Tag Archives: Jack Balkin

“There’s Nothing In The Constitution About That.”

Calvin Massey interviewing Justice Scalia for California Lawyer:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

Max Fisher at The Atlantic with the round-up

Amanda Terkel at Huffington Post:

For the record, the 14th Amendment’s equal protection clause states: “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.”

Marcia Greenberger, founder and co-president of the National Women’s Law Center, called the justice’s comments “shocking” and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

“In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them,” she said. “But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them. And that’s a pretty shocking position to take in 2011. It’s especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Greenberger added that under Scalia’s doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools — all things that have happened in the past, before their rights to equal protection were enforced.

Ann Althouse:

HuffPo headlines: “Women Don’t Have Constitutional Protection Against Discrimination.” The writer, Amanda Terkel, quotes the 14th Amendment, and concludes, with unironic textualism: “That would seem to include protection against exactly the kind of discrimination to which Scalia referred.” Thanks for the analysis, Amanda.

Terkel also called up Marcia Greenberger, founder and co-president of the National Women’s Law Center, who professed to find Scalia’s opinion “shocking” — even though he’s been saying it for at least 15 years.

Scott Lemieux at Tapped:

Scalia has never been consistent about applying the principles expressed above. Nobody who voted for the 5th or 14th Amendments thought that they were prohibiting affirmative action, and yet Scalia has found that both amendments prohibit affirmative action in virtually all circumstances. Scalia also believes that Brown v. Board was correct, although very few of the persons who voted in favor of the proposal or ratification of the 14th Amendment believed that it prohibited racial segregation. When the originalist principles outlined above clash with (rather than reinforce) his political preferences, Scalia has no problem ignoring them.

Scalia’s answer when it comes to gender? That while the framers and ratifiers of the 14th Amendment did not think they were outlawing affirmative action or school segregation, they did think they were outlawing racial discrimination; they didn’t specifically discuss gender discrimination. The problem with this response is that Scalia’s choice to stop at this particular point on the ladder of abstraction is completely arbitrary. Scalia has already made clear in other cases that he doesn’t think that the concrete expectations of framers or ratifiers are binding. And the 15th Amendment demonstrates that the framers of the 14th could have limited the equal protection clause to racial discrimination, but they did not. So what basis does Scalia have for being certain that the 14th Amendment permits gender discrimination?

He doesn’t. Scalia’s belief that the 14th Amendment does not prohibit gender discrimination is a political choice in no way compelled by the text of the Constitution.

Jack Balkin:

Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That’s not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination– discrimination in basic civil rights against single women.

Moreover, the Constitution was subsequently amended. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment’s guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. The conservative court during the Lochner era thought as much in a case called Adkins v. Children’s Hospital, decided immediately after the ratification of the Nineteenth Amendment.

Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution’s framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964’s ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia’s arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today’s world. That is to say, he doesn’t really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.

Second, if Scalia had really wanted to be faithful to the expectations and assumptions of the the adopters of the Fourteenth Amendment, he had no business joining the opinion in Bush v. Gore, because the Amendment was not intended to change state rules concerning the right to vote.

During the interview Justice Scalia says that he doesn’t even need to read the briefs to know what originalism permits, requires or forbids; but I would respectfully suggest he needs to read a bit more history.

Legal Insurrection:

Gee, Scalia must hate women.

Except that the headline is a good example of a half-truth.  Scalia’s point is the fairly standard originalist view that the 14th Amendment does not broadly apply to prohibit all forms of discrimination on the basis of sex.  Either sex.  It does not protect men against discrimination on the basis of sex, either.  The Supreme Court decision in Reed v. Reed, 404 U.S. 71 (1971) is read by some as offering broad protection on the basis of sex, but that is an overreading of a fairly limited opinion in which the Court found no rational basis for a state law giving preference to males in the appointment of estate administrators.  Other cases after Reed have applied a more strict scrutiny approach.  I assume Scalia disagrees with the Reed decision, not because he doesn’t like the result, but because of the approach;  this difference in approach does not make Scalia wrong, or hostile to women as the HuffPo headline suggested.

Scalia’s view is neither novel nor new.  That the Constitution does not address discrimination on the basis of sex as such was evidenced by the ultimately failed attempt to amend the Constitution to add an Equal Rights Amendment which would have added this provision:  “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

The Blog Of Legal Times

Cat White at Scholars and Rogues:

So how important is the Constitution for protecting people’s rights? Apparently not very. Scalia goes on to say, “You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.”

Unless you happen to be a corporation. Scalia et al continued the practice of defining corporations as persons with equal protection under the 14th Amendment (there is an article here on the history and meaning of the practice here–in short, define which “persons” are “citizens” and then grant protection to “citizens.”) Corporations are, of course, “legal persons” endowed by their creators with perpetual life and by the courts with inalienable rights by the 14th Amendment (as opposed to us “natural persons” who have limited life and apparently limited protection against discrimination by the 14th Amendment).

Apparently, “natural persons,” or at least female “natural persons” only need the protection of the laws, as Scalia said about the limits of the Constitution, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

So who else does not need the additional protections of equality? Perhaps workers over 40, African-Americans, gays and lesbians?

Did corporations really need to be given the rights to control our elections through donations? What’s next, the corporate right to vote? Oh, right–they’d only get one vote that way, much better to control the whole process through funding.

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Filed under Feminism, The Constitution

And Now The Left Picks Up That Old Tenth Amendment

Rachel Slajda at TPM:

A federal judge ruled today that part of the Defense of Marriage Act, which defines marriage as between a man and a woman, is unconstitutional.

Judge Joseph Tauro, of U.S. District Court in Boston, issued rulings on two separate cases today.

“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” Tauro wrote in the decision for Massachusetts v. Health and Human Services.

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid,” he wrote.

Ed Morrissey:

The 10th Amendment application seems a little odd to me, especially in the case of Medicaid coverage.  That program uses federal funds in part to cover medical bills.  The federal government would therefore seem to have jurisdiction on how its own funds get spent, although the state should have the same latitude with its own funds.  After all, DOMA doesn’t tell states that it can’t recognize same-sex marriages, but just exempts marriage recognition from the full faith and credit clause of the Constitution so that other states don’t have to follow suit.  It also retains federal jurisdiction on marriage definition for the purpose of spending federal money on partner benefits, which also has nothing to do with the 10th Amendment.

If the Supreme Court endorses this stand, though, it sets up an interesting question for conservatives who express support for better enforcement of the 10th Amendment.  Can they get behind this interpretation?  And will this sudden interest in applying the 10th Amendment by the judiciary start spreading to other issues, especially in rethinking a century’s worth of decisions on the commerce clause?

Andrew Sullivan:

And so one of the principles held most dearly by some of the tea-partiers must logically hold DOMA unconstitutional. Much more on this tomorrow. But let me note right now the political ironies of this. The right is hoist on their own federalist petard and will now have to choose whether states’ rights or marriage inequality is more important to them. The Obama administration, meanwhile, now has to decide whether it will further defend DOMA in the courts, fighting against the principles of the tenth amendment so dear to conservatives or the fifth amendment so dear to liberals. The incoherence of the Republicans and the cowardice of the Democrats are now exposed more than ever.

Or they could both listen to Ted Olson. This issue is neither right nor left; it is about human dignity, civil equality and civil rights. And it is way past time the American polity grappled with this, instead of exploiting it for mutual partisan purposes.

Jack Balkin:

I am a strong supporter of same sex marriage. Nevertheless, I predict that both of these opinions will be overturned on appeal. Whether one likes it or not– and I do not– Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge– who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are–is in a very different position than I am.

Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.

To be sure, there is something delightfully playful and perverse about the two opinions when you read them. Judge Tauro uses the Tenth Amendment– much beloved by conservatives– to strike down another law much beloved by conservatives–DOMA. There is a kind of clever, “gotcha” element to this logic. It is as if he’s saying: “You want the Tenth Amendment? I’ll give you the Tenth Amendment!” But in the long run, this sort of argument, clever as it is, is not going to work. Much as I applaud the cleverness– which is certain to twist both liberal and conservative commentators in knots– I do not support the logic.

The arguments of Judge Tauro’s two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government’s taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?

Dale Carpenter:

Analytically, the Gill decision is like the state court decisions rejecting common rationales for limiting marriage to opposite-sex couples.  The court doesn’t hold that sexual-orientation discrimination is subject to strict scrutiny or that there is a fundamental right to marry that includes same-sex couples. Instead, applying the increasingly non-deferential rational basis test, the court concludes that there is no legitimate purpose rationally served by denying federal benefits to same-sex married couples while giving the same benefits to opposite-sex married couples.  Previous state court decisions, like Goodridge, have also held that traditional marriage limitations are irrational.

What makes the case a bit different from some of the state cases are (1) the Obama Justice Department’s abandonment of the classic rationales for limiting marriage to its traditional understanding, and (2) the peculiar federal dimension involved.

Congress gave four basic reasons for Section 3: (1) encouraging responsible procreation and child-bearing, (2) promoting traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) conserving scarce resources. The Obama Department of Justice conceded that none of the four were rationally served by Section 3. Op. at p. 23.

Nonetheless, the court attacked them. As for the first — encouraging responsible procreation and child-rearing — the court treats as settled the debate over whether children do as well with gay parents as with heterosexual ones.  Op. at 23–24. It is not even a rationally debatable question, says the court, based on the consensus among learned family experts that has emerged since 1996.  But even if that question were rationally debatable, refusing to recognize same-sex marriages does nothing to make heterosexuals more responsible procreators and parents. Op. at 24. And, with what I’m guessing was particular glee, Judge Tauro cites Justice Scalia’s dissent in Lawrence v. Texas for the proposition that the ability to procreate has never been a precondition for marriage. Op. at 24–25. Justice Scalia’s dissent in Lawrence is effectively the first draft of a brief for SSM.

The second congressional rationale — promoting the traditional institution of marriage — was unavailing since it’s not likely that state-recognized same-sex spouses would seek opposite-sex marriages. And punishing same-sex spouses in order to make opposite-sex marriages seem more desirable would be just another way to express disdain for a politically unpopular group. Op. at 25–26.

The third rationale — promoting traditional morality — is insufficient after Lawrence.  Op. at 26. No opinion in Lawrence was clearer on the constitutional demise of morality than was Justice Scalia’s dissent.

And the final congressional rationale — conserving resources (by providing them only to certain married couples) — could not explain why Congress chose to draw the line in this particular way. Op. at 26–27.

That left the DOJ to hypothesize some possible justifications for Section 3. One was to say that Congress had an interest in preserving the status quo at the federal level on a contentious and evolving social question.  Congress had a legitimate interest, said the DOJ, in staying out of the debate over marriage and letting the states resolve it.  Judge Tauro responded that in fact DOMA changed the status quo at the federal level — from one in which the federal government had historically relied solely on states to determine the meaning of marriage to one in which Congress would now weigh in with its own understanding.  Op. at 28–35.

A related justification, said the DOJ, was Congress’ interest in moving incrementally on the issue.  The court rejected that justification on the ground that no federal administrative burden was eased by excluding married same-sex couples and that DOMA itself barred incremental evolution at the federal level. Op. at 35–37.

What also makes Gill (potentially) distinguishable from the state marriage decisions is the federal context.  Failing a legitimate justification, the court says, there is nothing to explain the 1996 federal law except animus against gay people. That animus was displayed in the cavalier way Congress passed DOMA without examining its extensive effects, op. at 5–6, and in the moral condemnation expressed in both the statutory text and in many statements by members of Congress. Op. at 5 (noting congressional remarks) and at 5, 26 (noting congressional moral disapproval of homosexuality).

Joe Sudbay at AMERICABlog:

Today, we celebrate. But, this is only the beginning of the process. We’ll have to find out if the Obama administration plans to appeal these rulings. (Note to Obama administration: Please don’t.)

UPDATE: More Balkin

Noah Millman at The American Scene here and here

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Filed under Gay Marriage, The Constitution

As 2009 Was The Year Of “You Lie,” 2010 Will Be The Year Of “Not True”

Allah Pundit:

He’s on the far left of your screen, seated to the right of Sotomayor. Politico’s calling it his Joe Wilson moment.

When you hear the president of the United States demagoging the First Amendment, you sit there and you take it, son.

Instapundit:

FROM JUSTICE ALITO, a “you lie” moment? “POLITICO’s Kasie Hunt, who’s in the House chamber, reports that Justice Samuel Alito mouthed the words ‘not true’ when President Barack Obama criticized the Supreme Court’s campaign finance decision.” Drudge is calling Obama’s criticism “intimidation,” but apparently, they weren’t so intimidated. As I said before, Obama’s behavior wasn’t very Presidential, and it wasn’t very wise.

UPDATE: Brad Smith: “The president’s statement is false.”

MORE: “When you hear the president of the United States demagoguing the First Amendment, you sit there and you take it, son.”

No, actually, you don’t, and Alito didn’t. And that will step on Obama’s press tonight and tomorrow, turning his demagoguery into a negative for him. That’s why Presidents usually act Presidential. Not so much because it’s dignified. But because it’s smart. That’s something that Obama, with his limited experience on the national stage, hasn’t figured out yet.

Kevin Mooney at American Spectator:

He really did not like that ruling in defense of First Amendment freedoms did he? Has a president ever attacked The U.S. Supreme Court like that in such an august setting? Already, Fox News and CNN have made note of Justice Alito’s lip movements that seem to say “not true.” – A bit more reverential than Rep. Joe Wilson’s editorial comments.

There’s a long and copious list of high court rulings that do not sit well with those of who favor some form of “originalist” jurisprudence and it’s fine for the Supreme Court to figure into campaign talking points. But there is something unseemly about the president’s very vociferous comments and what this says about the separation of powers.

President Franklin Roosevelt’s attacks on the judiciary ultimately worked to his political disadvantage back in the 1930s. Burt Solomon, a long-time correspondent for National Journal, explores the history here in his very excellent book entitled: “FDR V. The Constitution,” which now has a heightened relevance.

It looks like Obama will have at least one more shot at an opening on the high court as it now appears likely that Justice John Paul Stevens will step down. This will not shift the current ideological balance but it does mean that judicial philosophy should figure into the 2012 presidential campaign and perhaps this year’s U.S. Senate races.

Tom Maguire

Glenn Greenwald:

There’s a reason that Supreme Court Justices — along with the Joint Chiefs of Staff — never applaud or otherwise express any reaction at a State of the Union address.  It’s vital — both as a matter of perception and reality — that those institutions remain apolitical, separate and detached from partisan wars.  The Court’s pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations.  The Court’s credibility in this regard has — justifiably — declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more “liberal” Justices do to the reverse (Citizens United is but the latest example).  Beyond that, the endless, deceitful sloganeering by right-wing lawyers about “judicial restraint” and “activism” — all while the judges they most revere cavalierly violate those “principles” over and over — exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John “balls and strikes” Roberts may be the greatest hypocrite ever to sit on the Supreme Court).  All of that is destroying the ability of the judicial branch to be perceived — and to act — as one of the few truly apolitical and objective institutions.

Justice Alito’s flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline.  On a night when both tradition and the Court’s role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow — a conservative Republican judge departing from protocol to openly criticize a Democratic President — with Republicans predictably defending him and Democrats doing the opposite.  Alito is now a political (rather than judicial) hero to Republicans and a political enemy of Democrats, which is exactly the role a Supreme Court Justice should not occupy.

James Joyner responds to Greenwald:

Incidentally, while Greenwald is a progressive and no fan of Alito, he’s actually written defending Citizens United.

While I generally agree with Greenwald on the matter of judicial temperament and value of preserving the (frankly, false) illusion that Supreme Court Justices are impartial caretakers of the Constitution rather than political actors, it seems that we can reasonably grant an exception in the case of cases on which the Court has already ruled.  Alito has already told us what he thinks of the issues involved in this particular case in controversy by signing his name to Justice Kennedy’s longish opinion.  Just as  I would have no problem with the dissenting Justices reiterating the rationale behind their dissent, I’m fine with Alito objecting to a blatant mischaracterization of his ruling.

Certainly, time, place, and manner are important considerations.   And the SOTU assembly isn’t a place where Justices usually speak their mind on these matters.  But Alito’s mild and inaudible reaction to being publicly called out — and disingenuously at that — by the president is quite reasonable.

Benjamin Carlson at The Atlantic

Jonathan Chait at TNR:

Have we really gotten so squeamish? I haven’t seen a convincing explanation as to why it’s so awful for Republicans to disagree with a presidential speech. The answer is “decorum,” but to me, decorum suggests giving latitude to the opposition. The State of the Union, remember, was originally delivered elsewhere in order to avoid the appearance of a president dictating to Congress. Forcing Congress and the Supreme Court to defer to the president as a ceremonial head of state, rather than the head of a co-equal branch of government, runs counter to the deepest spirit of our form of government.

Moreover, it represents the Washington establishment’s prudish aversion to debate. I can see why a loud outburst might be objectionable — though I’d prefer a feisty back-and-forth, like in Great Britain — but to scold Alito merely for moving his lips in such a way as to show disapproval seems to be taking the prudishness to a new extreme. Yes, he’s a Supreme Court Justice and we’re supposed to believe he has no political beliefs or agenda, but in the post Bush v. Gore world it’s a little late for that.

Besides, as Linda Greenhouse reports, Alito was right. Shouldn’t that count for something?

The Anchoress:

UPDATE ON THAT: Justice Alito mouthed, “not true” and Hot Air has the tape. Bradley A. Smith at NRO writes that the president was wrong on Citizens United v. FEC and ends: This is either blithering ignorance of the law, or demogoguery of the worst kind.

I wonder what Sonya Sotomayor thought of the Chief Executive “with all due deference” dissing the Judicial branch and inciting the Legislative Branch against it.

And you know, I still can’t believe that the guy who amassed more than $600 Million in campaign contributions (much of it from Wall Street, Evil Banks and Lobbyists) had the face to stand there and talk about campaign finance reform. I mean, again – BONG!!! – cognitive dissonance. Is this man totally disconnected from himself?

Ann Althouse:

Isn’t it fascinating that the lengthy, amplified, magnified speech of the most powerful man in the world with his big captive audience — in the magnificent room and in smaller rooms all over the country — are outweighed by one man’s headshake and silent mouthing of 2 or 3 words?

And isn’t it ironic that, right when we saw the judge’s minimalist expression that overwhelmed the President’s torrent of words, Obama was railing about the “powerful interests” and that would use their great wealth to speak far too much during election campaigns?

It’s not how much or how loud you speak that counts, is it?

UPDATE: David Frum posts a twitter conversation on FrumForum

Randy Barnett at Politico

Jack Balkin

Mark Thompson at The League

UPDATE #2: Mark Schmitt and Brink Lindsey at Bloggingheads

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Filed under Political Figures

Mr. Yglesias Goes To Washington Or The Filibuster Follies

Matthew Yglesias:

We’re suffering from an incoherent institutional set-up in the senate. You can have a system in which a defeated minority still gets a share of governing authority and participates constructively in the victorious majority’s governing agenda, shaping policy around the margins in ways more to their liking. Or you can have a system in which a defeated minority rejects the majority’s governing agenda out of hand, seeks opening for attack, and hopes that failure on the part of the majority will bring them to power. But right now we have both simultaneously. It’s a system in which the minority benefits if the government fails, and the minority has the power to ensure failure. It’s insane, and it needs to be changed.

Instapundit:

CAN I CALL ‘EM, OR WHAT? Back in September, noting a continuing pattern of White House incompetence, I predicted: “Expect this to play out in thumbsucker columns on whether America is ‘ungovernable.’”

And, right on cue, here’s Matthew Yglesias: “The smarter elements in Washington DC are starting to pick up on the fact that it’s not tactical errors on the part of the president that make it hard to get things done, it’s the fact that the country has become ungovernable.”

Funny, that dumb cowboy Bush seemed to get a lot done with fewer votes in Congress. . . .

Plus, from the comments: “There have been no major institutional changes in the United States government in recent history that have caused it to ‘become ungovernable.’ There just isn’t enough political support to enact various news laws and policies that you favor. Tough. If you hadn’t become seduced by the delusion that Obama is a ‘progressive’ and that last year’s election represented some kind of historic realignment in favor of ‘progressive’ policies you might have seen this coming.”

Moe Lane at Redstate:

Actually, I agree with both Reynolds *and* Yglesias.

The country is indeed ungovernable.

…By Democrats.

Yglesias:

My observation the other day that the country has become ungovernable has been treated with general scorn by the right-wing blogosphere. Glenn Reynolds, for example, had the simple quip “Funny, that dumb cowboy Bush seemed to get a lot done with fewer votes in Congress.”

Well, okay, but did he get a lot done?

Maybe “ungovernable” was not a good word for this, but I meant to convey the fact that the political system seems incapable of addressing large-scale objective problems. For example, there’s the long-term fiscal deficit. For another example, there’s anthropogenic climate change. For another example, our tax code is a very inefficient means of raising revenue. For a final one, our health care system involves a massive level of waste. These are real problems, not just ideological bugaboos. And I don’t think anything from the Bush administration experience should give us confidence that they’re solvable. Mostly Bush got “a lot done” by dodging those problems. When he did edge toward tackling them—his tax reform commission, for example—he got nowhere.

Perhaps the clearest way of making the point is simply the observation that George W Bush’s administration had a horrible record. Remember how by the time he left office his political party was completely discredited? Remember how conservatives were distancing themselves from the Bush legacy? If that’s what success looks like in modern American government, then we’re really doomed.

David Weigel at Washington Indepedent:

Matthew Yglesias, making another version of his argument that the multiple veto points in the legislative branch overly empower the minority and make America “ungovernable,” drew a quip from Glenn “Instapundit” Reynolds: “Funny, that dumb cowboy Bush seemed to get a lot done with fewer votes in Congress.” Yglesias clarifies: “I meant to convey the fact that the political system seems incapable of addressing large-scale objective problems.”

I think if Reynolds were to revisit his quip, he’d have to agree with Yglesias. What, after all, did Bush “get done” on domestic policy? As a libertarian like Reynolds knows, his biggest policy achievements made the government bigger, kicking costs down the road for someone else to pay. In 2001 he made an alliance with liberals and got the No Child Left Behind Act passed. In 2003 he made an alliance with liberals and got Medicare Part D passed. When Bush put his weight behind the sort of reforms that Reynolds likes, and that his base wanted — Social Security reform, for example — it died in Congress.

The big exception to all of this, of course, was tax policy. Bush got enormous supply-side tax cuts through Congress. But as Reynolds must know, those tax cuts didn’t need 60 votes to get through the Senate; they went through the budget process and needed 51 votes. I don’t think anyone would make the argument that tax cuts should have to pass a supermajority threshold. I know very few conservatives who are glad that Democratic filibusters, when the party was at an ebb of 45 Senate seats, could kill entitlement reform. But in our current system, cost-shifting policy like that is easy to pass and large-scale policies are tough to pass — note that “deficit hawks” like Sen. Kent Conrad (D-N.D.) are not proposing actual entitlement reforms, but toothless “commissions” to look at those reforms.

Ed Morrissey:

Funny, but I don’t recall Yglesias demanding those changes while Democrats were in the minority in the Senate.  Tom Daschle was no less obstructionist, and Democrats managed to kneecap George Bush on judicial appointments without writing cris des coeurs over ungovernable America.  In fact, Democrats openly bragged about using the Senate’s ancient methods of corralling the majority, even on the novel issue of judicial appointments where such procedures had rarely been used.  And yet George Bush and the Republicans still managed to govern, and that was just a couple of years ago.

Ta-Nehisi Coates:

I caught this over at Andrew’s place, and think it’s worth flagging. Patrick noted Ed Morrissey pointing to Yglesias’s alleged hypocrisy on the filibuster:

Funny, but I don’t recall Yglesias demanding those changes while Democrats were in the minority in the Senate.

There’s a similar note below about liberal hypocrisy. For whatever’s it’s worth, it should be noted that Matt is actually on the record as opposing the filibuster back in 2005. I’m not totally convinced because I haven’t thought much about what a filibuster-less world would look like. Still, at least in Matt’s case, killing the filibuster isn’t a new argument born out of the current congressional make-up.

And here’s Matt Y in 2005 in the American Prospect:

Washington is abuzz with talk that the Senate Republicans will deploy the so-called “nuclear option” — in essence, violating the rules of the Senate to eliminate the possibility of mounting a filibuster against a presidential nominee — in order to obtain the confirmation of a handful of President George W. Bush’s appointments to the federal judiciary. Senate Democrats, naturally enough, are plotting a second strike: Through various manipulations of the Senate rules, they will bring the entire legislative process to a grinding halt. And rightly so. There’s no particular reason why filibusters should be banned just for nomination votes, and there’s certainly no justification for doing so in a way that violates the Senate’s rules. The politics of the fight that would ensue are uncertain but probably winnable for the Democrats. The substantive outcome — no passage of any bills of any sort — is the best liberals can hope for, given the current correlation of political forces inside the Beltway.

There is, however, a better way. Democrats should counter loose talk of going nuclear with a proposal of their own: The Senate as a whole could vote, through proper procedures, to end filibusters on votes of all kind, allowing passage of any bill (or nominee) that can secure a majority vote. Republicans may reject the offer, of course. But if they do so, that will only strengthen the Democrats’ hand politically in combating the nuclear option — by demonstrating a fair-minded commitment to principle over short-term partisan advantage.

Alternatively, the GOP might agree. In the short term, this would produce bad results: confirmation for some bad judges. In the long run, however, eliminating the filibuster will be good for liberals, and Republicans will rue the day they decided to sacrifice a major prop of conservatism in order to put a handful of under-qualified nominees on the bench.

[…]

At any given moment, the filibuster rule helps the minority party. Right now, that’s Democrats. But taking the long view, the filibuster is bad for Democrats. Ideally, you’d want to get rid of it at just the ideal moment. But, realistically, that can’t be done; only minority-party acquiescence will let it happen. Now’s a good time for Democrats to show some rare appreciation for the importance of long-term thinking and let the right shoot itself in the foot — rather than giving them yet another tool with which to rile up their base.

Matt Y now:

Meanwhile, I have the reverse hypocrisy accusation. All those conservatives who were upset about minority obstruction when Bush was president know there will be a moment of conservative political power again in the future, right? Don’t they think that if conservatives win an election based on conservative ideas they should get a fair chance to put those ideas in place? I won’t be thrilled to see it happen, but I’m glad to accept it as part of a fair trade and have been for years.

James Fallows:

The history here is well known to everyone interested in politics but worth summarizing. For most of the first 190 years of the country’s operation, U.S. Senators would, in unusual circumstances, try to delay a vote on measures they opposed by “filibustering” — talking without limit or using other stalling techniques. For most of those years, the Senate could cut off the filibuster and force a vote by imposing “cloture,” which took a two-thirds majority of those voting (at most 67 of 100 Senators). In 1975, the Senate adopted a rules change to allow cloture with 60 votes, and those are the rules that still prevail.

The significant thing about filibusters through most of U.S. history is that they hardly ever happened. But since roughly the early Clinton years, the threat of filibuster has gone from exception to routine, for legislation and appointments alike, with the result that doing practically anything takes not 51 but 60 votes. So taken for granted is the change that the nation’s leading paper can offhandedly say that 60 votes are “needed to pass their bill.” In practice that’s correct, but the aberrational nature of this change should not be overlooked. (The Washington Post’s comparable story is more precise: “A bloc of 60 votes is the exact number required to choke off the filibuster, the Senate minority’s primary source of power, and the GOP‘s best hope of defeating the bill.”)

Again, this is a very well-explored issue in the academic literature and much of the blog world. For blog and magazine discussions, see here, here, here, here, and here. An authoritative academic treatment came from David Mayhew, of Yale, in his 2002 James Madison lecture for the American Political Science Association. It is available here in PDF and very much worth reading. Sample passage:

That topic is supermajority rule in the U.S. Senate– that is, the need to win more than a simple majority of senators to pass laws. Great checker and balancer though Madison was, this feature of American institutional life would probably have surprised him and might have distressed him….
“Automatic failure for bills not reaching the 60 mark. That is the current Senate practice, and in my view it has aroused surprisingly little interest or concern among the public or even in political science. It is treated as matter- of-fact. One might ask: What ever happened to the value of majority rule?
Everything I have mentioned here is familiar, including the fact that this newly-invented “check” was not part of the original check-and-balance constitutional design. But somehow it isn’t familiar, in the sense of being part of general understanding and mainstream coverage of issues like the health reform bill. Talk shows analyze exactly how the Administration can get to 60 votes; they don’t discuss where the 60-vote practice came from and what it has done to public life. I have a gigantic article coming out soon in the Atlantic — long even by our standards! but interesting! — which concerns America’s ability to address big public problems, compared in particular with China’s. The increasing dysfunction of public institutions, notably the Senate, is a big part of this story.

Paul Krugman in NYT:

Back in the mid-1990s two senators — Tom Harkin and, believe it or not, Joe Lieberman — introduced a bill to reform Senate procedures. (Management wants me to make it clear that in my last column I wasn’t endorsing inappropriate threats against Mr. Lieberman.) Sixty votes would still be needed to end a filibuster at the beginning of debate, but if that vote failed, another vote could be held a couple of days later requiring only 57 senators, then another, and eventually a simple majority could end debate. Mr. Harkin says that he’s considering reintroducing that proposal, and he should.

But if such legislation is itself blocked by a filibuster — which it almost surely would be — reformers should turn to other options. Remember, the Constitution sets up the Senate as a body with majority — not supermajority — rule. So the rule of 60 can be changed. A Congressional Research Service report from 2005, when a Republican majority was threatening to abolish the filibuster so it could push through Bush judicial nominees, suggests several ways this could happen — for example, through a majority vote changing Senate rules on the first day of a new session.

Nobody should meddle lightly with long-established parliamentary procedure. But our current situation is unprecedented: America is caught between severe problems that must be addressed and a minority party determined to block action on every front. Doing nothing is not an option — not unless you want the nation to sit motionless, with an effectively paralyzed government, waiting for financial, environmental and fiscal crises to strike.

Jack Balkin:

This is a time of crisis in American politics: not a crisis created by danger or emergency but by the gradual decay of government institutions. Americans need a Senate that works. The President and the Democrats have an obligation to resolve this crisis, not only for themselves, but for the benefit of the later administrations of both parties.

A government that can do nothing, and is perpetually held hostage to selfish men and women, will lose legitimacy and the confidence of the public; it will weaken and decay, and, sooner or later, find itself unable to respond to crises when they occur. Then the public will demand emergency measures from the executive, acting alone without the consent of Congress, further weakening republican government. A desperate or unscrupulous president will be only too happy to comply. Either we make Congress capable and responsive, or we will eventually lose the republic.

Kevin Drum:

So what would it take to get people to care? One answer: a high-profile supporter.  If Sarah Palin suddenly tweeted that the filibuster is a threat to democracy, for example, everyone would start talking about it.  But who else is a plausible candidate for this?  The president, of course, but he’s not going to.  Anyone else?

Another answer: a popular, high-profile issue that gets blocked repeatedly by a 40-vote minority. Unfortunately, genuinely popular, high-profile issues generally don’t get filibustered.  That’s why Supreme Court vacancies are filled pretty quickly but appellate court vacancies aren’t.  So it’s not clear what issue would fit the bill here.

And a third answer: some kind of fabulously effective grass roots campaign.  That seems pretty unlikely to me, though.  Any other thoughts?

Pejman Yousefzadeh at The New Ledger:

But the big step by extremists will be an attempt to eliminate the filibuster, so that the courts can be packed with judges less committed to upholding the law than Mr. Greer.

Paul Krugman, back in 2005, decrying the “religious right’s” supposed motivation to eliminate the filibuster in the Senate, so that Republican-appointed judges can strike down “conscience” or “refusal” legislation that may “allow doctors and other health providers to deny virtually any procedure to any patient.”

. . . we need to take on the way the Senate works. The filibuster, and the need for 60 votes to end debate, aren’t in the Constitution. They’re a Senate tradition, and that same tradition said that the threat of filibusters should be used sparingly. Well, Republicans have already trashed the second part of the tradition: look at a list of cloture motions over time, and you’ll see that since the G.O.P. lost control of Congress it has pursued obstructionism on a literally unprecedented scale. So it’s time to revise the rules.

Paul Krugman, today. Of course, he wasn’t as exercised when Senate Democrats “trashed the second part of the tradition” while in opposition to filibuster appellate court nominees from the Bush Administration.

I have written this before, but it bears emphasis: It appears that Paul Krugman is unaware of this thing called “Google” or “archives” that allow people to go back, examine past and present statements from particular pundits, and determine whether the pundit in question has been hypocritical in the past.

UPDATE: More Fallows

Ezra Klein

UPDATE #2: Bruce Bartlett

UPDATE #3: Ezra Klein in WaPo

Byron York at Washington Examiner responds to Klein

Ed Kilgore at TNR responds to York

Jay Cost at Real Clear Politics on Klein

Ross Douthat

UPDATE #4: Will Wilkinson

UPDATE #5: Reihan Salam

UPDATE #6: More Douthat

UPDATE #7: Mark Schmitt and Byron York on Bloggingheads

Thomas Geoghegan at NYT

Ezra Klein

Kevin Drum

3 Comments

Filed under Go Meta, Legislation Pending

Old McDonald Had A Supreme Court Case, E-I-E-I-O

second amendmentSCOTUSBlog:

Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county, and city government laws.  In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).  A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497).  Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

Megan McArdle:

It looks like we’ll soon find out; the Supreme Court has accepted cert on McDonald v. Chicago, a gun rights case brought by Alan Gura, the lawyer who won the Heller case.  The court has been dodging the twin questions of whether the Second Amendment protects an individual right to bear arms, and whether it can be incorporated against the states, for decades.  It looks like the question will finally be settled–at least as much as Supreme Court decisions ever settle things–in the next year.

Brian Doherty in Reason

Roger Pilon in Cato:

Thus, the so-called incorporation doctrine will be at issue in this case – the question of whether the Fourteenth Amendment “incorporates” the guarantees of the Bill of Rights against the states. The Bill of Rights applied originally only against the federal government. But the Fourteenth Amendment, ratified in 1868, left open the question of which rights states were bound to recognize. The modern Court has incorporated most of the rights found in the Bill of Rights, but the Second Amendment’s guarantees have yet to be incorporated.

Moreover, a question that will arise in this case is whether the Court, if it does decide that the states are bound by the Second Amendment, will reach that conclusion under the Fourteenth Amendment’s Due Process Clause or under its Privileges or Immunities Clause, which has been moribund since the infamous Slaughterhouse Cases of 1873. In its brief urging the Court to hear the McDonald petition, the Cato Institute urged the Court to revive the Privileges or Immunities Clause.

C.J. Ciaramella at TWS

UPDATE: Orin Kerr

Mark Thompson at The League

John Lott at Big Government

Jacob Sullum at Reason

UPDATE #2: George Will in WaPo

Stuart Taylor at National Journal

Damon Root in Reason

UPDATE #3: Instapundit

Ilya Shapiro at Cato

Jack Balkin

Ed Morrissey

Scott Lemieux at Lawyers, Guns and Money

2 Comments

Filed under Guns, Supreme Court, The Constitution