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The article concludes:
In today's debate regarding Merrick Garland's nomination to the court, much of the discussion concerns whether or not he is a "centrist." But the real question, for both sides, is how he regards the Constitution. On that point it is clear from his record that Judge Garland is firmly in the "living document" camp. The push-pull over the Constitution and the Supreme Court is a battle without end, and in the current phase with the eight-person bench likely to divide 4-4 on important cases, the contrast between the court with Scalia on it and the court with Judge Garland or any other Democratic nominee couldn't be greater.Of course, there is no chance whatever that President Obama will nominate anyone on the correct side of the Great Question, and if Hillary Clinton is elected in November there is no chance whatever that she will. A week ago, Stanford Law Professor and former Circuit Judge Michael McConnell suggested a course of action in this op-ed, also in the WSJ.
This reading of Marbury, I later realized, was integral to how Justice Scalia saw his job - not as the shaper of the Constitution, but as its servant. And while, to be sure, there is something to be said for both ways of viewing the case, it turns out that there is a lot more to be said for Justice Scalia's than most of the professoriate had been inclined to think.
"The Supreme Court has not reflected where the American people have been on issues," said Gregory Craig, who served as White House counsel early in Obama's first term. "This is the first opportunity in many, many years to bring the court more in line with the American people."In this way of thinking, the Supreme Court is nothing but a third house of the legislative branch. It's job is to take the pulse of current public opinion and be "in line" with current views, declaring as a constitutional mandate whatever that current view is.
That is not how it is supposed to work. Fundamental rules are written into the Constitution when they are agreed by a strong national consensus to be so fundamental as to place them beyond the short-term reach of ordinary legislation. They can be changed when (and legitimately only when) a strong enough consensus to the contrary has formed to clear the high hurdle for a constitutional amendment under Article V.
The Great Question of constitutional law is not hard to state. Is the Constitution a contract between the people and their government, with the power to change its terms reserved to the people, or is it an empty vessel for five unelected, unaccountable justices to pour their policy preferences into?
Legitimate judicial review is to prevent the legislature from crossing a line that the people wrote into the Constitution. Illegitimate judicial review is creating lines that the people did not write into the Constitution, striking down laws enacted by the people's representatives or by the people themselves on a pretense that they violate the Constitution but actually just because the judges disagree with the people -- "substitute their own pleasure to the constitutional intentions of the legislature," as Hamilton put it in Federalist No. 78.
There are two primary dangers in appointing Justices to the Supreme Court: appointing people with views on the wrong side of the Great Question and appointing people who have not thought much about it at all.
Personally, I have little use for people who protest by occupying property that is not theirs and has nothing to do with the dispute. That goes for the Occupy movement of a few years ago, the current protest, and all the way back to the Vietnam War when protesting students staged sit-ins at campus facilities that had nothing to do with the war.
The sit-ins at segregated lunch counters during the civil rights movement were different. The lunch counter operators were perpetrators of the injustice at issue.
The main beef of the current occupiers is the violation of their constitutional right to graze cattle on land that does not belong to them without paying fees to the owner of the land, i.e., the federal government. I don't recall reading that in the Constitution, but maybe it's part of the "living document."
Questions Presented follow the break.
Last Thursday's News Scan noted the oral argument in the case of State v. Peeler, in which the state asks the Supreme Court to reconsider its decision. Video of the argument is now available here.
The defense lawyer's argument is really painful to watch. He just keeps insisting over and over that the Santiago decision must be respected as final. So why did Santiago itself not respect as final all the earlier cases rejecting constitutional attacks on the death penalty? The defense side seems to think that precedent is a ratchet. No decision favoring the prosecution is ever final. Every one is subject to constant attack. But once the defense wins a point, it becomes absolutely sacrosanct. This is utter nonsense.
A decision should receive no more respect as precedent than it gave to precedent.
The certiorari petition is here. The SG's brief in opposition is here. Sheriff Joe's reply was filed December 30, but I haven't found it online.
The petition, by Larry Klayman of Freedom Watch, has 10 questions presented. Not the way I would have done it, but we all have our own style.
On the same conference list, presenting largely the same issues, is United States v. Texas, No. 15-674. Texas won in the Fifth Circuit at the preliminary injunction stage. SCOTUSblog's case page has the pertinent documents. In this case, the Solicitor General is the petitioner. Unlike us mere mortals, the SG gets a large portion of his certiorari petitions granted. That's good for Sheriff Joe, because if they take one it makes it considerably easier to take the other.
The headline is, "Judge Harry Pregerson, leaving the bench at 92, always followed his conscience." Sounds nice, doesn't it? I mean, who could criticize a person for following his conscience? Well, there is a big difference between "conscience" in personal conduct and "conscience" as used in this context. Here, "conscience" is little more than a high falutin word for "opinion." On matters of great public controversy, both sides believe they are right, and a judge who decides on the basis of which opinion he agrees with rather than on the basis of the law is acting as a dictator, not a judge.
The great Justice Robert Jackson nailed it in 1949: "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
Add to this the famous saying of George Santayana: "Those who cannot remember the past are condemned to repeat it."
We must not forget. We must not repeat.
Can a court really "strike down" a statute, as we so often casually say when discussing a constitutional case? No, not really. Repeal of a statute is a legislative function. The theory of judicial review, as explained way back in Marbury v. Madison, is that the court must decide the case, and if the higher law of the Constitution points to one result and the lower law of the statute points to the other, the higher law must govern. That does not wipe the statute off the books, though. The statute at issue in Marbury gave the Supreme Court the authority to issue writs of mandamus, and it still had that authority under that statute after Marbury as long as it exercised the authority in its appellate jurisdiction, such as issuing it to control a lower court, and not by expanding its original jurisdiction beyond constitutional limits.
But can a court decide that a statute is completely void?
It is interesting to compare the views of the the reviewer, the reviewed, and myself on the basic principle and specific applications. Freedman says, "The Paulsens are at their best when critiquing the modern era of judicial activism. In their telling, the Warren Court (1953-69) produced 'careless' decisions, because the justices were focused on achieving policy goals rather than upholding the law." Not sure I would have used the word "careless," but otherwise we are all agreed on that. I shake my head whenever I hear activist justices such as Warren, Douglas, Brennan, and Marshall referred to as defenders of the Constitution. In fact, they were gross violators of Constitutional Right Number One -- the right of the people to govern themselves through the democratic process. Any time a judge usurps to the judiciary a question of policy that the Constitution actually leaves to the people, he violates the Constitution every bit as much as the notorious Sheriff Screws did. The subheading of the review, which I chose to be the title of this post, is exactly right.
The book begins by retelling the extraordinary events that led to the drafting and ratification of the Constitution and the quick addition of the Bill of Rights. Then, in well under 100 pages, it elucidates the constitutional structure that the Constitution creates. The authors evidence a great respect for the work of the Founders, and they have harsh words for those who treat the Constitution like a Rohrshach blot. But they are also painfully honest about the flaws in the original design--and in particular, the Founders' accommodation of slavery. The chapter devoted to this subject is one of the most interesting and will be instructive even for those who know a fair amount about the Constitution. (For example, how many lawyers know that, were it not for the infamous three-fifths provision, which counted a slave as three-fifths of a person for purposes of congressional apportionment, John Adams, not Thomas Jefferson, would have won the pivotal presidential election of 1800?)* * *The Paulsens' book fairly presents both sides on major interpretive issues, but they do not hide their own point of view. They favor a form of originalism and judicial restraint. They are decidedly Hamiltonian in their view of national and presidential power, but at the same time they support a robust conception of the individual rights set out in the Bill of Rights and post-Civil War Amendments. Substantive due process, which they trace back to Dred Scott, however, is another matter.
And who is the reviewer? Justice Samuel Alito.