I don't understand how reversing classic liberal strategy helps anything, ogged, as your theory relies on the power of the courts to enforce their rulings. If the governemnt doesn't obey the rule of law, they don't obey the courts.
Well, obeying the rule of law isn't quite a binary affair; politicians makes all sorts of calculations about how to legislate and enforcement agencies then bring to bear their own judgement about what gets enforcement priority, etc. Because the congressional and executive branches overreach in some instances doesn't let us say that it makes no difference what the courts decide. If the Supreme Court had said medical marijuana is legal, then, for the most part, people who would have grown it and could have proven necessity would have been safe from prosecution. So yes, I'm assuming that if the Supreme Court says some things are out of bounds, that will keep the other branches from doing them. (And yes, we're still waiting for the Gitmo detainees to get meaningful trials.)
So how do you like the new federalism now? Sounds pretty good, don't it?
liberal strategy
Sadly, that is now a completely oxymoronic term. Well, not completely. The "stop forming circular firing squads only long enough to eat your young" strategy is, as always, being executed with military precision.
I have to confess to a total loss of faith in the federal government to protect or provide anything (I hear ya, baa, and you deserve every chuckle). We may as well just go ahead and move the Capitol Building to Colorado Springs.
If you can tell me that the disabled will still be accommodate and poor women in rural areas aren't being hung out to dry, then it looks pretty good. Otherwise...
I don't think of federalism as a matter of principle -- it's a matter of tactics. There's nothing about state governments vis-a-vis the federal government that makes one more or less likely to protect the rights of their citizens than the other -- it just comes down to the historical forces at any given time. Within the constraints of a respectable reading of the constitutional law involved, I'm on whichever side of any federalism issue that I think is better for the left, and I will change depending on my view of the politics.
I will say that the 'libertarian' angle on this strikes me as silly. The courts have very little actual ability to limit the power of government -- they can't enforce their decrees without the power of the other branches. (As I realize Chopper just said.)
i think this is a crock of shit. saying that liberals should agree this ruling is correct because broad governmental power will ensure our civil liberties is like saying the violence against women act was unconstitutional because it was an overexercise of the commerce clause power (oh, wait, someone already said that. shit.)
arguing that broad governmental power protects your civil liberties is only a good argument if that power actually protects them. here, it's clearly not.
"undermining the federal government in this case would also undermine its power to safeguard other rights that we hold dear."
not really. let's not forget that (to my knowledge) the leading commerce clause jurisprudence right now is the lopez/morrison doctrine, which leaves the commerce clause power pretty eviscerated.
what's hilarious about this decision is it is one with which the conservatives will be happy (drugs are bad), but it is classically 'activist', totally expanding federal power.
it's hard to do this the further i get in law school, but i still try to maintain a policy-driven outlook rather than one mired in imagined legal ramifications, as it's pretty clear the supreme court has no problem deviating from precedent. which, a lot of the time, i'm fine with.
LB, you took the words right out of my mouth! And my version was turning out a lot more turgidly, so thanks for letting me zap it.
But, y'all, it doesn't work that way, because each case isn't simply separate from the rest: how you decide one case affects how the rest will be adjudicated. You can't support overarching federal power to help black people vote, roll it back to let people grow pot, and roll it out again to let wheelchairs get into the post office.
And I know my post was guilty of this too, but federalism isn't strictly about protecting rights: it's about making the relevant units of government smaller and more local, in the belief that that means their decisions will accord with the wants and needs of their citizens. Holding back federal power also gives people the choice to go somewhere where the laws are more congenial to them. So while any particular state isn't necessarily more likely to respect your rights than is the federal government, a system wherein states have some autonomy makes it more likely that you'll be able to find a place where the laws are to your liking.
So while any particular state isn't necessarily more likely to respect your rights than is the federal government, a system wherein states have some autonomy makes it more likely that you'll be able to find a place where the laws are to your liking.
For some value of "more likely." That is to say, if federalism worked this way, there wouldn't have been a black person in the south after Jim Crow laws started going into effect. (Although racism being what it is, I suppose that if blacks had all moved north, Jim Crow would have been enacted there.)
Silvana -- a defender of the VAWA! Welcome, results-based jurisprudence advocate! Do you have a little love for Justice Thomas based on this decision?
LB: I don't think of federalism as a matter of principle -- it's a matter of tactics.
See, this is why "strict construction" talk is always going to have resonance. In one sense, I completely agree with you: were one writing a new consitution, a federal/state power ratio would be exactly the type of thing to decide based on fact on the ground. Yet hopes with a constitution already in hand -- ratified even! -- one might imagine the balance of state/federal power is in principle settled. When a judge needs to assess the legality of some new federal mandate (public schools must use Saxon math!), we want them to reach for the constitution, not a consequentialist calculator.
how you decide one case affects how the rest will be adjudicated.
in theory, yes. but ogged, do you have any idea how many times the SC has changed its outlook/doctrine on the extent of the commerce clause's reach? lots.
it doesn't have as much precedential scariness when the SC is ruling on the extent of the federal government's power because those rules don't trickle down, they only affect the federal government. if this were an appeal from a state supreme court, and the question was what a state could or could not do, i'd have a totally different outlook.
and seeing as that the SC seems to have no problem changing its position from one commerce clause case to the next, limiting federal power in this case wouldn't worry me too much; it's already pretty limited (PATRIOT act aside).
a system wherein states have some autonomy makes it more likely that you'll be able to find a place where the laws are to your liking.
dude. no. if i read you correctly, you're espousing a classic "vote with your feet" argument, which i simply can not standby, because it's an unworkable policy.
here's why: (stolen from myself from here)
this "vote with your feet" notion is fundamental to the virtue of having states' rights prevail, and is inherently flawed for a few main reasons:
1) it has a disproportionate impact on poor people. people who are poor can't just up and move whenever they feel like it. they can't easily find jobs, thus making them very unlikely to give up the one they've got just ‘cause they don't agree with their states' gun laws, or whatever. and plus, they may not want to move, right? family, history, friends, etc.
2) it's entirely possible that there will be no one state that will meet a certain citizen's requirements. what do you do then?
3) this theory ignores the possibility that there are certain fundamental rights that should be granted to all individuals, and that there's policy that sucks and policy that's good, and we should endeavor to support the latter. and i just can't roll with disregarding that.
I want to pause here and vent on some of my libertarian friends. Too many times while discussing the proper role of government in various matters, we arrive at the following exchange:
—Well, let's figure out what effect we want to achieve, and then design a policy that, to the best of our knowledge, will achieve it.
—But you're saying the ends justify the means!
This drives my completely out of my gourd. Legitimate ends do not justify illegitimate means. Their complaint only makes sense if you share their assumption that most (if not all) government action is illegitimate.
So they've learned a bastard maxim that precludes any kind of productive effort at governing (assuming such effort is permitted at all). What they should be saying is, "But you're positing means!"
Can you tell me more about the vicissitudes of commerce clause power? I'm not a lawyer, but the Supreme Court just said that the federal government can regulate the plants you grow at home for your own use, and people aren't falling off their chairs, so I'm having some trouble believing in the limits of federal power.
i dont want to take credit where it's not due, so let me say that what i reprinted was from comments of the thing i linked, not the body of the post, which i did not write.
Well, I've already said that I'm fine with moving to federalism. I really do worry about "Blue State" values, and trust the people who voted for GWB in '04 not at all (baa, obviously, excepted). Don't do a deal with people you don't understand if you can help it; an increase in state rights allows me to avoid a whole series of deals. There's little point in pretending we're in much of a position to protect rights elsewhere by use of national power. Retrench and protect the rights we have, I say. We'll try to help others where we can, but, really, as things are shaking out now, those rights exist by the sufferance of the Republicans.
well, i think people aren't falling off their chairs because the people who would be inclined to do so (from their constitutional view of the limits on federal power) happen to think Drugs Are Bad.
well, as baa is needling me about VAWA, i guess i could tell you about that. a pretty recent commerce clause case - the SC ruled that a congressional act which created a federal civil remedy for gender-based violence was an overexercise of the commerce clause. this in effect, added an extra requirement to the old commerce clause jurisprudence. before, it was that if an activity had a "substantial effect" on interstate commerce, it was regulable. violence against women (and crime in general, really) was shown in a voluminous amount of congressional findings to have a substantial effect on interstate commerce (and commerce in general.. really, these days, with the extent to which we have a national economy, it's rather difficult to separate inter- from intra-state commerce) because crime directed against a particular groups tends to reduce that groups consumer capital, ability to participate in the workforce, spending capacity, traveling capabilities, etc.
anyway. the court disregarded the congressional finding that violence against women had a substantial effect on interstate commerce and said it didn't matter, since gender-based violence was not an "economic" activity and you can only regulate economic activity under the commerce clause.
so, i guess they must have found that growing marijuana for one's own consumption is economic activity. i suppose i should read the opinion...
But Silvana everything diproportioantely effects poor people. Bad federalism hurts them more, bad centralization hurts them more. Can't we just admit that one advantage of federalism is that it enables states to function as "laboratories of democracy." That's not without a cost -- some state could become a Frankenstein's laboratory of democracy -- but it remains a true benefit of the system.
it's entirely possible that there will be no one state that will meet a certain citizen's requirements. what do you do then?
That citizen is SOL! Why this is bad? Isn't this citizen even less likely to find the perfect match to her requirements at the federal level?
re 15: the federal government said as much in the 1930s. This is settled law.
text, are you talking about, wickard v. fillburn?
strict construction is a canard. Where there is any interesting legal issue, there are multiple plausible interpretations of the text. Either you like federal power or you don't, and that will color your interpretation of the commerce clause. There is no plain meaning.
The fact is, the constitution uses some surprisingly broad terminology. The commerce clause doctrine that has arisen over the past eighty or so years makes sense -- no reason to chuck it because you feel bad for growers of medicinal marijuana.
re: 21 -- it's been way too long since con law I, but probably, yes.
Are we thinking about this question as, would we support federalism if we could trust SCOTUS to implement it consistently? or are we thinking of it as, would we support federalism given that we know SCOTUS will carefully pick and choose the cases in which it wants to make federalist, or nationalist, arguments?
If the former, if this is a principled discussion, then there is something to be said about if not for federalism. The theory is that the states are self-governing if not sovereign entities bound to respect a certain basic set of rights (and also, each other's laws: drivers' licenses, civil unions) but otherwise free to construct a suitable polity for themselves based on the wishes of their citizens.
One philosophical flaw in this theory is that the individual states have no real justification for their existence. What, exactly, do they represent? Certainly not long-standing traditions of government, a la the Swiss cantons or German länder. Nor even specific economic interests. (An essay question: Why is there Wyoming? Please consider legal, political, and existential answers.)
Another flaw, or at least undesirable consequence, of this theory is that blue / red splits would widen under real federalism, as perennially mobile Americans moved to states whose laws suited their thinking.
But if the latter, if this is a tactical discussion, then come on. Remember how in Bush v. Gore the justices with tongues in cheek cited all that Warren Court jurisprudence they hated by way of explaining that the Republican was gonna win the election? There's more than a whiff of that around Scalia's concurring opinion. I don't think you can win this as a tactical game.
Once you accept that Bush really did win the election (Lampley's claims to the contrary notwithstanding), and that by '04 everyone had to have a pretty good sense of what it was that engendered such anger in Blue States, then, if you like your Blue State blue, you absotively should support federalism. Right now we act, at best, as a brake on the Southern Republicans worst instincts; that is, we limit the incentives of people in Red States to see how fucked up Republican policies are, because we keep preventing them from action on their worst inclinations. Let 'em do it on a state level. As it is, you now run into Republican governors in the South arguing for a tax increase for school funding. You have Republican governors arguing that we shouldn't cut federal funding for Medicaid.
Preserve the most important rights we can, pick off the libertarian west, and give the Southern Republican their heads at the state level. They'll learn.
Can't we just admit that one advantage of federalism is that it enables states to function as "laboratories of democracy."
yup. but that admission will only mean something if you think that is a Good Thing. i think it's not. i think the whole premise is ridiculous. do you know anyone who moved to a different state solely because there was a law in their state that offended them? i think laboratory democracy sounds like a good idea if you're a cultural relativist. i'm not - i think there are certain inalienable rights that it is not up to the people of alabama or new york or whatever to compromise just because they feel like it.
And to continue on with the needling over the VAWA, let me point to Charles Fried's very good question:
Is a federal law that provides a civil remedy for a victim of a violent felony, perpetrated by a private individual motivated by an animus based upon gender, a law within Congress's power to regulate "commerce with foreign nations, among the several states, and with the Indian tribes"?
Text:
strict construction is a canard
Is it gay to say that I want to stick my tongue down your throat and soul kiss you? And if so, is that good or bad?
In one sense, I completely agree with you: were one writing a new consitution, a federal/state power ratio would be exactly the type of thing to decide based on fact on the ground. Yet hopes with a constitution already in hand -- ratified even! -- one might imagine the balance of state/federal power is in principle settled.
Here's where I go down the 'living constitution' road, baa. To reduce the power of the federal government to anything recognizable in the text of the Constitution unmediated by subsequent caselaw, you'd have to shut down 90% of the federal government. You may think that would be a good thing, and I could accept it as a principled thing, on some level, albeit a truly, truly terrible idea, but it's not within the realm of political possibility. Short of that, resting more or less power in the federal government or the state governments is a matter of drawing the line someplace very far away from where the constitution of 1791 drew it -- where exactly to draw it is a matter of pragmatism (again, within the scope of reasonable interpretation of precedent) rather than principle.
Creepy blogcrush alert!
do you know anyone who moved to a different state solely because there was a law in their state that offended them?
This seems like strawman phrasing to me. Lots of people move to live in places that are more liberal or conservative.
There is no plain meaning.
This should totally be the democratic slogan for the 2006 congressional races. Nationalize the debate!
Silvana, what ever happened to (small l) liberalism as a way of reconciling divergent views about the good? Do the states get to administer their own school systems?
ogged, maybe. but if people actually voted with their feet, i think we would have a bunch of states that voted mostly democrat and a bunch that voted mostly republican (and when i say "most", i'm not talking 55% here, guys), instead, a "solidly" democrat state is one in which they vote 60% democrat, and everybody else hovers around 50-50.
i think there are certain inalienable rights that it is not up to the people of alabama or new york or whatever to compromise just because they feel like it.
Those rights matter only to the extent they are enforced. Their enforcement is dependent, in some fashion, on consensual agreement about their existence and their scope. We just had an Administration claim that it could throw an American citizen in jail, indefinitely, without a lawyer or a hearing. No one cared. Not even, really, our own Democratic leadership. The Supreme Court came through on the related issues, but Thomas did not. I note that I happened by the Corner (don't ask) and saw that they are coming to a consensus that Thomas is a better jurist than Scalia.
Shorter SCMT: we're screwed if we're yoked to these people.
i think we would have a bunch of states that voted mostly democrat and a bunch that voted mostly republican
I think you see this more at the county level, because that's the relevant unit when people are thinking about where to move.
Re: 29. I was just saying that I agree with him. Vigorously.
Tangent: I'm intrigued by LB's "constitution of 1791." Do you not count is as the Constitution until it has the Bill of Rights attached? Why? On that basis, shouldn't it really be the constitution of 1868, because without the fourteenth amendment you don't really have any hope at all of applying the Bill of Rights to the states?
36: that may be, but if we're talking about state laws here, why should it matter if one lives in county A or county B of a particular state? when texas had statutes prohibiting abortion on the books, it didn't matter whether you lived in Austin or White Settlement (yes, there really is a town in texas by that name), you still couldn't get one.
No, I was just thinking of the commerce clause as part of the main text of the constitution, rather than the Bill of Rights. I could have said 'eighteenth century Constitution' just as easily.
silvana, I was just making the point that people do move based on an area's political profile.
So, LB, if I'm understanding you correctly, you're saying that we are in fact so unmoored from the constitution that it's not even possible to take a principled stand on federalism, and the tactical strategy is all that's available?
re 41, for an extreme example, African Americans began leaving the South in notable numbers after Southern states began taking the vote away from them.
But she's got a good point. The problem I have with the 'laboratory of democracy' argument is that the states aren't small enough to be significantly more homogenous or responsive to individual citizens than the country as a whole. As a New Yorker, the idea that I have local interests in common with someone in the Finger Lakes region that I don't have with someone in Philadelphia seems patently false.
LB is right in 44, inasmuch as the original version of the federalism / laboratories argument in Hume posited much smaller polities than the American states. When Little Jimmy Madison borrowed it for the Federalist papers, he skimmed over that. But LJM thought the states should go away, and the sooner, the better: no federalist he.
As it is, the Red/Blue thing is probably nearly as much urban/not-urban. So if NY leans Democrat, it's because NYC leans Democrat. Nothing much changes in terms of the politics of the actual state one lives in; it just means can worry less about how someone in Alabama thinks you should behave.
So, LB, if I'm understanding you correctly, you're saying that we are in fact so unmoored from the constitution that it's not even possible to take a principled stand on federalism, and the tactical strategy is all that's available
On a literal reading of 'interstate commerce' as I would expect it to have been understood in the eighteenth century, I really can't picture it covering the Civil Rights Act, for example. Someone serving a hamburger at a lunch counter simply isn't interstate commerce. All the executive branch administrative agencies weren't envisioned in the eighteenth century, and a lot of what they do looks much more like legislating than it does like carrying out the orders of the legislature -- I'd say a fair originalist reading of the Constitution wipes them all out. I don't like either of those results, but more importantly, I don't think they're serious possibilities.
This doesn't mean that I think that Constiututional law has nothing to say to federalism, but the law that is now being and will be applied is in the caselaw, not in the four corners of the Constitution. Anyone appealing to the four corners of the Constitution on this issue is going to get a result that's very far away from anything that's politically possible.
47 and 42: No, but look: you can be a minimally respectable originalist and still understand that the Constitution has changed since the eighteenth century -- it's called amendments. So the Civil Rights Act isn't anticipated under the Constitution-plus-ten-Amendments: you can argue that it is anticipated under the Constitution-plus-fourteen-amendments. This is still originalism.
The Civil Rights Act is authorized under the commerce clause, not the Civil War Amendments, right? (Or if it's not, I'm a big idiot.)
I think LB outlines a troubling strategy for the federalism question, but really for all con law. The constitution of 1791 is a powerful card for the advocates of a 'living consitutiton' to play, but it leaves undetermined the question of what interpretive methodology it is we are going to use. If one thinks that some relatively principled and relatively content independent methodology is needed to do judicial review, any such methodology (not just 'originalism') is going to have huge problems dealing with the situation it inherits, and many compromises will need to be struck.
I can understand why someone would think the attempt to employ non-political interpretive methods is a lost cause. I find it harder to understand why such a person would be a fan of judicial review.
Whoops, LB, I missed your last. Is your position merely that w.r.t interstate commerce the constituition should not even provide a negative check on congressional power? So, as per VAWA, extra-consituional tests like "the state isn't doing a good job" or "Congress has made no findin gof fact" should be employed rather than the question "is this in any meaningful sense commerce?"
Second question. Is this true just because of the civil rights act, basically? If the civil rights act had never existed, would you still make this argument?
I find it harder to understand why such a person would be a fan of judicial review.
Why? Unless I'm misunderstanding something, that person would just think that judges are more likely than his fellow citizens to be on his side of various policy issues.
LB, in 50: it's got to be both. The voting rights provision rely on the fifteenth amendment. Title II, on public accommodation, sec 201, clause b, defines the "burger / lunch counter" scenario as coming under BOTH commerce AND 14th amendment, as I read it: "Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce [commerce clause], or if discrimination or segregation by it is supported by State action [14th amendment]:"
See here.
baa in 52: Dunno about LB but I think "Civil Rights Act" in discussions like this is short-hand for a variety of civil rights guarantees that really derive from Warren Court decisions of the early 1960s, including Gideon v. Wainwright, Baker v. Carr, etc. They draw considerably on the Civil War Amendments (says me in 54 above). They thus draw on a non-federalist conception of the powers and duties of the federal government.
If you like your right to vote, if you like your right not to be discriminated against on account of race or other arbitrary attribute, if you like your right to counsel, and all the other fun rights you might like, you owe it to the dismantling of federalism in the 1960s, thus completing a process begun in the late 1860s. For before that, you didn't have those rights as a U.S. citizen per se.
I think judicial review on constitutional issues is practically necessary if we are to have a constitution that limits the powers of the legislature and executive at all. While I see why you would call it unprincipled, relying on the body of caselaw that modifies the text of the constitution is our only option, because true originalism is simply unworkable (and not even Scalia and Thomas advocate it in practice. They're nibbling around the edges of issues, not refusing to hear cases involving the EPA because it doesn't exist.)
My principled daydream is a new constitutional convention that would bring the document into accordance with the government we have now. Imagine actually knowing what the second amendment means-- wouldn't that be nice?
To 54 -- yes, but without the commerce clause support, there's no teeth in the prohibition of discrimination by non-state actors in public accomodations. For the prohibition of private discrimination you need a very expansive reading of the commerce clause.
My principled daydream is a new constitutional convention
Imagine all the riders that would attach themselves to the "must pass" constitution.
What would a national constitutional convention even look like circa 2005?
My second question in 58 is in earnest — I'm not ridiculing the daydream for being a daydream.
Oh, a constitutional convention is completely unrealistic. I'm just torn between the complete unworkableness of true originalism, and the fact that there is something weird about relying on caselaw that is in theory rooted in a document that it in fact is not all that closely tied to.
LB in 57:
What you write is true only because much earlier Supreme Courts ignored the text of the 13th and 14th amendments and the Civil Rights Act enacted at about the same time. Many of us who believe that the courts should enforce the laws as written rather than being outcome-driven, as you seem to prefer believe this because it leaves us less subject to the whims of the courts. If we want to change the outcome, we change the law (including the constitution) not the judges. It's much more predictable and in the people's control that way.
Many of us who believe that the courts should enforce the laws as written rather than being outcome-driven, as you seem to prefer believe this because it leaves us less subject to the whims of the courts.
Are you proposing a strict formalist program which would disallow, for example, striking down earlier, "incorrect" decisions, even if failing to do so would leave the contemporary court at a significant remove from the text?
SCMT: it's good.
Everyone else: we are confusing lots of issues here. The issue "what level of federalism is desirable" is different from "what level is required by the constititution." Everyone, baa in particular, seems to assume the answer to the second question is a high level. But it ain't necessarily so.
The constitution contains this commerce clause. It says that congress may pass any law to protect interstate commerce. It so happens that interstate commerce is lots more complicated now than it was in the 1780s. That fact may go a long way towards the first question, but it is also dispositive to the second. That is, just about any law affects interstate commerce. So the constitution allows congress to pass just about any law.
Is there a "plain meaning" to the language? I don't know, it's pretty broad. But it's certainly reasonable to infer that congress can pass a law banning people from growing private pot, if that growth affects interstate commerce. I haven't read the briefing, but I imagine a case can be made.
Baa, perhaps you'd like to argue that we aren't following the purpose behind the language. After all, the document was written some two-hundred plus years ago. Well then let's talk about the purpose behind the clause and stop hiding behind flimsy "plain language" arguments. Of course, then you might have to acknowledge that as situations change, our interpretation of language changes and that (gasp) constitutional interpretation is a living, human process.
A new CC would be great. I understand it's a fine point in anarcho-capitalist circles whether the right to bear arms includes the right to private ownership of nuclear weapons, or other doomsday devices. It would be good to hear Ron Paul thrash that out for us.
On the substance, I suppose I am more concerned about a process of judicial review system that constrains/reshapes government power in arbitrary ways. I think the Court's death penalty jurisprudence has basically been arbitrary. The cultural left-of-center has largely got their way in this, and basically dominates the culture of law. But there's no telling what we'll get next, as the fillibuster discussion goes.
If you are a GOP senator who believes what Chuck Schumer does, then destroying the fillibuster is logical. You should take advantage of temporary political ascendency to pack the courts with partisans with life tenure. There is no guarantee that this will not happen. And I suspect it would only take 1-2 really unpalatable instances of right-wing activism to disabuse many fans of the living constitution.
61 not me either, as long as we're clarifying.
As far as a methodological approach to the constitution, I would recommend the common law method. David Strauss has written a lot on common law constitutionalism -- it makes pretty good sense. Judges are thus bound in consititutional interpretation in the same way that they are in all other settings -- by precedent.
I think it's a bit of a stretch to ban non-state discrimination under the thirteenth and fourteenth amendments. How would the straight textual argument go?
it's funny that I chose the handle "textualist" when clearly I'm not one.
Just a lawyer that likes books.
Huh, I figured 61 was baa.
And as a matter of practice, I'm with text on common-law constitutionalism -- I just get a little uncomfortable to the extent that courts purport to be closer to the text of the Constitution than they actually are.
68: well, just for fun we could think about it in light of Douglas and Black's saying, in Bob-Lo Excursion Co., that "nothing short of at least 'equality of legal right' ... in obtaining transportation can satisfy the Equal Protection Clause."
Actually, I just thought it would be fun to write seriously about "Bob-Lo."
The issue "what level of federalism is desirable" is different from "what level is required by the constititution." Everyone, baa in particular, seems to assume the answer to the second question is a high level.
Baa, perhaps you'd like to argue that we aren't following the purpose behind the language. After all, the document was written some two-hundred plus years ago. Well then let's talk about the purpose behind the clause and stop hiding behind flimsy "plain language" arguments. Of course, then you might have to acknowledge that as situations change, our interpretation of language changes and that (gasp) constitutional interpretation is a living, human process.
I guess I am a bit flummoxed both of these. No kidding the level of federalism that is optimal and what level is mandated are different qusetions. So too, it's certainly possible that any number of questions are underdetermined by the Consistution. I am quite willing to believe that many aspects of federlaism lie in this domain. The question is how we determine this. "Living, human beings, Spock, not figures in your green-blooded calculus!" doesn't seem like an obvious winner. I would need to hear more about a common-law approach, but I would worry that it offers even more incentive politicize the courts. Maybe there's even be a first mover advantage. Just get enough decisions behind you on some topic (animal rights!) and you can bookstrap it into a nationwide and hard to remove imperative. Right now, if 60% of the country wants to change abortion law, they cannot do it. This seems to me like a situation we'd like to occur rarely, explcitly, and with more rather than less legislative involvement.
On the pot-growing case, as it happens, I have no opinion. I haven't read it: maybe it's the right call.
61 was me. Sorry, this Internet thing is confusing to old people.
LB in 68--well, you already admitted to me that you did not read my law review articles on this topic that I gave you, so I will not mention that again (oops, guess I did). As a factual matter, particularly in view of the fact that the Congress responsible for the 13th and 14th Amdenments also passed that the Civil War era Civil Rights Act, it is pretty clear that those amendments were designed to ensure that the basic civil rights of the newly-freed slaves were protected. Textually, to deny "equal protection of the laws" means to allow certain citizens (the newly-freed slaves) to be denied the "privileges and immunities of citizens." (Yes, I know that that is not how the Supreme Court now interprets the 14th amendment.) Further, it seems pretty clear from the ratification of the Civil War era Civil Rights Act that Congress thought that the 13th and 14th Amendments gave it the power to enact that act.
So, when you say the 13th and 14th amendment, you really mean just the 14th amendment -- we're talking about private discrimination, not slavery. And in your view, a literal reading of the words "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" is that, a private actor shall not refuse to enter into a contract (e.g., for the purchase of a hamburger) with another person on account of that person's race. I can't follow that as a literal reading.
(And I read your law review articles, just don't remember much of them.)
Hmph. Large comment on the perfidy of libertarians eaten. Shorter version--David Bernstein goes on Limbaugh and Liddy to promote his book, and that should tell you how valuable an ally he'll be in the fight to preserve due process. I don't think restrictive construals of the due process clause are going to have the slightest impact on the government's ability to lock people up on the word of the Secretary of Homeland Security--is that justified under the Commerce Clause?
What I really want to say is:
so I will not mention that again (oops, guess I did).
It's called praeteriteo, and is an honorable Unfogged tradition.
Can someone help out an ignorant yutz here please?
How is it the case that things like equal rights for blacks/women and wheelchair accessibility rely on "Interstate Commerce" (?!) for their constitutionality?
Is there really no other branch we could have hung those off of?
re: 75
No, I mean both amendments. I think it is pretty clear that the Civil War Congress, and even the reactionary Supreme Court in the Civil Rights Cases thought that the 13th Amendment gave Congress the right to pass the Civil Rights Act.
Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
If you can pull a right to be free of private discrimination out of this text, taken literally, I'm terribly impressed.
Further, even the 1866 Civil Rights Act doesn't clearly prohibit private discrimination. The relevant language is as follows:
Interpreting a statute saying that Person A has a right to "make and enforce contracts" regardless of her race as mandating that Person B is to be compelled to enter into a contract with her if his reasons for not wanting to do so are racially discriminatory seems to me to be an awfully broad interpretation. The right to make a contract, outside of this context, extends only as far as the right to enter into a contract with a willing partner. I don't see where in the text of this statute it addresses what reasons are illegitimate for not wishing to enter into a contract. (The 1964 Civil Rights Act, on the other hand, relying on the Commerce Clause, is quite clear.)
Shorter version--David Bernstein goes on Limbaugh and Liddy to promote his book, and that should tell you how valuable an ally he'll be in the fight to preserve due process.
Whaaaaat? I thought academics pimping books could talk to the devil himself.
Also libertarians aren't exactly perfidious. They're fun and goofy, like heroin-legalizing golden retreivers.
But for Jim Henley and Justin Logan, I'd believe that libertarians really were Republicans who were unwilling to bear the cost of their party choice (i.e., being forced to hang out with other Republicans).
there is definitely a first-mover advantage to the common law method. Early Constitutional decisions such as Marbury are so interesting precisely because the justices were reasoning almost from nothing, and set the rules for everything to follow.
But reasoning from earlier decisions is just about the only thing judges are good at. And unlike the strategy of "just read the plain language," nobody pretends that common law reasoning is an objective science.
whereas with formalism -- proponents can argue "sure, it's a bad ruling, but them's the words." It allows you to hide bad reasoning. In reality, there are probably mutliple possible interpretations; that fact should be acknowledged. Common law reasoning is one way judges can pick among the plausible interpreations without relying solely upon whim.
text:
I'm pretty much with you. The problem, as you acknowledge, is that "reasoning from earlier decisions" is a pretty amorphous program that allows anything a judge does, as long as she can plausibly (and that word is used as broadly as possible) tie it to a cherry-picked set of cases. I think this is descriptively what probably happens, but it's understandable that people will start looking for an underlying set of rules that describe the common law process more concisely and definitely.
Decisions (both judicial and otherwise) are contextual, and context is going to be dependent on host of assumptions some might label "political." I don't really think there is a way around this.s
I've been pretty unclear. The common law method entails more than just an amorphous look at other cases. As far as non-constitutional law is concerned, the common law goes back very far, and involves very specific doctrines. It does a pretty good job of constraining judges. For a lot of legal questions, the common law does a pretty good job of supplying an answer, or at least a framework for reasoning to an answer.
Courts are pretty good about adhering to the reasoning of earlier cases. They will change course only gradually, and in so doing are generally pretty clear about what they are straying from, and why. Some judges are better than others, though.
It is more difficult with constitutional law, because it doesn't go back as far. And some of the doctrines are much, much newer. But it's the same principle. Judges apply the reasoning of prior cases to the present one. Strauss' argument, which I am trying to appropriate (in vain) is that the common law method is as appropriate in constiutitonal cases as in all other cases. It's what judges are trained to do. Whereas saying "just look at the text" does not provide an adequate framework -- there are too many possible interpretations of the text.
I am doing a poor job of explaining this -- I should supply some sort of link to David Strauss.
Rufus at 77: when the lawyers have sorted this out to their own satisfaction, they can give you more details, but basically, the commerce clause is how congress justifies a lot of its legislation; it's how they answer the question of what any particular issue has to do with the federal government--it crosses state lines, so it's our business. Or, as in this case, it affects something that crosses state lines, so it's our business. And I don't think there is another branch; that's LB's point about how unrecognizable would be a government based on a strict reading of the constitution.
In other words, using the common law method narrows down the field of possible answers much more than a purely textual method could, and at the same time, it doesn't make the specious claim that there is only one possible answer -- that the text is clear.
Even then, there is no way to avoid the intrusion of the judge's politics into the decision making process. The only issue is how honest that judge wishes to be about the intrusion.
re: text at 89
I agree with your description of the common law approach and that--done honestly--is has a real effect on outcomes. But relying on the text is what common law lawyers do when they interpret contracts. There are rules that have developed over time that are supposed to guide that interpretation. When I want the text of the constitution to be taken into account, I am asking for the constitution to be treated with at least the same respect a common law lawyer gives a contract. Is this asking too much?
the lopez/morrison doctrine, which leaves the commerce clause power pretty eviscerated
lopez and morrison are many things, but they were never much more than symbolic limitations on the commerce clause. While this is amazingly easy to say today, the fact that most everyone expected an 8-1 decision in Raich means that it was always pretty obvious that there wasn't much to Lopez/Morrison. And I was rooting for Randy, he was really good when he came to talk to us.
re: 90. No, I don't think that's too much. Of course, it isn't a contract, and we didn't all sign it, but I'm fine being bound to to constitution for whatever reasons.
It's just that the constitution is much, much less clear on its face than even a very poorly drafted contract. "The freedom of speech shall not be infringed upon." What does that mean? There is no definitions section at the front of the constitution.
It may be that such language is purposefully broad -- it was the intent of the framers that judges have some discretion as to its meaning. I don't know -- the thing (including the amendments) was cobbled together over the course of some two-hundred years.
Another reason the language is so broad is that it had to get passed through congress (and/or a convention) and broad langauge allowed people to think a particular amendment meant different things while voting for it.
For all these reasons, the constitution requires more interpretation than most contracts. Otherwise, yes, you are right.
by "all these" I mean the two I came up with.
But the language is very broad. And dull, mostly.
When I want the text of the constitution to be taken into account, I am asking for the constitution to be treated with at least the same respect a common law lawyer gives a contract
I'll take this as a stronger position when I see your argument that the 13th and 14th amendment prohibit private discrimination working only from the four corners of those amendments, as if it were a contract. Without that, you're relying on caselaw and mindreading like the rest of us -- you just like a different set of outcomes.
RE: 94.
Not true and not what I said. That the rules for contract interpretation allow for the use of parol evidence does not mean that there are no rules at all and that it is all based on the particular outcomes the judge seeks. For what appear to be rhetorical reasons, you posit a world that makes no sense and does not exist--fixed rules that can be applied mechanically or, if that does not work (and we know that that can never work), then there are no rules at all, and it is legitimate to say that one can adopt whatever interpretative approach gives one the outcome one likes.
94: Okay, since we're all back this morning, let's play what LB calls the "four corners" game.
The relevant part of the 14th Amendment reads,
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.
1. "No State shall ... enforce any law" etc. can by a reasonable plain-text reading be taken to prohibit the enforcement of racially discriminatory law. So if your lunch-counter bigots are acting under ordinance that permits or mandates segregation, they're violating the 14th A.
2. It's a rule of statutory construction that words mean things. So "nor deny" must mean something different from "make or enforce any law".
3. "[M]ake or enforce any law" bars affirmative legislative action that's discriminatory. "[N]or deny" must therefore bar some kind of action other than affirmative legislative action.
4. For example, if the state's voir dire laws are not facially discriminatory, they can nevertheless be abused to achieve a discriminatory result. This would be prohibited under the "nor deny" rule.
5. And, if your state has licensing laws governing the sale of prepared food (and it does, it does) that are facially nondiscriminatory but being used in a discriminatory fashion, the "nor deny" rule prohibits that, too.
The clause in question reads, in effect, "No State shall … deny to any person &helip" Does this really reach the actions of private citizens?
State actions are tricksy. For instance, some case which I seem to recall having read about two months ago held that a private citizen suing another private citizen can be state action because the courts have to enforce the judgment. However, I'm tired right now and may be mis-remembering this case. In general, unexpected things count as state action according to current doctrine.
96: you seem to have left out "privileges and immunities."
What, pray tell, are those?
Slolernr
1. Absolutely.
2, 3, 4. I agree with you that 'deny' must mean something extra, here. I would say that 'No State shall... deny', read literally, would prohibit racist enforcement of laws that are racially neutral on their face -- pretty much what you say.
5. We still haven't gotten to private discrimination as far as I can see. If by bringing up food licensing, you mean that a private restaurant's refusing to serve customers on account of their race is an instance of the state using the law governing food service in a racially discriminatory fashion, I don't follow your argument -- could you flesh it out some more?
I don't think he's saying the state is "using the law governing food service in racially discriminatory fashion." Rather, isn't he saying that by not explicitly conditioning licensing on non-discrimination, the state is engaging in de facto discrimination. It's not clear to me how engaging in a racism-neutral licesning regime is a denial of equal protection under the laws to any person, but that's how I read the argument.
Hrm. Wouldn't that argument render almost any private action state action? You need a driver's license to get to work -- if the state doesn't condition that license on your behaving in a non-racially discriminatory matter, the state is engaging in defacto discrimination. Clever, but it proves too much.
Nah, 103 was me. And I'm reminded that I meant to ask you questions about job stuff for next summer, which I have to think about amazingly soon.
I probably don't I know all that much useful (if you want a big firm job, NYU will get you one, no sweat -- if you want anything else, I don't know all that much) but what I do know is at your service.
And, in closing, fuck to oboe.
re: 104
I think as originally conceived by the Civil War Congress and occasionally by some members of the Supreme Court, there are certain fundamental civil rights that all persons (well, all men, when the 14th Amendment was written) possess. They are not nearly as broad as the scope of current civil rights laws, so they might not extend to buying a hot dog, but they are at least partially listed in the Civil Rights Act quoted in 80. The argument is that a state denies equal protection of the law when it allows one individual to prevent another individual from exercising those fundamental civil rights. Indeed, this is how the notion that the Civil War era Civil Rights Acts implemented the 13th Amendment arises--one of the badges and incidents of slavery is that slaves are denied the fundamental civil rights enjoyed by others.
I'm probably going to be tempted enough to just go with the crowd and try out a medium-to-big firm next summer. The next question is which firms might be better experiences than others, but I should probably just e-mail you about that.
Sorry for the delay in clarifying, I had to, y'know, go do work for a bit.
LB thinks my argument "proves too much," per 104, because I did mean more or less what washdreyer in 103 said I meant. Which is to say, if the food-licensing laws are facially race-neutral but administered in a racially discriminatory way AND the state takes no action to prevent that then it falls afoul of the "nor deny" clause, much as it does under my point 4 w/r/t voir dire rules.
And I meant that because, to step outside the four corners, that's what SCOTUS thought, too. In Slaughter-house, the Court says you can't interpret the 14th Amendment to mean what it looks like it means because if you do, "it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people...." So they gave it a much more constrained interpretation.
But you can read it as meaning "to fetter and degrade the State governments by subjecting them to the control of the Congress," and knowing what we know about the circumstances of the 14th's drafting and adoption (i.e., its ratification was set as a condition for the seceded states to re-enter the union), there's a good reason to suppose that its framers did mean that.
text says in 100,
96: you seem to have left out "privileges and immunities."
What, pray tell, are those?
What, do I have to construe the whole constitution as part of this game?
Or are you indirectly pointing out that SCOTUS has been dodgy in defining them?
Which is to say, if the food-licensing laws are facially race-neutral but administered in a racially discriminatory way
This is where I'm losing you. For the state not to license an establishment because of the race of the proprietor, employees or customers would certainly fall into the state action category. But are you saying that granting a license to a restaurant that discriminates against customers on the basis of race would be administering the food-licensing laws in a racially discriminatory manner?
113: Why not? It's not my idea, I'm following what I take to be Black and Douglas's reading in Bob-Lo.
I'm realizing that I'm speaking from an unclear rhetorical position -- let's see if I can make myself make a little more sense.
Way back in comment 30 and subsequent I started arguing for the position that originalism (including the amendments) was unworkable because tying our Constitutional law tightly to the text of the Constitution as written would render our government unrecognizable, and made the further claim that no one wants originalism in that sense. Even the 'originalists' believe in all sorts of Constitutional doctrines that aren't well supported by the text of the document -- they just differ with the rest of us about which such doctrines should be recognized as valid.
I think the argument that prohibiting private discrimination is the sort of thing that the drafters and ratifiers of the Thirteenth and Fourteenth Amendment were likely to have been thinking about, and that it's a good thing to do, and closely related to the goals of those amendments as written, is a strong one, and that caselaw taking that position is good (normatively, not descriptively). That kind of extension and development of the literal words of the Constitution is what judges do, and I think that's a good thing.
[Putting on 'originalist' hat]. I don't think, on the other hand, that it's a fair literal reading of the text of the amendment, which obliges party A, the state, not to itself discriminate, to read it as saying that party A must use its powers to prevent all possible parties B through Z from discriminating. If you were reading a contract, you wouldn't read a clause prohibiting one party from doing something as creating an obligation in it to stop other parties from doing that thing. [Removing hat]
The fact that I don't think your reading of the 14th Amendment is a fair literal reading, doesn't mean I don't think it's a good one -- I'm not an originalist. All I wanted to do in this argument is point out how much interpretation and extension of the Constitution even the originalists do. No one (of any importance) is out there honestly proposing a return to a constitutional jurisprudence literally bound by the text and only the text of the Constitution in the sense that the parties to a contract are bound by the text of that contract.
My point is that those words could be interpreted in any number of ways. The document in of itself does not supply a definition. The amendment could very well hinge on what that definition is (depending on the definition you choose). So you can't understand what it means without going outside of the document.
You need a definition of "privileges and immunities" to understand not just the entire constitution, but also the 14th amendment, since the words are contained within that amendment.
do you know anyone who moved to a different state solely because there was a law in their state that offended them?
"Thoughts?"
What, when I'm stoned? (Yes, ignoring all previous comments is helpful at times.)
Damn, here I was all poised to be impressed -- GF has strong opinions on federalism too? But it's just a pot joke.