Patterico's Pontifications

7/15/2005

The Nomination Hearing That Will Have to Wait a Decade or Two

Filed under: Constitutional Law,Judiciary — Angry Clam @ 7:25 pm



[Posted by The Angry Clam]

A bunch of lefty law professors (read through the list, and you’ll spot a bunch of National Lawyers Guild types- if the Federalist Society and the American Constitution Society are the Republican and Democratic parties, respectively, the NLG is between the Green and Communist Party USA territories, literally) have, with the Center for American Progress, produced a set of questions to inquire into the judicial philosophy of Supreme Court nominees.

Whomever is nominated may or may not be asked them, and may or may not answer. Some of them are obviously loaded questions- particularly the “follow precedent”/”open mind” distinction. The answer they’re looking for is “follow precedent that we like, and keep an open mind about precedent we don’t.” Just remember, stare decisis is fo’ suckas.

Regardless, I thought that it would be interesting to answer them myself, particularly after Dafydd ab Hugh’s recent foray into constitutional theory.

The format will be as follows: the introductory material associated with the questions will be in italics, while the questions themselves will be in bold. My responses will be in ordinary Roman font. I would also like to point out that jurisprudential discussions, while obviously involving ideology, also involve an amount of pragmatism and empiricism. Thus, actual, thoughtful responses/follow-ups are encouraged, since I am quite willing to admit that reasonable people differ, and my opinion on issues (for example, incorporation in the Fourteenth Amendment) has changed before, and will likely change again about some doctrine or another.

Additionally, as part of the questions game, follow-up questions will be answered. I’m playing nominee, you all can play senate judiciary committee members. I ask that those questions be phrased similarly to the ones below and left in bold in the comments, to distinguish them from the back-and-forth that I hope this post produces.

1. In order to approach constitutional questions as consistently as possible, jurists often adopt a particular “canon of construction,” i.e., a method of interpreting the Constitution. Some are “textualists” or “strict constructionists” who limit themselves to applying the black and white text of the Constitution. Some are “originalists” who rely on the writings of the Framers and the laws in place at the time the Constitution was written to inform the meaning of the text when it is unclear. Still others employ “structural reasoning,” which requires an analysis of how different parts of the Constitution and the governmental branches relate to one another. Do you believe in employing a canon of construction? If so, is there a particular canon to which you subscribe?

First, I would like to correct the imprecise use of legal terms here. “Canons of construction” traditionally refer to common law approaches to statutory application, rather than the theories of Constitutional adjudication at issue here. I think that it is important to note the distinction between statutory and Constitutional law, as there is a growing trend to treat them identically in judicial decisionmaking, when I do not believe that should automatically be the case. Notably, due to the ease with which Congress may correct a statute, I believe that the case for strict textual readings of statutory language, without reference to legislative or historical intent, is much stronger in that field of law than in Constitutional adjudication.

Specifically, I adhere to, and would apply, a text-based Originalism. The beginning and ending of Constitutional adjudication must be within the Constitutional text that is to be applied, rather than in vague reference to constitutional principles, and certainly rather than with reference to “the evolving standards of decency that mark a maturing society.” That said, a strictly textualist approach to the Constitution leads to a-historical and sometimes surprising results.

Consider the Eighth Amendment. A strict textualist reading would demand that punishment prohibited be both “cruel” and “unusual.” Punishment may be as cruel as the government would like, so long as it was the standard punishment for the crime. Currently, Justice Thomas adheres most closely to this principle, although even he, the staunchest textualist on the Court, acknowledges the historical background of prohibitions on “cruel and unusual” punishment.

This historical background, so important to understanding what the Eighth Amendment does and does not govern, comes from the English tradition, including the very phrase, which was copied from the English Bill of Rights of 1689, and which, from English usage, apparently required proportionality in punishments imposed, while having nothing to say about methodology to be used. For a very detailed, and time-tested, history of the Amendment and it’s English usage, I would refer you to Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Cal. L. Rev. 839 (1969), who traces the language and principles from the lex talionis to the Eighth Amendment.

It should be made clear that concerns over the political desirability of a strict textualist reading are not what drives the use of Originalism. It can very well be that the originalist view of a provision will be harsher than a strict textual reading. However, since the Constitution represents the written distillation of the social contract that governs our society, it is important to understand the provisions that are included, and this understanding, to minds coming some two hundred years after the Framers, is necessarily incomplete without reference to the world in which they lived and formulated Constitutional provisions.

2. Many constitutional principles that Americans now take for granted-such as freedom of association and one person, one vote-are not expressly written in the Constitution and were never considered by the Framers but were articulated by the Supreme Court in landmark decisions. Do you believe it is appropriate for the Supreme Court to recognize constitutional principles that were not expressly written in the Constitution or explicitly recognized by the Framers?

This is a loaded question, as it assumes that there are “constitutional principles” that are not expressly mentioned in the text of the Constitution. There is a doctrine of contract law known as the “parol evidence rule” that declares a written agreement the full scope of the agreement between the contracting parties, and prevents, with very rare exceptions, evidence as to the agreement from outside the contract’s text. Similarly, I am dubious as a foundational principle that any rights not expressly written in the Constitution exist on a Constitutional scope.

That said, I also do not believe that explicit Constitutional rights need be construed narrowly- a distinction must always be drawn between applications of traditional and recognized rights to new situations and the wholesale invention of new pseudo-constitutional rights. It would run directly counter to the original intent of the First Amendment, for example, to rule that free speech rights do not apply to electronic communications, such as this blog post, simply because computers did not exist at the time the Amendment was written. Likewise, the requirement that states give, as closely as possible, equal voting rights and power to all enfranchised citizens is a reasonable application of the Equal Protection Clause in the Fourteenth Amendment. To elevate “one man, one vote” to the status of its own “right,” rather than an application of an explicit right, is either sloppy thinking or a deliberate attempt to confuse the issue in this question, and is wholly different than the wholesale invention of extra-constitutional rights through vague appeals to “principle.”

Just as I reject that there are constitutional principles that exist outside the scope and text of the Constitution, I reject the position that Americans’ reliance on a declaration of such principles by a prior Court should be taken into account in future adjudication. There is no “Constitution by Estoppel” – the mere fact that some group of people, taken to stand for the entire populace, “relies” on a claimed right does not thereby insulate a right otherwise not in conformity with original meaning. Suppose, for argument’s sake, that tomorrow the Court was deciding a challenge to a state anti-sodomy statute. Here, the current governing law is Lawrence v. Texas, which overruled the earlier case Bowers v. Hardwick. If the Court determined that, Constitutionally, Bowers was correct and Lawrence erroneous, should it be prevented from overruling Lawrence because some Americans have relied on Lawrence? It is my position that it is not inappropriate, as the Court owes a duty to the Constitution first and foremost, and only then to lesser concerns such as stare decisis and the reliance that the doctrine generates.

However, it is not my position that all such rights, wherever they be found in the law, immediately be declared void. Rather, they should be stripped of their sacrosanct constitutional dimension, and exist instead as mere common law rights. These are rights that are judicially created and judicially enforceable, but subject to abrogation or modification by statute. If indeed the reliance on the right is of such importance, those people may petition the legislature to prevent abrogation of the rights.

3. The Constitution provides that the government may not deprive a person of life, liberty, or property without due process of law. The Due Process Clause has been interpreted to include “procedural” elements, such as the right to be given notice and a hearing before the government may take certain actions, and “substantive” elements that provide constitutional protection for fundamental rights, such as the right to marry and the right to contract. What rights, if any, do you believe are protected by substantive due process?

No rights are protected by “substantive due process” because no such thing can logically exist in the law. There is a dichotomy that pervades the law between substance and procedure, and the two are firmly distinct. It is impossible to have substantive procedure or procedural substance. Whether it is “due” or not is irrelevant.

That is not to say that such rights currently asserted to spring from the Due Process Clause do not have Constitutional dimensions and protections. Rather, the Due Process Clause is not where they should logically be found. Rather, the Privileges and Immunities Clause is where whatever such rights find their Constitutional mooring. The Slaughterhouse Cases, which made this clause almost a nullity, were incorrectly decided and should be overruled. Note that this is one of those areas where, as indicated previously, Textualism and Originalism result in a more expansive view of the protections of the Constitution than one that prefers to maintain rigid adherence to stare decisis would.

Additionally, this position would provide more rights than are currently guaranteed under Court jurisprudence. The Supreme Court has maintained that the rights in the Constitution that are insulated from attack by the federal government are not automatically protected from state intrusion. For example, you have no right to a grand jury indictment, or to a civil jury trial, in state proceeds, although both are guaranteed in the Bill of Rights. Rather, the Court has applied, in piecemeal fashion, the protections in the Constitution to states, through what has come to be called “selective incorporation.” Under a Privileges and Immunities Clause regime, however, all federal constitutional rights would be applied against the states, as they constitute the “privileges” of American citizenship. This is known as “total incorporation,” which has had numerous proponents in the history of the Court, including Justices Black and Murphy.

4. The Supreme Court has declared that the Constitution contains a right to privacy. Do you believe there is a constitutionally protected right to privacy, and, if so, under what circumstances does it apply?

The Fourth Amendment explicitly states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” This represents a separate Constitutional guarantee from the Amendment’s guarantee of warrant searches, and provides a privacy protection against unreasonable search and seizure by the United States government (and, by the incorporation discussed previously, the states). This is the only Constitutional provision dealing with privacy as such.

The right applies whenever the government seeks to demand personal information or examine any of an individual’s property or behaviors and, in my opinion, encompasses not only criminal law enforcement, but also regulatory enforcement and civil inquiries as well. This is since there is no limiting language in this section of the Amendment, and also because the administrative state has supplanted a significant amount of law that was formerly the province of criminal enforcement. In order to pierce the constitutional protection for privacy, the government must show that its actions are reasonable given the situation and circumstances.

The infamous “penumbra” of privacy is extra-constitutional and invalid. However, some rights that have been declared under that may properly continue to be protected under either the Privileges and Immunities Clause, or by a showing that the government justification for infringing upon them is unreasonable under the Fourth Amendment. It does not constitutionally exist of its own accord.

5. The Supreme Court has established a framework for determining when certain classes of people are protected by the Equal Protection Clause. For instance, when the government makes classifications based upon characteristics such as race and sex, those classifications are subject to heightened scrutiny and more likely to be found unconstitutional. Classifications based on economic distinctions, on the other hand, have been subjected to only limited judicial scrutiny. Do you agree with the tiers of review currently employed under Equal Protection jurisprudence and the way they have been applied? Explain.

I believe that the tiers of review are, by and large, an appropriate way of creating judicial standards to manage the adjudication of equal protection claims. However, I believe that fairly recent developments in the doctrine threaten to destroy this advantage.

I am particularly critical of two aspects of modern equal protection jurisprudence. First, I am disappointed that strict scrutiny has become essentially identified as presumptive failure, while rational basis is presumptive success of the defense of the classifications at issue. Although this trend is most prevalent in academic commentary on the levels of review, it has begun to, and, without intervention will presumably continue to, creep into judicial decisions. Generally, I favor bright-line rules to balancing tests because it is the Court’s duty not only to decide the case before it, but also to provide guidance going forward for the lower courts. Particularly when a test is newly announced, balancing tests cause confusion about the proper approach for the district courts to take, resulting in fragmented laws that require ever further Supreme Court intervention to clarify and correct. That said, due to the inherently equitable nature of equal protection claims, where the courts must weigh rights to equal treatment against legitimate and often compelling government interests, balancing tests are more appropriate in such circumstances. The trend toward treating the level of scrutiny as a de facto bright line rule abdicates the courts’ duty as decisionmaking entities.

The second area that I have disagreements with is the relatively recent creation of “intermediate scrutiny” review, which is most prominently applied to disparate treatment of the sexes. I believe that its creation is a result of the courts recognizing that sex distinctions in the law are, in many cases, valid and worthwhile, but being unwilling to group sex into either strict scrutiny or rational basis review for fear that the presumptions I discussed earlier would allow improper sex classifications to survive (or, conversely, strike down proper ones). I think that the potential for further proliferation of categories, along with the high probability, and questionable wisdom, of creating a hierarchy of protected classes, cautions that there should only be two levels of review- one for protected classes, and one for non-protected classes.

Apart from these objections, I have no problems with modern equal protection jurisprudential approach.

6. The Constitution provides that Congress has power to pass laws only for certain purposes. Over the last 50 years, Congress has routinely invoked its power under two constitutional provisions the Commerce Clause and section 5 of the 14th Amendment-to ensure that employers, schools, and neighborhoods would not discriminate against people because of their race, sex, age, religion, or disability. Recent decisions of the Court, however, have limited the breadth of these powers. What in your view are the limits on the scope of Congress’ power under the Commerce Clause and section 5 of the Fourteenth Amendment?

The introduction to this question suggests that recent enforcement of the Constitutional limits on Congressional power have interfered with the enforcement of civil rights laws, which is an inaccurate representation of the effect of the Court’s holdings in Lopez and Morrison, particularly given the recent decision in Raich v. Ashcroft that confirmed that the Commerce Clause power of Congress is alive and well.

Apart from that correction, it is my belief that the Commerce Clause imposes real, substantive limits upon the ability of Congress to regulate anywhere it chooses, at any time. That said, Congress’ power is still quite expansive under the Commerce Clause, particularly in connection with the Necessary and Proper Clause. My position on the matter is not far removed from Justice Scalia’s, as expressed most recently in Raich. Unlike Justice Scalia, however, I am slightly less willing to allow a Necessary and Proper justification of otherwise non-interstate commerce, but it is difficult to state what circumstances would most draw attention to this difference. Perhaps if the drugs at issue in that case were non-fungible goods, Justice Scalia and I would have come to different results, as I believe it possible that he would have upheld the regulations even then under the Commerce Clause/Necessary and Proper Clause combination, while I would have likely been very reluctant to do so.

For it’s part, section 5 of the Fourteenth Amendment grants Congress additional enforcement powers not found under its other powers, and which has been recognized to include the important ability to explicitly abrogate state sovereign immunity and provide relief in Fourteenth Amendment cases. However, the section provides for enforcement powers, not substantive rulemaking powers. Accordingly, it cannot function as a general grant of legislative police power to Congress, nor enable it to craft substantive rules under the Fourteenth Amendment without an additional basis for the rule, whether found in the Constitutional text itself, or validly enacted under one of Congress’ delegated powers.

7. The text of the Eleventh Amendment provides only that a state may not be sued in federal court by individuals who do not reside in that state. The Supreme Court has broadened this to say that a state cannot be sued by its own citizens under federal law in federal court, state court, or before a federal agency without the state’s consent. What do you believe is the appropriate scope of state sovereign immunity and the Eleventh Amendment?

I believe that the appropriate scope of the Eleventh Amendment is where current jurisprudence, including recent cases like Seminole Tribe, has placed it. The Amendment had two purposes when it was enacted. First, it overturned the Court’s decision in Chisholm v. Georgia, which had that the text of Article III had, in some respects, abrogated sovereign immunity entirely. Additionally, some Justices were of the opinion that the very concept of sovereign immunity was alien to a constitutional Republic, and should be utterly dispensed with. The reaction, with the Eleventh Amendment, was swift, and, in my view, decisive on the intent of the ratifiers- sovereign immunity, which had existed at common law, was a doctrine that they wished to keep alive.

This flows not only from the intent of the ratifiers of the Eleventh Amendment, but from the very structure of our federal government- the states are separate sovereign governments that, while surrendering some of those powers to a national union, retain whatever is not surrendered. There are numerous examples of states doing exactly that, and surrendering their immunity. Apart from cases of state consent, there is perhaps the largest consent to abrogation of sovereign immunity- section 5 of the Fourteenth Amendment, which is the only constitutional provision under which Congress may, by its own will, abrogate state sovereign immunity.

The Eleventh Amendment is not solely a limitation on Congress- it also limits and binds the judiciary, as the Supreme Court recognized in Seminole Tribe. However, there are proper spheres of adjudication even in our constitutional regime. For example, suits against state officials to enjoin future actions are constitutionally acceptable, even when that injunction will result in significant compliance costs (Ex parte Young, Milliken v. Bradley). I believe that it is the proper place of the Court to continue to allow adjudication in those spheres, while respecting the restraints imposed upon it by the Eleventh Amendment.

So, in conclusion, I believe that the Court, in its sovereign immunity decisions from Hans v. Louisiana to the present day was historically and constitutionally correct, and see no reason to deviate from the doctrines established.

8. The phrase “judicial activism” has often been used to critique the approach of judges on both ends of the ideological spectrum. Define “judicial activism” and describe your views on it.

I dislike this term because I find it an imprecise way to refer to objectionable actions by the judiciary. It is easiest to define “judicial activism” by what it is not: contrary to the assertions of various groups of the left, it is not “activism” for the Court to strike down laws that exceed Congress’ constitutional powers. Morrison, which struck down the Violence Against Women Act as exceeding Congress’ Commerce Clause authority, was not a case of judicial activism, despite charges to the contrary, except so far as it is the opposite of the Court being passivist in the face of unconstitutional enactments.

On the right, judicial activism also falls under various other terms as well, such as “legislating from the bench.” This strikes closer to the heart of what objectionable “activism” should be, as it identifies the problem- courts going beyond their constitutionally allotted powers and encroaching upon those of the other branches. Although our heritage is the common law system, there is no general federal common law, and federal judges are permitted to make common law only where Congress so allows, and have also seized for themselves the ability to promulgate a quasi-constitutional common law of rights, that goes under the name of “substantive due process,” and which I have discussed above.

Ultimately, my view is that judicial activism occurs when the judiciary seeks to usurp either the executive or legislative power, which is constitutionally allocated to other branches. The executive power is intruded upon when courts seek to become involved in overly intrusive and detailed enforcement procedures through the use of equity powers. Meanwhile, the legislative power is interfered with when the courts seek to exceed their permitted common law powers to create law. This is, on the whole, far more common than infringement into the executive power, and, due to its frequent use, is more troubling.

Additionally, this judicial abuse is, essentially, that advocated by Guido Calabresi, now a judge on the Second Circuit, in his book A Common Law for the Age of Statutes. I’ve had the pleasure of meeting Judge Calabresi, and specifically discussing the widespread adoption of a civil code form of law and its affect on the role that the judiciary has historically assumed, and, while I think that he is right to point out that, unlike a true civil law system, we maintain many important common law practices in the functioning of our courts, I cannot agree with him that the proper solution is to surrender substantive lawmaking to undemocratic and unresponsive courts rather than maintaining it as the province of the legislative branch.

9. The attacks of September 11 have prompted a constitutional debate over the limits of government power and the scope of presidential authority in a time of national crisis. Do you believe there are judicially enforceable limits to the President’s power as Commander-in-Chief in times of national crisis? If so, what are those limits?

I think that there needs to be a fundamental distinction between domestic powers of the President, and foreign relations powers. The Court has recognized, and continues to recognize, that it has very little, if any, role to play in foreign relations, as the Constitution has allocated those powers to the Congress and the President. Thus, even such fundamental questions of law such as the procedure for repudiating treaties are left to the decisions of the other branches, a sharp change from the more assertive role that the Court plays in domestic cases.

This question is likely driving at specifics, such as the decisions in the Guantanamo habeas cases, and, depending on the age and interests of the questioner, the War Powers Act and the ability of the President to engage in hostilities absent a formal declaration of war by Congress.

To begin with the Guantanamo cases, I believe that the Constitution is clear that due process is required from the government in all its dealings, even those involving national security. However, the question is what procedures are owed to various defendants. Although the President, acting as Commander-in-Chief, may establish military adjudication policies for enemies captured in the field (including those with claims to American citizenship, such as Yasser Hamdi), it is still the Court’s position to determine if those procedures comport with the Constitutional demand. Since it cannot constitutionally issue advisory opinions, the adjudication of what process is “due” must come through habeas review, as it has recently in cases such as Hamdi’s. This role is an appropriate one for the Court.

However, the Court is much less competent to adjudicate the existence of hostilities or circumstances warranting military action. Indeed, it is my opinion that such questions are nonjusticiable political questions, into which the Court may neither inquire nor adjudicate. Indeed, the unwillingness of the Court to entangle itself in the adjudication of the existence of a state of war has roots in cases even before the early landmark of Marbury v. Madison. In Talbot v. Seeman, a prize case involving the captain of the U.S.S. Constitution, Chief Justice Marshall accepted as a given that a state of war existed between the United States and France, despite the absence of formal declaration, and was, based on his decision, wholly untroubled by this fact. Similarly, The Prize Cases found no trouble in treating the American Civil War as a war, despite the lack of a formal declaration (partially because the Union refused to recognize the Confederate government) in that conflict. The Court even recognized in that case that the existence of war was “a question to be decided by [the President], and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.”

There has been no change in the constitutional allocation of powers regarding war and military actions since either of these cases were decided, and I believe that they were both decided correctly. The existence of a state of war is not a question for the judiciary, and the conduct of war by the President, in so far as it involves actions taken outside the physical territory of the United States, is subject to disapproval only by the Congress, not by the Court.

10. In Korematsu v. United States, the Supreme Court upheld the constitutionality of evacuating Japanese-American citizens on the West Coast from their homes during World War II. What lessons do you believe the Court should draw from Korematsu and the World War II experience?

First and most importantly, I would take away the Court’s holding that national security is a compelling state interest that will survive strict scrutiny review. Although the circumstances of the case are highly unfortunate and the racially motivated internment has been officially apologized for by the government, this is Korematsu’s continuing legal legacy and, I believe, a legitimate and correct one. After all, if we are to accept, as I do, that there exists certain “compelling state interests” sufficient to justify violations of equal protection even of protected classes, what can be a more compelling interest than the survival of the state itself?

Secondly, I think Korematsu raises the interplay of due process and equal protection. While the Court determined that the internment did not violate the Equal Protection Clause, it did not pay enough attention to the Due Process Clause rights to notice and a hearing before a deprivation. By creating an essentially irrebutable presumption that Japanese citizens were subject to removal, and by not providing them a forum to contest the removal, the government violated due process.

Finally, I think that the case shows us the distinction between “constitutional” and “just” that is often overlooked in the debate over modern constitutional law. There are many things, such as the Japanese Internment, which pass constitutional muster (at least as far as the Equal Protection Clause is concerned. Korematsu also raises due process and, in some cases, Takings Clause, concerns) but which are horrible injustices. Although it is tempting to play the role of philosopher-king and attempt to stamp out the perceived injustices of the world, judges must not. There is nothing inherent in donning a black robe and sitting in some tall-backed chairs that gives the Supreme Court Justices any higher moral sense than the American public at large, and certainly no right to supplant the electorate’s judgment for its own where it has not the authority to do so under the explicit text of the Constitution.

67 Responses to “The Nomination Hearing That Will Have to Wait a Decade or Two”

  1. I like your concept but you do provide a rather full plate. Perhaps these sorts of questions will engage the public.

    leon dixon (8858b4)

  2. I understand the problem of trying to keep it short enough to be easily read, but I did want to respond to every question that they proposed, particularly because they seem to be arranged around several broad themes- notably, willingness to judicially invent constitutional rights, willingness to allow “reform” litigation to move forward, and foreign policy intervention by the courts.

    The themes blur into each other across the questions, and I think that, had I only done one or two, something would have been lost compared to the whole.

    Thank God for the “more” feature, though.

    Angry Clam (f05866)

  3. ” Rather, the Privileges and Immunities Clause is where whatever such rights find their Constitutional mooring.”

    So is there a Griswold in your P&I world?

    And how do you square your answer to #7 to the canon you announced in #1?

    actus (a5f574)

  4. No, Griswold v. Connecticut was incorrectly decided as conferring a federal right to commerce in certain items (contraceptives). Despite their use in a private sphere, it is about the commercial traffic in a good.

    Apart from a brief period before the closing of the African slave trade (see Article I, section 9), there has never been a constitutionally protected right vis-a-vis the police power to traffick in any commerical goods.

    As I stated in #1, I prefer originalist interpretations to textualist ones, while recognizing the great importance that the text itself plays in discerning original meaning. The history of the ratification of the Eleventh Amendment after Chisholm, particularly when viewed alongside the historical conception of the federal structure and the traditional common law understanding of sovereign immunity combine to justify the decisions in Hans, Young, and Seminole Tribe.

    Thus, I don’t see any inconsistency. Since you do, perhaps you could explain where you believe it lies.

    Angry Clam (f05866)

  5. “No, Griswold v. Connecticut was incorrectly decided as conferring a federal right to commerce in certain items (contraceptives).”

    So under your P&I world, if I live in Dobson’s colorado springs, he can ban me from buying contraceptives?

    “Thus, I don’t see any inconsistency. Since you do, perhaps you could explain where you believe it lies.”

    Well, I don’t know the history. It just seems to me to be quite clear that it is for citizens of other states. If they wanted something else, why did they write this? It seems like they went out of their way to write it this way. It just seems that your reliance on a structural argument doesn’t jibe with your start and end with text given the 11th’s text.

    actus (a5f574)

  6. Yes, unless there is a specific privilege of citizenship to traffic in contraceptives recognized by the federal government or the government of Colorado (to use your example). Contraceptives are in no fundamental way different than gambling transactions, which are legal in some states and illegal in others, or the purchase and sale of some types of fireworks, which are legal in some states and illegal in others.

    I should add two notes, however. First, the police power is possessed by the state as a whole, and lower political divisions, like counties and towns, are subject to the plenary power of the state government. Thus, a state could declare that traffic in contraceptives is legal, and, through preemption, prevent, say, Shallow Ditch (population: 12) from banning them within its town. This is why, for example, San Francisco failed in its bid to ban handguns back when Feinstein was mayor- California statewide law preempted local regulation. Second, remember the expectation of privacy that accompanies freedom from unreasonable searches and seizures. This very likely could extend to the possession of contraceptives, even in locales where the sale is banned, similar to how sales of obscene materials may be constitutionally punished, but mere private possession cannot be.

    The Eleventh Amendment is a major, but by no means only, source of sovereign immunity protections. It explicitly corrected the Supreme Court’s claim that Article III had abrogated immunity in cases where a state was sued by a non-citizen of it.

    However, it was only in later developments that the Court explicitly recognized that sovereign immunity was also fundamental to the constitutional order of our system, and included within it such things as prohibitions on federal lawsuits against state officials for violation of state law (those go into state court) or federal lawsuits by citizens against their own state (apart from suits under section 5 of the 14th Amendment, of course.

    It’s two distinct sources, one which explicitly corrected, and rejected, the Supreme Court’s abrogation of sovereign immunity in a particular case, and another which recognizes the fundamental structural manner in which the federal union was formed. I don’t see the two as inconsistent.

    Angry Clam (f05866)

  7. […] The Angry Clam gives ten answers. So does Mike. No responses to ‘Quizzing Nominees’. RSS feed for comments and Trackback URI for ‘Quizzing Nominees’. […]

    Confirm Them » Quizzing Nominees (e203ab)

  8. This Q & A provided me with a helpful view of how a thoughtful lawyer analyzes (sometimes) and dissects (sometimes) constitutional issues. Thanks.

    AMac (9e5c84)

  9. “. Contraceptives are in no fundamental way different than gambling transactions”

    This is the sort of stuff I am curious to hear. People often bitch about Roe. I’m more concerned about what they think of Griswold. I think people are very concerned that the well organized morality police would be unchecked under a griswold-less society.

    “However, it was only in later developments that the Court explicitly recognized that sovereign immunity was also fundamental to the constitutional order of our system”

    I know what it did. I want to know why its OK given the fact that it has no textual basis. I think rebelling against sovereign immunity is fundamental to the founding of our country. So what? Do we just argue about what is or is not fundamental? or do we look at what the 11th amendment says? If the latter, we’re being textuatlists. If in the former, we’re arguing over vague references to principles.

    ” I don’t see the two as inconsistent.”

    I think the inconsistency is between you wanting to be a textualist and then relying on anothre source of constitutional law: evolving principles and discovering of fundamentals. Now. I’m all for discovering fundamentals, specially when they protect people. I’m not so enamored with them when they are used to give power to the state.

    actus (a5f574)

  10. Thank you for a thoughtful piece! You missed the one thing I notice every time I watch senate hearings, That is that each senator consumes 95% of his/her time leading up to the question. Your leadup question needs to be at least 15 times as long to yield the maximum posturing time on TV. Remember that most senators require words of 4 letters or less in the response.

    Thanks again

    Ray (75a3b5)

  11. Quizzing Nominees

    GWB said that he was prepared to consider people other than judges, but I think I must take my name out of consideration, because I can’t answer all ten questions. I wish the Senate would agree to just ask a few questions like these, let the judges a…

    Don Singleton (59ce3a)

  12. Actus: Ok, so you’ve brought up the so-called “morality police.” Now, we’re all scared of that boogeyman.

    You have yet to offer a justification for why contraceptives should be treated any differently than any other good, none of which the commercial traffic and sale in is protected in constitutional terms- the presumption should be that, like every other commercial product, they are subject to the near plenary regulatory powers of the states.

    Is it just because it’s involved in sex? Is there then a constitutional right to purchase lubricants as well? Is the prescription-only status of the birth control pill unconstitutional? How about consumer safety requirements on slings and harnesses? What is it that, in your mind, makes these products constitutionally based, and not others with similar links to that activity?

    Finally, please remember that I said that I follow an originalist, not a textualist, jurisprudence. Like the example I gave with the Eighth Amendment, a textualist reading of the Eleventh Amendment does something different than an originalist one. The original understanding of the nature of the federal system was of sovereign states surrendering some portions of their sovereignty to form a national government. One of those portions was the surrender of sovereign immunity in some cases, such as in suits between states, or by the federal government against a state.

    Sovereign immunity in the other forms had not been constitutionally abrogated (except for the Fourteenth Amendment’s section 5), and thus continued onward in the law, except in cases where a state, either explicitly or through its action, consciously waived its immunity.

    Ray: You’ll have to take it up with the Center for American Progress, since they failed to adequately grandstand in their “here are our questions!” letter.

    Angry Clam (f05866)

  13. “You have yet to offer a justification for why contraceptives should be treated any differently than any other good”

    We can get in a discussion of griswold and why it is wrong or right legal decision or why it is wrong or right policy. I’m asking because I think its quite important and fundamental to how people see themselves as masters of themselves and their lives, rather than subject to the electoral power of the morality police. I really don’t want my relations to my wife and partner to be subject to the whims of the majority. That’s not quite a constitutional argument, but it is why I think its important and tend to ask about it of people who want to end substantive due process. In this case, I find that the replacement of SDP by P&I isn’t quite the same, as very large part of SDP would go away.

    If you want to know the difference between contraceptives and any other good, try some thought experiments about how you feel about the purchase of, or use of, or distrubution of contraceptives and any other good. Do you mind coca cola being distributed in your schools? How ’bout condoms? etc.. I’m sure you can think up many different ways in which these are different goods. Think about ways in which using or not using contraceptives can make a huge difference in one’s life. And think about the impact of subjecting these decisions to the electoral power of the likes of radical cleric Dobson.

    “Sovereign immunity in the other forms had not been constitutionally abrogate”

    I see a text that limits 1 sort of suit being made by this principle that is not in the constitution to apply to other suits. That’s not an analysis that starts and ends with the text. It relies on structural and other arguments.

    actus (a5f574)

  14. They’re certainly different, as your thought experiment shows, just as red grapes are different than white grapes. However, you are unable to demonstrate why that difference is a constitutional difference.

    You keep coming back to James Dobson. Are you so scared of one man, with a single vote? Of course not- you’re worried about the political will of the majority of Americans, which, for whatever bizarre reason, you really believe will ban contraceptive use.

    Also, keep in mind that I have stated that it is wholly appropriate for legislatures to create a statutory right to the traffic in contraceptives, uninfringeable by local governments or groups and judicially enforceable.

    While you have seriously overblown concerns about not wanting your life governed by the majority, think of the alternative: your life governed by five people, against whom no political will can stand. I’ll take my chances with a democratic process that I am able to participate meaningfully in, rather than an oligarchy, any day.

    As for the Eleventh Amendment, it was passed in direct response to the Court’s decision in Chisholm, and is written to directly overturn it. Sovereign immunity does not find its textual source there- the Eleventh Amendment reconfirms the sovereign rights that had always existed in the states, and which were under attack by the Supreme Court. It is this intent underlying the adoption of the Amendment, along with the historical legal understanding of the sovereign state, that grounds the full doctrines.

    Also, you’re limiting yourself to the text of the Eleventh Amendment alone- considering the text of the Constitution as a whole (particularly the structure set up in the initial Articles, and then reconfirmed in the Tenth Amendment, indicating that states retained much of their original independent sovereignty), leads us inexorably to modern sovereign immunity doctrine.

    Angry Clam (f05866)

  15. Angry Clam, I don’t understand why you think Slaughter-House was wrongly decided. That decision did not prevent application of the Bill of Rights to the states via the P&I Clause, but rather addressed whether a state monopoly statute violated “the natural right of a person” to do business and engage in his trade or vocation.

    The P&I Clause in the 14th Amendment speaks of the “privileges or immunities of a citizen of the United States.” How can that possibly include a right that does not even restrain the federal government?

    Andrew (2977e4)

  16. Andrew–

    I cannot answer for Clam, but I know that Bork made this same point during his confirmation hearing. Bork’s assertion was that using substantive due process to establish “rights” was, at best, a stretch and could never be done with any kind of integrity. In SDP, there appears to be no underlying basis for deciding what is a Constitutional “right” (with the possible exception of the 9th Amendment which Bork called “an inkblot”).

    The better idea was the P&I clause, which directly addressed the issue of widespread, accepted, rights held either by means of historical use, natural law, or perhaps the constitutions of some large number of States. But it was read out of the Constitution before it was ever used.

    The advantage of the P&I clause is that there needs to be an external referant rather than just emanations from precedent or judicial assertion.

    Or at least this is how I understand the Borkian line, which Clam may or may not follow.

    Kevin Murphy (6a7945)

  17. “They’re certainly different, as your thought experiment shows, just as red grapes are different than white grapes”

    I think you’re missing the point then.

    “However, you are unable to demonstrate why that difference is a constitutional difference.”

    I don’t purport to. I don’t know enough substantive due process to defend griswold. I just want to know if your jurisprudence has it. Because I think its a very good thing that we have it. It protects something very important from the radical clerics.

    “While you have seriously overblown concerns about not wanting your life governed by the majority, think of the alternative: your life governed by five people, against whom no political will can stand.”

    That’s not really the choice I face in Griswold. I mean, sure, it could go away at any moment. But that just gets me where I started.

    “It is this intent underlying the adoption of the Amendment, along with the historical legal understanding of the sovereign state, that grounds the full doctrines.”

    Vague principles. The sorts of things you wanted to avoid in describing your canons. I don’t know much about the intent, and reading scalia has given me a good skepticism of intent. I also don’t know much about the historical understanding of the sovereign state. But I do know sovereigns being above the law was at least in part something we rejected when we kicked out the King.

    actus (a5f574)

  18. Kevin, thanks. I’ll still be curious to learn why the Clam thinks Slaughter-House was wrongly decided.

    Yes, that case did reject the idea that the “privileges or immunities of a citizen of the United States” include, as you say, all “widespread, accepted, rights held either by means of historical use, natural law, or perhaps the constitutions of some large number of States.” But Slaughter-House absolutely did not reject the idea that the “privileges or immunities of a citizen of the United States” include the rights which already restrain the federal government.

    If you look up the debates in Congress, people like Senator Jacob Howard and Congressman John Bingham only meant to apply against the states those rights that already restrain the federal government. Slaughter-House is entirely consistent with that.

    Andrew (2977e4)

  19. The answers are well thought out, well stated, and likely over the heads of most senators.

    My answer to each of the questions above would be short. Always a variation of:

    The larger the impact of a decision on life in America, the more the principle behind the decision must be moored in the actual text of the Constitution.

    I would expand on the Guantanamo issue, as I believe it is the largest “new” issue in the Court’s future. The USSC has already held that foreigners on U.S. soil don’t have an inherent right to due process — at least on arrival. Their rights derive from statute rather than the constitution, and they are limited to the due process that Congress statutorily provides them. In that light, I believe it is most appropriate to interpret the due process rights of an enemy through the spectrum of the Geneva Convention. They have no constitutional rights at all, but they may have separate rights under the Geneva Convention.

    Finally, I will say this. I may disagree slightly with a couple of the answers, but that was a darn good job of fielding the questions.

    David Hiersekorn (fec9fc)

  20. actus, just curious but are there any “radical clerics” on the left equivalent to Dobson? Or are the conservative “radical clearics” the only ones we need fear? Where would you consider the Reverend Jackson or the Reverend Sharpton? “Radical clerics” or mainstream?

    Harry Arthur (b318a5)

  21. Patterico, et al, thanks for the education. Not being a lawyer (took a wrong turn in life at an early age and went to flight training instead, but have always been interested in “things legal”), I find this all extremely interesting.

    Harry Arthur (b318a5)

  22. “Where would you consider the Reverend Jackson or the Reverend Sharpton? “Radical clerics” or mainstream? ”

    I don’t think they got much religion. Remember: Dobson isn’t even a reverend. Also, I don’t think they’re doing too much compared to Dobson.

    actus (a5f574)

  23. actus, I agree that Dobson isn’t a reverend, hence my confusion with your term “radical cleric”. He is admitedly an activist for strong families and their protection, because he views them (I believe correctly) as the foundation of our culture, our nation and our civilization. I think if you were to see him in that context, although you might very well disagree with many of his viewpoints, you might also very well appreciate why he holds them.

    As for the Rev Jackson and the Rev Sharpton not “doing too much”, I’d suggest that you underestimate their political impact or power. I’d certainly argue that it at least has been on a par with Dobson’s at various points in recent history.

    Unfortunately, your term “radical cleric” suggests an equivalent to the Taliban or radical Islam in general, which I would also argue is a pejorative that does not in any way apply to Dr. Dobson.

    I would be interested in hearing whether you believe this is a character flaw that applies only to conservatives or even only to Dr. Dobson. In either case, I would further suggest that it is an ad hominem unworthy of a logical argument.

    Harry Arthur (b318a5)

  24. Sorry, all, didn’t mean to hijack the thread with a long discussion about Dr. Dobson. Perhaps another time.

    Harry Arthur (b318a5)

  25. Has the Angry Clam clammed up? I want to know about Slaughter-House. The witness will answer the questions (#15 and #18).

    Andrew (2977e4)

  26. Actus: I don’t think I am missing the point in the “these are a different kind!” examples- that difference would surely make for a reasonable statutory distinction, but, again, I invite you to explain why that is so.

    Also, as I pointed out in my initial answers, we’ve come to a point where it is considered appropriate constitutional adjudication among some to hold “I like it, therefore it must be constitutional” or “I don’t like this, therefore it is unconstitutional.” Your position on the constitutional mandate that contraceptives be available for sale veers far too closely to this principle.

    You’re also correct that Scalia is skeptical of intent- for statutes. He has a much broader view of original intent and original meaning for Constitutional adjudication.

    His jurisprudence indicates, in my view correctly, that he is more favorable to intent when that intent is coupled with traditional historical legal practice, such as codification of a common law principle in a statute.

    Thus, while in your ignorance you dismiss my reference to the traditional common law applications of sovereign immunity as “vague principles,” it is not, and is wholly consistent with the jurisprudential approach outlined in response to the first question.

    Finally, don’t use the terms “radical cleric” or “American Taliban” again in comments to this post in reference to Christian fundamentalists in our own country, as the two are not comparable. It serves as a distraction (as you can already see), and generally makes you look silly, even though you’re making otherwise important points here. Your future comments to this post will be edited to reflect this warning.

    Andrew, Kevin: It is true that The Slaughterhouse Cases did not explicitly limit the interpretations of the Privileges and Immunities Clause, and that Justice Miller was careful to provide some examples of where it was not limited. However, the decision has subsequently come to be regarded in legal commentary as imposing just such a restriction and, as such, serves as a powerful symbol to be overthrown in rejection of what it has come to stand for, similar to Lochner’s status as a symbol separate from its actual holding.

    It is for this reason that, in implementing a transfer of the enforcement of rights from the Due Process Clause to the Privileges and Immunities Clause, that case must be dealt with.

    Angry Clam (f05866)

  27. ” I’d certainly argue that it at least has been on a par with Dobson’s at various points in recent history.”

    Recent history is not today. You really rank dobson up there with sharpton? What’s dobson’s budget and staff?

    I’ll stick with [being a jackass who can’t follow simple rules to keep discussion on topic].

    actus (a5f574)

  28. Thanks Clam. You just barely escaped a filibuster. 🙂

    You’re right that Slaughter-House has “come to be regarded in legal commentary as … a powerful symbol to be overthrown in rejection of what it has come to stand for….”

    However, I’m leaning against your Supreme Court nomination, because I think it’s awful that you would consider overturning an opinion not for what it actually says, but for what a lot of legal commentators have mistakenly said about it.

    I’m all for reviving the Privileges or Immunities Clause, but only within the bounds spelled out in Slaughter-House, which happen to be the same bounds indicated by the plain language of the Clause as well as by the Clause’s legislative history. Overturning Slaughter-House would virtually guarantee that the Clause will be abused just like the Due Process Clause has been abused.

    So there.

    Andrew (2977e4)

  29. Clam–

    On “privacy”, I think most people would agree that there is an expectation of privacy with respect to private consensual adult sexual activity. I’d place this either under the 9th Amendment or the 14th, but it was clearly an expected privacy in 1789, at least among citizens.

    Whether or not commerce in an item is legal, would you argue that use of a contraceptive can be criminalized? One is allowed to stretch an old right into new technology, isn’t one? Othewise the Constitution would be riddled with triavial amendments.

    Kevin Murphy (6a7945)

  30. Kevin:

    I think the Angry Clam is right about Griswold. Regarding the Griswold case, that involved a Connecticut statute banning contraceptives. The people of Connecticut would have very probably repealed the statute long before the 1960s came to an end. If not, Congress was not powerless to coerce Connecticut into going along with the rest of the country.

    Your comment (“I’d place this either under the 9th Amendment or the 14th”) suggests to me that you don’t much care where it goes as long as it’s in the Constitution somewhere. Not a very good way to interpret the document, I don’t think.

    The Ninth Amendment is a rule of construction and confers no rights whatsoever.

    Andrew (2977e4)

  31. Andrew–

    I think there is a subtle difference between post-Slaughterhouse P&I and substantive due process claims. In the latter, one apparently needs only to argue that X should be a right, in the former one needs to argue that X already is a right.

    Examples: as it stands, one can argue for a gay marriage “right” under SDP, but it’d be a hard pull under P&I. Others, like some gun rights, might work the other way.

    Kevin Murphy (6a7945)

  32. Andrew: It is a simple enough matter to adopt, even verbatim, Justice Miller’s discussion of the Clause from the case, and explicitly adopt it, while rejecting the case itself.

    Remember, one of the primary functions of an appellate court is to provide guidance and instruction to lower courts. In my view, that includes discarding cases too burdened with improper interpretations.

    Dred Scott could still be used for the broader proposition that simply moving between states is not enough to affect the legal status of certain property interests, but doing so would be in extremely poor taste given the history and popular conception of that case. I don’t view The Slaughterhouse Cases as a very different situation.

    This does raise an interesting question, that I would like to see put to any nominee (but especially the eventual new Chief Justice) over their view of the Court as a caretaker of American jurisprudence. Many people are, I suspect, content to allow an almost untended accumulation of case law and decisions. However, this can create significant difficulties as cases, such as Slaughterhouse, accumulate lives of their own beyond the strict legal content.

    Some states, including California, have dealt with this through a large number of unpublished and unciteable decisions. This practice, and its much less restrictive federal counterpart, has been under debate recently (for a good introduction, this article introduces it nicely).

    However, I believe that the Court has an important caretaking role to play here. Often, wine grape growers will cut perfectly acceptable grape bunches from their vines, so that the remaining ones will have stronger and more concentrated flavors. I think the same should be said for Court management of precedent- Justices should recognize when cases have, for whatever reason, become undesireable, even when their rules are still very much alive in the law.

    Kevin: I have very serious doubts that, in 1789, there were expectations of privacy in “private consensual adult sexual activity.” Not only was sodomy prohibited, but adultery was subject to criminal punishment, and fornication (sex between unmarried people) was illegal, and were prosecuted.

    Thus, I do not believe that you are correct that this was an expected right.

    Nor do I think that the use of contraceptives is beyond the scope of criminal prohibition, for similar reasons to why I believe that Lawrence v. Texas was wrongly decided. However, gathering evidence of the commission of the hypothetical crime is very much subject to the privacy rights contained in the Fourth Amendment. I am unwilling, however, to go so far as to declare that there is never a situation where such a search is reasonable.

    Both results may be uncommonly silly, but that does not make them unconstitional.

    Angry Clam (f05866)

  33. Kevin, are you saying that the right to use contraceptives is a 14th Amendment P&I right, which thus bars the states from doing what Connecticut did in Griswold?

    Do you think that the federal government is also somehow restrained from violating that same right to use contraceptives?

    Andrew (2977e4)

  34. Andrew–

    I haven’t read Griswold since college (long ago, when it was new), but as Clam explained his objection, he didn’t like the part that found a “right to certain commerce”. I agree with that. I also agree that “privacy” in an of itself is not a right, or every axe murderer would be invoking it.

    But I believe that there are unenumerated rights, and that these include those rights that everyone in 1789 would assert are rights (barring those amended out (slavery) or generally abandoned(riding a horse down main street)). That was what the 9th Amendment asserts, although it does not name any. The problem is finding out what they were. I would think that part of being an originalist would include historical research into what these unnamed rights might be, rather than, say, an ouiji board or whatever they use in the 9th circuit.

    So, I was wondering if he believed that there is a more limited sexual right to privacy than the one Griswold (incorrectly) found.

    The “whatever” was not argument, but an attempt to be brief and avoid leading.

    Kevin Murphy (6a7945)

  35. have very serious doubts that, in 1789, there were expectations of privacy in “private consensual adult sexual activity.” Not only was sodomy prohibited, but adultery was subject to criminal punishment, and fornication (sex between unmarried people) was illegal, and were prosecuted.

    Thus, I do not believe that you are correct that this was an expected right.

    OK. Good points. Forgot about “fornication.”

    Kevin Murphy (6a7945)

  36. Clam, so far the only bad thing I’ve heard you say about Slaughter-House is that some commentators have frowned upon it. I wonder if you think there was anything mistaken in that famous decision, and if so what?

    Dred Scott, in my view, is a completely different situation, because there was something terribly wrong about the Court’s reasoning in that case. Specifically, the Court was wrong to say that Congress is powerless to take property on federal territory, on account of the Due Process Clause. This was the first appearance in federal court of the doctrine of substantive due process, which is a bogus doctrine. In contrast, there were no bogus doctrines in Slaughter-House. At least, you haven’t pointed to any.

    Andrew (2977e4)

  37. Andrew —

    From an originalist perspective, no. As Clam has pointed out there are uncommonly many stupid sex laws in history, and this is just another one. Not every stupid law needs to be unconstitutional.

    If “privileges or immunities” is interpreted to simply mean incorporation, then again no.

    If “privileges or immunities” is interpreted to mean something wider, then maybe. I’m beginning to see why the Slaughterhouse court had problems, though. Although I’d still prefer that to avant garde due-process judges.

    Kevin Murphy (6a7945)

  38. Andrew: I don’t find anything objectionable in the case itself, no.

    However, as I indicated, I believe that the image that the case has taken on, beyond its actual holding, is objectionable and indicates that the case should be discarded, even as its holding continues in the law.

    Obviously, it is not on the level of Dred Scott. I simply picked that as a case where, when the issues of slavery and the rights of black people are stripped away, states some (not all, as you note, given its expansiveness; however, I do believe that, even there, due process would require notice and an opportunity to be heard) otherwise uncontroversial points of law.

    Surely those points of law are not enough to justify the continued use of that decision, given the additional circumstances. Likewise, I think the additional circumstances surrounding other decisions, like Slaughterhouse, can also counsel against the continued use of those decisions. That is all I intended with the comparison.

    Angry Clam (f05866)

  39. Kevin, I certainly don’t dispute that there were many rights in 1789 that were never spelled out in any Bill of Rights. The right to wear a hat. The right to bury the dead. No one would dispute that these were “natural rights” in 1789. But there’s a big difference between a natural right and a judicially enforceable federal constitutional right. Are you saying that the Ninth Amendment or the 14th Amendment converts some natural rights into judicially enforceable federal constitutional rights? I tend to think not, because the Ninth Amendment is just a rule of construction, and the 14th Amendment P&I Clause only refers to rights that already restrain the federal government.

    If you think that the Ninth Amendment or the 14th Amendment converts some natural rights into judicially enforceable federal constitutional rights, then from a practical point of view that creates enormous dangers, because it raises the question of how to decide which natural rights are converted. Only the ones that are deeply rooted? Well, the most deeply rooted right in the world is the right to have your government treat you “fairly.” So, would you empower the Supreme Court to strike down all laws that they think are “unfair”?

    Andrew (2977e4)

  40. “I don’t think I am missing the point in the “these are a different kind!” examples- that difference would surely make for a reasonable statutory distinction, but, again, I invite you to explain why that is so.”

    Why is it a statutory distinction? pretty much because we want it to be. They do different things and we regulate them differently. I’m not trying to draw a constitutional distinction. I’m not trying to argue Griswold to you. I want to know whether your theory has it. I think its a major problem that your jurisprudence doesn’t get to griswold. I think its a major problem that we would surrender our non-abortion reproductive rights, and our bedrooms, to the morality police’s ability to gain majority power.

    I also think its a problem that we would take everything of SDP that we did keep in P&I and deny it to non-citizens, as the P&I clause only reaches citizens. But maybe we can find a long tradition of ignoring that text?

    “You’re also correct that Scalia is skeptical of intent- for statutes. He has a much broader view of original intent and original meaning for Constitutional adjudication.”

    I don’t remember seing any indication of intent on his book on interpretation. In fact it looked like it was a major assault on intent. I don’t think he had a “broad” view of original meaning. I think he had a very straighforward and simple view of it. Maybe he’s broadened it to reach a result which seems to have nothing to do with the 11th amendment.

    He does use history. But not, as far as I can recall, intent.

    “Thus, while in your ignorance you dismiss my reference to the traditional common law applications of sovereign immunity as “vague principles,” it is not, and is wholly consistent with the jurisprudential approach outlined in response to the first question.”

    That’s great. A structural argument along with principles of sovereign immunity — un-rejected by rebellion against an all powerful sovereign. We can have long discussions about this principle of common law immunity that waited until recently to find judicial expression. But that is not the text.

    [I just can’t shut the hell up. I was given a chance to respond, told to drop it after that because it was off-topic, and just won’t.]

    actus (a5f574)

  41. Actus: Arguing with you is incredibly annoying. You start off with normal, reasonable points/questions, but then, when they get addressed, you simply act as if they have not been.

    I have repeatedly explained that there is absolutely no justification for treating contraceptives jurisprudentially differently than any other regulated good, and yet you keep claiming that there is, because it would upset you not to, or because you think it is important.

    Now, you claim that because I contend that Griswold was constitutionally incorrect, there is a “major problem” in my jurisprudence- in other words, you consider any jurisprudence that is unwilling to recognize a constitutional and judicially enforceable treatment of contraceptives as inherently more hallowed than other commercial goods to be fundamentally flawed. And yet you claim to not want to argue Griswold.

    Defend the indefensible. If your defense lies entirely on policy reasons, as it has so far, then the protections you advocate lie with the legislature, not the courts. And if you’re worried about the majority disagreeing with you, then the rights you claim, and the policy justifications you give for them, are simply not important enough. That’s how representative forms of government work.

    “I also think its a problem that we would take everything of SDP that we did keep in P&I and deny it to non-citizens, as the P&I clause only reaches citizens. But maybe we can find a long tradition of ignoring that text?”

    Here is your continuing problem, yet again. You raise a valid point (which I’ll get to in a minute, don’t worry) about the differing applications of the two clauses, but then you conclude with a reference to something I have already explained to you several times- the Eleventh Amendment, and Constitutional text as a whole, does not exist in a vacuum, but rather in the context of the rest of the Constitution, and the original meaning and intent of all constitutional provisions. Your continued assertions that structural arguments for sovereign immunity beyond the Eleventh Amendment somehow ignore the text of the Amendment are utterly irrational- where in it is the “sovereign immunity shall only consist of [Eleventh Amendment text]?” It isn’t there- stop pretending it is.

    As for the citizen/others distinction, I find that untroubling. Even permanent resident aliens possess nothing more than a license to be present in the United States- that aliens are subject to deportation (revocation of the license) indicates as much. Thus, I find it untroubling that licenses have the potential of becoming more restrictive than they are currently- citizenship does in fact mean something above and beyond the franchise.

    However, even so, I don’t believe that the transition would be anywhere near as radical as you suggest it would be. Aliens are still entitled to Due Process, as that clause is not limited, and are generally protected from federal action. State citizenship, with the protections that attach there (such as diversity jurisdiction access to the federal courts) is a more nebulous thing, but has been repeatedly held to not be coterminous with American citizenship.

    Indeed, one of the few situations that this change will almost certainly alter is the holding in Plyler v. Doe that illegal aliens had a constitutionally protected right to a free public education. I’m untroubled by that result, particularly given the vast shift towards constitutional conformity that my jurisprudence represents.

    As for Scalia’s use of original intent and meaning, his book is, at best, a limited proxy for his actual jurisprudence.

    And then, once again you begin with your insistence on the Eleventh Amendment acting as a functional limit on sovereign immunity, which is utterly divorced from the purpose of the Amendment. Yet another explanation would simply be repetitive at this point, except I would note that your characterization of the Revolution as a revolt against sovereignty in all its forms is laughable, as it was mostly about Parliament and the King intruding onto the colonies’ own perceived sovereignty. It is this sovereignty of the states which survives, and remains immune without waiver.

    Angry Clam (f05866)

  42. “I have repeatedly explained that there is absolutely no justification for treating contraceptives jurisprudentially differently than any other regulated good”

    I don’t think its quite true that its absolutely none. I think their difference of course has some jurisprudential impact. They hit the word “liberty” in different ways, for example.

    “If your defense lies entirely on policy reasons, as it has so far, then the protections you advocate lie with the legislature, not the courts”

    The major problem that I have is with the result, not the argument, yes. I don’t want to see the protection that Griswold gives to a minority go away. I think your jurisprudence would have an easier time getting accepted if it allowed for Griswold. Maybe a newfound love for stare decisis?

    “Even permanent resident aliens possess nothing more than a license to be present in the United States- that aliens are subject to deportation (revocation of the license) indicates as much.”

    A lot of the things that the constitution protects don’t have to do with citizenship. I think its a bad result to exacerbate the differences, because of the fundamental difference you already spotted is enough.

    “As for Scalia’s use of original intent and meaning, his book is, at best, a limited proxy for his actual jurisprudence”

    Really? Do you have any sources that compare his book to his jurisprudence? Because I found it a very compelling attack on original intent, which I was never very comfortable with. I would love to know more.

    “Your continued assertions that structural arguments for sovereign immunity beyond the Eleventh Amendment somehow ignore the text of the Amendment are utterly irrational- where in it is the “sovereign immunity shall only consist of [Eleventh Amendment text]?” It isn’t there- stop pretending it is.”

    I think your reasoning simply has nothing to do with the text of the 11th. It doesn’t start with it and it doesn’t end with it. It starts with and ends with the principle of sovereign immunity. And perhaps intent, though I am skeptical of intent generally.

    Does it reach as far as the 14th amendment’s grant of power to congress? Surely that overrode sovereign immunity.

    “[I just can’t shut the hell up. I was given a chance to respond, told to drop it after that because it was off-topic, and just won’t.]”

    If you tell me not to use a word, I will tell you why I used it and say sorry.

    actus (a5f574)

  43. “I don’t want to see the protection that Griswold gives to a minority go away. I think your jurisprudence would have an easier time getting accepted if it allowed for Griswold. Maybe a newfound love for stare decisis?”

    It’s strange how you express such disdain for majoritarian rule, and yet wish to subject jurisprudence to its confines. Griswold was incorrect as a matter of constitutional law- there is nothing in the Constitution or in American legal history that can reasonably be read as conferring a legal right to the trade in contraceptives. Policy arguments are, once again, the province of the legislature, not the courts.

    Stare decisis must not be used to justify decisions that were otherwise unmoored from the law and the Constitution. That’s what made Planned Parenthood v. Casey so disgusting- the Justices who admitted that Roe was incorrect as a matter of constitutional law, and yet believed that precedent should control. As I said above, there is no “Constitution by Estoppel.”

    “I don’t want to see the protection that Griswold gives to a minority go away.”

    If you really think that people in favor of the sale of birth control are the minority, you have some serious blinders on.

    “A lot of the things that the constitution protects don’t have to do with citizenship. I think its a bad result to exacerbate the differences, because of the fundamental difference you already spotted is enough.”

    Once again with policy, rather than law. I would not hesitate to rule in ways that I think are bad ideas in cases if that is truly what the law commands, and that law is not violative of the Constitution. See my discussion of sodomy laws, or contraceptive bans. I think both are quite dumb, but that does not mean that I would have any qualms about fully enforcing them. Any judges that would are derelict in their duties to apply the law.

    “I think your reasoning simply has nothing to do with the text of the 11th. It doesn’t start with it and it doesn’t end with it.”

    One last time, actus: The Eleventh Amendment is not the sole source of sovereign immunity. Repeat it with me. The Eleventh Amendment is not the sole source of sovereign immunity. You continually assert that it is, and, as such, it defines the entire scope of the immunity.

    Read Article I, section 10. Now read the Tenth Amendment. Additionally, read Article VII and then go read Federalist No. 32.

    There’s, off the top of my head, the ample textual and original intent sources for the structural argument that states retain all sovereignty powers not explicitly abrograted by the Constitution. I’m certain that if I wanted to really go through the documents, I’d find much more.

    The Eleventh Amendment is not, by any stretch, “ok, so sovereign immunity in this type of case, and absolutely nowhere else” as you pretend it is.

    “Does it reach as far as the 14th amendment’s grant of power to congress? Surely that overrode sovereign immunity.”

    Yes it does- I’ve already said several times that section 5 conferred upon Congress the power to abrogate states’ sovereign immunity with respect only to suits under the Fourteenth Amendment. Search for “section 5” on this page, and you’ll see it.

    Final note: no, I don’t. That’s a project that I’m actually personally working on at the moment. Particularly, I’m interested in the interplay between his stated originalism jurisprudence and his less stated, but equally important to understanding, preference for majoritarian, rather than authoritarian (such as the judiciary), decisionmaking processes. As part of that, I’m currently engaged in the process of reading every single opinion that Scalia has ever written, including while on the D.C. circuit. I’m on 1993, currently. I’ll certainly let you know when it gets far enough along to be considered a “working paper” rather than simply an article idea. I’m hoping to have it completed in time for the spring law review submissions madness.

    Angry Clam (f05866)

  44. “If you really think that people in favor of the sale of birth control are the minority, you have some serious blinders on.”

    I think that there are places where they are in the minority, and those are the people we ought to be protecting. And I’m not that confident that this president and congress would enact a statute that would protect what Griswold protects. But it would make for a good wedge issue to carve away right wing extremism. So maybe I shouldn’t mind this political fight.

    “Read Article I, section 10. Now read the Tenth Amendment. Additionally, read Article VII and then go read Federalist No. 32.”

    I really don’t see what amendment 10 has to do with seminole tribe. That was about a power delegated to congress. Nor do I see the germaneness of the ratification clause. I.10 is very nice, but it doesn’t surprise me that we list the things that states cannot do.

    actus (a5f574)

  45. Read I.10 plus Amendment X. Both are about state powers- I.10 being what states cannot do, and X being “but they’ve got everything else.”

    Then there’s the ratification, which is all about states assenting to the Constitution.

    These are simply examples where the structure of the federal government as a set of delegated powers with the states possessing all residual sovereignty, including the power to be immune from suit.

    Angry Clam (f05866)

  46. ” X being “but they’ve got everything else.””

    Everything else not given to the feds, which is what Seminole Tribe was about.

    actus (a5f574)

  47. Right. Where in Article I, section 8 do you see anything to indicate to you that the states intended to surrender sovereignty to private suits as authorized by federal regulations?

    Compare that to the Fourteenth Amendment, which was intended to abrogate immunity.

    Also remember, the federal government itself may still sue states. There’s two things going on here.

    Angry Clam (f05866)

  48. “Where in Article I, section 8 do you see anything to indicate to you that the states intended to surrender sovereignty to private suits as authorized by federal regulations?”

    ‘To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;’ Whatever unwrittent sovereignty there was, this gives congress a right to abrogate it for these purposes. Seminole Tribe being, well, a tribe.

    actus (a5f574)

  49. Regulatory power is not the same as judicial enforcement power in federal court.

    As I’ve repeatedly said, the Federal government has always been free to sue the states in federal court itself. It’s a wholly different matter to allow private citizens to do so.

    Angry Clam (f05866)

  50. “Regulatory power is not the same as judicial enforcement power in federal court.”

    So you mean to say that congress can regulate something but not provide to have that regulation enforced in a court when it is violated?

    “It’s a wholly different matter to allow private citizens to do so.”

    Is it a traditional principle — as traditional as sovereign immunity — that the power to regulate also involves the power to create causes of action under that regulation?

    actus (a5f574)

  51. So you mean to say that congress can regulate something but not provide to have that regulation enforced in a court when it is violated?

    Not in federal court as against a state by a private citizen. It may be enforced in federal court by the federal government, or it may be enforced in state court by a private citizen only where the state so consents (see, for example, Alden v. Maine).

    Is it a traditional principle — as traditional as sovereign immunity — that the power to regulate also involves the power to create causes of action under that regulation?

    Not in our constitutional order with respect to sovereign state governments. The power of the federal courts to adjudicate a matter, which is limited by sovereign immunity, cannot be expanded beyond its constitutional scope. That’s why there can be no expansion of the original jurisdiction of the Supreme Court, no advisory opinions even if Congress asks, and no infringement of sovereign immunity.

    Angry Clam (f05866)

  52. “It may be enforced in federal court by the federal government, or it may be enforced in state court by a private citizen only where the state so consents (see, for example, Alden v. Maine).”

    And I’d say the state consented when it ratified Art I. sec 8, if it there was sovereign immunity to surrender. Where do you get your requirement that the federal government must pursue the suit on its own?

    actus (a5f574)

  53. Not must, may. There is federal jurisdiction for all suits in which the federal government is a party. Additionally, the entire reason for the establishment of a federal judiciary was to hand disputes between the various governments composing the United States- for the same reason, one state may sue another in federal court.

    AS for your interpretation of Article I, it’s just flatly incorrect. Where do you discern any power of the federal government in Article I, to regulate the states? Additionally, it has never been understood to be so- there’s a reason that the Fourteenth Amendment, which does regulate the states, required an affirmative grant of power to do so.

    Angry Clam (f05866)

  54. “Not must, may. ”

    Must if it wants to at all. It can’t create a private cause of action as part of its power to regulate?

    “AS for your interpretation of Article I, it’s just flatly incorrect. Where do you discern any power of the federal government in Article I, to regulate the states? ”

    It regulates dealings with tribes. Pretty straightforwardly regulating state/tribe relations.

    actus (a5f574)

  55. Oh come on. Now you’re just being silly.. There’s plenty of stuff that exists as regulations not subject to lawsuits by private citizens or even suits in federal court at all.

    And, as for Seminole Tribe, have you even read the case? The Feds could have sued there had they chosen to; the indians couldn’t.

    Angry Clam (f05866)

  56. “The Feds could have sued there had they chosen to; the indians couldn’t.”

    Can the feds create a private cause of action for the Indians? I think that’s part of regulate. You don’t. Thats about it.

    actus (a5f574)

  57. They can. That cause of action may be maintained against consenting states.

    “Regulation” isn’t the only part, though. Sovereign immunity is a restriction on the jurisdiction of federal courts as well.

    Congress is not empowered, in any respect, to enlarge the scope of federal jurisdiction beyond constitutional limits.

    Angry Clam (f05866)

  58. I would like to make a comment about QUESTION #7 dealing with sovereign immunity. I observe that the Necessary and Proper Clause was mentioned in connection with QUESTION #6 but not QUESTION #7. That is a mistake. The Necessary and Proper Clause is just as important as the Eleventh Amendment in analyzing the issue of sovereign immunity.

    Whenever Congress purports to wipe out a state’s sovereign immunity, it is not putporting to act under the explicit enumerated powers, but rather is purporting to act under the Necessary and Proper Clause. The scope of that Clause was explained by Chief Justice Marshall in McCulloch v. Maryland. Althoug Congress has great discretion under the Necessary and Proper Clause, wiping out a state’s sovereign immunity is not always “Necessary and Proper.”

    So, let’s not get all obsessed about the Eleventh Amendment, and ignore the Necessary and Proper Clause.

    Thank you for your kind attention.

    Andrew (2977e4)

  59. “They can. That cause of action may be maintained against consenting states.”

    And my argument is that they consented when they ratified art I. sec8 giving the feds power to regulate relations with the tribes. Thats supposing that there was sovereign immunity in the first place.

    actus (cd484e)

  60. Christ, you don’t read, do you? I’ll repeat it one more time: sovereign immunity also acts as a bar on the federal courts’ jurisdiction, which Congress cannot modify beyond its constitutional scope. Furthermore, the entire history of sovereign immunity is against you.

    Continuing to maintain that assertion is like maintaining that the income tax is unconstitutional because the Sixteenth Amendment was improperly ratified- it’s utterly baseless and rejected.

    Angry Clam (f05866)

  61. “I’ll repeat it one more time: sovereign immunity also acts as a bar on the federal courts’ jurisdiction, which Congress cannot modify beyond its constitutional scope.”

    Are cases of sovereign immunity really tossed for lack of subject matter jurisdiction?

    I think the feds have the ability to create private causes of action under their ability to regulate relations with tribes. Whatever you think the unwritten concept of sovereign immunity is, it seems to jar with something quite clearly written in the constitution: the fact that congress can regulate the relations with tribes, and the fact that this falls under the judicial power of the courts.

    actus (cd484e)

  62. Not brief; but well done. I only fell asleep twice reading it. Just kidding! I really can not think how it could be less wordy and still say what needs to be said. I fear some will start and not finish due to length; which is their loss.

    Rod Stanton (7b6143)

  63. Actus: It doesn’t matter what you think, you’re wrong historically and jurisprudentially. I suppose that your response to this will be, as usual, to simply repeat your assertion.

    Rod: Thanks.

    Angry Clam (280c3c)

  64. “Actus: It doesn’t matter what you think, you’re wrong historically and jurisprudentially. ”

    Its hard to say that I’m historically wrong about a recent decision.

    actus (a5f574)

  65. You’re historically wrong about the scope of “regulate” and Article I powers.

    Angry Clam (280c3c)

  66. […] Some of you may remember the last time that I played judicial nominee and answered a host of questions from a group of lefty law professors. […]

    Patterico’s Pontifications » Further Hearings in the Nomination Hearing That’s 10-20 Years Ahead (421107)

  67. Angry Clam you say above (comment 4) that there is no constitutional right to traffick in any commercial good. Does this apply to books or guns?

    James B. Shearer (fc887e)


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