to the political wilderness. So go ahead, rail against whichever insufiiciently originalist nominee appears, regardless of whether they'd represent any improvement (from a broadly conservative perspective) over who's being replaced. Bring plenty of water, and eye and nose drops, too, I hear the wilderness is dry this time of year. Posted by: bk at October 28, 2005 11:48 AMSimon, you have either provided an excellent response to my comment, or you have demonstrated just how elaborate your cover is. Tricky, indeed. Posted by: WHQ at October 28, 2005 11:52 AMWHQ - I'm not smart enough to spin something that elaborate if it wasn't true. ;) Replies to Brian and Scott to follow this afternoon. Posted by: Simon at October 28, 2005 11:58 AMIs Captain Ed speaking as a Republican or as an origialist/textualist? Or, rather, is he simply trying to cleverly conflate the two? I think it's a very debatable question as to whether or not there are currently 51 senators who truly want a Scalia clone to replace O'Connor.I suspect that the Captain is speaking as a Republican, but that does not necessarily exclude the possibility that the type of nominee he is talking about is an Originalist in the proper sense, rather than the faux, buzzword sense that seems in vogue these days. I suppose one can read into it what one will, and I therefore read into it, since the Captain has never committed the telltale sin of talking about "strict constructionists like Scalia" (anyone who says this should immediately be discounted as knowing nothing, zilch, zero about Scalia's jurisprudence), that he means originalists and textualists. I don't doubt that you're right that it would be a hard sell to change minds, after a century in which alternately conservatives have used judicial activism to obtain economic results they desired, and then liberals have used judicial activisim to obtain social results they desired, to convert anyone to the creed of textualism. But I think that to be a battle worth fighting - not only because it is the right thing to do, but because failure to have that debate is dishonest and I believe is placing in jeopardy our status as a nation of laws not men. It should not be that hard to explain to Senators that the courts should have no right to overturn a law just because they don't agree with it on the level of policy, since it isn't, after all, as if Senators have nothing to do with the process of making laws. Indeed, watching the Roberts hearings, it struck me as nothing short of an abdication of duty, watching, for example, Senator Kennedy bleating about this non-existant Constitutional right and that non-existant Constitutional right, as if he, as a member of the legislature, had no role to play in forumlating and passing policy. Indeed, Senator Kennedy is one of a very, very select class of 535 people in this country who can, in short order, personally initiate the Article V process. I should add, that not only do I agree with Brian that I doubt a majority of the Senate wants a Scalia clone, but even I don't necesarily want a clone of Our Hero. There are several issues on which I disagree with Justice Scalia (albeit, in the main, extremely dry issues - sovereign immunity, the dormant commerce clause, a few other issues). In July, the Pew Research Center found that by more than two-to-one (65%-29%), the public opposed completely overturning Roe.This does not represent consensus - quite the opposite! It means, it seems to me, that there is substantially less support for abortion than would be required, to amend the Constitution to insert a right to abortion. No wonder the left clings to Roe - as I previously noted, their conviction in their majoritarian status is contrived, at best. It also demonstrates how deeply divided the country remains, thirty years after the case in question - give-or-take, 30% of the country remains convinced that this case was wrongly decided. Now, I don't know whether I agree with Justice Scalia on the following point, or Justice Rehnquist, but I feel pretty sure that, had the Supreme Court based its result in Dickerson v. United States, 530 U.S. 428 (2000), in which the court upheld Miranda v. Arizona, 384 U.S. 436 (1966) on the results of a public opinion poll, I think you would have found that public support for overruling Miranda would have been measured in the tenths of one percent. There is genuine national consensus that Miranda must stand, even if it may not have been correctly decided as an original matter. Likewise, I suspect support for overruling Reynolds v. Simms, 377 U.S. 533 (1964), which was almost certainly wrongly-decided (insofar as its logic would, by necessary extension, hold that the United States Senate is unconstitutional) would be almost non-extant. Yet 30% of poll respondants - by extension, 84 million Americans (and, presumably, all the unborn, if ayone thought to ask them) - which is more people than voted for either candidate in the last Presidential election, or any other Presidential election in the last two centuries - do not accept Roe. Words have no meaning if such broad opposition can be ignored to presume a national consensus. Posted by: Simon at October 28, 2005 12:46 PMIncidentally: I understand that you point is that the best hope for future progress for your views is unashamedly defending them, and trying to persuade. Fair enough. My point, in response to yours, is simply "OK, good luck with loudly supporting an idea that about 60% of the people will have a seriously negative reaction to, and who won't listen closely AT ALL to your in-depth and nuanced legal argument."The worthiness of a fight has nothing to do with the chances of success. I am publically outspoken for originalism because it is the right thing to do, not because I seriously believe I will convert all within the reach of what I say (that having been said, I would be disappointed if I pursuaded no one of anything; I am satisfied if merely a seed of doubt in liberal orthodoxy is planted, even if not a convert yet made). If a fight should be picked based only on one's chances of success, Brian, what would you say to members of a political party standing up against one of their own President's nominees, bitterly denouncing it in public, and calling for its withdrawal? Would that seem a fight that was winnable? Would that seem a fight worth fighting? I would say that the events of the last three weeks suggest the answer is yes. If the principle is important enough, it should be fought for, even if the situation is grave and the odds overwhelming. Posted by: Simon at October 28, 2005 12:54 PMand, presumably, all the unborn, if ayone thought to ask them I suspect they wouldn't answer. Posted by: WHQ at October 28, 2005 01:09 PMSeriously, though, do you think an originalist or textualist reading of the constitution, assuming it leads one to believe Roe incorrect, would simply allow states to decide on the legality of abortion for themselves, or would it allow for a ban on abortion at the federal level? Posted by: WHQ at October 28, 2005 01:13 PMdo you think an originalist or textualist reading of the constitution, assuming it leads one to believe Roe incorrect, would simply allow states to decide on the legality of abortion for themselves, or would it allow for a ban on abortion at the federal level?No, there is no scope for the Federal government to involve itself in abortion policy. It is exclusively and inescapably within the sole purview of the states, per the terms of the tenth amendment. As Scalia puts it: "my difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe – and no one believed for 200 years – that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter."I haven't forgotten you Scott, I'm getting there. ;) Posted by: Simon at October 28, 2005 01:34 PM In July, the Pew Research Center found that by more than two-to-one (65%-29%), the public opposed completely overturning Roe. **Simon: This does not represent consensus - quite the opposite! It means, it seems to me, that there is substantially less support for abortion than would be required, to amend the Constitution to insert a right to abortion. I think that maybe, possibly, depending on how many hairs you wanted to split, you could argue that 65-29 does not represent a consensus. In a democracy. But there's really no way to argue that it represents "quite the opposite," not if you are comparing poll results on a variety of issues. Suppose I were to report on the results of a bunch of other polled issues and found 60-40 results. Are you sure you'd say that each one of these issues represents a lack of consensus? Please spare me that "words have no meaning if" stuff. At this point, it's simply a signal to me that you're winding up for more soaring rhetorical overreach. I never said the numbers represented a consensus, you did. And I never said that 29% should be ignored in order to presume consensus. YOU are trying to put those words in my mouth. All I did was point out that survey results that suggested that, even though people have mixed feeling about abortion, public opinion is still strongly against overturning Roe. I grant that i didn't explicitly say that any talk about the strenght of such results should be based on campariosns to other polls, but how is that not implied? I found these results surprising when I saw them. There are a LOT of other issues on which the general public is MUCH more divided.
Oops, there's the rub again, Simon! If they could answer, there'd be no disagreement, right? But they are in fact unable to answer. And that's why you're left having to argue that you can presume for them, not to mention arguing that we the people should collectively presume to make this decision for all of them, instead of leaving each presumption about what is right in each particular case inthe hands of the prospective parents. BTW, that's a very eloquent defense of the nobility of acting on principle, but I'm not sure where you get the notion that I was unaware of all that stuff. In fact, quixotic implies an extreme self-perception of nobility. Seriously. Read Don Quixote sometime. Posted by: bk at October 28, 2005 01:44 PMIf state A bans abortion and state B allows it, and a newly pregnant woman from state A must go to state B to get an abortion, and then state A decides that it wants to penalize the woman for doing so, how is all of this not commerce among the several states? If it is commerce among the states, that DOES give the federal government power to regulate it. Which would make Scalia wrong. Too bad for your hero. Posted by: bk at October 28, 2005 04:48 PMScott asks, "how does dictating that the federal government has no authority to spend money on social welfare programs, as some construe the federal government's authority under Art. I, help provide for the general Welfare?" The recourse to the general welfare clause is predictable, but fallacious. The Federal Government has authority under Article I §8 to provide for the common defense and general welfare by means of the powers enumerated in §8. Firstly, I dispute the premise that the general welfare clause creates power for the federal government, second, I dispute that, even if it does, your example would be covered.
Had [arch-nationalist Gouverner] Morris not tried at least one trick, he wouldn't have been Morris. The Style Committee inserted a semi-colon that, had it remained, would have made a difference. The sentence went into the Committee this way: "They [Congress] shall have the power...to lay and collect taxes duties imposts and excises, to pay the debts and to provide for the common defense and general welfare, of the United States." It meant that the taxes collected were to be for the purpose of paying the debts and providing for the common defense and general welfare. The semi-colon found its home between the words "excise" and "to pay." It came out this way: "The Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises; to pay the debts and provide for the common Defense and general Welfare of the United States." Now it looked like yet another power being granted, the power to provide for the general welfare...Somebody (reportedly [Connecticut's Roger] Sherman) caught this and had it removed.(Id. at p.199). The text that was finally promulgated and ratified, of course, reads: "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States" (U.S. Const., Article I &Sect;8) - no semi-colon. This demonstrates, if nothing else, that not only was it understood by proponents of national power that the actual text of the clause did not (per Morris' attempt to change the language) but that opponents of broad national power understood as much, and intentionally and actively removed that power from the text. Furthermore, Madison specifically disclaimed such an interpretation in Federalist 41: Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases...But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?It is entirely clear that the language that introduces Article I §8 is intended to make explicit the ability of the Congress to raise funds (as distinct from the failure to grant such powers to the failed Continental Congress). It announces that Congress may spend these funds for general purposes, and the section then procedes to list what purposes constitute "the common defense" and "the general welfare." If the latitudinarian reading urged on us by Scott were to hold true, the fears of the anti-federalists would be vindicated, and the Federal system is rendered, at the stroke of a pen, obsolete. Like the modern reading of the commerce clause - which assumes that any activity which might impact on one's ability to participate in commerce, which is to say, any activity, is reached by the commerce clause - such an interpretation of the general welfare clause is not only ahistoric, and at complete variance with the original understanding, but raises a more important question. If the Congress' power is so broad as to reach any object it considers to be within "the general welfare," what powers are reserved to the states by the tenth amendment? What rights, reserved by the people, are not surrendered to the scope of the national government? II. General: (2) Applicable to a variety of cases; true or purporting to be true for all or most of the cases which come under its terms. In late [recent] use often with implied opposition to universal (with which, in older examples [of usage] it is synonymous): true in most instances but not without exception.(Emphasis added). In no possible interpretation of the term "general" is a policy which, by its own terms, does not affect any more than a discrete subset of the population, "providing for the general welfare." A policy such as the Federal minimum wage might be considered constitutional under such a reading, were such policies not already sustainable under the interstate commerce clause. * * * Incidentally, Scott raised a second point, which was sovereign immunity. I actually agree with him on this, and would go -- and have gone, for that matter -- even further. Our Eleventh Amendment jurisprudence essentially sets aside a strict textual reading on no basis other than the Court's conclusion that such a reading is incoherent - a proposition I think to be, at very least, debatable - and it does so only to adopt a jurisprudence which is no less incoherent than the literal reading. See J. Siegel, Waivers of State Sovereign Immunity & The Ideology Of The Eleventh Amendment, 52 Duke L. J. 1167, pp.1174-1182. But it does this, it must be said, with no foundation other than its own precedent. As I noted in the comments linked previously: I do not agree that doctrinal discussion can overrule the explicit text of the Constitution or its amendments. It can inform - but not supersede. I have no objection to doctrine filling the gaps in the Constitution; it is, after all, "a constitution that we are expounding" . . . Nor do I have any objection to the use of historical practise and structural inference to make clear constitutional provisions that are unclear. But what I am unwilling to do is to acknowledge the theory that says the Constitution is no more than a set of abstract principles, from which the text is but a distraction, which can be abused to meet the result desired by a Judge or which might temporarily be deemed expedient ...If the terms of the Eleventh Amendment were unclear, I might see wisdom in the inquiry into the small-c constitution and the theoretical underpinnings of the amendment (although I feel such an inquiry would still not reach the unnatural result that is being grafted to it in modern jurisprudence, as discussed above) to extrapolate a broader meaning giving effect to the amendment. But the Eleventh Amendment is not unclear; it says, with admirable clarity and a complete absence of ambiguity or uncertainty, that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." Perhaps sovereign immunity isa good idea, and perhaps it can be grounded elsewhere in the Cosntitution, but the Eleventh Amendment, by its own terms, forbids such an atextual, unoriginalist and ahistoric construction.(Internal citations and emphasis omitted). Posted by: Simon at October 28, 2005 06:05 PM Brian: First, currently this is actually legally true as a matter of law, even if it's arguably also true that the matter is not specifically included in the text of the consitution.Pray tell, if the matter is not specifically included in the text of the Constitution, from where does it derive its legal force? Because SCOTUS has said so? SCOTUS says many things, some of which are right, and some of which are wrong. Presumably our liberal friends did not conclude that Bowers v. Hardwick, 478 U.S. 186 (1986), or Stanford v. Kentucky, 492 U.S. 361 (1989) should be protected by stare decisis? The rights of the community to self-govern, while being "actually legally true as a matter of law", was not sufficient to dissuade people from challenging it in Lawrence and Roper, I take it? It's the standard meme of liberal jurisprudence: it isn't settled law until it's settled our way, and once it's settled our way, it's disrespecting precedent to argue that it isn't settled. Thus, Roe v. Wade is settled law, but Harmelin v. Michigan, 501 U.S. 957 (1991), for example, is not. It will be, mind you, when it's settled the "right" way - or, more accurately, the "left" way. The number of Americans who are troubled that the right o privacy exists in a fashion in which some T's are uncrossed and some I's undotted is a small number. I won't insult you Simon by saying that you fail to appreciate this, but since you seem entirely (if patiently) unabashed by it, I must view your pursuit as quixotic. Dude, you ARE the man of la mancha.Given that Prof. David Wagner has previously christened Justice Scalia as "Sancho Panza from New Jersey," I must decline the honor, under the rubric of not putting the cart before the horse. You're correct that only a small number of Americans are troubled, and this has been, at least in part, a result of a refusal of judicial conservatives to take the fight out into the country and win it. Originalism declares that there is no right to privacy - if you think that's a terrible idea, it's not as if you can't do anything about it! Pass a law! Read your state constitution, to see if it has one! Contemplate the nature of the world around you! Originalism is, if nothing else, a judicial philosophy which urges (indeed, depends upon) the theory that the people not only should govern themselves, but that they will. Posted by: Simon at October 28, 2005 09:38 PM Simon, I haven't read all the commentary on this thread because, well, a lot of it is the same tedious inaccuracy that wants desperately to pass for legal writing that I've already seen on so many threads in the past. But there is a right to privacy that even originalists cannot escape: even if absolutely nothing else, there's the Fourth Amendment proection against unreasonable searches. Posted by: The Jaded JD at October 28, 2005 10:51 PMBut there is a right to privacy that even originalists cannot escape: even if absolutely nothing else, there's the Fourth Amendment proection against unreasonable searches.Yes, of course there is. Which rather begs the question, doesn't it: if there is a general right to privacy in the Constitution, what need for the enumeration of specific privacy rights? I decline to comment on the ad hominem parts of your post. What you mean by "tedious inaccuracy," one must presume, is "things I don't agree with." Posted by: Simon at October 28, 2005 11:33 PMSimon, At the risk of this becoming one of those unseemly internet blood feuds, no, "tedious inaccuracy" doesn't mean "things I don't agree with." By "tedious inaccuracy," I mean "a thing that is not so" (and won't magically become so no matter how frequently or passionately it's repeated). These inaccuracies are attributable variously to your inattention to detail or wrestling with legal issues or terms of art without legal training. Examples of what I consider "tedious inaccuracies" are: (1) Everything I pointed out on 06/29/05 at 9:40 PM and 06/20/05 at 11:14 PM here. Having expended around 5000 words in this thread, most of it on substantive points, I'm delighted if the majority of your complaint appears to be discomfit with my inexplicable pluralization of the title of this blog. Your June 30, 2005 11:14 PM post raised nine issues, of which I disagree with you on at least half: You defend the result in Maryland v. Craig; I maintain that it was wrongly decided, and I'm fairly sure it was overruled about three terms ago. Trop v. Dulles may or may not have turned on the eighth amendment, just as Bush v. Gore may or may not have turned on the equal protection clause. I think both to be irrelevant; as Chief Justice Warren explained, entirely satisfactorily in Perez v. Brownell (and for that matter, all but part II of Trop), there is no need to reach a potential eighth amendment question, since it is beyond the powers of Congress to strip a citizen of their citizenship. You mention that "to say that the Constitution is whatever Parliament says and that Parliament says whatever the Prime Minister tells it to say is a gross oversimplification--or was a decade ago--because it seriously understates the role of the parliamentary party." Well, as you say, it would have been a gross oversimplification a decade ago, during the latter part of the Major government. It may even be again, following this year's election. But certainly from 1997 through 2005, during which Blair enjoyed a stranglehold on the labour party and the labour party enjoyed a strangehold on parliament, it is not a gross oversimplification, but demonstrable reality. I know, because I lived there for most of that period. Your distaste for people citing articles unless they are "properly trained" is, of course, moot, as are your stylistic points, which you yield are not actually per se incorrect, but are simply used in a way that you aren't familiar with. I don't consider that to be pursuasive reason to desist. I do not represent myself as a lawyer or a person with legal training, but that does not prevent me from appropriating such rhetorical tools as I deem appropriate from the Blue Book. Posted by: Simon at October 29, 2005 01:10 AMSimon, You're not stupid. I've never said you were. You're like a carpenter. You're skilled at building houses. The houses you build are houses of logic. Your logic ranges from OK to great, and the houses you build range from OK to beautiful. The problem, though, is that you build your houses without a foundation. So it doesn't matter how beautiful the houses are, they're not quite habitable. In the past, I've said that you seem interested in the law and you should go to law school. You'd most likely enjoy it. And doing so would both (a) give you a better foundation for your houses and (b) give you some interesting tools to make your life easier while you're building your houses and make the houses a little prettier at the same time. About those points you call stylistic, which I'm guessing are my comments about the way you use "q.v.," "apropos," and the like: it is true that I'm not familiar with the way you're using them. I wouldn't be familiar with someone who pointed up to the sky and called it yellow, either. He could make an interesting case for why he calls the sky yellow instead of blue, but to everyone else around who is used to yellow meaning something altogether different, he doesn't just sound strange or unfamiliar--he sounds wrong. I've suggested in the past a couple ways to fix a few of the minor "stylistic points." If you don't want to make any changes, that's your prerogative. But if you use terms of art inaccurately, you're really doing two things: (1) you're broadcasting to everyone that your legal training is either bad or non-existent--and if you don't want to hold yourself out as legally trained, that may be fine, but you seem to invest a lot of time and effort making your comments and posts look like legal writing and you're not going to pull it off; (2) you lose credibility instantly, because when the little things aren't right, people wonder about the big things. Of course, to a lay audience who doesn't notice the little things are a bit off, you can come off seeming pretty impressive. But to other people, who know the little things are a bit off, the forehead wrinkles, the eyebrows knit, and the mind starts asking, "if this guy doesn't know how to use 'q.v.,' can I really trust his argument about ___?" Finally, pointing out that you call Centerfield Centerfields doesn't mean that's all that's wrong with your 5000 words on this thread. That was one example I chose to illustrate my point. And I'll tell you why I chose that one: you obviously either (a) didn't know the title or (b) knew it, but decided it was a "stylistic point"--you were going to do it your way, no matter what. Now you've been called on it. The question is, are you going to pigheadedly continue to refer to this blog as Centerfields, or will you conform to the familiar "stylistic" method of referring to it as Centerfield? Because if you can acknowledge the error and begin to call us Centerfield, and understand that fixing the mistake doesn't make you stupid to have erred in the beginning, you can acknowledge other trivial errors and correct them (like the "q.v." stuff) knowing that it's not going to make you look stupid to have made the mistake in the first place, either. Everyone makes mistakes. That's not what makes people look stupid. What makes people look stupid is making a mistake, being confronted with the mistake, and still charging ahead doing it their own way to spite themselves. You're not a stupid person; I'm sure you don't want to look stupid. I'm sure that, going forward, you'll call Centerfield Centerfield. But, if you can do that, I don't understand why you can't do the same with the "q.v."'s of the world and just adopt the standard usage rather than your own eccentric formulation. I'm trying to be constructive. Really, I am. Posted by: The Jaded JD at October 29, 2005 01:41 PM**Simon: It should not be that hard to explain to Senators that the courts should have no right to overturn a law just because they don't agree with it on the level of policy, since it isn't, after all, as if Senators have nothing to do with the process of making laws. In light of that, can you explain your objection it Kelo? Such an interpretation seems to rest on a modern understanding of the term "general welfare" which is of no relevance to the actual meaning of the clause. A policy such as, for example, a disability allowance, is, by definition not for the general welfare. But anyone could come into a condition, or have a child with such a condition, which would qualify for a disability allowance. In effect, everyone has insurance for such an outcome. As to your declaration that doctrine should not override the explicit text of the Constitution (I could not find the exact quote), that is one thing I can support you on as will become clear in the doctrine I'll delineate. In criticising my reliance on provision for the general Welfare, you provided sources to show that that power in Art. I Sec. 8 does include social welfare expenditures. The actual reference I was making was the preamble, which states the ENTIRE PURPOSE of the Constitution. Accordingly, my doctrine is that the Constitution should be interpreted in a manner as consistent as possible with its expressed purposes, as listed in the preamble. Now sometimes the text of the Constitution will contratict its purposes, at least as they can be construed. For example, I would hold that if a state injures a party through blatant disregard of a federal statute, that it would be a disestablishment of justice to prohibit the bringing of suit in the only place that can right such a wrong, the federal courts. (I'll acknowlege your support on that principle of opposition to sovereign immunity.) However, we have the 11th Amendment which explicitly does that. Since it is explicitly in the Constitution, it should be enforced, but since it contradicts the purposes of the Constitution, it should be restricted to its clearest applications, ie. should not be used to expand the definition of "State" for purposes of immunity to entities affiliated with the state. In essence, the Constitution should be interpreted as broadly as possible when compatible with its purposes and as narrowly as possible when at odds. Posted by: Scott Smith at October 29, 2005 10:03 PMScott quotes me as saying "It should not be that hard to explain to Senators that the courts should have no right to overturn a law just because they don't agree with it on the level of policy, since it isn't, after all, as if Senators have nothing to do with the process of making laws;" and asks how I reconcile that statement against my objection to the ruling in Kelo v. New London. I fail to see the disconnect. The courts have no right to overturn a law just because they don't agree with it on the level of policy, but they not only can, but should overturn it when it clashes with the Constitution. Failure to act when action is required is as much judicial activism as acting where no action is permissable; see Less nebulous than you'd think, 9/23/2005, at part I.a). The big, overarching problem with Kelo is, as Justice Thomas' dissent identifies, that it leaves no intelligible content in the public use sub-clause, which effectively removes it from the Constitution (cf. Blakely v. Washington at part III). This the court cannot do: The 5th Amendment says that state governments can take your property for public use; Kelo effectively says that state governments can take your private property for any use. Or, as Justice Thomas put it, "If such 'economic development' takings are for a 'public use', any taking is, and the Court has erased the Public Use Clause from our Constitution." These two propositions cannot both survive; there either is, or there is not, a formal limitation in the 5th Amendment on what the government can do with land under its emminent domain power (q.v. Kelo, dissent of O'Connor, J., at §II ¶1-2). Justice Stevens says there is not. The Constitution says otherwise, and the Constitution's answer is always right.(Kelo - may the farce be with you, 6/28/2005). It may seem unduly cynical to suggest that government will misbehave at the first opportunity, but when courts abdicate their responsibilities, the results are never good, as Kelo aptly demonstrates; see Kelo: the real-world consequences of bad decisions, 8/18/2005. As I noted above, a year before Kelo, Justice Young of the Michigan Supreme Court did exactly what the Kelo court should have done (and, some have hypothesized, was doing until someone defected from Justice O'Connor's opinion for the court, thereby rendering O'Connor's opinion a dissent), albeit with a clause of the Michigan Constitution, rather than the U.S. Constitution: To justify the power of eminent domain solely on the basis of the fact that the use of that property by a private entity seeking its own profit might contribute to the economy’s health is to render impotent our constitutional limitations on the government’s power of eminent domain. [The] “economic benefit” rationale would validate practically any exercise of the power of eminent domain on behalf of a private entity.(County of Wayne v. Hathcock, 471 Mich. 445) (slip op. at 45). The analysis in Hathcock strikes me as being exemplary of how Kelo should have been decided, or, at least, anylyzed. I stand by my view that Kelo is a farcical abuse of judicial power that must be overturned as soon as Justice Stevens leaves the court - and, in a fit of irony, I hope that he will be replaced by Justice Young, as I can think of no better symbolic repudiation. Posted by: Simon at October 31, 2005 11:28 AM Regarding the general welfare clause, that's a point well-made, but I would have to say that I remain unconvinced. I am still unconvinced that the general welfare clause expands the powers of Congress beyond those enumerated in Art. I §8, and I would still argue that, even if it did, policies must affect the general welfare, that is to say, bear equally on all or nearly all the population. I have to say that I'm more amenable to pursuasion on the latter point than the former, though. ;) Regarding your doctrinal statement, I agree with that to an extent, but I believe that the document exists to define the powers and limitations of the general government. Accordingly, all the evidence of the founding era suggests that the original understanding was that the Congress had those powers enumerated and only those that were enumerated. There was, you'll recall, considerable consternation at the presence of the necessary and proper clause - well, why would that be the case if there was an understanding that the powers weren't otherwise limited? If the Constitution was understood as a broad grant of power to the national government, why were people worrying that one particular clause might be construed to grant more power than seemed appropriate? Posted by: Simon at October 31, 2005 11:38 AM |
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