Gov. Rick Scott and the Florida Cabinet have ended the automatic restoration of voting and other civil rights to nonviolent felons once their sentences are up.
Sitting as the Board of Executive Clemency, they voted 4-0 on Wednesday to change the panel’s rules and require at least a five-year waiting period before ex-convicts can apply to get their rights back.
“If you’re convicted … you lost those rights,” Scott said at a news conference later in the day. “There ought to be a process to get those rights back.”
Law enforcement officials and state prosecutors favored the change, saying people who have broken the law need a waiting period to prove themselves.
Civil rights advocates called the new rule a step backward, tantamount to double punishment.
The change is effective immediately and potentially affects anywhere from 100,000 to 300,000 felons, experts said.
Now felons will have to wait five years after completing a sentence to apply for rights restoration. This will return Florida to the Jim Crow era, when such hurdles were created to prevent blacks from voting.
Make no mistake: This proposal has racial and partisan implications.
A disproportionate number of Florida’s felons are African American, and in this state, blacks overwhelmingly vote Democratic. The Cabinet has further alienated black voters by adopting these more-stringent restoration rules. What purpose does that serve the state or the Republican Party?
In the last decade, more than 20 states have eased the restoration process for people convicted of crimes. Florida should remain in this group of enlightened states. Instead it has gone back a century. It now has joined only two other states — Kentucky and Virginia — in requiring waiting periods and hearings before felons can get their rights restored.
If anything, the Cabinet should have considered more streamlining measures for clemency. The Florida Parole Commission investigates clemency applications, and it has always struggled with huge backlogs. For a time the Corrections Department even loaned some staffers to tackle the backlog.
Clemency application reviews still move at a snail’s pace, delaying justice for felons who have paid their debt to society. The Commission recently told the Legislature that it has a growing backlog of more than 100,000 cases.
Making felons who have served their time wait years to regain their rights has nothing to do with being tough on crime. By embracing this regressive proposal, the governor and Cabinet have sent Florida back to a shameful time of blatant racial prejudice.
Cleveland State University Urban Studies Associate Professor Ronnie Dunn has written extensively on how, since the advent of the Jim Crow era, unfair laws have been enacted— particularly in Southern states—to deny blacks the right to vote. Writing in a soon-to-be-released handbook on prisoner reentry, he describes how poll taxes, literacy tests, and property ownership were devices routinely used to suppress the black vote and unfairly affect election outcomes.
Florida now joins two other states, Kentucky and Virginia, in having the most severe restrictions on former felons voting and other rights, such as serving on juries and holding certain professional licenses. Five black Florida lawmakers joined a chorus of civil-rights advocates in objecting to the rule changes, saying no evidence existed that the abandoned process, which was approved by former Gov. Charlie Crist and the former cabinet in 2007, was not working.
“It’s really not about what’s right or fair,” said Ken Lumpkin, an attorney and political activist in Cleveland. “This is about stealing elections and hurting an individual’s chances of starting over after prison. If felons had had the franchise in Florida back in 2000, over a million more people would have been eligible to vote, and the election would not have been close enough for the Supreme Court to give it to Bush. What this new governor is doing is rolling back the clock on minority rights. And with Republican governors and legislative majorities in states like Ohio and Wisconsin, no one should be surprised if they try to change the rules in those states also. If that happens, a Democratic candidate for president won’t stand a chance.”
Indeed, incoming Ohio Secretary of State Jon Husted, among other changes, wants to stop county boards of elections from mailing unsolicited absentee ballots to voters and limit the window of time they have to cast them. Democrats, however, charge that Husted’s proposals are designed to discourage voting, especially in big urban counties.
Ohio State Rep. Michael Stinziano (D-Columbus), the former director of the Franklin County Board of Elections, said it would be “bad public policy” to prevent county boards from soliciting and paying postage for absentee ballots. The service, he said, alleviated long lines at polling places (such as those that marred the county’s 2004 presidential election) that caused some elderly voters to walk away without voting.
Back in Florida, state NAACP Vice Chairman Dale Landry said that individuals who have completed their sentences have paid their debt to society in full and should be allowed to vote. “Why do we come back and impose a further penalty?” he asked. “What we’re saying is that… the state wants to impose further sentencing, an additional penalty. That’s exactly what was done here.”
This posting is about the HEADLINE (not whether you agree or disagree with the underlying law. People can differ on whether the law is a good one or not, appropriate or not.)
Headlines are to grab attention — but there is a point when they are simply irresponsible and trying to stir up hate and problems. I think the headline below “FLORIDA’S RACIST NEW LAW” is exactly that – irresponsible and trying to stir up problems and hate. The headline DID catch my attention since for many, many, many years prior to TV, I represented a lot of poor African Americans and often in issues involving civil rights.
Upon reading the explosive (I think it explosive) headline, I wanted to know more about “FLORIDA’S RACIST NEW LAW” — and so I read the article. I bet many just read the article and stop there — thus left with the impression that Florida is racist (or those who support the law are.) In actually reading the article, I see that the author writes “[b]ut whether the move was simply tough-on-crime posturing or something more nefarious remains an open question.
You have to dig deep into the article for the “open question” while the RACISM was in bigger, bolder letters in the headline. So what was a PRONOUNCEMENT of FACT in the headline of RACISM (and sure to cause many people to be deeply disturbed) now remains “AN OPEN QUESTION” as to whether the law was a “tough on crime posturing or something more nefarious” (eg racism.) There is a big difference between being “tough on crime” and being a racist.
Florida governor Rick Scott and his cabinet have ended the policy of his predecessor, Charlie Crist, of automatically reenfranchising felons upon their release from prison. The ACLU et al. are outraged, but it’s the right decision: Those who have demonstrated that they won’t follow the law shouldn’t be allowed automatically to make the law for everyone else; rather, they should have that right reinstated only after they’ve shown that they have indeed turned over a new leaf, as I’ve discussed on NRO many times — for example, here. Kudos to Governor Scott.
Given the scale of the injustices and barbarism that characterise large parts of the criminal justice system in many, perhaps even most, American states denying former felons the right to vote once they have been returned to society may seem a minor concern. Nevertheless it is a telling one and something that should shame those states that still bar ex-cons from voting.I’d have thought it an obvious principle of natural justice that we take the view that once released a prisoner should be considered a free man or woman. True, there are certain limited caveats to this (sex offender registries being the most glaring) and some jobs may reasonably (or reasonably in many cases) be considered unsuitable for former felons but none of that has any bearing on the question of whether released prisoners should be permitted to vote.
Clegg links to a piece he wrote elaborating upon this view that ex-cons shouldn’t be permitted one of the most fundamental rights we have to grant. But this is all he has to say:
It is frequently asserted that felons released from prison should be able to vote because they have “paid their debt to society.” But the felon-vote movement will, if pressed, admit that they think felons in prison should be allowed to vote, too. And society is not obliged to ignore someone’s criminal record just because he has been released from prison. Felons are barred by federal law from possessing firearms, for example.
Is that it? Apparently so. Ex-cons can’t be permitted to vote because that’s the slippery slope to letting serving inmates vote too. Colour me unpersuaded. This argument, however, leads one to wonder whether it is in fact possible for felons to “pay their debt to society”? And if they have not done so – as the denial of voting rights suggests they must not have done – then why are they being released in the first place? That, at any rate, would seem to be the logic of this matter. It’s a grim and pitiless worldview.Of course there’s the possibility that other motives are at play, namely that for a number of reasons ex-cons may be more likely to vote Democratic than Republican. But let us put that unworthy thought to one side and simply note that denying ex-felons the franchise is a further punishment that’s above and beyond and entirely unrelated to the crimes which led to their incarceration. I’m amazed, actually, that it’s Constitutional to do so.
No, it’s just one more example of a criminal justice system that, alas, should shame the United States. This is not a question of liberalism or conservatism but of decency. There are many things the Americans do better than us but thank god we don’t have their criminal justice or prison systems.
Incidentally, anyone with any interest in these matters should follow Radley Balko’s work. (And actually the New York Times should have given him an op-ed column years ago.)
A nearly unanimous Supreme Court ruled Wednesday that the First Amendment protects even hurtful speech about public issues and upheld the right of a fringe church to protest near military funerals.
Chief Justice John G. Roberts Jr. wrote that the Topeka, Kan.-based Westboro Baptist Church’s picketing “is certainly hurtful and its contribution to public discourse may be negligible.” But he said government “cannot react to that pain by punishing the speaker.”
“As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Roberts said.
Justice Samuel A. Alito Jr. was the lone dissenter.
“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” Alito wrote.
Stepping aside from the emotions and bizarre facts, this case implicates all sorts of legal issues aside from the First Amendment. A private cemetery can and should remove unwanted visitors for trespassing — but the Phelpses didn’t enter the cemetery. A town can pass ordinances restricting the time, place, and manner of protests — but the Phelpses stayed within all applicable regulations and followed police instructions. Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like — but the Phelpses’ protests did not involve “getting up in the grill” of people, as their lawyer put it during oral argument.
As the brevity of Chief Justice Roberts’s opinion confirms, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade. If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries — but they shouldn’t be able to sue simply for being offended.
The Court clearly felt considerable sympathy for the slain soldier’s family, but concluded that the First Amendment interests at stake were overriding. “The record makes clear that the applicable legal term—‘emotional distress’—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public space adjacent to a public street.” The Court continued: “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. … Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The Court left undecided two important issues that it concluded were not squarely presented. First, recognized that the government may regulate the “time, place, and manner” of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held. The Court did not decide the constitutionality of that statute or other similar federal and state laws. The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals’ decision, did not call such statutes into question.
Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website. But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing. The Court was therefore able to limit its decision strictly to the context of funeral protests.
Justice Roberts, for the majority, noted that “Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us.” That is nearly always the case, so much so that the Court does not generally bother to mention it in its decisions unless it intends the comment to have significant effect beyond a yawnIn his concurrence, Justice Breyer expanded on this cautionary note:
I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”
While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. . . . [S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected (emphasis added).
Justice Alito expanded on the points raised in Justice Breyer’s concurrence at some length in his dissent at pages 23 – 36, particularly the analogy to a physical assault by A on B in order to gain an otherwise unlikely media audience for his views. Both Justices Breyer and Alito seem to think that A’s statement of views in the media presence would not shield him from liability for the assault, physical or verbal.
In raising the matter, Justice Alito seems to rely on matters noted by Justice Breyer not to have been before the Supreme Court. The majority opinion observes, in a footnote:
A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral.” (emphasis added)). . . .
It is up to the petitioner for certiorari to do what Mr. Snyder evidently did not do. Unfair, perhaps, but here it serves to emphasize and give some flesh to the statements in the majority opinion as well as in the concurrence that the majority opinion is narrowly limited to the facts before the Supreme Court.
This is a tough decision (and one which I grudgingly concede until I can read the actual decision) which is only tempered if you believe that there is a special place in hell for the Phelps family.
Also, please remember that these protests are stunts in order to evoke a visceral reaction from normal Americans in order to sue them in court and receive funds which keeps bread on the Phelps family table. Do not engage these horrible disgusting animals as that is exactly what they want.
It’s hard to celebrate any victory for Phelps and his band of bigots, but that’s the point — you don’t need the First Amendment to defend popular speakers.
Appropriately enough — given her recent hypotheticals resting on the assumption that atheists expressing views in ways that aren’t sufficiently “solemn” for a public place is such an self-evidently intolerable outcome that preemptive attacks on other speech she finds ideologically objectionable are required — Althouse’s beloved statist reactionary Sam Alito was the only dissenter. You’d think that this case would kill of his wholly unearned reputation for moderation, but it seems as durable as Newt Gingrich’s wholly unearned reputation as an intellectual.
Sarah Palin voiced disappointment with a Supreme Court decision Wednesday protecting the First Amendment rights of anti-gay protesters at military funerals.
“Common sense & decency absent as wacko ‘church’ allowed hate msgs spewed@ soldiers’ funerals but we can’t invoke God’s name in public square,” Palin tweeted .
The Onion story didn’t mention lawsuits seeking to have asteroid-destruction declared unconstitutional as a violation of the limited, delegated powers of the Federal government. But I’d be grateful if one of our libertarian-leaning readers could point me to the specific provision of the Constitution under which the Federal government could spend money on asteroid destruction. It’s not, properly speaking, defense, unless the asteroid was deliberately launched at us by the Klingons. The asteroid isn’t “in commerce” at all, so it can’t be covered by the Commerce Clause.
No doubt some socialists would assert that the reference to “the General Welfare” in the first sentence of Art. 1, Sec. 8, plus the Necessary and Proper clause at the end of that section, would cover asteroid destruction. And I might agree with them. But of course from the libertarian perspective that proves way, way too much.
So I offer this as a challenge: If you think that the doctrine of limited powers forbids much of what the federal government currently does, please explain why that same argument wouldn’t forbid spending money to shoot down an asteroid.
Footnote If your objections to “big government” are based on economics rather than constitutional law, please explain why the public-goods argument that justifies shooting down the asteroid doesn’t apply to the programs you don’t like.
As a libertarian-conservative, I am glad to help resolve this question. Of course, it should be noted from the outset that the framing of these kinds of questions is a common Kleimanian tactic; he tosses out an appealing public policy approach, and then dares readers to conclude that the approach may not be constitutional. I certainly agree with Kleiman that asteroid defense cannot be covered by the Commerce Clause (thank goodness that there are some limits recognized by the Left on the reach and scope of the Clause), but I don’t see why he is so quick to dismiss asteroid destruction as a defense measure merely because the asteroid was not “deliberately launched at us by the Klingons.”Original public meaning jurisprudence assists us in showing how asteroid destruction can be justified by Art. I, Sec. 8 of the Constitution as being “for the common Defence.” I am indebted to Professor Larry Solum for his excellent and comprehensive definition of original public meaning jurisprudence, which is excerpted below:
The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.
This sets the stage for what is sometimes called “the New Originalism” and also is called “Original Meaning Originalism.” Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role. As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.” The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson with Steven Calabresi as another “early adopter.” The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.
Randy Barnett and Keith Whittington have played prominent roles in the development of the “New Originalism.” Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways. For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason). This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.” With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.
Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism. The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.” Balkin has called his position on the relationship between originalism and living constitutionalism “comptibilism,” but it is important to understand that this means that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.
Per Professor Solum’s definition, we have to ask how “the common Defence” would “have been understood by an ordinary adult citizen at the time it was adopted.” Specifically, we have to demonstrate that the notion of “Defence” against a threat does not depend upon that threat being initiated by a sentient being, or group of beings. This entails showing Kleiman that the non-presence of Klingons or any other sentient beings in a scenario which features an asteroid threatening life on Earth does not prevent the necessary countermeasures from being considered constitutional as acts of “Defence.”
In order to proceed along this line of inquiry, a definition of “defence” or “defense” (however one wishes to spell it) is needed. I can think of no better lexicographical authority than Samuel Johnson’s A Dictionary of the English Language. Consider especially the following bit of information: In his book Dr Johnson’s Dictionary: The Extraordinary Story of the Book that Defined the World, the writer Henry Hitchings quoted Joseph Emerson Worcester as saying that “[Johnson’s] Dictionary has also played its part in the law, especially in the United States. Legislators are much occuped with ascertaining ‘first meanings,’ with trying to secure the literal sense of their predecessors’ legislation . . . Often it is a matter of historicizing language: to understand a law, you need to understand what its terminology meant to its original architects . . . as long as the American Constitution remains intact, Johnson’s Dictionary will have a role to play in American law.”
So, Johnson’s Dictionary was/is quite useful when it comes to analyzing bodies of American law. Now, we have to ask what Johnson wrote about the definition of the word “defence.” Well, it just so happens that we can look. Feel free to examine the definitions of “defence,” “defenceless,” “to defend,” and “defendable.” One will find that none of the definitions in question make it necessary for a threat to have been launched by some form of sentient being, or group of beings, before one can be said to organize and implement some kind of “defense/defence” against that threat via preventive measures. Absent any competing definitions of similar or greater influence, one may reasonably conclude that “an ordinary adult citizen” would not have understood “defence” to mean a countermeasure against a threat set into motion by a sentient being, or group of beings–like Klingons, for example. A “defence” can therefore be mounted against a threat that appeared or emerged sua sponte, without any sentient beings or higher intelligence having brought that threat into being, and/or having directed that threat against us.
Indeed, if Kleiman wanted to get a libertarian legal analysis regarding this issue, he might have done well to ask Glenn Reynolds, whose blog is full of posts regarding the need for asteroid defense. I recognize that Kleiman loathes Reynolds, and has nothing but contempt for him, but it perhaps would not have been a bad idea for Kleiman to put his loathing aside and consider that Reynolds’s example might indicate that there are plenty of libertarians who (a) are concerned about defending the Earth against extinction-causing asteroids, and (b) might be able to justify it (as I have) constitutionally. As a general matter, it might be best for Kleiman to consult actual lawyers regarding constitutional or statutory interpretation, before trying to navigate legal thickets on his own. I mean, it’s his blog, and he can do what he wants, but it is worth noting that past Kleimanian efforts to play lawyer have ended quite poorly.
This post by Mark Kleiman is a good example, in that it puts forward a laughable caricature of libertarian and originalist constitutional thought that would have been discredited with but a moment’s investigation into the question (as I noted here, and Pejman Yousefzadeh discussed here). To Prof. Kleiman’s credit, he backed off (a little) when other took the time to respond, but that a prominent, thoughtful academic would post something like this as an ostensibly thoughtful critique of right-leaning ideas says quite a bit about the state of much academic discourse.
I agree with Jonathan below that the Constitution (through the spending power) allows Congress to spend tax money to protect the Earth from an asteroid.
On the other hand — and at the risk of confirming Mark Kleiman in his belief that libertarians are loopy — I don’t speak for all libertarians, but I think there’s a good case to be made that taxing people to protect the Earth from an asteroid, while within Congress’s powers, is an illegitimate function of government from a moral perspective. I think it’s O.K. to violate people’s rights (e.g. through taxation) if the result is that you protect people’s rights to some greater extent (e.g. through police, courts, the military). But it’s not obvious to me that the Earth being hit by an asteroid (or, say, someone being hit by lightning or a falling tree) violates anyone’s rights; if that’s so, then I’m not sure I can justify preventing it through taxation.
Bryan Caplan once suggested the asteroid hypo to me as a reductio ad absurdum against my view. But a reductio ad absurdum doesn’t work against someone who’s willing to be absurd, and I may be willing to bite the bullet on this one.
On the other hand, if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.
This does make me uncomfortable, much like my view that patents are highly useful but morally unjustifiable, so I’m open to persuasion
I think this is a mistake about how a reductio works. The mere fact that Volokh is willing to bite this bullet has no real bearing on the fact that the conclusion is clearly false, and so the argument is either logically invalid or else proceeds from false premises. I’d say “false premises.” The best liberal thinking—classical, modern, whatever—proceeds from broadly consequentialist ideas about making human beings better off.
So not only does Sasha Volokh claim that it is immoral to tax people to blow up an asteroid (or install lightning rods, or mandate lightning rods, or pay for a tree-trimming crew on the public roads), but it is immoral to tell people of an approaching asteroid so they can scramble to safety because it will cause violations of rights through looting.
That said, I don’t think that Sasha’s view is necessarily ridiculous or “insane.” Any theory based on absolute respect for certain rights necessarily carries the risk that it will lead to catastrophe in some instances. Let’s say you believe that torture is always wrong. Then you would not resort to it even in a case where relatively mild torture of a terrorist is the only way to prevent a nuclear attack that kills millions. What if you think that it’s always wrong to knowingly kill innocent civilians? Then you would oppose strategic bombing even if it were the only way to defeat Nazi Germany in World War II. How about absolute rights to freedom of political speech? If you are committed to them, that means you oppose censorship even if it’s the only way to prevent Nazi or communist totalitarians from coming to power and slaughtering millions.
Many such scenarios are improbable. But over the long sweep of human history, improbable events can and do happen. Had Kerensky suppressed the Bolsheviks in 1917 (as he easily could have that summer) or had the Weimar Republic done the same with the Nazis, the world would be a vastly better place, even though most political censorship (even of evil ideologies) causes far more harm than good. A civilization-destroying asteroid attack during the next few hundred years is also a low-probability event.
Thus, the potential flaw in Sasha’s view is one that it shares with all absolutist rights theories. Scenarios like the above are one of the main reasons why I’m not a rights-absolutist myself. But I don’t believe that all the great moral theorists who endorse such views from Kant to the present are either ridiculous or “insane.”
It’s also worth noting that Sasha’s approach would in fact justify asteroid defense in virtually any plausible real world scenario. As he puts it, “if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.” It’s highly unlikely that news of an impending asteroid impact whose onset was known to the government could be prevented from leaking to the general public. Even if it could, “all hell” would surely break loose after the asteroid impact, resulting in numerous violations of libertarian rights by looters, bandits, people stealing food out of desperation, and so on. Either way, Sasha’s analysis ends up justifying asteroid defense.
If I understand Sasha correctly, he’s only partially a rights absolutist. He doesn’t believe that you can ever sacrifice rights for utilitarian benefits, even truly enormous ones. But he does think that you can justify small rights violations as a way of forestalling bigger ones. Sasha is an absolutist when it comes to trading off libertarian rights for other considerations, but a maximizer when it comes to trading off rights for greater protection of those same rights in the future. Effective defense against a massive asteroid impact easily passes Sasha’s rights-maximizing test.
Obviously, I welcome correction from Sasha if I have misinterpreted his views.
I’m glad that Adler agrees with me – and disagrees with many Tea Party lunatics, including some recently elected to the Senate and the House – that there’s no actual Constitutional question about funding the Department of Education or National Public Radio. That, of course, was my point.
I’m also glad that Sasha is standing by his guns, thus demonstrating that my argument was not directed at a mere straw man, though his objection to spending is philosophical rather than Constitutional.
Sasha worries that his honest and forthright response might confirm me in my belief that “libertarians are loopy.” That’s certainly a reasonable concern. But I would have thought that a bigger concern would be that the conclusion is, in fact, obviously loopy, and – like any good reductio ad absurdum argument, ought to lead to a re-examination of the premises that would lead to such a loopy conclusion.
Ilya Somin is right to point out that any theory that puts an absolute constraint on action runs into problems when inaction has catastrophic consequences. But if he really can’t see the difference between torture and income taxation – can’t understand why absolute opposition to torture is not analogous to absolute opposition to public spending on public goods – then “loopy” is entirely too weak a word.
I leave it to others to debate the constitutional and moral merits of government spending on asteroid defense (my view is that such spending is both constitutionally permissible and morally proper, but I have nothing original to add on the subject). I just wanted to add that one side of the debate is an unusually near-literal application of the saying, “Let justice be done, though the heavens fall.”
An impending catastrophe – asteroid strike – threatens to kill everyone in the society. That doesn’t violate anyone’s “rights” because you don’t have a “right to life” but rather a right not to have your life taken away by somebody else against your will. Therefore, the government has no right to tax you to protect you – and everybody else – from the asteroid.
So how is the asteroid to be stopped?
Presumably, everyone in society would agree voluntarily to cooperate to stop the asteroid. That is to say: we could still have collective action, but it would have to be voluntary, not coerced.
But would everyone participate?
The government goes around, passing the hat for contributions to stop the asteroid. A certain percentage of people, though, don’t believe in asteroids. Another percentage believe that the asteroid will bring the Rapture and so must not be stopped. These people are crazy, though, and crazy people are not interesting to talk about. Let’s hope there aren’t too many and ignore them.
Some people, though, notice that there are wealthier people than them in the society, and figure those other people should shoulder the burden of saving society. These are the “free-riders.”
Now, so long as this group is relatively small, no problem. Enough people will still put up enough money to stop the collective catastrophe. But so long as that is the case, free-riding is the economically rational thing to do. Indeed, in any large enough society, free-riding is always the rational thing to do: in a society with enough people putting up enough money voluntarily to stop the asteroid, free-riding is costless; in a society without enough such people, contributing is pointless.
The salvation of this ultra-libertarian society, then, depends upon the existence of a sufficient number of irrationally self-sacrificing people, people who ignore their rational self-interest in order to procure a social good for the group, without regard for the amount of “free riding” going on around them.
On the assumption – which I don’t think is pushing it at all – that there are a whole lot of communal problems that require collective action to address, libertarianism is only practical in highly communitarian societies.
I don’t know that that’s a knock-down argument against libertarianism. Wikipedia is a highly communitarian activity that grew up in a highly libertarian environment (the Internet), and most of the world is free-riding.
But it’s worth stressing nonetheless, because libertarians tend to talk as if rationality will lead to the necessary level of cooperation. But it won’t. In any case of communal threat where attempted free-riders cannot independently exposed to the threat, while contributors are protected, the rational thing to do is free-ride.
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.
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.
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.
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.
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.
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.”
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.
And the weird thing is, he’s right… sort of! It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.
But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?
And yet it isn’t! It’s the denial of that infinitely flexible reading that now seems strange. And that’s really strange.
Obviously, I agree with Julian. I have been reading a lot of well-meaning liberals who are befuddled by the notion that conservatives are going after the mandate, when that runs the risk of bringing on single payer. Personally, I kind of doubt that, but this is completely beside the point. On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?
This doesn’t seem to be a question that interests progressives; they just aren’t very excited about economic liberty beyond maybe the freedom to operate a food truck. And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system. If you view this solely as tactical maneuvering, perhaps it really is preposterous.
And of course, for some conservatives, these operations are tactical, but for a lot, it’s an actual horror at the ever-expanding assertion of government powers. I’d like it if they’d get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I’d like.
Next, I posed this question to Chris Hayes on Twitter, so I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?
If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)
If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place? I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on. To which my follow-up question would be, do you believe there should be any restrictions on the powers of the federal government? Let’s say, again, beyond those laid out in the Bill of Rights.
I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.
I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.
The conservative argument, reflected in Republican judge Henry Hudson’s ruling against the individual mandate, is that purchasing health insurance is the ultimate individual decision, and that abridging this liberty would, in Hudson’s words, “invite unbridled exercise of federal police powers.” If the individual mandate is permissible, writes George Will, then “Congress can doanything – eat your broccoli, or else – and America no longer has a limited government.” Megan McArdle echoes, “On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?”
This is the intellectual rationale for the hysterical conservative response to the pasaage of health care reform. By this line of reasoning, the individual mandate springs from a paternalistic desire to compel individuals to engage in behavior that affects nobody but themselves.
But of course, the decision not to purchase health insurance is the very opposite. Those who forego health insurance are forcing the rest of us to cover their costs if they exercise their right to be treated in an emergency room. They are also forcing the rest of us to pay higher insurance rates, now that insurance companies can no longer exclude those with preexisting conditions. That, of course, is exactly why conservatives supported it for so long.
Conservatism’s sudden lurch from supporting (or tolerating) the individual mandate to opposing it as a dagger in the heart of freedom is a phenomenon that merits not intellectual analysis but psychoanalysis. This is simply how conservatives respond in the face of every liberal advance. At such moments the nation is always teetering on the precipice between freedom and socialism. The danger never comes to pass, yet no lesson is ever learned. We simply progress intermittently from hysterical episode to hysterical episode.
It’s handy to argue against the generalized hypocrisy of incoherent ideological adversaries, though I don’t think that describes Megan McArdle, Julian Sanchez, Radley Balko, or many others who see constitutional problems here, myself included. I’ll see if I can make a case without lapsing into hysteria: If the Obama Administration’s health care reform bill stands, I do not imagine that America is going to cease to be free, or that a decisive blow in the battle between capitalism and socialism will have been struck. Although I would’ve preferred different variations on health care reform, I am not even expert enough to know for sure whether they’d have been more successful.
What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone?
If Judge Hudson’s ruling is upheld, I’ll celebrate not because I fear Obamacare – I’m cynical enough to suspect that whatever came next might well make me even worse off – but because a limit on federal power that I care about generally has been re-asserted.
Should his ruling be overturned, I’ll be disappointed because the precedent troubles me: if the commerce clause can prevent me from growing marijuana in my backyard and mandate that I buy a particular kind of health insurance that covers far more than emergency room care, what Congressional action can’t it cover? You’d think from Chait’s post that liberals never approach matters of constitutional law in this way, looking past the utility in a given policy area to ask what the long term implications are for state power.
What I’ve yet to see answered to my satisfaction is Radley Balko’s question
The legal merits of Hudson’s ruling, which seem to be totally daft, are themselves piggybacked upon a policy argument which is itself highly unpersuasive at best. The political argument, endorsed by Friedersdorf, maintains that the individual mandate represents some dramatic new imposition of Congressional power. Congress’s power may have grown over the years, the argument holds, but the individual mandate represents some new frontier of intrusiveness. It is forbidding an activity (or inactivity) that is more personal and less intertwined with the economy as a whole than almost any previous regulation. It is not dramatically different than a law requiring people to eat broccoli.
But this is totally incorrect. In reality, the individual mandate is much less intrusive and paternalistic than many regulations accepted as Constitutional. The rationale isn’t to make people buy insurance because it’s good for them. If people want to accept the risk of illness on their own, that’s fine. The issue is precisely that they can’t do this without forcing the rest of us to pick up the tab when they 1) show up at the emergency room, or 2) decide to buy private insurance in a now-regulated market.
Regulations to prevent people from offloading their risks onto others are extremely common and extremely necessary. So, again, the right’s portrayal of this as a dramatic expansion of the scope of Congressional action is wildly misleading, and it owes itself not to any sober analysis of federal power but to the psychology of reaction.
Now, Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.
Actually, I am endorsing a somewhat different argument, and I apologize if I misstated my position or was less than clear about it. It isn’t that I think the individual mandate is an imposition of Congressional power more dramatic than anything seen before. It is merely one example of the longstanding Congressional tendency to justify all manner of things – gun free school zones, legislation to prevent violence against women, the ability to grow marijuana in my backyard, etc. – under the banner of the commerce clause. Where I come down on these cases has nothing to do with policy arguments: on the merits, some seem like good ideas to me, and others seem like bad ideas, but none strike me as attempts to regulate interstate commerce unless that task is so broad that it imposes no meaningful limit on the scope of federal power. (Speaking of which, I’d still like to see Chait and Kevin Drum answer Radley Balko’s question.)
Chait writes:
Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.
I actually agree that the individual mandate doesn’t constitute an obvious high water mark when it comes to legislation passed under the umbrella of the commerce clause. But surely Chait understands how constitutional challenges work. Most people who care about the principle at stake don’t get to choose the partisan blowhards on the same side of the issue, let alone the case that someone with standing files, that winds its way through the courts, that results in a favorable ruling, and that has a chance of making it to the Supreme Court. The individual mandate may not constitute a high water mark as legislation, but if it ends up being a SCOTUS test case, the majority opinion that results might well entrench a precedent that goes farther than any before it, and determines the future of the commerce clause for generations. To me, Linda Greenhouse is right: the issue at stake is whether the Rehnquist Court’s jurisprudence is going to be killed in infancy or mature into a more expansive body of law.
Noah Millman also responded to my earlier post.
He writes:
…it is unquestionably within the power of Congress to tax, and the mandate could have been structured as a tax-plus-voucher scheme that would have had exactly identical effects. Does that mean that the law is constitutional? If not, then the reason is entirely some notion of precedent – that if this form of the law is Constitutional then other mandates that could not obviously be structured as a tax (“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!”) would also be acceptable. If that’s the argument that’s being made, then why are we arguing about the health insurance mandate as such being a threat to freedom?
First of all, the judicial precedent in this case won’t necessarily apply only to future commerce clause cases that involve mandates. Second, people are talking about the mandate as a threat to freedom for all sorts of reasons, many of them nonsensical. There are two arguments that I regard as plausible. One is that the mandate is particularly troubling because it requires payments to powerful corporations that spent millions of dollars lobbying the very people who wrote and passed health care reform. Call it the wonko-industrial complex. What if it gets out of control?! But that isn’t my position. It’s the second argument that I am making: it’s the jurisprudential precedent and the implications for the commerce clause and federalism generally that matter.
I get what Julian, Radley, and Megan are saying, and in principle I agree with them. A fair-minded reading of the constitution and the debates that surrounded its enactment makes it pretty clear that the founders’ goal was to create a federal government of far more limited powers than the one we’ve got. But I’m finding it awfully hard to get excited about the federalist boomlet sparked by Judge Hudson’s ruling that the ObamaCare insurance mandate is unconstitutional. I’m not a big fan of ObamaCare, and I wouldn’t be too sad to see portions of it struck down by the courts. But the rank opportunism of the Republican position here is so obvious that I have trouble working up much enthusiasm.
There’s nothing particularly outrageous about the health care mandate. The federal government penalizes people for doing, and not doing, any number of things. I’m currently being punished by the tax code for failing to buy a mortgage, for example. I’d love it if the courts embraced a jurisprudence that placed limits on the federal government’s ability to engage in this kind of social engineering via the tax code. But no one seriously expects that to happen. The same Republican members of Congress who are applauding Hudson’s decision have shown no qualms about using the tax code for coercive purposes.
The test case for conservative seriousness about federalism was Raich v. Gonzales, the medical marijuana case. Justices Scalia and Kennedy flubbed that opportunity, ruling that a woman growing a plant in her backyard was engaging in interstate commerce and that this activity could therefore be regulated by the federal government. If Scalia and Kennedy now vote with the majority to strike down portions of ObamaCare, it will be pretty obvious that they regard federalism as little more than a flimsy pretext for invalidating statutes they don’t like. Or, worse, for giving a president they don’t like a black eye.
The question’s a straw-man — as evidence that “the left” flatly rejects all limits on the federal government, Balko offers up a statement by Rep. Pete Stark, a liberal from California, which was taken at least somewhat out of context during a town haul meeting with constituents and turned into a minor brouhaha by Andrew Breitbart’s crew a few months back.
More importantly, premising the question on us “setting aside the Bill of Rights” and amendments 11-27 just because they were ratified after the fact is disingenuous. As soon as an amendment is ratified, it becomes part of the United States Constitution, and those amendments happen to codify most of the constraints on the federal government that liberals hold to be the most important. (Balko’s a good civil libertarian who thinks they’re pretty important too.)
Essentially, he’s saying, ‘aside from preventing the government from limiting your right to speak, worship, assemble, petition government for redress, searching or seizing your stuff without due process, forcing you to incriminate yourself, enacting policies that discriminate on the basis of race and gender and guaranteeing a dozen other cherished freedoms, are there any constraints at all that you lefties find legit?’
That aside, the longer answer is that the Framers obviously didn’t create a detailed, step-by-step handbook for governing the U.S., and they didn’t try to anticipate every conflict that might come up in this new federal system they were cooking up. But they knew that conflicts would in fact arise, and they created a court to adjudicate those conflicts. It’s an enumerated power!
Now, the issue before us is what economic activities (or non-activities) the Commerce Clause empowers the feds to regulate, and the Supreme Court has used an expansive – and, yes, expanding – interpretation of that clause for close to 75 years.
Balko, like his fellow libertarians, and, less consistently, conservatives, doesn’t like that interpretation, which is his right. But it is nevertheless what’s known as a “super-precedent” – jurisprudence that’s been tested and affirmed in a not one or two, but a series of cases decided by the courts over the years.
Until maybe 20 or 30 years ago, the idea that judges should, accept in very rare cases, defer to precedent was a key tenet of judicial conservatism. That’s changed somewhat with the right’s focus on “originalism” – the idea that justices should try to glean the original intent of the Framers and put a little less emphasis on upholding precedent. (That shift is why, ironically, when one defines “judicial activism” as a willingness to overturn past rulings, conservative justices have been shown to be far more activist than liberals in recent times.)
So, a shorter answer, speaking as just one lefty, is that I accept any constraints on the government that the Supreme Court, guided, as it should be, not only by the text of the Constitution but also by past precedent– and checked by the states and the executive and legislative branches via the amendment process — holds to be legitimate.
Well, I don’t really see the Bill of Rights as a mere aside; these limitations are very important. But that said, to play the mild contrarian I don’t actually have any objection to U.S. v. Lopez. When a statute is not a regulation of economic activity, has no jurisdictional hook, has no necessary connection to a broader regulatory regime, and Congress can’t be bother to explain what the connection to interstate commerce is or why federal action is necessary…I don’t really have a problem with the Supreme Court ruling the statue as beyond Congress’s authority. And while I disagree with United States v. Morrison, this is primarily because I strongly reject the narrow conception of Congress’s enforcement power under Section 5 of the 14th Amendment. I have no problem saying that the commerce clause limits federal ability to intervene in purely local crime enforcement.
Now, I assume the libertarian response will be that this isn’t much, and…this is right. I don’t think in a modern industrial economy there’s any point in the Supreme Court trying to make distinctions between “local” and “national” economic regulations.
One thing I would add, though, is that saying that the Court should not strike down economic regulations under a narrow interpretation of the Commerce Clause is not to say that the power of Congress is unlimited. As many of you know, Madison did not feel that “parchment barriers” were the most important protection against excessive government. Rather, he felt that an institutional design featuring multiple veto points was the central protection. And, in fact, Madisonian institutions have been effective — from my non-libertarian perspective, often much too effective — in limiting the authority of the federal government to regulate the economy. I think these limits are (more than) sufficient, and having the courts try to apply a conception of economic powers more meaningful in an 18th-century agrarian economy doesn’t make any sense.
A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.
Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.
In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.
The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.
Suit was brought by Virginia attorney general Ken Cuccinelli.
“I am gratified we prevailed. This won’t be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution,” said Cuccinelli in a statement.
Cuccinelli has made the extraordinary request that the case bypass the regular appellate order and proceed directly to the highest court, arguing that the Obama administration, too, would benefit from a speedy resolution.
Hudson’s ruling is not unexpected. He is a Republican appointee with a history of conservative rulings. Nor is it definitive. Two other federal district judges, Democratic appointees both, have already ruled that the entire law passes constitutional muster. A fourth decision, by a judge in Florida, is expected by year’s end.
Most legal experts expect that, eventually, the case will come before the U.S. Supreme Court. Hudson himself acknowledged as much, writing “The final word will undoubtedly reside with a higher court.”
And how might the five Republican appointees and four Democratic appointees on the Surpeme Court rule? Most court observers I know believe that at least one of the Republican appointees, most likely Anthony Kennedy, would agree with the government that the Affordable Care Act falls well within traditional boundaries of the taxing and interstate commerce powers. (For an example of such logic, see the Michigan ruling from a few weeks ago.)
I tend to think those experts are right, for reasons I’ll get around to explaining one of these days. Then again, I recall hearing similar confidence about another highly anticipated court ruling–one about, oh, ten years ago.
For more on the mandate and some varied opinions on how an adverse ruling by the Supreme Court might affect the Affordable Care Act overall, see Aaron Caroll, Jonathan Gruber, Ezra Klein, and Igor Volsky.
Meantime, if you’re looking for a more generic primer on the individual mandate, I highly recommend this video from the Kaiser Family Foundation.
I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself. The key line is on page 18:
If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.
he real danger to health-care reform is not that the individual mandate will be struck down by the courts. That’d be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn’t penalize anyone for deciding not to do something (which is the core of the conservative’s legal argument against the provision). Here’s one suggestion from Paul Starr, for instance. The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that’s exactly what the plaintiff has asked Hudson to do.
Hudson pointedly refused. “The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.” That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for “1501.” It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make “specific reference” to the provision, even if you could argue that they are “directly dependent” on the provision. The attachment of the “specific reference” language appears to sharply limit the scope of the court’s action.
In this particular case, the next step on the appellate ladder would be the Court of Appeals for the Fourth Circuit, which has generally had a reputation of being among the more conservative Courts of Appeal. However, Virginia’s Attorney General has reportedly been mulling the idea of applying to the Supreme Court to leave to bypass the Court of Appeals and proceed directly to the final state of the appellate process. Even if such an application were made, there’s no guarantee it would be granted so the the case may end up in the 4th Circuit anyway, but this strikes me as mistake. It seems to me that a final hearing before the Supreme Court might have a better shot, for Virginia, if it had other rulings against the law from other Courts behind it.
In any event, it’s clear that the Federal Government was unable to overcome much of the initial skepticism that Judge Hudson expressed about the arguments in favor of the mandate in his ruling on the government’s Motion to Dismiss. On the Commerce Clause, Hudson ruled that the requirement that American citizens purchase health insurance or face a penalty to exceed even the relatively liberal bounds of Congressional authority as set forth in case likes Wickard v. Filburn and Gonzalez v. Raich and that failure to act cannot itself be considered an act occurring within interstate commerce. On the government’s backup argument that the mandate and it’s penalty are justified under Congress’s far broader authority to tax for the “general welfare,” Hudson essentially ruled that the taxing power cannot be used to accomplish a purpose not authorized under the specific grants of power given to Congress under Article I, Section 8, and that the Attorney General’s argument is undercut by the fact that both Congress and the President specifically denied during the build up to passage of the Affordable Care Act that the mandate was a tax (a relevant fact because it goes to the question of Congressional intent).
Finally, rather than declaring the entire ACA unconstitutional, Hudson’s decision merely enjoins enforcement of the individual mandate. However, given the fact that mandate is the centerpiece of the entire regulatory scheme, it is hard to see how the rest of the law could survive without it.
This case is obviously going to be appealed, but it’s nonetheless a victory for Virginia, and it’s noteworthy as one of the few times in recent memory that a Court has said to Congress — no, you can’t do that. For that reason alone, it’s a good thing.
Republicans gained control of the House last month on a promise to “restore the Constitution.” So it is no small irony that one of their first orders of business is an attempt to rewrite the Constitution.
On Tuesday, Rep. Rob Bishop (R-Utah), a member of the House GOP’s majority transition committee, introduced a constitutional amendment that would allow a group of states to nullify federal laws with which they disagree.
“This repeal amendment gives states a weapon, a tool, an arrow in their quiver,” he told a group of state legislators assembled at the Hyatt in downtown Washington. Of course, states have fired similar arrows before, and it led to a Civil War and Jim Crow – but Bishop wasn’t going to get into that.
“I actually hope to have a series of statutes and amendments — several amendments and several statutes — that we can introduce this year,” Bishop continued, “with the sole goal of not just cutting down the power of Washington to do things to people, but more importantly, is to empower states.”
Several amendments? Would it be easier if they just got some red pens and walked over to the National Archives to do the job?
DANA MILBANK THINKS AMENDING THE CONSTITUTION IS A STRANGE WAY TO HONOR THE FOUNDING FATHERS. In doing so, he displays his ignorance. The amendment process, after all, is part of the Constitution. The Framers had no illusions that they were creating perfection, and believed in the sovereignty of the people and in the power of the people to revise the Constitution as needed, through the process they created. The idea that the text of the Constitution should be revised only through judicial reinterpretation is a modern conceit, and one that does no honor to the Framers at all.
Milbank is nervous because Barnett’s plan has found support among Republican politicians including Virginia House Speaker William Howell and incoming House Majority Leader Eric Cantor (R-Va.). So in response he claims that amending the Constitution is a “strange” way to show “reverence for the Founding Fathers,” though of course those same Founders drafted and ratified Article 5 of the Constitution, which says, “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose Amendments to this Constitution,” and then goes on to spell out precisely how those amendments may become the law of the land. Nothing strange there.
Since the Repeal Amendment, proposed by Randy Barnett, can easily be portrayed as an effort to return to something closer to the balance of power provided for in the original Constitution, it is pretty silly to portray yourself as brimming with respect for the Founders when what you really support is the shift of power to the national government that occurred over the long stretch of time, a shift that the courts have allowed to take place.
The mechanics of the amendment are also a bit odd. It would allow the repeal of any federal law – from civil rights to health care – if two-thirds of the states say so. But that could mean that the 33 smallest states, which have 33 percent of the population, have the power to overrule the 17 largest states, which have 67 percent of the population.
Which is why we have both a House and a Senate, and it does seem odd to tinker with that very fundamental compromise.
But let me add another concern, generated on one of those rare days when I fear our corporate oligrach overlords. Smll states are probably more easily bought. Citibank is a big employer in South Dakota, for example, and the insurance industry is very powerful in Hartford, CT.
Giving these small states this new collective power would give our national and multinational corporations just another lever to boost their power. And anything that makes Nevada more powerful worries me.
Professor Reynolds makes a valid point, and Professor Althouse is right that the relationship between the Federal Government and the states has changed drastically from the way it was envisioned by the Founders.
Part of that change, of course, occurred because of the passage of the 14th and 15th Amendments, which gave the Federal Government significant authority over the the states when it came to due process, equal protection of the laws, and voting rights, and the 17th Amendment, which altered the manner in which Senators were selected. All of these significantly altered the relationship between the Federal Government and the states, and those alterations were done in what is, as Instapundit himself points out, a perfectly Constitutional manner.
Finally, the Civil War itself was the beginning in a change in the way Americans thought of their country. Where it used to be the case that people thought of themselves primarily as residents of their state, Americans today tend to think of themselves as Americans first. On top of all that, a long history of movement from place to place that people don’t necessarily think of the state where they live as “home” any more. For better or worse, going back to the Founders “original intent” on this issue is impossible simply because so much has changed over the past 223 years.
Erik Hayden at The Atlantic with the round-up. Hayden:
When Chuck Schumer reintroduced the Innovative Design Protection and Piracy Prevention Act in Congress, industry insiders hailed it as a breakthrough for high-end fashion designers looking to protect their work from the copycats and ripoffs that inevitably appear after a trend comes into vogue. But as opinion begins to trickle in about the proposed legislation, some critics are bit more skeptical about the merits of the bill.
Rather than encouraging innovation, skeptics argue that fashion copyrighting could ensure certain designers maintain a monopoly on fashion trends and stifle the need for constant reinvention.
Oftentimes, discussions of copyright policy hinge on hypotheticals. What if you couldn’t copyright recordings of songs? What would happen then? Maybe nobody would record new songs. Or maybe the quality of new recordings would be abysmally low. What would we listen to then? Won’t somebody think of the children?
Fortunately, in the realm of fashion we don’t need to speculate. We know what a world without fashion copyrights would look like, because we live in one today and we’ve always lived in one. It’s a world full of innovation in the field of design, and also full of various kinds of knock-off. Fashion leaders introduce new concepts, and cheaper imitators come along and follow the pack. In order to remain distinctive, the leaders are driven to further imitate. Meanwhile, everybody has plenty of clothes and styles in tie-width, skirt-length, etc. oscillate around. Yet somehow fashion designers and the members of congress who love them keep coming back to Washington looking for government-sponsored monopolies. The latest version of legislation to allow fashion copyrights has Senators Boxer, Feinstein, Hatch, Graham, and Hutchison as co-sponsors along with lead author Chuck Schumer.
We’re used to the logic of copyright. Movies, music, and pharmaceuticals all use some form of patent or copyright protection. The idea is simple: if people can’t profit from innovation, they won’t innovate. So to encourage the development of stuff we want, we give the innovators something very valuable—exclusive access to the profit from their innovations. We’ve so bought into the logic that we allow companies to patent human genes.
And companies love copyright. They love it so much they persuaded Congress to pass the Sonny Bono Act, which extended individual copyright protections to the life of the author, plus another 70 years; and corporate copyrights to 120 years from creation, or 95 years from publication, whichever is earlier. That’s an absurdly long time, and it belies the original point of patents: does anyone seriously believe that a 40-year-old with a money-making idea is going to hold back because someone can mimic it 20 years after he dies?
At a certain point, copyrights stop protecting innovation and begin protecting profits. They scare off future inventors who want to take a 60-year-old idea and use it as the foundation to build something new and interesting. That’s the difficulty of copyrights, patents, and other forms of intellectual protection. Too little, and the first innovation won’t happen. Too much, and the second innovation—the one relying on the first—will be stanched.
Which is why we have to be careful when one industry or another demands more copyright protection for itself. “Intellectual property is legalized monopoly,” says James Boyle, a professor at Duke Law School. “And like any monopoly, its tendency is to raise prices and diminish availability. We should have a high burden of proof for whether it’s necessary.”
Drug development probably meets the burden of proof. It costs hundreds of millions of dollars to bring a drug to market. If Pfizer could just copy the drugs Novartis develops, Novartis wouldn’t have much reason to develop drugs.
Recipes don’t. You can’t patent dessert. Just ask Jean-Georges Vongerichten. Years ago, he created a chocolate cake with a molten core of liquid chocolate. The recipe became a sensation. Which meant it appeared on menus all across the country, with no credit to JGV. That’s a bummer for its creator, but a boon to all of us who don’t live in New York. We get to eat it anyway. And yet innovation continues apace in the food world. JGV is still a rich man. We can have our cake and eat it, too. (Sorry, sorry.)
We’ve discussed over and over and over again how the fashion industry absolutely thrives without copyright protection. In fact, much of the research shows that it thrives because of the lack of copyright. The lack of copyright in fashion does a few useful things: (1) it actually helps disseminate concepts faster, creating important trends that drive the industry forward (2) it helps create important customer segmentation in the market, which actually increases the value of top designers (3) it drives fashion designers to be more innovative and to keep innovating. And all of it works. The fashion industry is highly dynamic, rapidly innovating and highly competitive. So it seems absolutely contrary to basic common sense to introduce a copyright law aimed at adding copyright to fashion.
So, of course, fashion designers and politicians keep doing it. Pretty much every year Chuck Schumer trots out just such a bill, and this year is no different. Reader Steve Phillips points us to the announcement of the bill being introduced and ReallyEvilCanine points us to a celebratory post by a professor who was involved in drafting the bill. This time around the bill has Senators Boxer, Feinstein, Hatch, Graham & Hutchison as co-sponsors, so there’s quite a bit of firepower, as they seek to build up protectionist policies that may benefit a few top designers, but will significantly harm up-and-comers. Just as we’ve seen throughout history, intellectual property protections lag innovation, rather than cause it. That’s because the top players in the space use those laws to reduce, not enhance, competition. This is no exception.
Of course, Schumer’s been unable to shove through this disaster-in-waiting the past few times he’s tried, so hopefully it goes nowhere again, but if you want to see regulatory capture in action, here you go. In the meantime, if this should actually go through, we eagerly await the first major supporter of the bill getting caught copying someone else’s design.
In my opinion, copyright protection is a bad idea in general, but I recognize that this is not a widely shared view. It is, however, fashionable. (Drum roll, please.) Ezra Klein adds a more sober perspective in his Newsweek column:
“Intellectual property is legalized monopoly,” says James Boyle, a professor at Duke Law School. “And like any monopoly, its tendency is to raise prices and diminish availability. We should have a high burden of proof for whether it’s necessary.”
We should agree on that at the very least.
If you’re interested in these issues, I strongly recommend checking out Against Intellectual Monopoly, a book by economists Michele Boldrin and David K. Levine. You can read it for free. To get a hint of the myth-shattering that follows, the following is from the Introduction:
In most histories, James Watt is a heroic inventor, responsible for the beginning of the industrial revolution. The factsabove suggest a different interpretation. Watt is one of many clever inventors working to improve steam power in the second half of theeighteenth century. After getting one step ahead of the pack, heremained ahead not by superior innovation, but by superiorexploitation of the legal system. The fact that his business partnerwas a wealthy man with strong connections in Parliament, was not aminor help.
And it was only after the expiration of Watt’s patents that the steam engine really took off.
Lifetime tenure for Supreme Court Justices is another of the ideas from 200-plus years ago that might well be adjusted if Madison, Adams, et al had a chance to re-do the Constitution in light of current circumstances. It is inconceivable that people as practical-minded as they would have come up with today’s “two Senators for each state” model, California and Wyoming alike, which contributes to the paralysis of the Senate. (As argued here; main point is that when the Constitution was agreed to, the states were much closer in population size, rather than the 70-to-1 difference between today’s most and least populous states.) And they might well have rethought the wisdom of open-ended places on the Court.
Average life expectancy at birth during the late 1700s was 30-some years, versus 70-some now. Of course that figure is misleading, since so many people died very young — and those who reached age 50 often chugged along into their 80s. Still, circumstances have clearly changed. Part of the thick academic literature on the topic is a Harvard Journal of Law and Public Policy article (PDF here), which points out that from the founding of the Republic until 1970, the average tenure of a Justice was under 15 years; since then, it’s over 26 years. As a result, actuarial considerations have become fundamental to the modern nominating process, to what the Founders would recognize as a distorting degree. It is a “wasted” appointment to choose someone over age 60, since a nominee in his or her 40s (Clarence Thomas, age 43 when chosen) or early 50s (Elena Kagan, 50) can likely cast that many more votes over the years. The idea that we’re locking in policy for the next three or four decades makes the confirmation process all the more embittered and partisan — and dishonest, as nominees, whether John Roberts or Elena Kagan, pretend they have no settled views. Older and ailing Justices may hold onto their seats unnaturally long, too, if the “wrong” party controls the White House.
“We believe the American constitutional rule granting life tenure to Supreme Court Justices is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history,” Stephen Calabresi and James Lindgren, authors of the Harvard Journal article, say. I agree with them too. This is not a new idea, and like many other Constitutional adjustments it’s probably not going to happen. But we’d be better off it if did.
This presents a nice opportunity to review some political science on this subject, in particular Justin Crowe and Chris Karpowitz’s article, “Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice” (gated; ungated).Crowe and Karpowitz make several important empirical points:
First, any changes in the tenure of justices over time is not due to an increase in the number of justices serving long terms. There have always been those justices on the Court. Instead, there has been a decrease in the number of short-term justices, as the title of the article suggests. This is what a measure like “average tenure” conceals. Crowe and Karpowitz write:
Our analysis suggests that mean tenure on the Court in any given period is substantially influenced by the presence or absence of the short-term justice. The long-term justice has always been—and will likely continue to be—a feature of our constitutional system. The short-term justice has been a consistent presence in every period except the most recent. When we take this development into account, we see that using measures of central tendency as evidence of an inexorable upward trend obscures the full picture. To be sure, we are currently at a historical peak in average service, though we should be careful not to over-interpret this statement about patterns of Court service. But for the absence of the short-term justice, all other trends are similar to other periods in American history
Second, justices tend to serve short terms because of illness and death in many cases but, in others, because of higher ambition (John Jay), dissatisfaction with the job (Jay again, also Minton), and occasionally scandal (Fortas).
Third, and consequently, the disappearance of the short-term justice is not just a function of better medical treatments and longer lifespans. (There were plenty of people living long lives and serving long terms on the Court, even in the early years of the United States.) It is also a function of this simple fact: serving on the Court is a much better job these days. Consider these changes, all quotes from Crowe and Karpowitz:
…structural changes in the justices’ working conditions, such as the elimination of circuit-riding and the expansion of support staff (secretaries, marshals, and law clerks), as well as more favorable retirement provisions.
…while the Court’s workload has decreased, the significant expansion of certiorari jurisdiction has meant that the justices’ control over it has increased, thereby allowing the Court to focus its attention on constitutional issues of broad national significance…the justices have assumed an increasingly prominent and meaningful role in core aspects of American political life.
To the extent that these issues are controversial among the public and politicians alike, they are no less so among the justices. As a result, on a closely divided and ideologically polarized Court, one vote can mean the difference between upholding and striking down laws that implicate foundational constitutional and democratic values.
Simply put, justices have more power and prestige than they used to. No wonder few want to leave the bench quickly.
But is this really a problem? Crowe and Karpowitz find it hard to muster an easy case for term limits. On the one hand, more frequent rotation through the Court could make it more accountable — i.e., closer to the public. On the other hand, this presumes that the Court should hew toward the majority’s will, and that is a problematic criterion. And, in any case, the Court is often sensitive to public opinion, even when composed of long-serving justices.
Other advocates of term limits argue that they would reduce the divisive politics of Court appointments. This is the motivation for Fallows’ post. Crowe and Karpowitz are skeptical, and I tend to agree. I doubt that presidents, Senators, interest groups, and others would suddenly stop caring as much if justices served only 6 or 8 or 12 years. A lot of the divisiveness stems from party polarization in Congress, which is not likely to go away anytime soon. Under term limits, I would foresee an increasing number of equally divisive Court battles. Indeed, they might become even more divisive because leaders would know exactly when vacancies would arise, making them even more a dominant consideration in campaigns.
I tentatively disagree with John on this one. It’s not that I think any of his points are wrong, exactly, and I’m sure that John is much more knowledgeable about the political science literature than I am. It’s more a matter of emphasis. One thing I’ve noticed over the years is that political scientists, at least those studying American politics, are often skeptical about proposed reforms, perhaps in reaction to the overselling of such proposals by activists.
In this case, John has a bunch of reasonable arguments but it seems to me that he’s spinning them in the skeptical direction, but they could just as well be spun in the direction of reform. Let me go through the arguments in turn:
1. Long-term and short-term judges. John writes:
Any changes in the tenure of justices over time is not due to an increase in the number of justices serving long terms. There have always been those justices on the Court. Instead, there has been a decrease in the number of short-term justices.
That’s fine, but it doesn’t at all counter the argument that term limits will reduce the long terms.
2. Changes in working conditions. John writes:
Justices have more power and prestige than they used to. No wonder few want to leave the bench quickly.
This makes sense to me, and it seems related to the general pattern in our society that life is getting better for people at the top. I agree with John that this is evidence neither in favor nor against judicial term limits.
3. Divisive politics. John writes:
Other advocates of term limits argue that they would reduce the divisive politics of Court appointments. . . . Crowe and Karpowitz are skeptical, and I tend to agree. I doubt that presidents, Senators, interest groups, and others would suddenly stop caring as much if justices served only 6 or 8 or 12 years.
John seems to be making a reasonable point here. With the current partisan polarization and the current huge power of the Supreme Court, it makes sense to see ideological battles over judicial nominees. The surprise, maybe, is that this hasn’t happened more already.
4. Age. John writes:
The last argument is that the Court would benefit from youthful vigor. Advocates of this argument also point to the decline in mental acuity that some older justices have faced. Crowe and Karpowitz note, however, that if acuity is the criterion, then term limits are a not an ideal solution, since mental decline could strike even at a younger age. Coming up with an acuity test for justices would be challenging, to say the least.
I don’t buy this argument at all. Yes, mental decline could strike even at a younger age. But there’s a correlation with age, no? It seems silly to dismiss this argument just because the correlation isn’t 100%.
Beyond this, one argument I’ve heard for term limits is that, under the current system, presidents are motivated to nominate youngsters because then they can be on the court forever. With a fixed term, this motivation would be reduced (even if not completely removed).
Andrew Gelman and John Sides have an interesting exchange about the merits of creating fixed tenure for Supreme Court justices. I agree with Gelman that seems like a case where Sides is suffering a bit from an occupational hazard of political scientists confronted with proposals for reform—proponents oversell them, and political scientists become unreasonably skeptical in response.
At any rate, I’m a proponent of this reform. The strongest argument I can make in favor is that it would create a less-random relationship between election outcomes and the composition of the judiciary. Right now, if John Roberts and Samuel Alito decided to go out on a double-date with their wives, and a drunk driver hits their car killing all four passengers, Barack Obama would wind up reshaping the course of American law for decades. If instead he merely found himself appointing replacements to serve out their terms we’d much reduce this kind of arbitrariness.
Then there are two related points. One is that the current system creates too many incentives for a physically or mentally incapacitated justice to try to hang on to his seat until someone more ideologically congenial gets into the White House. Conversely, the current system causes the age of a nominee to loom too large in the decision-making calculus. In exchange, life tenure accomplishes basically nothing that a longish fixed term plus a pension wouldn’t accomplish. America makes it hard to tinker with the constitution (a mixed bag, in my view) so this almost certainly won’t happen unless some turn of events focuses national attention on the potential problems embedded in the current system. But I think making the point that this is a bad system is important anyway, since there’s always the risk that foreign countries engaged in democratic transitions will decide to emulate our model.
As I’ve said, I tend to be very conservative about institutional design. I’m suspicious of Seligism — Bud Selig, the current baseball commissioner, is constantly supporting changing long-standing design because some minor flaw turned up, without stopping to consider how various portions of the design are interrelated, or that minor flaws are inevitable regardless of design. I’m even more suspicious of those who turn frustrations with losing in a democracy into enthusiasm for changing the system. On the other hand, I’m not against all reform. Serious institutional breakdown, especially with a good case for inherent design flaws, should be met with reform — the current most obvious case within American politics is California, with its impossible budget politics and destructive initiative process. Another reason to support reform is when the underlying reality that the rules are designed for changes, so that stable rules yield an unstable political system.
One can make a pretty good argument, I think, that lifetime appointments for Supreme Court Justices fit that last category. As Linda Greenhouse reported back in 2007, the actual length of terms for Justices has gone up dramatically since 1970 (from an average of about 15 years before then to an average of about 26 years since). Since life expectancy continues to grow, I expect that number to only continue to increase in the future. And the longer each appointment lasts, the more valuable it becomes, which pushes presidents to choose younger and younger nominees (although I think we’re fairly close to the lower limit on that). Elena Kagan, should she be confirmed, may well be on the court for forty years. At some point, I think that’s a very different system than that the Constitution envisioned.
As far as the advantages and disadvantages of the present system, Yglesias identifies two problems. The first one, which has to do with the process in which Justices are groomed and selected, doesn’t really bother me much; as far as I can tell, the most recent selections under Bill Clinton, George W. Bush, and Barack Obama are all highly qualified and capable, so I’m not really worried about what they had to do to get there or about those who were blocked because the system works against them. It is true, however, that the high value of each pick creates incentives to selected a certain kind of nominee: young, ideologically reliable, and ambitious enough for the Court that he or she has known from an early age to avoid saying potentially controversial things.
The second problem is that the system produces a lot of random results. I do think is a serious flaw. There’s no reason that the election of Jimmy Carter (who had no Court openings) should be worth less than George H.W. Bush. Nor is it reasonable that a president can be far more influential because his nominee lives another forty years, while that of another drops dead after a decade. Both of these always existed, but they matter far more when average tenure doubles.
The third problem is that it’s not exactly clear why the results of elections decades ago should have so much influence in governing us today. Justice Stevens was nominated by President Ford (and for what it’s worth, that’s Unelected President Ford) and confirmed by an extremely liberal Senate. And then Americans elected Carter, and then Reagan, and then Bush, Clinton, Bush…and still, the dead hand of the 1972 presidential electorate and the 1970, 1972 and 1974 electorates and the Senators they chose controlled 1/9th of one of three coequal branches. Abortion is important, right? Roe vs. Wade was decided after Nixon was reelected, and after two-thirds of the Senators who confirmed Stevens were chosen. Of course, the nature of the Constitutional system, including not only lifetime judicial appointments but also long terms for the president and Senators, imply that the Framers intended at least some of our past decisions to govern the present and the future. But again, at some point a difference in degree becomes a difference in kind.
After my post, Andy and then Matt Yglesias took issue. Let me respond briefly. (NB: All of this debate necessarily entails the willing suspension of disbelief: we’re not enacting term limits for Supreme Court justices any time soon. But it’s still fruitful to debate the idea on its merits.)
Andy’s got 4 points. The first is on the Crowe and Karpowitz finding that it’s the short-term justices who have disappeared. Andy writes:
That’s fine, but it doesn’t at all counter the argument that term limits will reduce the long terms.
Only his fourth point really represents a disagreement with anything I wrote. Andy suggests that age could be a useful proxy for mental acuity:
Yes, mental decline could strike even at a younger age. But there’s a correlation with age, no? It seems silly to dismiss this argument just because the correlation isn’t 100%.
It just seems to me that term limits are a pretty blunt instrument for ensuring mental acuity. See also Frank Cross’s comment.
Yglesias suggests these reasons for supporting term limits:
…a less-random relationship between election outcomes and the composition of the judiciary.
…the current system creates too many incentives for a physically or mentally incapacitated justice to try to hang on to his seat until someone more ideologically congenial gets into the White House.
Conversely, the current system causes the age of a nominee to loom too large in the decision-making calculus.
Let’s tackle these in reverse order. This concern about the emphasis on young nominees is ubiquitous — see also Jon Bernstein and commenter Zorro for the Common Good. But the average age of the nominees isn’t really any different now than in the past. Go to p.801 of the Calabresi and Lindgren piece that James Fallows cites in his post on this subject. The average age of nominees was lower in the initial years of the Republic (about 48), but since then it’s varied between 52 and 57. The average in the period from 1971-2006 is 53 — down a little bit from the first half of the 20th century, but no different than it was for most of the 19th century. I doubt it can go much lower. It’s hard for potential nominees to be seen as sufficiently qualified for the Court otherwise.
Life tenure could create an incentive to nominate younger people, but it doesn’t seem to be happening in a real significant way. An average of 53 certainly doesn’t strike me as “too young.”
On the incentives for an incapacitated judge to hang on. It seems likely that this happens every once in a while. How serious a problem this is, I really don’t know.
In my previous entry I framed John’s skepticism about term limits as an example of a more general pattern of political scientists being all too ready to dismiss proposed reforms, perhaps in reaction to the overselling of such proposals by activists. I see political scientists, as a group, as often being too committed to whatever the current system is, for example pooh-poohing campaign finance reform because it can be evaded or dismissing open primaries because there’s no convincing evidence that they will get rid of partisan polarization.
In contrast, I often feel that a reform can be a good idea, even if it doesn’t solve all the problems.it’s intended to address. For example, I think gerrymandering is way overrated as a political problem—in 1994, Gary and I even wrote a paper called Enhancing Democracy Through Legislative Redistricting in which we showed that existing redistricting (gerrymandering and all) led to more competitive elections—but I’d still support a move toward nonpartisan redistricting.
From the other direction, though, it can make sense to ask why a particular reform is being suggested at a particular time. In some cases, it’s clear: for example, the recent proposals to change Senate rules are a direct response to the sharp increase in the use of the filibuster in recent years. I’m not sure if there’s anything so topical motivating the Supreme Court discussion; maybe it’s just an issue that comes up from time to time. In any case, in response to my generic reaction that John is being a typical political scientist by reflexively dismissing a reform proposal, John might well respond that I am showing the generic reaction of naive reformers to give a default positive view to whatever flavor-of-the-month reform happens to be talked about by pundits right now.
As I noted above, my differences with John on this issue seem more of a matter of emphasis than anything else. Are lifetime appointments and long terms basically OK, given that this system has been in place for more than two centuries (as John says), or would it make sense to change the rules (as I’m inclined to think)? In any case, the data that John and others bring to the table help us to understand these arguments.
On Monday, Senate Minority Leader Mitch McConnell became the latest Republican to call for a reexamination of the Fourteenth Amendment and the issue of “birthright citizenship.” Senators Lindsey Graham and Jon Kyl have also recently spoken out against the policy of granting automatic citizenship to all born in the U.S., even if they are the children of illegal immigrants. The birthright citizenship issue, though, doesn’t split quite along party lines. In the ensuing debate, several conservatives have come out opposing the proposed revision. Some maintain, though, that the Republican senators have a point.
The relevant facet of the 14th Amendment, which ensures due process and equal protection, states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” While proponents of repeal say the language–specifically the phrase, “subject to the jurisdiction thereof”–is ambiguous, judicial precedent is stacked against them. That’s one reason why the notion of revisiting the citizenship clause may be more of a political gambit than a realistic proposal. Bills challenging the citizenship provision have been proposed multiple times in recent years without success–former Rep. Nathan Deal, who’s running for governor of Georgia, submitted such an idea last year, and Rep. Ron Paul did so in 2007 without success. “Anchor babies,” as critics of birthright citizenship have dubbed children born to illegal immigrants, have long been a subject of scorn for conservatives. But a constitutional amendment requires the backing of two-thirds of both chambers of Congress and ratification by 38 states–which is highly unlikely, to say the least.
It’s unclear how far the party is willing to push the issue, or whether conference members are on the same page. A GOP aide told the Washington Post’s Greg Sargent that “nobody is talking about an all out repeal of the 14th Amendment,” and that McConnell merely supported holding hearings to revisit the concept of birthright citizenship. But the topic has sparked a pitched battle in the Senate, as The Hill reports, and Senators like Graham and James Inhofe seem to have their minds made up.
A majority of Americans support Arizona’s new law, and in the short term a hard-line stance on illegal immigration may give Republicans a boost. As a long-term political strategy, however, attacking birthright citizenship is an easy way to alienate the nation’s largest and fastest-growing minority group. In one recent poll, 49% of respondents supported birthright citizenship, while 46% said the law should be tweaked. But that poll found nearly 80% of Latinos are in favor of the provision–a figure that’s surprising only because it wasn’t greater. Many conservatives have argued the GOP risks kneecapping itself with the Hispanic electorate. “If the Republican Party embraces ending birthright citizenship, then it will be assured losing Latino and ethnic voters — and presidential elections for the foreseeable future,” wrote Cesar Conda, former domestic policy adviser to Vice President Dick Cheney.
Would it be cynical of me to think that McCain’s “little jerk” is just trying to burnish his tough-on-immigration bona fides?:
Sen. Lindsey Graham (R-S.C.) announced Wednesday night that he is considering introducing a constitutional amendment that would change existing law to no longer grant citizenship to the children of immigrants born in the United States.
Yeah, right. So the guy doesn’t want to do what’s necessary to actually stop illegal immigration, but he wants to make sure that the children born to all the illegals he helps bring here become U.S.-born illegal aliens? I’m afraid, though, that his rationale, whether he actually believes it or not, is in fact one shared by a lot of immigration hawks:
“People come here to have babies,” he said. “They come here to drop a child. It’s called ‘drop and leave.’ To have a child in America, they cross the border, they go to the emergency room, have a child, and that child’s automatically an American citizen. That shouldn’t be the case. That attracts people here for all the wrong reasons.”
I don’t like illegals having U.S.-citizen kids any more than anyone else, but there’s no evidence suggesting that this “drop and leave” stuff is true — anything’s possible, I suppose, but it’s just an assertion at this point. My own sense is that most illegal alien women who have kids here (accounting for nearly 10 percent of all children born in the U.S. each year) didn’t come for that purpose; they came for jobs or to join relatives, and one thing led to another, birds-and-bees style, and they had kids. There are no doubt some people who dash across the border illegally to have kids, but they just can’t amount to a large share of the problem. Nor does the problem of “birth tourism” require a change in the Constitution — we just need to permit (and require) our consular officers to reject visa applications from pregnant women, inviting them to re-apply once they’ve given birth in their own countries.
The phenomenon of citizen-children of illegal aliens is a symptom of too much illegal immigration, not a cause. Comprehensive immigration enforcement — abroad, at the borders, and in the interior — plus deep, permanent cuts in future legal immigration (which is the catalyst for illegal immigration) are the solution, because when we have less illegal immigration, we’ll have fewer kids born to illegals and the problem goes away. I’m afraid that if the citizenship issue makes progress, the libertarians will co-opt us, backing the citizenship change as a way of diverting attention from real immigration control.
When I first read this anonymous Huffington Post story suggesting that Sen. Jon Kyl (R., Ariz.) had signed on to the wholesale repeal of the 14th Amendment, I thought it was a gross mis-characterization, sloppy at best, a bold-faced lie at worst:
On Sunday, Sen. John Kyl (R-Ariz.) became the highest-ranking Republican to call for the repeal of the 14th Amendment to the U.S. Constitution. Appearing on CBS’ Face the Nation, Kyl said that he opposes allowing children of undocumented immigrants to be granted U.S. citizenship and wants Congress to hold hearings on the matter.
But it turns out the blogger was just aping CBS News’s write-up of Kyl’s appearance on Face the Nation. That post contains the same non-sense about Kyl wanting to repeal the 14th Amendment:
Sen. John Kyl, R-Ariz., said today that Congress should hold hearings to look into denying citizenship to illegal aliens’ children born in the United States, as the fight over immigration widens into the explosive “birthright” issue.
Kyl told CBS’ “Face the Nation” that he supports a call by fellow Sen. Lindsey Graham, R-S.C., to introduce a new amendment to repeal the 14th Amendment of the Constitution.
This is absurd. Here’s the text of the 14th Amendment, in full:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
[…]
What Kyl, Graham and others have tentatively embraced is an amendment that would clarify the first sentence of section 1 — and indeed, there is a credible argument that “subject to the jurisdiction thereof” already excludes individuals who are here illegally, meaning that one might be able to end birthright citizenship for the children of illegal aliens by statutory as opposed to constitutional action.
Neither Kyl nor Graham, nor any other elected Republican I know of, has talked about repealing the Due Process or Equal Protection clauses — which are prime constitutional underwriters of so much legislation favored by progressives. Nor, of course, has anybody talked about reestablishing the 3/5 Compromise or limiting suffrage for African-Americans.
Of course, Graham was one of the most enthusiastic supporters of Comprehensive Immigration Reform in 2007. Back then dropped babies weren’t his concerns, rather he wanted to “tell the bigots to shut-up.”
There is no good reason for immigration restrictionists to soften up to Graham now. Overturning birthright citizenship doesn’t bring order or justice to America’s decades long problem of illegal immigration. There may be good reasons to think that overturning it would do little reverse illegal immigration, and much to prevent assimilation.
In any case, Graham’s re-framing of the immigration issue in one of the silliest and most counter-productive possible and his chosen method signals that he is not serious. Constitutional amendments are almost impossible to pass, especially in this age of gridlock and ideological sorting of parties. In other words, this is a stunt, just as his former denunciation of “bigots” was a stunt.
Everyone knows this controversy by now. Here is the bill. Here is Mitch McConnell yesterday. It’s highly unlikely that this push to end birthright citizenship will go anywhere, but it’s worth probing public opinion on this question and on an underlying question: what should be the boundaries of the American national community?
Some quick searching did not turn up many polls on birthright citizenship per se. Rasmussen recently asked whether children of illegal immigrants should be citizens. In their sample, 58% of respondents said no, and 33% said yes. It would be interesting to know whether this is an objection to birthright citizenship per se or essentially an objection to illegal immigration.
Now to the broader question. In 2004, the General Social Survey asked a battery of questions on potential qualifications for being American. This was the preamble:
Some people say the following things are important for being truly American. Others say they are not important. How important do you think each of the following is…
Here is the average importance that respondents accorded to each qualification.
On average, respondents saw all of these qualifications are more important than unimportant. However, they also saw some qualifications as more important than others. In general, the more important qualifications reflect things that an immigrant can achieve: speaking English, becoming naturalized, respecting American institutions and laws. More exclusive criteria, and ones that immigrants cannot change (or change easily), are less important: being born in America, being Christian, or having American ancestry.
How might we interpret these results in light of the debate over birthright citizenship? Here are two possibilities.
First, Lindsey Graham and other opponents of birthright citizenship could take heart. Look, they might say, the public doesn’t even think being born in America is as important as other things. Given the importance accorded to American citizenship, we could make native-born children of immigrants go through the naturalization process and Americans would still see them as American. No harm done.
Second, some might object to that interpretation as a violation of the “spirit” underlying American public opinion. Americans’ sense of their national community is more inclusive than exclusive. Shifting American law in a more exclusive direction is not in this spirit. Why not recognize that more important than birthplace is speaking English, loyalty to the United States, and respect for its laws? And why not take heart that immigrants do learn English and are no less patriotic than native-born Americans?
Senate Republican Leader Mitch McConnell is playing down his party’s new scrutiny of the 14th Amendment, which among other things confers U.S. citizenship on anyone born in the United States. McConnell on Thursday portrayed calls for hearings on the amendment as simply an attempt to examine what he calls the “unseemly” business of foreigners showing up just in time to have their babies, then going back home.
“I’m not aware of anybody who’s come out for altering the 14th Amendment,” McConnell said at a breakfast sponsored by the Christian Science Monitor. He said the push for hearings stems from a Washington Post story about foreign businesses that supply visas to expectant mothers. “This is the kind of thing that irritates Americans quite a lot,” he said. “I don’t think having hearings on an obvious unseemly business is a threat to the 14th Amendment. What’s wrong with looking into this? The Post did.”
McConnell added that “the remedy for it is not yet clear. But I am not advocating revisiting the 14th Amendment and I don’t think any others have. I think the view is, why don’t we take a look at this?”
Around The Sphere 