Comments and random musings

Some comments:

• Talking about Originalism at ConfirmThem...
• Talking about a Condidacy at Alhouse here and here.

Answering for Alito, part 2

Earlier this month, I mooted some answers to the first section of Senator Specter's proposed questions to SCOTUS nominee Sam Alito (see Answering for Alito, part 1, 12/6/05). This post moots some answers to some of the questions in the second part of the letter; I actually wrote the lion's share of this post contemporaneously with part 1, but I've not been happy with some of the answers, both substantively and stylistically, so it's been stuck trudging back and forth in drafting hell ever since. Some parts of it got a major revision when posted as a comment at Althouse, but I confess that I'm still not really happy (or satisfied) with some of these answers.

None-the-less, in the spirit of not being afraid to put something out there and be proved wrong (and with the motivation of really, really wanting to clear the decks of this and one other item in drafting hell before new year), here is "Answering for Alito, part 2"! In this case, "I respectfully, and indeed diffidently, dissent"; constructive criticism is, as ever, very much welcome.


(1) Recent press reports suggest that you view the principle of "one person one vote" as "bedrock" to American law. Is that a correct characterization of your views regarding that important principle?

I find the equal protection argument for reapportionment as dubious in Reynolds v. Sims, 377 U.S. 533 (1964), as I found the equal protection argument for vote-counting in Bush v. Gore, 531 U.S. 98 (2000).

The Fourteenth Amendment speaks in broad and general terms - broad enough that their original meaning certainly exceeds the original intentions of those who framed and ratified them. It is beyond doubt that some of those who ratified the amendment believed and intended it to be exceedingly broad in its effect, while others believed it to be, intended for it to be, specific and narrow in effect. But in interpreting the equal protection clause, of course, we are bound by the plain meaning of the text, contemporaneous to its ratification, rather than some secret and subjective intention on the part of its authors. What holds true for statutory interpretation holds also true for constitutional interpretation.

Despite its broad language, whatever the equal protection clause may mean, it surely does not address the franchise. At the time of the ratification of the Fourteenth Amendment, it was certainly not understand to speak to the franchise, for within barely two years, a further amendment, the Fifteenth, was promulgated. The Fifteenth Amendment prohibited the denial of the franchise based on race, which would have been a nullity had equal protection spoken to the franchise. Furthermore, of the eleven amendments subsequently ratified – nine, if we count the prohibition amendments as mutually annihilatory – fully four speak to the franchise, and would therefore have been a nullity had the people who ratified the Nineteenth, Twenty-third, Twenty-fourth and Twenty-sixth Amendments believed that "equal protection" spoke to the franchise. Not only did the framers of the Fourteenth amendment not believe it to speak to the franchise, but as recently as 1971 – after Baker and after Reynolds – the American people did not, either.

The question must be asked: is it really equal numbers that the Brennanites want? I would submit that if it had been demonstrated that every district at issue in Reynolds had been of equal numbers of people, that would not have been enough - it was a racial imbalance. Which rather begs the obvious question: must each district be a microcosm of the state, and contain analogous proportions of blacks, whites, latinos, women, men, gays, straights and members of every economic class? Why couldn't any "discrete and insular minority" bring an equal protection issue to the Court, even if there was simply no way to demonstrate willful attempt to discriminate, and say "my vote as a bisexual transvestite latino billionaire counts less in Jefferson County than it does in Clay County! Equal protection violation!"?

"It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932). We should not impose uniformity where our diversity is precisely our strength. Let each state figure this out itself, unless or until it becomes pernicious.


(2) Do you agree with Justice O'Connor's view that race is qualitatively different and classifying voters based on race is inherently dangerous and divisive? Or do you believe, like Justices Stevens and Ginsburg, that race can be a proxy for voters' viewpoints, just like union membership, rural background, or religion? Which view best reflects your jurisprudence on this issue?

I agree with the view that race, religion, union membership and other such factors are inherently invalid considerations when contemplating the drawing of legislative districts. It would seem to me that, so far as is possible, the principle of "one person, one vote" should apply when drawing up districts. However, I recognize that states may have compelling reasons for drawing up districts with unequal populations in at least one chamber of their legislature. The United States Senate and the Electoral College act to preclude the supremacy of majorities, which is in itself a reasonable state objective. They also serve to give greater voice to interests which might not otherwise be represented; the United States is a large and diverse country, a geographic characteristic shared by many of our states. It seems entirely reasonable, to my mind, that a state like Illinois would divide at least one chamber of its legislature by geography rather than population; to do otherwise would essentially give Chicago, being a highly urbanized city, complete and paralyzing control over the vast majority of Illinois, which is anything but urban.

The Supreme Court has permitted certain measures which might lead to discriminatory impact when they are necessary or appropriate to a compelling or important state objective. If a state identifies a reasonable objective which can be served by the apportioning of representatives in one part of a bicameral legislature in unequal districts, I believe that the court should leave that matter to the legislature, unless those divisions are explicitly and clearly designed to produce discriminatory results. That is to say, such a scheme would generally be left to stand provided its goal is not discriminatory, and it practical effect is neither needlessly nor excessively discriminatory.

My purpose isn't to prescribe a solution - indeed, quite the opposite: it is the very concept of one-size-fits-all prescription at the Federal level that I object to, rather than the specific prescription determined by Mr. Justice Brennan. It’s surely true that there is more than one way to modify the impact of the presence of a large city with interests distinct to the non-urban part of the state, and as your comment goes on to point out, it isn't entirely clear whether such considerations should even be taken into account when creating districts. My point is precisely that to impose a one-size-fits-all restriction is wrongheaded, foolish, and is very likely unconstitutional. As long as states are not districting specifically for the purpose of discriminating against discreet and insular minorities, I would argue that they have full scope to determine what the appropriate criteria for drawing districts should be, and having done so, to define and maintain those district boundaries. Only when they specifically intend to discriminate and disenfranchise does it raise an issue, in my view.

Informal politics

I'm intrigued by this article on the Accuracy in Media website, not least because it plays to my own prejudices. Its argument is that politics has become too informal, too slacks-and-polo-shirt; hence, the Vice-President of the United States likes to be called Dick Cheney, rather than Richard B. Cheney; The President pro tem of the Senate goes by Ted Stevens, not Senator Theodore F. Stevens of Alaska, with the dignity that might entail. It's a minor thing, and I really don't think it's the most salient factor in the decline of civility in politics, but I do rather agree that formality has a place, and no place more so than in government.

Underage suffrage proposal in Britain

The organization “Votes at 16,” which militates for a virtually unprecedented expansion of the franchise, reports that the British Parliament will take up a vote on the matter in January.

You'd think that they would spend more time actually trying to establish that their outlanding and unprecedented proposition is a good idea, really, but the closest to a substantive argument in favor of expanding the franchise that I can find on their website is a 2003 report by the Electoral Commission, entitled How old is old enough? The minimum age of voting and candidacy in UK elections. I dash off an off-the-cuff critique, available in draft form, here (link is to PDF).

A thought on blogging and commenting

This thought originally cropped up in a comment at ConcurringOpinions.com (it's appropriate: Prof. Solove concurs, I mainly dissent). I don't really like blogs that don't permit comments; not because I like to have my say (although that's often true), but because I think one of the real values of blogs is that they keep the writer honest: if the writer can be challenged - right there, in the comments - that forces a certain level of accountability for the arguments contained therein. That's not to say that blogs without comments sections are inferior, just that I think that the accountability created by permitting comments is favorable to good argument.

One of the main reasons I write is because mistakes and logical errors come out in the writing. I find that it's very easy to skip over details that might be contrary to an argument when I just talk, and even more so when I just revolve it in my head. It's in the writing - when you're forced to actually read your argument as if for the first time - that what seemed a reasonable argument in one's head turns out to be a non sequitur. Under the principle that pursuasive writing is "show me don't tell me," it's almost impossible to hide an argument put on paper, and there have been times when I've started drafting a comment or essay only to realize having read the draft (or even in writing the draft) that I'm just flat-out wrong. In this regard, I love Keynes' remark that, "[w]hen the facts change" --or at least, one's knowledge and understanding of the facts -- "I change my mind - what do you do, sir?"

This applies even more so when someone else can read your arguments, and poke holes in it; indeed, over at ConfirmThem recently, one of the main posters there and I got into a discussion of the Commerce Clause and the 21st Amendment, and he very sucessfully led me to a point where it became apparent that there is a glaring hole in my logic regarding the scope of the dormant commerce clause (you can find the exchange here, starting at post #37). I haven't yet worked out what my answer is to his point. Now, I may not necessarily be wrong, but it's great to have that error-correction built in, and what's good for the goose (commenters keeping each other honest) is good for the gander (keeping bloggers in line).

Downtime

The blog was evidently down from sometime saturday AM until just now. Stuff happens.

Posting has been light, lately, and I'm aware that there are actally a number of things still outstanding which may or may not make an appearence by the end of the year. My "once and for all" discussion of the ninth and tenth amendments is not now likely to appear until next year, while Answering for Alito (part 2) will appear in the next couple of days, along with an even-longer delayed comment on the difficulties of finding common ground on abortion regulations (this latter one has actually benefited from the delay, since some additional factors have made their way in since I first drafted it).

Kitten update 12/12/05

Javascript snow

Internet ghetto or appropriately seasonal? Either way, it's about to snow heavily here in Indiana, and I don't think js snow is really so wrong. So it's here for a while.

Flag burning: tokenism and opportunism

(Cross-posted at Centerfield)

According to Newsday, Senator Clinton is having some sort of breakdown:

Sen. Hillary Rodham Clinton is supporting new legislation to criminalize desecration of the United States flag _ though she still opposes a constitutional ban on flag attacks.

Any person who destroys or damages a flag of the United States with the primary purpose and intent to incite or produce imminent violence or a breach of the peace, and under circumstances in which the person knows that it is reasonably likely to produce imminent violence or a breach of the peace, shall be fined not more than $100,000, imprisoned not more than 1 year, or both

The Government concedes in these cases, as it must, that appellees' flag burning constituted expressive conduct, but invites us to reconsider our rejection in Johnson of the claim that flag burning as a mode of expression, like obscenity or "fighting words," does not enjoy the full protection of the First Amendment . . . This we decline to do . . . Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression, and concerned with the content of such expression. The Government's interest in protecting the physical integrity of a privately owned flag rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals. But the mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, does not diminish or otherwise affect the symbol itself in any way . . . Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered.

Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.

Any person who destroys or damages a flag of the United States with the primary purpose and intent to incite or produce imminent violence or a breach of the peace, and under circumstances in which the person knows that it is reasonably likely to produce imminent violence or a breach of the peace, shall be fined not more than $100,000, imprisoned not more than 1 year, or both.

Got it in one: just be honest about Roe

Verity from Southern Appeal says it perfectly:

Just say it! Alito's writings indicate that he believes Roe was wrongly decided and indicate that Roe should be overturned. Stop the hedging, rationalizing, and discounting of everything Alito has said. Just say it: Roe should be overturned. Roe was wrongly decided and for over thirty years it has created havoc by allowing five people to decide a policy question that should be left to the democractic process. Address the merits. Educate the public. And stop hiding behind the "that was 20 years ago, when he was an advocate," panty-waste cop-out.

It seems to me that a Republican nominee to the Supreme Court shouldn’t be going before the Senate Judiciary Committee and relying on slight of hand to bamboozle their way through questions on Roe. This implicitly seems to (mistakenly, in my view) concede the point that we are merely trying to obtain a policy-based result, rather than trying to correct a ghastly legal mistake which has corrupted Supreme Court nominations (and, by extension, Presidential elections) ever since. Instead, they should be going in there and calmly, dispassionately and respectfuly explaining precisely why Roe was wrongly decided, demolishing the myths that surround the case (and, following from that, what precisely overruling it would do, in practical terms), and commit themselves to upholding the Constitution of the United States, a pledge which inherently and inescapably requires their vote to reverse Roe. Stare decisis offers no defense against a wrong decision.

Answering for Alito, part 1

In an open letter to Supreme Court nominee Judge Sam Alito, Sen. Arlen Specter raises six questions about affirmative action. In this post, I consider how I would answer those questions.

(1) The Supreme Court's views on affirmative action have evolved considerably over the last three decades. How have your views evolved on this issue?

My views on the matter were best-encapsulated by Justice Scalia’s brief, but powerful, concurrence in Adarand v. Pena:

In my view, government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction. Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual, and its rejection of dispositions based on race, or based on blood. To pursue the concept of racial entitlement--even for the most admirable and benign of purposes--is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

It is plainly true that, in our society, blacks have suffered discrimination immeasurably greater than any directed at other racial groups. But those who believe that racial preferences can help to "even the score" display, and reinforce, a manner of thinking by race that was the source of the injustice and that will, if it endures within our society, be the source of more injustice still. The relevant proposition is not that it was blacks, or Jews, or Irish who were discriminated against, but that it was individual men and women, "created equal," who were discriminated against. And the relevant resolve is that that should never happen again. Racial preferences appear to "even the score" (in some small degree) only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right that an injustice rendered in the past to a black man should be compensated for by discriminating against a white. Nothing is worth that embrace.

Good show, Breyer

Justice Breyer, interviewed by Brian Lamb. Really appreciated this response from Breyer:

LAMB: Let me ask you this. You hear some justices talking about being an originalist . . . [a]nd fundamentalist believers in the Constitution as it was written . . . But the Constitution has been amended, and that doesn‘t mean – the forefathers in many cases didn‘t write those amendments.

BREYER: That‘s true. But someone did. And the textualists or the originalists will go back and try to do the same thing for the amendments that he does for the original part. And he will say, what was the history of those amendments? He won‘t deny that the amendments are part of the Constitution. And he will apply the same approach.

The arc of Conservative Washington

I'm always fond of pithy little epigrams like the one Slate offers today, almost by accident, while discussing what is almost indisuptably deepening corruption in Washinton:

Reagan and company arrived to tear down the government and make Washington irrelevant. Now the airport and a giant warehouse of bureaucrats are named after him.

Pilgrim's Progress, it seems.

It's raining methane

NASA has a nice bunch of new data today from Cassini-Huygens (speficially, the Huygens probe). Joel Achenbach has details and links.

Bait and switch

How marvellous - Rep Pelosi now supports immediate withdrawal from Iraq
You've got to give Pelosi some credit - after all, it takes a mighty big pair of stones to call for something within, quite literally, a few days of voting against it. But doesn't she realize that she - like any other Democrat (or Republican, for that matter - there are, after all, anti-war Republicans) who voted against immediate withdrawal - now has zero credibility if they demand a withdrawal? I guess the obvious question to ask is, were you wrong then, Rep. Pelosi, or are you wrong now?

This shouldn't even be a partisan argument. This is just rank hypocrisy from someone who's supposed to be representing constituents. It's hard to imagine how she's doing that by eviscerating her own credibility.