Author Archive
Kagan the Tight-Lipped, Fair-Weather Originalist
Here’s what you have missed if you don’t have the luxury of watching C-SPAN all day:
- Senator Sessions went after Kagan hard on the Military-Recruiting-at-Harvard imbroglio. I don’t think he did any damage—which I’ll define as convincing someone on the fence to go against her—but the thing to keep in mind here is that the Don’t Ask Don’t Tell policy that so enraged then-Dean Kagan was federal law, not military policy. Punishing the military for an act of Congress you disagree with—one on which you advised President Clinton—is disingenuous at best. And I say this even though Cato supports ending DADT and filed a brief against the Defense Department in the Rumsfeld v. FAIR case involving denial of federal funds to schools who hamper military recruitment (we argued that private schools, like Harvard, should have more freedom to design their policies than public schools; in no way did we support the tenuous statutory claims made by Kagan, which the Court rejected 8-0). There are policy differences and legal advocacy, and then there’s the rule of law.
- Kagan’s attempts to walk away from her “Confirmation Messes” law review article are simply unconvincing. In that article, she said among other things that “[w]hen the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” Now Kagan says she can’t even talk about whether past cases were correctly decided because they’re all “settled law.” She can get away with this because of the sizeable Democratic majority in the Senate, but there is simply no principled way anyone can argue that what Kagan wrote in 1995 is now somehow wrong. Yes, nominees should not be forced to pre-judge cases—Kagan will be fully justified in refusing to opine on the constitutionality of the individual health care mandate—but how are we to get to know a nominee’s judicial philosophy if she declines to answer questions about that philosophy?
- In her response to Senator Kohl about whether she’s an originalist like Justice Scalia or a critic of originalism like Justice Souter, Kagan kept referencing the “original intent” of the Founders. This line of analysis is completely wrong. It’s not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case. So it seems that Kagan either doesn’t understand originalism or doesn’t take it seriously. Indeed, she followed-up by saying that original intent was sometimes useful for interpreting the Constitution and sometimes not, that there are many tools for interpreting the Constitution. I take this to mean that when originalism suits Kagan’s desired result, she will pay it lip service. Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position.
- Whether it be campaign finance, abortion, executive detention, or anything else, Kagan is tending to answer questions by reference to existing precedent rather than an affirmative statement by her of the law. This is good strategy—she shows she’s knowledgeable without tipping her hand on what she actually thinks—but fails to meet the Kagan Standard for candor from nominees. She’s no longer auditioning to be a constitutional law professor or the government’s advocate: it is completely fair to ask her to give us some actual opinions of what she thinks about the state of the law, not just describe it.
- At times, Kagan manages to engage in some cordial rapport and even jokes with several senators.
The more I watch Elena Kagan, the more I’m liking her personally and the more I’m concerned about what she’d be like on the bench.
CP at Townhall
A Few More Points on McDonald
I still haven’t finished reading the full 214-page opinion, but a few points to add to the statement I made yesterday:
- Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause. No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause — just denying to take up the issue in light of the long line of Substantive Due Process incorporation.
- Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision. While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes. Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states. That means P or I is relevant and enters the casebooks and Court precedent.
- The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments. They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age. This may or may not be correct as a matter of policy or social science — the evidence I’ve seen seems to point against them — but it’s irrelevant to the legal analysis. If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate. As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation. Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.
- Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible. One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.
- Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous. There but for the grace of God goes any right — and any limitation on government power. As I said yesterday, “Thank God that vote is Justice Thomas’s.”
For more McDonald reaction, see Josh Blackman’s remarkable series of blogposts.
The Court Restores a Fundamental Right
Today is a big victory for gun rights and a bigger one for liberty. The Supreme Court has correctly decided that state actions violating the right to keep and bear arms are no more valid than those taken by the federal government.
It could not have been otherwise: the Fourteenth Amendment, coming on the heels of the Civil War, says clearly that never again would the Constitution tolerate state oppressions, and that all individuals possess certain fundamental rights. It is equally clear that the right to keep and bear arms is one of those deeply rooted fundamental rights, not least because the Framers thought so highly of it as to enumerate it in the Second Amendment.
Still, Justice Alito’s plurality opinion leaves a lot to be desired, in that his ultimately correct conclusion rests on a dog’s breakfast of Substantive Due Process “incorporation” doctrine that arose only because the Privileges or Immunities Clause was strangled in its crib by an 1870s Supreme Court that refused to reconcile itself to the changes in constitutional structure wrought by the Fourteenth Amendment. Justice Thomas’s response to this tortured attempt to fit a square fundamental right into a round procedural guarantee is the right one: “I cannot accept a theory of constitutional interpretation that rests on such tenuous footing.”
Only Justice Thomas grapples with the original meaning of the Fourteenth Amendment, surveying the rich history of the terms “privileges” and “immunities” to find that the right to defend oneself is part and parcel of the inalienable rights we all possess—and indeed it is “essential to the preservation of liberty.” The Framers of the Fourteenth Amendment—the most important “Framers” in this context—plainly deemed this right “necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery.” All arguments to the contrary lack legal, historical and even philosophical basis.
And so it is a very good thing, again for liberty, that the Court needs Thomas’s fifth vote to rule as it does: while the plurality declines to reconsider the old and discredited Privileges or Immunities precedent, Thomas’s clarion call for a libertarian originalism provides a step on which to build in future.
Finally, as we celebrate the belated recognition of a precious right—the one that allows us to protect all the others—we must be shocked and saddened to see four justices (including Sonia Sotomayor, who at her confirmation hearings suggested she would do otherwise) standing for the proposition that states can violate this right at will, checked by nothing more than the political process. This is a nation of laws, not men—a republic, not a pure democracy—and thus it is disconcerting to see, as we do time and time again with this Court, that the only thing separating us from rule by a crude majoritarian impulse is one vote. Thank God that, in this case, that vote was Justice Thomas’s.
More Questions for Kagan
Building on Tim’s post about George Will’s latest column, and under the category of great minds thinking alike—at least with respect to what we need to see at the Kagan hearings next week—I also have an article proposing lines of questioning for the Supreme Court nominee.
Several of my issue areas overlap with Will’s, and then I conclude:
Of course, Kagan will attempt to deflect these queries—or give a law professor’s explanation without providing her own views (which caused Sen. Arlen Specter to vote against her nomination to be solicitor general).
But the role of a justice is different from that of the solicitor general, who merely uses existing law to argue the government’s case. Moreover, as a leading scholar argued in an influential 1995 article, “the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”
That scholar? Elena Kagan.
She continues: “The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add, and the direction in which she would move the institution.”
If senators ask tough questions about the scope of government power, and Kagan refuses to answer, Kagan will have failed the Kagan standard.
Read the whole thing (which I’m told has been published in several papers around the country this week). Josh Blackman also has an interesting series of questions.
Fifth Anniversary of Kelo v. New London
With all the property rights news coming out of the Supreme Court and New York Court of Appeals in the last week, I almost missed Wednesday’s fifth anniversary of the dreadful Kelo v. New London decision. Justice Stevens’s opinion in Kelo sanctioned a transfer of private property from homeowners to a big company in the name of (promised but, as we’ve seen, never realized) job creation and increased tax revenue.
This was a Pyrrhic victory for eminent domain abusers, however, given:
- 9 state high courts have limited eminent domain powers;
- 43 state legislatures have passed greater property rights reform;
- 44 eminent domain abuse projects have been defeated by grassroots activists;
- 88 percent of the public now believes that property rights are as important as free speech and freedom of religion.
To learn about these and other fascinating developments that turned a property rights lemon into at least some type of lemonade, see the Institute for Justice’s new report and video.
The Unbearable Vagueness of “Honest Services Fraud”
Cato adjunct scholar Tim Sandefur, who authored an amicus brief in the case of Skilling v. U.S., writes on his home blog:
Today, the Supreme Court decided the case of Jeffrey Skilling, the CEO of Enron, who had been convicted of the crime of “honest services fraud.” The statute, however, is so vague, that nobody knows what the term “honest services fraud” actually means. Pacific Legal Foundation (joined by our friends at the Cato Institute) filed a brief in the case arguing that statutes that are so vague violate the constitutional guarantee of due process of law—and that the constitutional protection against vague laws should apply in the business realm the same as anywhere else. Vague laws are dangerous because you cannot know what they prohibit and cannot therefore avoid breaking the law. It is unfair and unconstitutional to hold vague statutes over their head in such a way.
Unfortunately, the Court has in the past been reluctant to apply it outside the regular criminal context, on the theory that businesses are wealthier and can afford expert legal advice. But in a case like this, even the experts have no idea what the statute actually means. The federal circuit courts are in disarray as to what it means. And nobody should be convicted under a statute that is so broadly and vaguely worded, that even the prosecuting lawyer can’t tell you what that law actually means.
As they say, read the whole thing.
Health Care Rights and Wrongs
Michael Cannon’s post about this ridiculous New York Times article nearly made me fall off my chair. The article, entitled “A Poor Nation, With a Health Plan,” favorably compares the health care system in Rwanda with that in the United States. That’s right: because we don’t have state-provided universal health care coverage, Americans are worse off than residents of one of the poorest countries in the world. (This is a new article, by the way, not Frank Rich’s column in the Sunday paper.)
Here’s how it begins:
The maternity ward in the Mayange district health center is nothing fancy.
It has no running water, and the delivery room is little more than a pair of padded benches with stirrups. But the blue paint on the walls is fairly fresh, and the labor room beds have mosquito nets.Inside, three generations of the Yankulije family are relaxing on one bed: Rachel, 53, her daughter Chantal Mujawimana, 22, and Chantal’s baby boy, too recently arrived in this world to have a name yet.
The little prince is the first in his line to be delivered in a clinic rather than on the floor of a mud hut. But he is not the first with health insurance. Both his mother and grandmother have it, which is why he was born here.
In other words, it’s not that the cost of modern medicine has declined in relative terms (thanks to American technological development) and the economy has grown (ours and theirs) such that more people can be medically trained and the tax base can support more public hospitals, but the insurance genie has come and sprinkled fairy dust on misbegotten villagers. (Read the whole thing for some more eye-popping lines — Rwanda has less obesity than the United States, for example.)
Now, I’m just a lawyer – about the only thing I know about health policy is that Obamacare is unconstitutional – but it seems to me that there are at least two basic definitional problems with the inferences the article invites the reader to make even beyond the detailed technical analysis Michael provides.
First, there’s a difference between health care and health insurance. Nobody in the United States is denied health care. Between Medicaid and federal law requiring emergency rooms to treat all comers, we simply do not have children dying in the street (like in, say, Rwanda, where, according to the Times, the most common causes of death are “diarrhea, pneumonia, malaria, malnutrition, infected cuts”). As Michael says, “Yes, the poorer nation has a higher levels of health insurance coverage. But the wealthier nation does a better job of providing medical care to everyone, insured and uninsured alike.” That is, you can (and often do) have universal health insurance that provides universally bad care – except for the political elites, who pay extra for proper Western care. Is there any American who would have better health living in Rwanda or any number of countries where the government provides universal health insurance?
Second, and relatedly, health care is not and cannot be a “right” — because rights are things that inhere in human beings by virtue of their being human. As the Declaration of Independence says, we are “endowed by [our] Creator with certain unalienable Rights.” These “natural” rights are things we enjoy without burdening the rights of others: freedom of speech and belief, the right to earn an honest living, freedom of movement, the right to acquire and possess private property, the right to decide what we do every day . . . all the way down to the right to get out of bed on the left or right side (or to stay in bed all day) – and the right to defend ourselves against those who would take away these rights. Once you start making “rights” out of things that somebody has to provide you — food, shelter, health care, employment — then you’ve violated everyone’s natural rights and reduced their inherent liberty.
And that’s no less true in countries where the constitutions guarantee all sorts of things (e.g., article 24 of the UN Declaration of Human Rights guarantees the right to a paid vacation. Those countries have the added misfortune of having a devalued constitution, whose promises are wholly aspirational at best. Indeed, I’m often amused in foreign travels to be asked why the U.S. Bill of Rights doesn’t include health care (among other things). I mean, if the best constitutions were the grandest ones, I could draw one up that guaranteed the right to immortality, the mandate that all streets be paved in gold, and the provision that everyone have above-average intelligence. Also, two chickens in every pot and a flying car in every garage.
There is no magic genie to public health or national development: it takes the rule of law — including restraining political elites from meddling in the economy – and years of entrepreneurship and hard work. Indeed, there are plenty of ways in which the United States can improve its health care system but universal health insurance is beside the point. A cautionary note, though: It wasn’t that long ago, in relative human terms, that America was at Rwanda’s level of development — and it won’t take long to destroy, in the name of “fairness” or “human rights,” all we’ve created.
Sure, You Can Get a Business License — If Your Competitors Approve
Our friends at the Pacific Legal Foundation have filed another important suit in the battle for the right to earn an honest living. PLF senior attorney (and Cato adjunct scholar) Tim Sandefur has the scoop:
Michael Munie is a St. Louis businessman who’s been in the moving business since he was 16 years old. He has a federal license that lets him move people’s household goods from one state to another. And he has a state license that allows him to move things within St. Louis. But he’s not allowed to move things from St. Louis to anywhere else in Missouri unless he gets permission from his competitors first.
That’s right—Missouri law dictates that whenever a person applies for a license to run a moving business, the state’s Department of Transportation must notify all the existing moving companies and give them the chance to object. If they do—which, of course, they always do—the applicant must prove that there’s a “public necessity” for a new moving company. What does “public necessity” mean? Nobody knows. There are no standards, no rules of evidence, no nothing.
Read the rest and find out more here. Cato doesn’t litigate, of course — other than filing amicus briefs – but we certainly support those that do, including PLF, the Institute for Justice, the Goldwater Institute, the Mackinac Center, and many others.
More on Property Rights (Plus Privileges, Immunities, Due Process)
Yesterday I blogged about the Florida property rights case, which I now consider the best unanimous opinion against my position I could ever imagine. Although the property owners lost, four justices stood for the idea that courts no less than legislatures or executive bodies are capable of violating the Takings Clause (Fifth Amendment), while two others endorsed remedying such violations via Substantive Due Process (Fourteenth Amendment), and the remaining two didn’t express an opinion one way or the other. For more on the case, see the blogposts of Cato adjunct scholars Tim Sandefur, Ilya Somin, and David Bernstein.
An interesting side note involves Justice Scalia’s excoriation of Substantive Due Process (and Justice Kennedy’s use of it):
Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty of the person both in its spatial and in its more transcendentdimensions”), even a firm commitment to apply it would bea firm commitment to nothing in particular.
…
The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never—because it never means anything precise.
Scalia also calls Kennedy’s method “Orwellian” — after having said that Justice Breyer uses a “Queen-of-Hearts” approach “reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?” Really, this is classic Scalia, a delight to read (and you should, here).
Obamacare Is Unconstitutional
The very day President Obama signed the Patient Protection and Affordable Care Act, aka Obamacare, Virginia’s attorney general filed a lawsuit in federal court challenging the constitutionality of the health care overhaul. Virginia’s complaint alleges, in relevant part, that the PPACA’s requirement that every individual purchase health insurance or pay a fine — the “individual mandate” — is unconstitutional because Congress lacks the power to enact it.
The U.S. Government filed a motion to dismiss, claiming that Virginia lacked standing to bring this suit but also that the Commerce Clause, the Necessary and Proper Clause, and Congress’ taxing power all justify the individual mandate. Virginia responded, in relevant part, that the Commerce Clause does not grant Congress unbridled authority to regulate inactivity and force every man, woman, and child to enter the marketplace or face a civil penalty.
Cato, joined by the Competitive Enterprise Institute and Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a “memorandum” — not called a “brief” because this is district (trial-level) court — supporting Virginia’s position and explaining that neither of the Government’s fallback positions legitimizes the individual mandate. We point out that the Necessary and Proper Clause is not an independent source of congressional power, but enables Congress to exercise its enumerated powers. Similarly, the taxing power does not authorize the individual mandate because the non-compliance penalty is a civil fine — and it would be unconstitutional even if it were a tax because it is neither apportioned (if a direct tax) nor uniform (if an excise tax). Moreover, Congress cannot use the taxing power as a backdoor means of regulating an activity unless such regulation is authorized elsewhere in the Constitution.
You can read our memorandum here. The Government now has an opportunity to reply to the arguments raised by Virginia and those supporting its position (including us), and then the court will entertain oral arguments on the motion to dismiss. We can expect a ruling this fall.
Citizens United/Disclose Act Debate
In case you missed yesterday’s excellent Hill Briefing on the DISCLOSE Act and other recent developments in speech restrictions, next week I’ll be debating Citizens United and the future of campaign finance regulation. The event, cutely titled “Citizens United, Republic Divided; Campaign Finance Law After Citizens United,” takes place June 24 at noon at American University’s Washington School of Law, Room 401. That’s 4801 Massachusetts Ave. NW here in Washington.
IJ’s Steve Simpson and I will be up against American U’s Jamie Raskin and Election Law Blog’s Rick Hasen (who has also blogged this notice). RSVP to Michael Vasquez at mv5786a@student.american.edu so there’s enough lunch to go around.
For Cato’s take on the DISCLOSE Act, see John Samples’s latest podcast, blogpost, and op-ed. See also NRA board member Cleta Mitchell’s stunning op-ed about that organization’s cynical Faustian bargain. Finally, here’s the piece John and I published in January in the wake of the Citizens United decision.
Mixed Result in Complicated Property Rights Case
Today the Supreme Court came down with its ruling in Stop the Beach Renourishment v. Florida Department of Environmental Protection, a case I previously blogged about here and here, and in which Cato filed a brief.
While the Court’s 8-0 ruling against the Florida oceanfront (now ocean-view) property owners was not the result we wanted, the part of the decision that was unanimously unfortunate turned on a narrow and probably mistaken interpretation of state property law. Much more importantly, the remainder of Justice Scalia’s opinion makes clear that judicial takings are just as much a violation of the Fifth Amendment as any other kind. “If a legislature or a court declares that what was once an established right of private property no longer exists,” Scalia writes for a four-justice plurality, “it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.” And the test for whether the government—any part of it—has committed a taking turns on “whether the property right allegedly taken was established.”
Moreover, that the Court ultimately found no taking here should provide no succor to courts and other state actors who wish to abuse property rights in the future. The case could have easily swung the other way in a non-oceanfront circumstance or under a different state’s laws. Indeed, two justices (Kennedy and Sotomayor) said that federal courts can still police judicial takings—under a different name—by using the Fourteenth Amendment’s Due Process Clause, while the remaining two (Breyer and Ginsburg) decided to leave the question for another day. Nobody accepted outright the idea that courts cannot be held accountable for subverting property rights!
In short, state courts are now on notice that they violate long-held property rights at their peril.
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