Recently in Constitution Category
Along with the two events Bill mentioned, the annual Rosenkranz Debate was between Randy Barnett and Judge Harvie Wilkinson on judicial deference to the legislature. Having heard both of them speak on this subject, I expect I will agree much more with Judge Wilkinson.
Judicial activism -- giving the Constitution an interpretation different from its original understanding in order to advance the judge's political, ideological, or policy preferences -- remains a far greater danger than its opposite. For want of a better term, I call the opposite "judicial refractivism." That is when a statute really does violate the Constitution as originally understood but the judge declines to so hold, either because he agrees with the statute and disagrees with the Constitution, or because he is excessively deferential to the legislature.
Judicial refractivism is a problem when it occurs, but it is both less common and less serious than judicial activism. It is less common because of the natural human tendency to lean in the direction of enhancing one's own power. It is less dangerous because genuinely unconstitutional statutes can be repealed through political action far more easily than wrongly stricken statutes can be resurrected through constitutional amendment.
I look forward to viewing this debate when the video is posted.
With the stay denied, Gov. Brown proposed to do exactly that, which necessarily includes out-of-state facilities, as there is only so much capacity within the state.
Today, as noted in the News Scan, the three-judge court extended the deadline by a measly four weeks and ordered the parties to "meet and confer." Okay, but then there is this provision in the order: "During the meet-and-confer process and until further order of the Court, defendants shall not enter into any contracts or other arrangements to lease additional capacity in out-of-state facilities or otherwise increase the number of inmates who are housed in out-of-state facilities."
Excuse me, your honors, but exactly by what authority do you order California's executive officials, and thereby effectively order the State of California, not to employ additional out-of-state capacity to house its prisoners?
Elizabeth Wydra of the Constitutional Accountability Center has this post on the speech, giving us a fine example of the straw man fallacy. She discusses the fact that the Constitution was drafted to make a federal government more robust than the anemic Articles of Confederation government.
Of course, conservatives like Justice Scalia might not like this part of our constitutional story so much, because it helps to refute the claim that the Constitution is a document that is primarily about limiting government.Huh? What "conservatives like Justice Scalia" make such a claim?
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
On this date 226 years ago, George Washington et al. signed the proposed Constitution and sent it to Congress with a recommendation to submit it to the States for ratification.
Today, the Ninth Circuit decided Montana Shooting Sports Assn. v. Holder, No. 10-36094.
The Montana Legislature passed the Montana Firearms Freedom Act ("MFFA" or "the Act"), which declares that a firearm or ammunition "manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce." Mont. Code Ann. § 30-20-104. It purports to authorize the manufacture and sale of firearms within the state, but imposes certain requirements for a firearm to qualify under the Act, notably that the words "Made in Montana" be "clearly stamped on a central metallic part." Id. § 30-20-106.Will that dog hunt? No.
The court decided that the Nuclear Regulatory Commission can no longer drag its feet on this controversial question, as it has been doing for years. Kind of like DoJ has been doing on the AEDPA fast track. This is illegal. An administrative agency cannot nullify an Act of Congress just by sitting on its rump, and a court should issue a writ of mandamus when necessary to move it.
The court distinguishes prosecutorial discretion:
One of the greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior - more precisely, the power either not to seek charges against violators of a federal law or to pardon violators of a federal law.When this authority is abused, the remedies are political and not judicial.
Judge Kavanaugh wrote the opinion of the court. Judge Randolph concurred. Judge Garland dissented.
Occasionally, though, the prevailing party below joins in the request to take the case up, even though it believes the Court should affirm once it does. The U.S. Government is the party most likely to do this, as it is uniquely hampered by having to enforce different interpretations of the law in different federal circuits. Much more rare is such a request by a private party, but one has been filed by Noel Canning, the bottling company that prevailed in the NLRB recess appointments case. "Respondent does not oppose certiorari because this case presents a constitutional question of extreme importance."
Noel Canning asks the Court to add an additional Question Presented to the two proposed by the Government:
Much more rare is a summary affirmance, but a case about to be filed may call for it.
Charlie Savage has this story in the NYT:
With the passing of Judge Robert Bork at 85, America has lost one of its most influential legal scholars. Though media obituaries tend to focus on Bork's unsuccessful nomination to the Supreme Court in 1987, Bork's legacy is one, not of failure, but of enormous success.* * *
No Supreme Court nominee today dares disavow originalism or declare his or her sympathy with a "living Constitution" philosophy. When Elena Kagan faced Senate confirmation for the Supreme Court in 2010, she went out of her way to praise originalism as an interpretive method. As the future justice explained: "Sometimes [the framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists."
Indeed we are. And for that, we should thank Robert Bork.
In constitutional criminal procedure, the Supreme Court has largely embraced originalism in its interpretation of the Confrontation Clause. If we can extend that to Fourth Amendment remedies (not including exclusion of evidence) and to the Witness Against Himself Clause, we can make some real progress.
Notice I did not say "Self-Incrimination Clause." There is no such clause in the Fifth Amendment.
I did not agree with Bork on everything, though. To this day, I shake my head when I read his words from 1971, "Constitutional protection should be accorded only to speech that is explictily political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic." Porn is one thing, but to say that Congress could declare an official dogma on, e.g., global warming and forbid expression of a dissenting view is more than one bridge too far.
That said, Bork was an important force moving constitutional jurisprudence in the direction it needed to move. Judicial activism was and remains a far greater danger than its opposite, which for want of a better term I call judicial refractivism. Excessive deference to the legislative authority -- upholding acts that really are contrary to the Constitution as originally understood -- does happen, but it is far less common than judicial activism, striking down a constitutional law because the judge disagrees with it. Judicial activism remains the principal danger, and we lost a strong voice against it today.
The Constitution is indeed a "living document," in the sense that it changes. The process by which it legitimately changes is set forth in Article V. Let us raise a glass today to the most important of those changes.
Which provision of the Constitution of the United States removes this decision from the legislatures of the states and assigns it to the federal judiciary? Justice Breyer "would grant the petition for certiorari to consider whether Idaho's modification of the insanity defense is consistent with the Fourteenth Amendment's Due Process Clause." Once again, the oxymoron of "substantive due process" rears its ugly head. All the way back to Dred Scott, the term "due process," which quite obviously refers to process and not substantive law, has been used for the Court's most illegitimate decisions. It's good that they passed on this one.
Samuel Mullet Sr., the domineering leader of a renegade Amish sect, and 15 of his followers were convicted on Thursday in Cleveland of federal conspiracy and hate crimes for a series of bizarre beard- and hair-cutting attacks last fall that spread fear through the Amish of eastern Ohio.A TV report from WKYC is here.
These assaults are certainly crimes, and given the religious significance of the beards the injury to the victims goes well beyond any physical injury, but why is this a federal case?
Person-on-person crime is generally a state-law matter. The feds necessarily get involved when there is state action in violation of the Fourteenth Amendment. Criminal organizations that operate in multiple states and across international boundaries also warrant federal involvement, but there is none of that here.
Conspiracies to violate civil rights were made a federal crime in the Ku Klux Klan Act during Reconstruction. The law was certainly necessary at that time, and it was necessary in the 1960s in some places where state and local governments dismally failed to provide the equal protection of the laws that the Fourteenth Amendment requires.
But in 2012 Ohio? Against Amish defendants? Do the Amish have local officials so cowed as to make local prosecution an inadequate remedy, as the Klan did in the Deep South 50 years ago? Of course not.
Whether application of these laws in this case is constitutional or not, as a matter of policy it should have been left to the locals.