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The Hunter Bill vs. the Murtha BillAs noted previously, the House voted Friday 403-3 to not withdraw troops from Iraq. Various accusations have been flung around the net (and, for that matter, the House chamber) that the bill that was passed was not, in fact, Rep. Murtha's bill. This may be true, to the extent that the bill that was defeated was not introduced by Rep. Murtha, but the implication is that the Hunter bill was in some way a distortion of Murtha's bill. This is simply unsupportable. The deployment of United States forces in Iraq, by direction of the Congress, is hereby terminated, and the forces involved are to be redeployed at the earliest practicable dateAnd Mr. Hunter's bill: [I]t is the sense of the House of Representatives that the deployment of the United Staes forces in Iraq be terminated immediatelyAre we really to believe that the latter is a corruption of the former? In relevant part, the Murtha bill declares that: "[t]he deployment of United States forces in Iraq, by direction of the Congress, is hereby terminated, and the forces involved are to be redeployed at the earliest practicable date." That to me isn't an argument for a timetabled pullout, it's an argument for immediate withdrawal. It says, the mission in Iraq is over, and U.S. forces will be removed at the speed which logistics permit. Whither this supposed "six month timetable"? Now, I've been challenged that this conclusion "depends on your interpretation of "earliest practicable date" is. Noscitur a sociis. The words immediately preceding "earliest practicable date" are "[t]he deployment of United States forces in Iraq, by direction of the Congress, is hereby terminated;" that to me suggests strongly that "earliest practicable date" means exactly what the words ordinary meaning suggests: pack your bags and go, as opposed to the obviously impossible "drop everything, leave your stuff and go". Furthermore, "practicable" means "capable of being effected, done, or put into practice; feasible;" in no thesaurus nor common use of which I am aware is it a synonym for "convenient" or "appropriate," the use of either of which would support the conclusion that the bill means "leave when the situation permits" or "leave within a given period of time." Therefore, being a good textualist, even were this language not preceded, as it is, by a declaration that hostilities are terminated with immediate effect, I would read that language to say that the withdrawal order is with immediate effect, with only such pause as is absolutely and inescapably necessary to effect the withdrawal. It seems very difficult to read the actual language of the Murtha bill and seriously assert that the Hunter bill was a distortion - rather than merely a simplification - of the Murtha bill. House votes 403-3 to continue the mission in Iraq"Our military has done everything that has been asked of them. It is time to bring them home." HousekeepingIn the vein of tidying up - I had previously contributed a lot of material to the Wikipedia entry on Originalism, but had left the entry largely alone for some months, and in the meantime, it's gotten rather bloated and messy. Over the next couple of weeks, I'm going to tidy up the article, and add some more material into this and related articles. The other side of the knifeI've noted before that Originalism does not always lead to palatable results. The U.S. Ninth Circuit Court of Appeals released a decision in Fields v. Palmdale School District on Wednesday, dismissing the complaints of parents who did not want their children "exposed" to sex education in public schools. The district court had dismissed the case "for failure to state a claim upon which relief could be granted and dismissed the state claims without prejudice to their right to re-file in state court" (n1); CA9 went far, far further and asserted: "We agree, and hold that there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. We also hold that parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students." (n2)Predictably, this has not gone down well outside the Ninth Circuit's chambers. n3. While it is true that it’s sometimes hard to determine whether the US Court of Appeals for the Ninth Circuit is an appellate court or a satirical comedy routine, a histrionic reductio ad absurdum of liberal jurisprudence, and while it is also true that the reasoning in this case is the usual horrific and flawed CA9 schtick, the court’s decision was correct, in my view. I've said before that: I don't think everyone in the conservative base wants an originalist nominee. I think many of them want a conservative activist. Conservatives are no less willing than liberals to use the courts to get what they want [n4]; it's just that liberals have been unable to move their agenda the legitimate way (i.e. through the legislatures), so they've had to turn to the courts.The problem in Fields is that a ruling that made conservatives happy would, by necessity be judicial activism. In Less nebulous than you'd think, 9/23/2005, I advanced a description of judicial activism that suggested Judges may "be activist not only by taking action where none is required [or permissable], but by refusing to take action when it IS required." This case implicates the former: the court was being asked to strike down an action based on the violation of a provision of the Constitution which doesn't exist. In the Fields case, the parents of children "exposed" to sex education in the California public education system filed suit alleging, inter alia, "[a] violation of their federal constitutional right to privacy." n5. Regular readers will know what I'm going to say next, and I actually said it again earlier this week: [T]he failure to discuss where privacy is protected [by the Constitution] systematically advances the notion that the Constitution is less an actual law, and more of an amorphous and malleable concept . . . which leads to the [false] assumption that privacy actually is protected, as a general matter, by the ConstitutionThere is no federal Constitutional right to general “privacy”. Specific privacy rights are protected, yes - and, indeed, the enumeration of particular privacy rights denies the existence of a general privacy right. As Justice Scalia noted, dissenting in Troxel v. Granville (n6) explained: In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.If there is no Constitutional right to privacy, Fields was rightly decided. As Scalia explained in Troxell, the Ninth Amendment (n7) reserves the ability of the people to protect whatever rights they might like in whatever manner they might like, at the state level (indeed, the complaint in Fields also cited a violation of the California constitution's right to privacy - which may or may not be true, but even if it is, there is no federal question and the Fields plaintiffs are in the wrong court system!), but it does not empower Federal Judges to strike down laws and regulations that may or may not infringe someone's fundamental rights. Indeed, as Robert Bork has explained, the incoherency is demonstrated in the battle cry of the "fundamental right to be let alone," a proposition which effectively denies the right of society to have laws in the first place. I suppose we could form an argument that conservatives are reflexively opposed to anything the Ninth Circuit decides, but it seems to me that the controversy is misplaced. This case was rightly decided (although, it should go without saying, it is horrifically-reasoned, and I am concurring here only in the judgement); the Constitution is not a device for furthering conservative policy goals any more than it's a device for furthering liberal policy goals. It's not that the Ninth Circuit did the right thing in this case that worries me, but that they so often get it wrong. By refusing to see the difference, conservatives are undermining the integrity of the claim to want Originalist Judges right at the time they need it most. ............... Footnotes: n1. Fields v. Palmdale Sch. Dist., 271 F. Supp. 2d 1217 (CD Cal. 2003) (all references to Fields hereafter refer to the CA9 ruling. n2. Fields , slip op. at 15063. n3. See, e.g., RedState; My Vast Right Wing Conspiracy. n4. See Scalia, speech at Woodrow Wilson Center, 3/14/05 (discussion around "Conservatives are willing to grow the Constitution to cover their favorite causes just as liberals are"). n5. Fields , slip op. at 15067. n6. 530 U.S. 57 (2000). n7. Cf. my comments on the meaning of the Ninth Amendment here. Contemporaria: I also posted on this at Centerfield and commented on it at My Vast Right Wing Conspiracy. Update 5/23/06: Pet. for rehearing en banc denied. More commentsHaven't done one of these for a while...
Speaking of Justice Kennedy...Orin Kerr tips us off to an interview with Kennedy. |
    
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