.: I Respectfully Dissent :.

Ninth Circuit strikes down Federal Partial Birth Abortion Ban

A three-judge panel of the Ninth Circuit Court of Appeals has issued an opinion (hereinafter slip op.) that affirms the circuit court ruling holding the Federal Partial-Birth Abortion Act (hereinafter FPBAA) unconstitutional.

I
The Ninth Circuit panel notes that the District Court's holding:

rested on its determination that the Act violated the Constitution in three respects. First, the district court found the Act unconstitutional because it imposed an undue burden on a woman’s right to choose to terminate her pregnancy before viability . . . Second, the district court found the Act unconstitutionally vague. The court reasoned that the term “partial-birth abortion” was not recognized in the medical community, and the phrases “living fetus,” “deliberately and intentionally,” and “overt act” failed to put physicians on notice as to what procedures would violate the statute. As a result, the district court found that the Act deprived physicians of fair notice and encouraged arbitrary enforcement . . . Third, the district court found the Act unconstitutional because it failed to include a health exception.

(Slip op. at 12) The Ninth Circuit panel accepts this rationale almost as is:

We hold that the Act is unconstitutional for three distinct reasons, each of which is sufficient to justify the district court’s holding. First, the Act lacks the constitutionally required health exception. Second, it imposes an undue burden on women’s ability to obtain previability abortions. Third, it is unconstitutionally vague, depriving physicians of fair notice of what it prohibits and encouraging arbitrary enforcement.

(Id. at 16).

In reaffirming the Circuit Court's verdict, the panel entirely fails to even consider the question on which any action against FPBAA should turn: did Congress have the authority to enact this statute in the first place? Answer that question in the negative, and the entirety of the litigation thusfar is nullified; it becomes irrelevant whether the act places an undue burden, it becomes irrelevant whether the statute's terms are "unconstitutionally vague," and it becomes irrelevant whether it includes a health exception.

II
The Federal Partial-Birth Abortion Ban Act of 2003 (FPBAA), 117 Stat. 1201, is not long; it runs to eight pages. §2 describes in detail the horrors of the D&E procedure (as Justice Scalia's Stenberg dissent terms it, "this visibly brutal means of eliminating our half-born posterity"), and discusses the needs for exceptions. It goes on to note that "[a] ban on the partial-birth abortion procedure will therefore advance the health interests of pregnant women seeking to terminate a pregnancy . . . [and] [i]n light of this overwhelming evidence, Congress and the States have a compelling interest in prohibiting partial-birth abortions." §2(14)(F) et seq. But the FPBAA never really addresses itself to a question that I would require Congress to place at the head of every bill it passes: its Constitutional authority for enacting the statute in the first place.

Justice Scalia’s dissent in Stenberg, from which I quoted above, declares that “[t]he notion that the Constitution of the United States, designed, among other things, ‘to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,’ prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.” It says, then, that the Constitution does not prohibit the States from banning partial birth abortion; I agree, but that is a very different proposition to the idea that the Federal government can prohibit it. The Congress does not have plenary power to legislate on every issue it might decide to be "compelling":

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U. S. Const., Art. I, §8. As James Madison wrote, "[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). "Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Ibid.

(United States v. Lopez, 514 U.S. 549) (1995). Or, as Justice Black more succinctly put it: "[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution" (Reid v. Covert, 354 U.S. 1) (1957).

My view is that FPBAA is unconstitutional. Abortion is a matter for the states; the Constitution says nothing about it, and on subjects the Constitution says nothing about, the Tenth Amendment reserves the question for the states. Thus, there is no constitutional right to an abortion, and there is no immediately apparent federal power to regulate it.

When I say it's a matter for the states, I should clarify, I do not mean to suggest, as might be inferred, that the State has a latent atextual power to legislate on abortion, but rather, that the Tenth Amendment reserves the question to the States and to the people of the states. So at a Federal level, the textual basis for it being the prerogative of the States is the lack of a positive grant of power and the Tenth Amendment, but the Tenth Amendment is not in itself a positive grant of power to the States: it merely protects the prerogative of the people to grant or not to grant that power to a given state by way of their state Constitution. So in point of fact, whether an individual state, singular, has the power to legislate on abortion or not depends on what its constitution says, while that the question itself is reserved to the states, general, is a tenth amendment question. The source of all powers and rights are the people, and the people can choose to grant a portion of that power to the state governments via their constitutions. In ratifying the Federal Constitution, however, the people gave up some of that delegative power; they accepted that some power was delegated to the Federal structure, and that in doing so, they gave up the ability to delegate those powers to the states. The people don’t, in fact, have to give their states any powers whatsoever; the point of the Ninth and Tenth Amendments is to protect the rights of the people and the states against federal expansion and incursion.

The only way to uphold a Federal ban, it seems to me, is to argue that a fœtus was deemed a person in 1791 when the Fifth Amendment was ratified (very, very difficult) or in 1868 when the Fourteenth Amendment was ratified (hard, but plausible) (one argument goes that because the Fourteenth Amendment is “special”, it should be taken to amount to a reaffirmance of the priveleges and immunities it incorporated, hence, punishments should be considered as cruel and unsual by the standards of 1868, not 1791, and the same for fifth amendmen persons. I don’t entire buy this argument, though). The important thing is not that we get what we want, but that the interpretation is as close to the original understanding as possible; what happens in cases of underdeterminacy is an open question (one I hope to address in the next couple of months) - for one interesting take, see Strang, An Originalist Theory of Precedent.

The act declares that "[i]mplicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life;" §2(14)(F). It's hard to concieve of the mindset one must have to disagree with this, and I do not disagree with it. What I disagree with is the flawed premise that acting within the Constitutional constraints on Congress is to "[i]mplicitly approv[e]" of partial-birth abortion.

* * *
For the foregoing reasons, I concur only in the judgement - situation normal where the Ninth Circuit is concerned, see The other side of the knife, 11/4/2005 (concurring in the Fields v. Palmdale School District verdict). It's not that I think the Ninth Circuit gave the wrong answers (and I pass no judgement on that here), it's that they asked the wrong question; when building a house, it might seem pretty reasonable to start with the foundation (standing and so on) and to build a nice roof (the questions the Ninth Circuit answers), but aren't we forgetting something -- like, walls? I’m pro-life; I not only have no hidden agenda to find an argument to stop Congress legislating in this area (indeed, when the bill was first passed, I was very pleased about it), but in fact I have an overt proclivity to finding such a basis. However, such a basis has to be within the underlying Constitutional principles which have to come first, and unless it can be shown that the power to ban partial birth abortion falls within the original understanding of any particular positive grant of power to Congress, the FPBA is unconstitutional.

My view is that we should overturn Roe, and take the fight to the state level where it belongs. If we can establish a legitimate principle in which Congress can get involved, I’m all for it. And that’s not to say that Congress is useless on the matter - it is a pretty well-established fact, seemingly to be demonstrated again this term in FAIR v. Rumsfeld, that Congress can attach strings to Federal money, which means that Congress can (and should) refuse to allow Federal money to go to support abortion. But in general, this is inescapably a state issue, not because I want it to be, but because that’s what I’m forced to the conclusion that the Constitution says.

......................
Post facto: the Supreme Court grants cert on a related case 2/21/06, and I comment about that here.

Posted 17:25, 1/31/2006 by Simon | Filed under: Federalism | Comment on this

Congratulations to Justice Alito, a word about what's next - and a brief hiatus

This morning's vote - and yesterday's rout of the filibuster attempt - is truly marvellous news. It means, in essence, that not only is the O'Connor era over, but that the era of the "stealth nominee" is over. These votes mean, in essence, that a superbly qualified textualist jurist with a paper trail can be confirmed.

And, in a poetic touch, it's worth noting that Bob Bork was defeated 58-42 and Sam Alito was confirmed by the same margin: 58-42. The era of Borking, the era of stealth nominees - over.

We must turn briefly to the future. I have a particular judge in mind for Stevens’ seat: Justice Robert Young, of the Michigan Supreme Court. About a year before Kelo, Justice Young wrote an opinion on a similar case, and did it in almost precisely the opposite manner to how Stevens did it - which is to say, he did it right. There could be no more tangible repudiation of Kelo than nominating Justice Young to replace Kelo’s author.

Beyond Justice Young, I'm also fond of the idea of nominating Judge Diane Sykes of the Seventh Circuit. The big deal for me about Sykes has to do with the quality of her writing (particularly during her days on WISC) and that she is out and proud in terms of her judicial philosophy; I made a few general comments about her back when we were waiting for the Miers nomination to collapse as a possible alternative, but here's some additional thoughts.

I would say that I am as comfortable with Sykes as I was with Alito, and more so than I was with Roberts. The reality is, she isn’t a legal encyclopaedia on legs like our Fearless Leader - virtually no one is. Roberts’ command of caselaw and legal principles is absolutely phenomonal. However, what troubled me with the Roberts nomination is that he declined - specifically declined, in point of fact - to declare that he was a textualist, and nothing in his written record suggested that he was. And for me, that’s the basic qualification you need: if you have a philosophical commitment to formalism, then you will naturally have a commitment as a matter of legal principles to textualism, and if you’re a textualist, then everything else that matters follows logically from that: originalism; the rejection of foreign law, legislative history and substantive due process; the proper role of the judiciary; and all that stuff that is far more important, in my view, than a whizz-bang command of the law. My objection to Harriet Miers wasn’t just that she wasn’t qualified (although she wasn’t), my objection was that she came with no evidence of a commitment to the basic intellectual underpinnings of the conservative judicial mindset. Qualifications aren’t enough; you have to believe in this stuff; you have to not only reject all these sexy, enticing tools like intentionalism and substantive due process (the prospect of just making up new Constitutional rights — ooh, a right to life! A right to be free from government! — is as seductive as a menage-a-trois with Ashley Judd and Linda Fiorentino), instead, you have to have a deep philosophical commitment to an intellectual tradition that not only says those things are bad, but says they’re flat-out irrelevant. You have to be unable to concieve what possible use foreign law would be, otherwise you’re going to get taken into it, and before you know, poof - you’re justice Stevens.

Now, Alito, I think we’ll all agree, doesn’t have Roberts’ panache or sheer effortless command of the law, but he has a long record on the bench, and has been far more outspoken about his jurisprudential views than was Roberts, all of which made me much more comfortable with Alito, which is why I regarded Roberts’ nomination as a let down; I would have been happier with Alito from day one. Would I have nominated Sykes over Roberts or Alito? Probably not. I might have nominated her over Roberts, frankly, because she has said (and demonstrated) precisely what Roberts never did, which is the right view of what Judges do. She’s a bit green at the federal level but so was Clarence Thomas, and - the occaisional novelty aside - he’s turned out pretty good. Sykes has experience at both the Federal and the state level (which has an effect on one’s view on federalism, I promise), an outspoken commitment to textualism, a paper trail the length of your arm, and she’s photogenic as the day is long, which - let’s be brutally honest - shouldn’t matter, but doesn’t hurt in this day and age. That, in a nutshell, is my case for Sykes vs. our Fearless Leader.

Lastly, I'm going to try to take a hiatus from blogging (which includes reading blogs, commenting and writing here) for the first seven days of February, unless something genuinely extraordinary comes up. I feel very worn out after the Alito nomination, I have a pile of papers to read that's grown several inches high, I'm behind on my reading in general, and I have some domestic stuff to take care of, so I'm going to take a little break. Blogs are addictive, but sometimes you've got to reconnect with the real world.

Posted 13:33, 1/31/2006 by Simon | Filed under: Diane Sykes | Comment on this

Lochner v. New York vs. West Coast Hotel v. Parrish

There is a pretty long and very substantive debate between myself and another poster over in a comments thread at Pandagon (a completely off-topic exchange in a thread titled - with the gloriously unselfconsciously contradictory title "Impeach The Fucker? Let Us Consider Seriously and Dispassionately"; fair warning, the link is to a liberal blog, so those who don't agree with going out and preaching to the unconverted, look away now), where I attempt to explain conservative legal thought (or at least, my variation thereof) on the Ninth Amendment, Lochner and West Coast Hotel, and unenumerated rights more generally. I don't expect to make converts, but it's been enjoyable, and I hope at least makes it clear to readers of that thread that we beastly Federalist Society types aren't out to destroy civilization as we know it: there is, in fact, a thought process and a paradigm underlying our thought process.

While I fully intend to return to most of these issues this year, I'm not sure when I'll get the chance to tackle West Coast Hotel, so maybe it's worth reprinting those remarks.

My Pandagon interlocutor Magis notes my distaste of Lochner, which I cite as an example of conservative judicial activism, and "wonder[s] why you would feel that would be judicial legislation and not West Coast Hotel v. Parrish, 300 U.S. 379, which overturned it? [After all, ] [t]his was one of the fonts of paternalistic government that I thought conservatives decried. So now do we have the odd spectre of a liberal arguing for Lochner and a conservative arguing for West Coast Hotel?"

It’s a fun vision of role reversal, but I think it’s a false dichotomy. Robert Bork paraphrases (of all people) Lenin in THE TEMPTING OF AMERICA, saying that “who says Lochner says Roe.” Fair point - however, I don’t think that it thus follows that he who says "no" to Lochner must say "yes" to West Coast Hotel.

It’s worth noting at the outset that West Coast Hotel didn’t so much overrule Lochner - outright or even sub silentio, for that matter - as set it to one side. Rather, the core holding of Lochner - that the due process clause has substantive content - is, if anything, reaffirmed. Lochner and its progeny (most directly relevant being (Adkins v. Children’s Hospital, 261 U.S. 525, a fabulously-written but utterly wrong opinion, which West Coast Hotel did overrule) said - and Justice Sutherland’s dissent in West Coast Hotel said - that the “liberty” protected by the due process clause includes a right to free contract which is violated if the state establishes laws that restrict the number of hours a person may be asked to work or the amount of money they can be paid. Poppycock.

But the West Coast Hotel majority did not say that this was poppycock; they neither repudiated substantive due process in general, nor the right to free contract in particular. Instead, the Court contented itself to say that the liberty involved could not be taken away without due process, but that due process had been satisfied in this deprivation of liberty:

[On] the general subject of the regulation of the use of private property and of the making of private contracts [we have] declared that, if such laws have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.

(West Coast Hotel, supra at 398, quoting Nebbia v. New York, 291 U.S. 502). In other words, the Court declared not that the underlying freedom of contract claim was wrong, but instead, that under a rational basis review, a state could abrogate that liberty if it did so in relation to a legitimate state interest, and the court would generally defer to the elected branches on what constitututed a legitimate interest.

I would therefore have concurred in the West Coast Hotel judgement, but I would not have joined the majority opinion, and still less Justice Sutherland’s dissent. I would have decided the case on an entirely different basis: the due process clause speaks to the necessity that a person cannot be executed, imprisoned or fined other than in the course of the due process of law, a guarantee that predates not only the Bill of Rights, not only the colonies, but the common law itself, stretching back at least as far as the Magna Carta ("[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land"). It does not speak to a more general set of rights that might be termed “Liberty” with a capital “L”; that being the case, it cannot possibly create a Federal Constitutional right to freedom of contract, and thus the minimum wage law at issue is Constitutional.

Posted 22:21, 1/27/2006 by Simon | Filed under: ConLaw | Comment on this

The rules and procedings clause: what it holds for judicial filibusters

Following on from my thoughts on the nuclear option (see Judicial filibusters - my take, 5/3/2005), and the subsequent discussion with Mark (a.k.a. Rock) in comments here, I'm involved in another related procedural dispute, in comments at ConfirmThem beginning here.

At the root of this dispute is a simple disagreement over what it takes to fulfill the requirements of Art. I §5 Cl. 2, which requires that "[e]ach House may determine the rules of its proceedings." The debate turns on whether that clause requires that a simple majority may at any time change its rule, or whether necessarily implicit in that clause is the power to impose supermajority requirements subsequent to the majority vote to adopt the rules. This has obvious relevance to the judicial filibuster issue: if §5 permits a simple majority to change the rules at any time, there is no need to argue that the filibuster is unconstitutional (adequately summarized, I don't think it is) to do away with it.

I think Mark's argument is an extremely strong one, and he cites United States v. Ballin, 144 U.S. 1 (1892) in support of it. None-the-less, I think my argument's right. Here, then, is my argument.

I continue to believe that Art. I §5 permits each chamber to pass both wise and also unwise (and even asinine) rules, including submajority and supermajority requirements. Obviously the Senate cannot pass a rule that binds future Senates, but it can adopt rules which require a formal process for the amendment of its rules for the duration that they are in force (usually, for the remainder of that Senate, and successive Senates which either take up - or, by tradition, fail to decline to take up - the same rules), and having adopted those rules, even if those rules require a latent or active supermajority, being the practical effect of the filibuster, the majority is bound by them.

The Constitution grants to each house the power to make its own rules. Like the Senate's power to consent to judicial appointments, that is a grant of power to the institutions, not to their individual members.

By tradition, when the House convenes for the first time in a new Congress, it explicitly votes to adopt a new set of rules; by equal tradition, when the Senate convenes for the first time in a new Congress, it implicitly accepts the rules extant in the previous Senate, unless those rules are challenged. In each case, although by different means, each chamber excercises its §5 authority to set its rules. This is a descriptive point, not a normative argument.

I'm more familiar with the Senate's rules than with the House's, but for reasons I will explain, I'm initially going to make my argument in terms of the House. It's easier to discuss this in terms of the House, because there is no filibuster: the House's rules have prohibited filibusters since at least the time of one of my personal heroes, Speaker Thomas B. Reed, over a century ago, and as a result, there is no latent supermajority requirement comparable to the cloture theshold in the Senate. Thus, assuming that the House Rules say nothing to the contrary, the majority can amend the rules of the House at any time during the House's session. However, when the House convenes, there is nothing in the Constitution that prevents the majority from adopting a rule that says "the rules of the House may be changed on the passage of a motion with the votes of 300 members" - that is to say, a supermajority requirement for rules changes for the duration of that Congress. If the House couldn't impose such a supermajority requirement, then it doesn't have the power it is explicitly given in §5, because it cannot set its own rules: there is some non-textual restriction on what substantive rules the House can pass. In other words: if the House isn't free to bind itself to a supermajority requirement, it isn't free to "determine the rules of its proceedings."

So how does this map a few yards north to the Senate? Like the House, the Senate enjoys the §5 power to determine the rules of its proceedings, and like the House, it has its own traditional method of excercising that power at the beginning of a new session. One of the rules the Senate adopted for about two centuries - by oversight or otherwise - permits a filibuster on various classes of business before the Senate, including motions to change the rules. Just as the House must be free to bind itself to a direct supermajority requirement for a rules change, the Senate must be able to adopt a latent supermajority requirement for a rules change.

The reason that changes to the rules can be adopted in January has nothing to do with the calender month: it is because until the Senate adopts its rules for that Congress, there are no Senate rules in force, and therefore, no way to filibuster. My point about the ability of the Senate to amend its rules in January isn't because it's January, but because January is when the Twentieth Amendment directs (in effect, at least) the new Congress to assemble, for the purposes of adopting said rules and conducting business. The filibuster can only exist once the rules that provide for it (more accurately, the rules that create the possibility of it) it have been adopted. However, just as the House could impose a supermajority rule on subsequent rules changes, the Senate can adopt a rule that governs or substantially effects the manner in which its rules are changed for the duration of the Congress for which the rules are adopted. And, just as with the House, if it does not enjoy that power, it enjoys something substantially less than the power accorded it by §5, to “determine the rules of its proceedings.”

I think there is actually more agreement between us all than might at first appear, insofar as I’m not opposed to any procedural means to change the rules and eliminate the filibuster - I’m only opposed to the commonly-mooted version of the nuclear option, the one that has the Vice-President rule that the filibuster is unconstitutional, which it is not, in my view.

Posted 23:11, 1/25/2006 by Simon | Filed under: The Nuclear Option | Comment on this

Dissent in the Wild III

I've been feeling in a Pandagon mood recently (I do try to read liberal blogs as often as possible, although as the tone has grown more and more shrill, it's become more and more difficult to do so). In any instance, I have a handul of comments on core values starting here, and some thoughts about judicial activism here. I also have some Ninth Amendment thoughts in this thread at Althouse, and related to my comments about the death penalty and the Allen case earlier this week, I float a thought I've had for a while about the Eighth Amendment and specific modes of execution here; I hope to address both the Eighth Amendment question and the Ninth Amendment question in more detail on home shores soon.

Posted 23:01, 1/25/2006 by Simon | Filed under: Default | Comment on this

Kelo, revisited

For some reason, Kelo v. New London has cropped up again recently, which has allowed me to return to my favorite sport of last summer, viz., Kelo-bashing. See various comments at Volokh and Althouse.

A commenter at Althouse suggestted that, "There is absoltely nothing that prevents a state from adopting constitutional provisions that afford greater protections of individual rights than provided by the Federal Constitution." I entirely agree, in the sense that - as I discussed here - this is precisely what the Ninth Amendment means, in my view. n1.

However, while a State may afford its citizens greater protection than the Federal Constitution allows, by means of statute or their constitution, they cannot afford them less protection (or at least, while they can, in the literal sense, doing so can and should lead to a Federal challenge) than the Federal Constitution provides. Of course it's true that the legislatures of the several states may nullify Kelo by tightening their own emminent domain laws - but not only is this a grossly asymetrical power, n2, but they may well choose not to, and thus, Kelo's effect (and its greatest sin) is to grant the States discretion where the Fifth and Fourteenth Amendments to the Federal Constitution deprive them of it.

More so than perhaps any case since Maryland v. Craig, 497 U.S. 836 (1990), Kelo's substitution of "public purpose" for "public use" reminds one of Justice Black's dire warning, dissenting from Griswold, that:

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. n3.

Apropos, in the Kelo oral argument, Justice Scalia asked the obvious question:

[If we validate this taking, ] [i]sn't that in effect changing the test from public use to efficient public use? . . . [I]f I condemn land for a public utility and the public utility turns out to be very inefficient, has the condemnation been invalid? n4.

It might, perhaps, be arguable that economic development is a public purpose (I think that to be somewhat tenuous, and the Kelo majority makes no substantial effort to claim as much), but it is certainly not a public use.

I suppose it could be argued that, as a matter of precedent, Kelo - like Roper, n5 - was correctly decided. But to permit this commits the Anglophile's mistake identified by Steven Calabresi in The Tradition of the Written Constitution: Text, Precedent, and Burke, viz., "our Constitutional tradition, unlike Britain’s, is one where we venerate the [text of the Constitution] above all else [including precedent, ] caselaw or practice . . . [those] who are not textualists are actually secret anglophiles who mistake the American Constitution for the British Constitution where there are islands of text in a sea of tradition, instead of the other way around."

Stare decisis serves the valuable purpose of maintaining stability in the law (see Precedential weight, 10/25/2005, and comments here for more on my views on stare decisis), but the common law developed in the British context, where there is no written touchstone comparable to our Constitution; in a system that is governed by tradition built on tradition, stare decisis is one thing, but it is quite another in a system governed by a written document and codified laws. When precedent starts to lead us into decisions which may square with precedent, but can no longer be squared with the Constitution's text, as it was originally understood, we must periodically re-evaluate, look to the text once again, to steady our bearings, and, when neccessary, correct course. Those who defend Kelo are left to uneasily defend a decision which essentially deprives the clause it interprets of coherent content (cf. Blakely v. Washington, 542 U.S. 296) (2004) (warning of "the need to give intelligible content" to Constitutionally-guaranteed rights, slip. op. at 9).

As I pointed out at the time (and my view has not essentially changed since):

If the takings clause can be read to mean that as long as the taking can, by some means, be connected to an eventual-but-abstracted public use (in this case, the increased taxes the city believes will stem from the taking will have a public use, even if the taking itself does not), why couldn't that same line of reasoning allow other provisions to be similarly read? For example, take the commerce clause. In the modern world, what activity is there that does not, in some eventual-but-abstracted manner, impact on interstate commerce and one's ability to participate therein? The eventual-but-abstract relationship test you suggest would turn the commerce clause into a blank cheque thorugh which Congress could excercise the plenary powers which it was so deliberately and clearly denied by the Constitution. Fortunately the Supreme Court would invalidate any such attempt as ultra vires. Oh - wait...

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Footnotes:

n1. My lengthy essay discussing how I view the Ninth and Tenth Amendments is one of two essays currently stalled in drafting hell. For now, the comments linked at Prawfs and Concurring Opinions will suffice.

n2. In the sense that, while defenders of Kelo are quick to point out that the Judiciary can always be checked by the excercise of democratic power, i.e. the amendment process, it is absurd to suggest that this is a realistic check on the power of the judiciary when what can be wrought by a mere five Justices can only be undone by the actions of three-quarters of the States in concert with supermajorities of both houses of Congress (or, as an alternative, the potential suicide pact of a new Constitutional Convention called by two thirds of the states).

n3. Griswold v. Connecticut, 381 U.S. 479, 509 (1965) (Black, dissenting).

n4. Roper oral argument, transcript at 18.

n5. Roper v. Simmons, 543 U.S. ___ (2005); see The Supremacy Clause and bad precedent, 1/10/2006, at pp.5-6; accord Since I have some time…Roper v. Simmons, 4/6/2005.

Posted 21:19, 1/23/2006 by Simon | Filed under: Kelo v. New London | Comments (2)

Why the Senate Democrats might be shying from a fight on Alito

Reposted from comments.

Pandagon - still one of my favorite liberal blogs - has been troubled by the lack of fight in the Senate Democrats over Alito. I offered the thoughts below on why they might be holding back.

It seems to me that the logic behind not filibustering Alito (although I am not convinced that Sen. Kennedy does not intend to try it) is because the Senate Democrats are aware of two highly salient facts:

Firstly, the Democrats are currently a minority in the Senate, and it is (depending on your point of view) somewhere between unlikley and impossible for the Democrats to win a majority in the Senate in the Midterm elections. To achieve this would take an electoral event of almost unpredecented scale; this isn't to say that they can't win seats (they may well do), but a cold, hard look at the states with a race says that the Democrats will not have fifty one seats in the 110th Senate.

Secondly, Justice Stevens is in robust health, but he remains irreducibly a man who turns 86 years old this year, and will be nearly ninety before a Democrat can appoint his successor, even if one wins the 2008 election (a highly dubious prospect). For that reason, it is almost certain that he will either retire or die in office before Jarnuary 2009, making the confirmation of his successor the business of either the 109th Senate or the 110th Senate. (Ginsburg, incidentally, is another possible departure; she is younger than Stevens, turning 73 this year, but has had health problems; in the last few days, there have also been rumours that Justice Souter considering retirement).

Leep in mind also that Alito is not the fifth vote against Roe; I realize that there is real consternation among Democrats as to which way he will vote on it, and I realize that they have other concerns, some valid, others not so much. But liberals must realize - as I'm sure that the Senate Democrats realize - that Alito is not our fifth vote on the Supreme Court, but the fourth (Justice Kennedy, I think, will continue to, shall we say, "develop" as the Court's swing vote; see It falls to Justice Kennedy, 10/31/2005); Justice Stevens' replacement will be.

If the Senate Democrats filibuster Alito, the GOP will use some procedural trick or another to abolish the judicial filibuster, and that will leave them, in effect, disarmed to face Justice Stevens' successor's nomination. Now, you might say, "well, wouldn't they just do the same with the next nominee" but the difference is that the Democrats and their allies have, frankly, failed to build a broad base of opposition against Alito (as opposed to the classic Bork example, where they did so very effectively) whereas they have not yet failed to do the same thing with the next nominee. The filibuster will, inevitably, fail when used, unless there is widespread public outcry against the nominee of precisely the kind that has not materialized against Alito.

These are the considerations that I think might be motivating Senate Democrats. This may or may not be the right strategy to pursue; as valid a strategy, I suppose, would be to filibuster Alito and then use the ensuing post-nuclear chaos as a midterm issue. However, keep in mind that, in the absence of real public hostility to the nominee, the GOP can (and will) use that situation to no more or less electoral effect than the Democrats, and with the electoral math of the 2006 elections working against the Democrats, going down that road could be a death or only moderate glory approach: the best case scenario still puts The Dems a few votes shy of a majority in the 110th Senate, while the worst case scenario puts the Dems down a few more votes.

Or at least, that's how I see the situation.

Posted 17:20, 1/20/2006 by Simon | Filed under: Supreme Court | Comment on this

Can Congress give the President authority to appoint judges without Senatorial consent?

Yes, suggests a commenter at ConfirmThem.

The commenter proposes an idea based on the plain text of Art. II §2:

[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The commenter suggests that, because the text requires Senatorial consent only for Judges of the Supreme Court, Congress could pass a law permitting the President to appoint Judges of lower courts without the consent of the Senate. My first thought was that this was utterly absurd, but on more reflection, as a purely textual matter, I'm not sure that it's actually so ludicrous after all.

Art. II §2 clearly contemplates "judges of the Supreme Court" as within the class of the term "officers of the United States," ejusdem generis, and undoubtedly grants Congress authority to give to (and rescind from) the President the power to appoint "inferior officers." The relevant question, then, is this: if Supreme Court Justices are officers of the United States, are Judges of the Circuit Courts inferior officers of the United States within the meaning of Art. II §2?

The argument that they are is textually bolstered, in my view, by the terms of Article III, insofar as it vests the Judicial power of the United States "in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." It’s interesting that both Articles use that word: if the circuit courts are inferior courts, and if the Justices of the Supreme Court are officers of the United States, it stands to considerable reason that the Judges of the inferior courts are inferior officers of the United States.

This is, of course, a purely theoretical question, since the Senate would never consent to such an abrogation of its traditional prerogative to concur in the appointment of judges to any courts, even if such a bill passed the House by unanimous consent. Furthermore, such a holding would run completely contrary to a traditional practise that dates back to the establishment of said inferior courts, but on the other hand, we originalists "argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede [the clear textual command of] the Constitution," Rutan, 497 U.S. 62, 96 n1.

All in all, I think this is an interesting proposition which perhaps warrants closer examination, even if only for intellectual gratification.

Posted 16:44, 1/19/2006 by Simon | Filed under: ConLaw | Comments (3)

Norquist, Weyrich and others call for NSA investigation

U.S. Newswire is reporting that several prominent conservative voices - including Grover Norquist, Paul Weyrich, David Keene and Bob Barr - have today:

called upon Congress to hold open, substantive oversight hearings examining the President's authorization of the National Security Agency (NSA) to violate domestic surveillance requirements outlined in the Federal Intelligence Surveillance Act (FISA)."

The group, "Patriots to Restore Checks and Balances," have a website: http://www.checksbalances.org.

Hat tip: Pandagon.

For my part, I'm not entirely convinced that Bush's actions were either unconstitutional or illegal; I would join Orin Kerr's careful and reasonable analysis from December, Legal Analysis of the NSA Domestic Surveillance Program, 12/19/05.

However, I believe very strongly in the authority (and responsibility) of the Congress to check the power of the Presidency, whomever the President might be at a given moment and whichever party might control Congress at that moment. If Congress - let's be more specific, if the House of Representatives in particular - has genuine and substantial reason to believe that the President may have broken the law, it has not only the power but a duty to investiate that concern, even if only for the sake of determining that no breach occurred.

What I don't want, though -- and the certainty that this will ensue, I think, is a major reason why more Republicans have been unwilling to call for an investigation -- is a circus; I don't want Sen. Reid making self-indulgent press releases about how this is a victory for Democrats, and I don't want Rep. Pelosi issuing half-hearted base-baiting calls for impeachment. I think it's absolutely certain that the Democrats will seek to use an investigation to score political points; but on the other hand, I think that if there isn't an investigation, they will use that to score points. I think that creates an equal-cost choice as far as concerns for the behaviour of the other party are concerned, which frees us to reach conclusions free of (or at least, unencumbered by) those concerns.

Even though I am not yet convinced that a breach took place, I believe there is a strong tendancy in the present Administration towards arrogating to itself power rightfully posessed by the Congress, and I think there is serious and compelling evidence that a breach may have taken place, and therefore, I join with Paul, Grover, David Keene and Bob Bar in supporting an investigation by the House of Representatives.

.........................
Post facto: The Dept. of Justice has released a 42 page memo detailing its take on the legal background for the surveillance. I've not had a chance to read all of it, but if one accepts Prof. Kerr's analysis that the FISA challenge is the only concern that can really be justified, what I suspect is the core of DoJ's rebuttal is on page 2:

Although FISA generally requires judicial approval of electronic surveillance, FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA . . . The AUMF, as construed by the Supreme Court in Hamdi and as confirmed by the history and tradition of armed conflict, is just such a statute. Accordingly, electronic surveillance conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA and falls within category I of Justice Jackson’s framework.

Posted 11:32, 1/18/2006 by Simon | Filed under: Default | Comments (2)

Where I'm at on the death penalty

With the discussion of Allen this week, I feel like saying something about where I'm at on the death penalty.

Unlike my wife, who is very definitely opposed the death penalty, I go back and forth on what I consider to be a very difficult question. I am not convinced by the moral case against the death penalty, and I think the Constitutional case advanced by Justice Brennan et al is ludicrous. However, I do feel that I have arrived, relatively recently, at a new resting point, viz., that my concerns for the reliability of our system of justice are sufficient to make me stop short of supporting it at this time.

Because I have concerns about the miscarriage of justice -- that is to say, the execution of someone who is innocent, rather than the fundamental morality of killing guilty murderers and rapists * -- if the issue were actually placed before me in a way which demanded a choice (a ballot initiative, for example), at this time I would vote to suspend the death penalty for the foreseeable future, or whichever option most closely effectuated that position.

I retain the right to change my mind (and to continue to go back and forth), but that's where I'm at right now, and I wanted to make clear - in light of my objections to the desire to circumscribe the death penalty into practical abolition by the Constitutional route by Justices Stevens and Breyer - that I'm not cheerleading for my own view of penology. Like my objection to the nuclear option, it is not the question of what that I object to, but the question of who gets to make the call.

................
Footnote:

* Although I am, after a fashion, speaking to the normative question, implicit in my acceptance of the death penalty as a valid punishment for rape, as much as for murder, is a rejection of Coker v. Georgia, 433 U.S. 584 (1977).

Posted 10:39, 1/18/2006 by Simon | Filed under: Default | Comment on this

The state of our union is, uh, delayed

Democrats have delayed the Judiciary Committee hearing vote on imminently-Justice Alito, the Post reports, not least prompted (as one candid staffer for the Minority Leader admits) by a desire to minimize the scope of the nomination triumph before the President's State of the Union address. In response, the Majority Leader has annouced that he has cancelled the Senate's recess next week to ensure that the nomination reaches the floor in January; all other business, he intimated, was on hold: "[w]e'll stay on the nomination until the judge is the justice."

Huzzah for the Majority Leader, but it got me wondering: if the Dems' game is to push the confirmation back behind the State of the Union, why doesn't the President simply declare that the State of the Union address will take place the week following Justice Alito's confirmation?

After all, neither the date nor the form of the State of the Union are required by the Constitution nor by statute; its timing ("[i]t has occurred in January except for 6 occasions in February since 1934," notes Wikipedia) and verbal nature (it was delivered as a letter rather than a speech, from the Jefferson Administration until the Wilson Administration) are the product of tradition. Traditionally, nominees as qualified as Judge Alito have been confirmed in a timely manner, so if the Democrats are happy to throw tradition to the wind, perhaps we should consider joining in the fun?

Posted 12:52, 1/17/2006 by Simon | Filed under: Default | Comments (2)

Allen, redux

Discussing the Allen case yesterday, I suggested that "I doubt Mr. Allen will have much luck with the court, [but] it might be worth watching the orders list tommorow to see if the court actually takes the case, and if not, if anyone other than the two Justices we have already seen to be interested in this case dissent from the denial of cert."

Oops, it looks like we should have watched yesterday's orders list. The stay of execution requested in Allen v. Ornoski was denied by O'Connor (Circuit Justice, 9th Cir.), over a terse dissent from Breyer, noting that "I believe that in the circumstances [Allen] raises a significant question as to whether his execution would constitute "cruel and unusual punishment . . . I would grant the application for stay of execution." Breyer cites both Elledge and Lackey, but also another of his dissents from denial of cert, Knight v. Florida, 528 U.S. 990, 993 (1999).

Normally, I would have added the foregoing as a post facto insertion into yesterday's post, but the citation of Knight suggests that perhaps a further post is required, since I didn't talk about that yesterday. Knight, of course, jumps out at me because it's the case that Breyer and Our Hero sparred over a year ago during a colloquy at American University.

Here's how Breyer decribed it a year ago:

I wrote a dissent that [Scalia] thought was totally wrong, and it was in from a denial of cert, and the question was this: Is it a cruel and unusual punishment to keep a person on death row for more than 20 years before executing him? Well, I said we should hear that case, and I wrote an opinion that suggested a dissent, that I thought this was quite likely, it could quite possibly, the answer to that question would be yes. But cruel and unusual punishment - now, where do I look? . . . I don't look to myself. I mean, can I jump out of my own skin? No. No human being can. But let's see what's around. And of course I wrote this thing -- not too convincing -- but I found opinions in the Privy Council in England . . . [and from] India, they've written a pretty good opinion. There was one in Canada. The U.N. had discussions on this. And they weren't all one way. And I cited things the other way too, anything I could find.

And then I think I may have made what I call a tactical error in citing a case from Zimbabwe - not the human rights capital of the world. [Laughter]. But it was at an earlier time [and] Judge Gubei [ph] was a very good judge. So I had written this. And of course I looked - I don't think that's controlling. But I'm thinking, Well, on this kind of an issue you're asking a human question, and the Americans are human, and so is everybody else. And I don't know, it doesn't determine it, but it's an effort to reach out beyond myself to see how other people have done, though it does not control.

Now, Justice Thomas then - disagreeing - wrote another little scrib, and he said, You see? Breyer is so desperate he can't find any American precedent -- [laughter] -- so he has to look to Zimbabwe. Now, again, there is a certain point in that.

My views on the use of foreign law are oft-recited and fairly clear; see dicussion here and here; adequately summarized, I'm against.

So it looks as though the issue I first thought about yesterday in Allen - a maximum age for execution - is actually taking something of a backseat to the amount of time spent on death row, and Justice Breyer is fully aboard with that project. After a fashion, this is gloriously circular; in Edward Lazarus' book Closed Chambers, Lazarus describes the attempts of Justices Brennan and Marshall to abolish the death penalty by the same sort of fiat as Justice Blackmun abolished abortion laws, and the effects of that effort on the Court's conservatives, not the least of which was the effort to somewhat limit Federal habeas petititons. Obviously, Justice Breyer was at the time simply Judge Breyer, and I don't know where Breyer stands on the issue of repeated Habeas petititions, but the - I use the term advisedly - liberal stance tends to lean towards permitting these repeat petitions. If the liberals are also now pushing in the direction that one may only spend so much time on death row, then taken together, they are indeed angling to achieve exactly what I suggested yesterday: a de facto abolition of the death penalty, by permitting a prisoner to "run out the clock" - just keep filing petitions, keep finding new challenges, keep pushing, and sooner or later, you'll have been on death row too long to be executed.

How long is too long? One has to suppose that to be a question for the "evolving standards of decency that mark the progress of an aging Justice Kennedy," but one thing that remains certain is that the condemned are resourcefull in holding out. At issue in Knight was a prisoner who had been sentenced to death on April 21, 1975; he had managed to sustain repeated petitions and appeals at least up until Justice Breyer's dissent was published, on November 8, 1999, an elapsed time of over 24 years. It is frankly absurd to suggest any analogy to Medley, discussed yesterday, or for Justice Breyer to deadpan that "[i]t is difficult to deny the suffering inherent in a prolonged wait for execution," when the delay in execution is a consequence of the prisoner's own industry. The same prisoner cannot file repeated habeas petitions then turn around and expect to be taken seriously when claiming duress for the delay in his execution.

The Court has consistently "refused to charge police with delays in investigatory detention attributable to the suspect's evasive actions," United States v. Hernandez, 473 U.S. 531 (1985); it should (continue to) apply the same animating principle to the Eighth Amendment context. It seems to me that, even if one accepts (arguendo if necessary), as Justice Breyer does, that the meaning of "cruel and unusual punishment" is an evolving standard, and even if one accepts that under this evolving standard, the length of detention on death row can constitute a "cruel and unusual punishment," it seems to me that in assessing the length of time that the prisoner has served on death row, one should discount that time which the prisoner himself actively lobbied for, otherwise we would give a prisoner the power to change his own sentence by running out the clock. This, surely, cannot be acceptable.

Posted 10:14, 1/17/2006 by Simon | Filed under: Default | Comment on this

Allen - the next in the Atkins-Roper line?

"Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members."

Atkins v. Virginia, 536 U.S. 304, 337 (2002) (Scalia, dissenting).

When climbing a mountain, one is often duped by an optical illusion into thinking that the summit is just over the next ridge, since one cannot see any higher ground than the next ridge. Scalia's pronoucement of having reached the summit in Atkins was shown to be premature by Roper v. Simmons, and an interesting news story this morning suggests that we may yet have some way to climb.

Clarence Ray Allen, 75, is the oldest inmate of California's death row, having been there for 23 years "is set to die by injection Tuesday for ordering three slayings while behind bars for another murder." Allen's attorneys want the Supreme Court to halt the execution because of the age and infirmity of the condemned, something the Court has never done before.

While the Court has never done so before, the line of cases that includes Atkins and Roper suggest that there are at least some justices who might be interested in doing so. The case is potentially interesting, I think, because of how neatly it fits into the logical flow of the Court's attempt to inflict the death of a thousand cuts on the death penalty. While Atkins discussed a standard of proportionality, doesn't it seem reasonable ("reasonable," that is, within the paradigm that "[a] claim that punishment is excessive is judged . . . by those [standards] that currently prevail", 536 U.S. at 311) to develop the thought process that "[t]he Eighth Amendment succinctly prohibits excessive sanctions," 536 U.S. at 311, emphasis added, into "[t]he Eighth Amendment succinctly prohibits needless sanctions", as a death sentence on a man who is reaching the end of his life through natural causes, which is what petitioner Allen is requesting? The Court may not even have to bridge that distance in light of Roper, it seems to me, since the Court held in the latter that the death penalty is per se a disproportionate punishment for at least some groups (Roper, slip op. at 10).

I think there are two issues potentially reachable through Allen: does the Eighth Amendment prohibit lengthy stays on death row, and does the Eighth Amendment set a maximum age for execution? I think the answer to both is no, but where there is no precedent on the latter, there is some, although not much, on the former.

The Court refused - over a dissent from Stevens, joined in part by Breyer - to review the argument that excessive time on death row was an Eighth Amendment violation in Lackey v. Texas, 514 U.S. 1045 (1995) (cert denied), with the same situation recurring in Elledge v. Florida, 525 U.S. 944 (1998) (cert denied), over a Breyer dissent.

In Lackey, Stevens wrote that:

"Though novel, petitioner's claim is not without foundation. In Gregg v. Georgia, this Court held that the Eighth Amendment does not prohibit capital punishment. Our decision rested in large part on the grounds that (1) the death penalty was considered permissible by the Framers, and (2) the death penalty might serve two principal social purposes: retribution and deterrence . . . It is arguable that neither ground retains any force for prisoners who have spent some 17 years under a sentence of death . . . [and] [s]uch a delay, if it ever occurred, certainly would have been rare in 1789."

(Citations and quotation marks ommitted). In Elledge, Breyer added:

"The Eighth Amendment forbids punishments that are 'cruel' and 'unusual.' Twenty-three years under sentence of death is unusual—whether one takes as a measuring rod current practice or the practice in this country and in England at the time our Constitution was written."

So there is at least some intellectual movement on the court in this direction, and while Stevens may soon be off the stage, Breyer is likely to remain for some time.

I think the closest that the court has gotten to a holding on the issue is In re Medley, 134 U.S. 160, cited in both the Stevens and Breyer dissents:

"[W]e [cannot] withhold our conviction of the proposition that when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it, which may exist for the period of four weeks, as to the precise time when his execution shall take place."

134 U.S. at 172. However, I think the comparison to Medley is inapt: at issue in Medley - as Stevens and Breyer conveniently neglect to point out - was a statute where, a person having been convicted and sentenced to death, "the warden is charged with the power of fixing the precise day and hour when the prisoner shall be executed; that he is forbidden to communicate that time to the prisoner." The "uncertainty" referred to in the carefully-parsed quotation from Medley is a product of the discretion of the warden to set the time of the condemned man's execution; the sword of damocles literally dangles over the prisoner's head, and I think it quite reasonable to conclude that a man in such a position might suffer some distress. Whether that is Constitutional or not is an issue I have no intention to reach, but it is surely a very different proposition, though, for a prisoner to claim duress when the delay in his execution is not principally at the discretion of some other agent, but primarily because he himself continues to file petitions delaying his execution.

Both Atkins and Roper suggest the metric of state statutes for determining whether a punishment is unconstitutional or not yet. Sadly I lack the time or resources to fully canvas the state of play right now, and I would be surprised if such a provision had widespread existence if it doesn't in California. However, I think it's interesting, in the sense that it does seem to be the next logical leap in the Court's Eighth Amendment jurisprudence, and it would stand to a certain level of reason that, if I were a Justice looking to incubate cases that might help me further constrain the death penalty, I would vote to hear the case just so I could write a dissent that might encourage states to change their minds, such that a similar case further down the road might do to Allen what Roper did to Stanford.

In short, while I doubt Mr. Allen will have much luck with the court, it might be worth watching the orders list tommorow to see if the court actually takes the case, and if not, if anyone other than the two Justices we have already seen to be interested in this case dissent from the denial of cert.

.....................
Post facto: more news and analysis the following day, see Allen, redux, 1/17/2006. For a brief comment of my view on the normative question of the death penalty, see Where I'm at on the death penalty, 1/18/2006.

Posted 12:39, 1/16/2006 by Simon | Filed under: Default | Comment on this

About the unitary executive and settled law.

I had intended to write some comments about settled law in the context of the repeated use of that term at the Alito hearings; I had also thought I might like to write something about the unitary executive, for the same reason. As it turns out, Ann Althouse was on the radio earlier today, discussing (inter alia) these two issues, and posted a link. I thus had occaision to write about my thoughts over there, and so instead of re-writing, I'm just going to re-post

I
In my view, the idea that Roe v. Wade, 410 U.S. 113 (1973) is "settled law," frankly, becomes absurd as soon as you try to define "settled."

Is Miranda v. Arizona, 384 U.S. 436 (1966), "settled law"? I don't want to suggest that I've been seduced by the fallacious (but oft-repeated) idea that the Chief Justice thought so in Dickerson v. United States, 530 U.S. 428 (2000), but I do want to suggest that if we are to offer a model of settled law, Miranda might be it. As an original matter, I don't think it's entirely clear that the Constitution requires, or even supports, the result in Miranda; however, the opinion was not entirely bizarre; the writing makes a good case for itself; it is, in fact, a doctrinal ruling that attempts to give effect to an actual Constitutional right; in terms of public acceptance, several decades later it is seriously challenged by virtually no one, and is certainly not generally controversial, either in the academy or the public at large. You can make a good case, on this basis, that Miranda is settled law, and thus, that Dickerson was correctly decided.

However, by contrast, using the same rubric to evaluate Roe, it is instantly preposterous to suggest it is "settled law." As an orignal matter, a blatantly wrongly-decided case (not least because the merits should never have been reached); the legal analysis in the opinion is, literally, non-existant, as everyone up to and including its author admit; it is premised upon a Constitutional right that flat-out doesn't exist; in terms of public acceptance, it was controversial from the moment it was handed down, and far from being less controversial now, it has grown more poisonous and controversial with every passing year. On top of all that, every single Supreme Court confirmation hearing, every Presidential election, every Senatorial election and two generations of political discourse have been corrupted and poisoned by an unconstitutional, pernicious, blatant and - even in the eyes of many pro-choice liberals - utterly unnecessary act of judicial usurpation. If Roe is settled law, I'm a banana.

II
Regarding the unitary executive, I don't really think it's all that extreme or bizarre a theory, and I really don't think that the division in Morrison v. Olson, 487 U.S. 654 (1988), is a good metric for determining how popular the theory is (that is, that it's all that bizarre that Justice Scalia was the only person who voted for it in Morrison). Remember who was President at the time, so remember who the application of the unitary executive would favor in that case. I genuinely and honestly believe that, had that case come before the same court with a Democratic President - say, Clinton - Brennan, Marshall and Blackmun would have Joined Scalia's opinion without hesitation.

As I see it, the unitary executive theory embraces two aspects: procedural and substantive, that is, it talks about both how the business of the executive is conducted, and what actual limits are placed on the scope of the executive's actions within the law. It seems to me that watching the Alito hearings, no person who has asked a question about the unitary executive has any real understanding of what the theory entails: they simply assume that it is a codeword for a belief that we should give a latitudinarian interpretation to the powers of the President. But this belief is not only flatly contradicted by all the scholarship on the unitary executive that I've read, but it is also set in stark relief when one considers that Justice Scalia - the one and only Justice to endorse the unitary executive in Morrison - was also one of only two Justices in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to argue for a narrower reading of Presidential power than the unitary executive. Similarly, I agree with the unitary executive theory, but my view on the independent power of the executive branch, under this President or any other, is probably more narrow than any Republican to whom you'll speak about the matter. Even among people who agree with the procedural aspect of the unitary executive theory - which is the hallmark, the defining feature or the theory - there is a very broad range of opinion about the substantive aspect, that is, the scope of action.
________________
Post facto: More comments on the unitary executive from me here.

Posted 22:44, 1/11/2006 by Simon | Filed under: ConLaw | Comment on this

Dissent in the wild II

More about advice and consent, and generally about Roe and the confirmation hearings, at Centerfield

Various comments at a WaPo blog, defending Alito and the FedSoc

More of the same, at Althouse

Talking about abortion regulations, at confirm them

Similar themes, at Volokh

Reconciling textualism and bilingualism, at Prawfsblawg

I've previously titled one of these posts linking to various comments "dissent in the wild," and even a cursorary glance at the WaPo blog shows that it is genuinely in the wild. Hair-raising stuff, there.

The bilingualism issue is a trial balloon, and I want to write more about it at a future date, either on the blog, or the, uh, "pdfcast," or whatever you want to call it. I also hope to talk more in a future blog post about the invididual vs. institutional duty to advise and consent.

Also to point out that Polipundit's Jayson floats Justice Cantero, of the Florida Supreme Court as a future GOP nominee. I will read some opinions and comment further next week.

Posted 21:53, 1/11/2006 by Simon | Filed under: Default | Comment on this

Alito hearings, day 1

I absolutely love, love love love, this line from Dahlia Lithwick this morning:

Alito is crushing the Democrats with unrelenting tedium and a demonstrable love for material they don't really understand.

It says so much about the confirmation process (itself as eloquent an argument for repealing the 17th Amendment, or at least, getting cameras out of the Committee room, as one could wish for), about the Senators, and about Alito himself.

To be sure, he has said things that are frustrating: like our new Fearless Leader (cf. the nomination hearings of Our Hero at p.89) (a slightly more coy declaration that "I would find it very difficult . . . to strike down a provision on the basis of substantive due process in particular where it is a provision that State legislatures generally adopted at the time the 14th amendment was passed and continue to generally adopt. When you leave that point of departure, you are left to the individual preferences of the judges. And I am not comfortable with imposing my moral views on the society."), he embraced (rhetorically, at least, which perhaps amounts to a peck on the cheek rather than a bear hug) substantive due process, and instead of explaining why Roe was wrongly-decided, he permitted Sen. Schumer to make him look shifty and evasive instead of taking the golden opportunity to answer the question and explain why Roe must go.

Still, it's fair to say that I withdrew my support for the Fearless Leader when he endorsed substantive due process, and the inquiring mind might ask why I do not do so vis-a-vis Alito. There are two reasons. First, because of the degree of the embrace, which as noted above, was far colder than Roberts’. Second, unlike Roberts, we know how Sam Alito rules when he gets on the bench for life; his record is voluminous, and it is far more encouraging. If the Fearless Leader had sat on the DC Circuit for a decade and a half, making rulings that were fair, accurate and encouraging, I suspect I would not have cried apostasy.

All in all, a mixed bag of a day.

Posted 09:08, 1/11/2006 by Simon | Filed under: Supreme Court | Comment on this

The supremacy clause, nullification and bad precedent

Last week, Prawfsblawg's Steve Vladeck posted an interesting op/ed from Alabama Supreme Court Justice Tom Parker, that advanced the theory that state courts should simply ignore Roper v. Simmons (which I commented on, after a fashion, last year; see Since I have some time...Roper v. Simmons, 4/6/2005). The same theme was also discussed at Crescat Sententia, among other places.

My views on this matter can be found here:

The Supremacy Clause and bad precedent

(PDF warning).

I wanted to add, in addition to actually posting the essay, that writing about this has actually been quite interesting because I've actually learned something about how I like to write from doing so.

As soon as I saw Steve's post, I had an immediate reaction to it, I thought it was an interesting subject, and I had some initial thoughts. But - and this happens more often than you might think - having jotted down a few initial thoughts, I really couldn't frame a reply. So I just kept reading around the topic, seeing how others were responding and what points were being made. It really wasn't until I found something I could write an immediate response to (at Crescat, as it turned out) that I was able to coalesce my various thoughts into something coherent enough to post.

Even having done that, though, it was obviously not really a complete statement of where I was at. I've posted PDFs before, instead of authoring an actual blog post (see, e.g., Less nebulous than you'd think, 9/23/2005), and the reason for that is usually because I feel the need to either write at more length, and/or (usually and) because the issue is sufficiently complicated that I want to use footnotes fairly extensively, if only to keep track of my own thoughts. This was obviously one of those situations where there was a lot that was going to have to be worked out in the writing (see A thought on blogging and commenting, 12/20/2005), but even though I had several things to say, it really didn't and wouldn't get off the ground until I found that one angle that I could start building my thoughts around, even though, as it turned out, that section actually disappeared from the essay later in the drafting process.

I think having this idea of what it is I'm looking for, having a clearer idea of my own process, will make it a lot easier in future to get this stuff down onto paper and actually out on the blog. This essay is 12 pages, and that's really about the sort of length I'd like to be writing at for stuff like that. It's interesting to look back on stuff I wrote a year or two ago, and - while I don't want to make claims for this one - it's pretty obvious (I think, at least) that there is a progression, that there's improvement.

My dad warned me a couple of years ago that my prose was getting positively Dickensian, which - given that I detest Charles Dickens - is a heck of a thing to say. Hopefully, there's been progress away from that, i.e., even when writing (relatively) at length, I think my writing now is much more concise and efffective than it was.

Posted 14:05, 1/10/2006 by Simon | Filed under: ConLaw | Comment on this

Wikiquote update

Since I've put a fair amount of time into expanding Wikiquote's entry for Justice Scalia, I've felt particularly concerned by the fact that its formatting really needed attention, I just couldn't figure out any way to make it clearer. None-the-less, I've hit on an approach I think works. You can see the results at http://en.wikiquote.org/wiki/Antonin_Scalia.

Update: In the comments, some discussion about the nuclear option, hence the re-categorization.

Posted 17:01, 1/5/2006 by Simon | Filed under: The Nuclear Option | Comments (9)