constitutional law

Archived Posts from this Category

November 19, 2009

the privileged class, and their damned immunities

Posted by Andrew under constitutional law
Leave a Comment 

Inspired by Sunstein, I spend a fair enough share of time reading blog posts from the Volokh Conspiracy, and frequently enjoy the discussions.  Because several conspirators favor reading the second amendment to allow an individual gun ownership-right, they have posted aplenty on McDonald v. Chicago – the case before the Supreme Court this term that may incorporate the 2nd amendment to the states.  What has really struck my interest is one of the plaintiff’s angles: the Court ought to incorporate the 2nd amendment with the 14th amendment’s privileges and immunities clause.

I’m pretty sure the following sentence is not hyperbolic: the Constitutional law sea change that would be effected by such a move would out-rank Brown v. Board and Roe v. Wade. A decision agreeing to overturn the Slaughterhouse cases would equal Marbury and Dred Scott in Constitutional importance.*

Back in August 2007, I mentioned a good question from a panel discussion: why isn’t Dred Scott more prominent in our explanation of the 14th amendment?  You would think that, with state vs federal citizenship being at the heart of Taney’s decision — that decision being so clearly representative of the losing side in the Civil War, and the 14th amendment being the legal staple to the victorious side — that the citizenship discussion in the 14th amendment would clearly be understood in light of Dred Scott.  Remember, Scott didn’t have standing because, wrote Taney, he was not a citizen.  So:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Well.  All that came to mind while I read a recent article on Slaughterhouse, the case that supposedly stripped all effect from the 14th amendment’s privileges and immunities clause.  The conventional wisdom is that the case transferred to the states the power to enforce rights, thus depriving the federal government any ground to enforce fundamental human rights except under a bizarre theory of substantive (as opposed to procedural) due process.  No one (left or right) has enjoyed the system, but it has continued on for a century and a half.  Until, hope some, now.

So we’ll dedicate a little time to rights, citizenship, and the 14th amendment in the next post or two.

 

*Here’s my quick argument – Brown and Roe didn’t change the structure of Constitutional argument – they worked within existing structure.  Marbury and Dred Scott affected jurisprudential structure – the former set the table for the Court’s last word on Constitutionality and the latter is, what I’d argue, what the 14th amendment attempted to correct (in regards to citizenship).

 

October 12, 2009

say what

Posted by Andrew under administrative law, constitutional law
Leave a Comment 

so a regulatory lawyer and a first amendment scholar walk into a bar…

read up on the intersection of speech and regulatory law.  the post discusses ‘off-label use’ of prescription drugs and the FDA’s regulations on how doctors and drug companies can talk about those uses.

 

September 23, 2009

Livingston, and dispassionate hyperbole

Posted by Andrew under constitutional law, rhetoric | Tags: , , , |
Leave a Comment 

As noted a few days ago, Lily’s post on partisan rhetoric brought to mind the antebellic gem of a speech, delivered by Edward Livingston during the heat of nullification debates.  Having now read through most of the speech, I can attest to several themes that make reading the thing entirely worthwhile.

- 40 years after the Constitution went into practice, the leading figures in the Senate, over the period of a couple months, delivered what must have been several-hours-long speeches on the very nature of the Constitutional government.

- The questions of federalism, and the energy of our National government that so split Hamilton’s audience splat also these Senators in 1830, as they split us today.

- Livingston manages to bring us within the passionate debate on the structure of the Union, while providing still poignant warnings against passionate rhetoric.

- And he does that while delivering sometimes hysterical hyperbole.

In the last post, I quoted some of his language on blown-out rhetoric.  Here, I’ll quote his summary of the debate’s heart: nullification.  A few things to note.  Nullification was the notion that a state could basically veto a federal law, which, to then pass, the Nation would then need to ratify as a Constitutional amendment.   That political issue was the manifestation of the debate that raged (has raged) since the Nation’s inception: to what extent are the federal government and state governments sovereign?  Livingston begins this segment with some hyperbole, but I suppose it is deserved hyperbole:

I now approach a graver subject, one, on the true understanding of which the Union, and of course the happiness of our country, depends. The question presented is that of the true sense of that Constitution which it is made our first duty to preserve in its purity. Its true construction is put in doubt—not on a question of power between its several departments, but on the very basis upon which the whole rests; and which, if erroneously decided, must topple down the fabric, raised with so much pain, framed with so much wisdom, established with so much persevering labor, and for more than forty years the shelter and protection of our liberties, the proud monument of the patriotism and talent of those who devised it, and which, we fondly hoped, would remain to after ages as a model for the imitation of every nation that wished to be free. Is that, Sir, to be its destiny? The answer to that question may be influenced by this debate. How strong the motive, then, to conduct it calmly; when the mind is not heated by opposition, depressed by defeat, or elate with fancied victory, to discuss it with a sincere desire, not to obtain a paltry triumph in argument, to gain applause by tart reply, to carry away the victory by addressing the passions, or gain proselytes by specious fallacies, but, with a mind open to conviction, seriously to search after truth, earnestly, when found, to impress it on others. What we say on this subject will remain; it is not an every day question; it will remain for good or for evil. As our views are correct or erroneous; as they tend to promote the lasting welfare, or accelerate the dissolution of our Union; so will our opinions be cited as those which placed the Constitution on a firm basis, when it was shaken or deprecated, if they should have formed doctrines which led to its destruction.

With this temper, and these impressions of the importance of the subject, I have given it the most profound, the most anxious and painful attention; and differing, as I have the misfortune to do, in a greater or less degree, from all the Senators who have preceded me, I feel an obligation to give my views of the subject. Could I have coincided in the opinions given by my friends, I should most certainly have been silent; from a conviction, that neither my authority nor my expositions could add any weight to the arguments they have delivered.

My learned and honorable friend, the Senator near me, from South Carolina, (Mr. Hayne) comes, in the eloquent arguments he has made, to the conclusion, that whenever, in the language of the Virginia resolutions, (which he adopts) there is, in the opinion of any one State, “a palpable, deliberate, and dangerous violation of the Constitution by a law of Congress,” such State may, without ceasing to be a member of the Union, declare the law to be unconstitutional, and prevent its execution within the State; that this is a constitutional right, and that its exercise will produce a constitutional remedy, by obliging Congress either to repeal the law, or to obtain an explicit grant of the power which is denied by the State, by submitting an amendment to the several States; and that, by the decision of the requisite number, the State, as well as the Union, would be bound. It would be doing injustice, both to my friend and to his argument, if I did not add, that this resort to the nullifying power, as it has been termed, ought to be had only in the last resort, where the grievance was intolerable, and all other means of remonstrance and appeal to the other States had failed.

In this opinion I understand the honorable and learned chairman of the Judiciary Committee substantially to agree, particularly in the constitutional right of preventing the execution of the obnoxious law.

The Senator from Tennessee, in his speech, which was listened to with so much attention and pleasure, very justly denies the right of declaring the nullity of a law, and preventing its execution, to the ordinary Legislature, but erroneously, in my opinion, gives it to a Convention.

My friend from New Hampshire, of whose luminous argument I cannot speak too highly, and to the greatest part of which I accord, does not coincide in the assertion of a constitutional right of preventing the execution of a law believed to be unconstitutional, but refers opposition to the unalienable right of resistance to oppression.

All these Senators consider the Constitution as a compact between the States in their sovereign capacity; and one of them, (Mr. Rowan) has contended that sovereignty cannot be divided, from which it may be inferred that no part of the sovereign power has been transferred to the General Government.

The Senator from Massachusetts, in his very eloquent and justly admired address on this subject, considers the Federal Constitution as entirely popular, and not created by compact, and, from this position, very naturally shows, that there can be no constitutional right of actual resistance to a law of that Government, but that intolerable and illegal acts may justify it on first principles.

However these opinions may differ, there is one consolatory reflection, that none of them justify a violent opposition given to an unconstitutional law, until an extreme case of suffering has occurred. Still less do any of them suppose the actual existence of such a case.

 

September 3, 2009

Meanwhile, abroad…

Posted by Andrew under constitutional law, Federalist, history | Tags: , |
1 Comment 
About a week before Publius’ 24th Federalist column appeared in the December 19 1797 edition of ___ , Thomas Jefferson wrote to his fellow foreign minister, John Adams.  The two wrote to each other frequently, at least once or twice a month.
They were fellow diplomats – Jefferson in Paris, and Adams mainly in London – and the less-experienced Jefferson frequently solicited Adams’ council.  Thus, the letters read a bit like the dialogue down a hallway between a new accountant and his appointed mentor.  Do you think we ought to pay the principal on this loan to avoid bad credit with other nations?  And, because it is Adams and Jefferson, the work-talk is interspersed with things like, “How do you like our new consitution?”
That was how Jefferson ended a letter on November 13, 1787, and then he answered his question: some problematic items “stagger all [his] dispositions to subscribe” to it.
Specifically, (1) the House of Representatives seemed to Jefferson inadequate to manage the new country and its foreign affairs; (2) the Presidency appeared set to become a perpetually reelected postition; and (3) even if not reelected, the President might grab perpetual power with his Constitutionally granted force of the military.  Generally, wrote Jefferson, “all the good of this new constitution might have been couched in three or four new articles to be added to the good, old, and venerable fabrick …”  (Jefferson to Adams, Paris, November 13, 1787)
1787 and Jefferson already shared talking points, from across the Atlantic, with those naysayers that Hamilton blasted a few weeks later in F24.
On December 6, 1787, Adams answered Jefferson’s last paragraph (he answered the work-related questions a few days later).  First, he disagreed with Jefferson’s take on the Articles of Confederation.  That aside, Adams well summarizes for we later readers his debate with Jefferson: “You are afraid of the one – I, of the few.  We agree perfectly that the many should have a full fair and perfect Representation. – You are Apprehensive of Monarchy; I, of Aristocracy.  I would therefore have given more power to the President and less to the Senate.”
Indeed, this is a powerful summary of a major early debate in American government: what better preserves the people’s voice, a strong legislature or stong executive?  And what of the notion that Andrew Jackson was the first popular President (in that he transformed the Presidency into that office that best represents the people).  It appears that Adams has seen that possibility.
Adams counters Jefferson’s fear that a President might be perpetually reelected with “so much the better.”  Elections, he writes, “have been so often tryed, and so universallyt found productive of Horrors, that there is great Reason to dread them.”

About a week before Publius’ 24th Federalist column appeared in the December 19 1797 New York newspapers, Thomas Jefferson sat down to write his fellow foreign minister, John Adams.

The two wrote to each other frequently, at least once or twice a month.  They were fellow diplomats — Jefferson in Paris, and Adams mainly in London — the less-experienced Jefferson frequently soliciting Adams’ council.  Thus, the letters read a bit like the hallway  dialogue  between a newly hired accountant and his appointed mentor.  A typical subject: Do you think we ought to pay the principal on this loan to avoid bad credit with other nations?  But, because it is Adams and Jefferson, the work-talk is interspersed with things like, So, “How do you like our new consitution?”

That was how Jefferson ended a letter on November 13, 1787.  He answered his question: some problematic items “stagger all my dispositions to subscribe” to it.

Specifically, (1) the House of Representatives seemed to Jefferson inadequate to manage the new country and its foreign affairs; (2) the Presidency appeared set to become a perpetually reelected postition; and, proving that opposition taking points spread like LA wildfires even before the internets, (3) even if not reelected, the President might grab perpetual power with his Constitutionally granted force of the military. Did the line perk Hamilton’s ears across the Atlantic, and spur the young and prolific essayist into Federalist 24?

Generally, wrote Jefferson, “all the good of this new constitution might have been couched in three or four new articles to be added to the good, old, and venerable fabrick …”

On December 6, 1787, Adams answered Jefferson’s last paragraph (he answered the work-related questions a few days later).  First, he disagreed with Jefferson’s take on the Articles of Confederation.  That aside, Adams well summarizes for we later readers his debate with Jefferson: “You are afraid of the one – I, of the few.  We agree perfectly that the many should have a full fair and perfect Representation. – You are Apprehensive of Monarchy; I, of Aristocracy.  I would therefore have given more power to the President and less to the Senate.”

Indeed, this is a powerful summary of a major early debate in American government: what better preserves the people’s voice, a strong legislature or stong executive?  (And what of the notion that Andrew Jackson was the first popular President, in that he transformed the Presidency into that office that best represents the people.  It appears that Adams had already contemplated seen that possibility.)

Adams counters Jefferson’s fear that a President might be perpetually reelected with “so much the better.”  Elections, he writes, “have been so often tryed, and so universallyt found productive of Horrors, that there is great Reason to dread them.”

In light of Lily’s post below, I’m interested in the civic debate between these two.  As we know, they became biter enemies a decade later.  Or did they?  Sure, they didn’t talk – but was their division really between them, as individuals, or between the parties (factions, in Madison’s phraseology) that formed about them?  One wishes that they continued to write to each other through the election of 1800.  Perhaps, had they, we would have an example of intelligent, political debate; three words that so rarely fall together.

Letters: Jefferson to Adams, Paris, November 13, 1787; Adams wrote back about three weeks later.

 

August 25, 2009

a quick thought, a drawing, and someone’s cartoon

Posted by Andrew under constitutional law | Tags: , |
1 Comment 

the quick thought:

I’m currently leafing through a book that argues our arguments over Constitutional interpretative methodology are a regrettable distraction from “substantive reasoning in support of one interpretation or another.”  The little book ,Keeping Faith with the Constitution, is the American Constitution Society’s vision of Constitutional interpretation, as delivered by Goodwin Liu, Pamela Karlan, and Christopher Schroader; and it serves to unveil a new phrase: Constitutional fidelity.  ”Keeping faith” might mean sticking to plain textual meaning, like the requisite age of a President; or, it may mean adapting broad text to context, like including non-physical searches within the scope from which we are protected in the Fourth Amendment.

Without going any further with the book, though (as I’m only a few pages in), I bring it up now because it got me thinking about interpretation.  Yes, the book urges against the endless loop of debate on interpretations – but it is a book about interpretation, so we can be forgiven to indulge a bit here on OR.

I started drawing out a diagram today – I’m thinking out loud whether dedication to original intent and dedication to text are two extreme positions between which most judges reason.  We will re-work this based on comments.

interpretation diagram

All that aside, this showed up on my google reader today:

toothpastefordinner.com
toothpastefordinner.com

 

June 19, 2009

Homework question

Posted by Andrew under constitutional law, law | Tags: |
Leave a Comment 

I am inclined to believe that public comments provide the directly democratic input to agency rulemaking.  This is particularly so if those comments provide substance to the agency’s cost-benefit analysis supporting the rule’s adoption or abandonment.

Before going forward with a major rule, most agencies must submit the rule to the President’s Office of Management and Budget.  Does vigorous OMB oversight of agency rulemaking (from Reagan forward) add to the democratic-ness of an agency’s cost-benefit analysis and the review of public comments?  Do courts provide sufficient oversight with judicial review; to wit, in their review that agency decisions stemming from cost-benefit analysis and comment review are not arbitrary and capricious?

Lest we move forward skipping too many assumptions: How much democratic-ness do we want from agencies?  Are they supposed to be expert agencies or agencies of the popular will?

 

May 27, 2009

olsen

Posted by Andrew under constitutional law, law, society
Leave a Comment 

I’ve heard Ted Olsen speak a few times.  One can’t really claim to know a person after hearing them publicly speak; but, one can at least draw a few conclusions toward the speaker’s intellect.  So, it was not surprising to me to learn that Olsen is on the right side of history.

 

February 17, 2009

to pursue a lawful occupation

Posted by Andrew under constitutional law
Leave a Comment 

With the Slaughter-House Cases recently in mind, it will be interesting to follow the Institute for Justice’s new case against Boston (mentioned today at Volokh).  Randy Barnett writes:

The new lawsuit involves a Cambridge tour operator who wants access to the Charles River via a boat launch ramp that is located in Boston. Boston refuses to give the licenses that would permit the operator to cross the Longfellow Bridge on its way to the boat ramp. Although the aspect of the lawsuit asserting the right to pursue a lawful occupation free of unreasonable regulation challenges the 1873 opinion in The Slaughter-House Cases, the lawsuit also cleverly asserts the right of access to navigable waterways that was affirmed in dicta in Slaughter-House. 

The 14th Amendment states that states cannot “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  Justice Miller, in the Slaughter-House decision, decided that the 13th and 14th Amendments applied solely to protect former slaves, rather than to the white butchers challenging the Louisiana slaughterhouse monopoly.  Miller’s decision also parsed out federal versus state citizenship, and declined to apply what may have been an obvious definition of “privileges or immunities” for U.S. citizens – the first 8 Amendments.  

Charles Lane points out , in The Day Freedom Died, that Justice Miller defined down the privileges or immunities clause to prevent its uses as a tool for white supremacist lawyers to agitate against Reconstruction in the courts.  And thus began the bi-partisan and varied-motived resentment of Justice Miller’s decision.  Civil rights and libertarian lawyers would find a broad interpretation of the privileges or immunities clause handy.  Indeed, that a libertarian is unpredictibly a political liberal and conservative is a telling parallel to the diverging voices that wish the Court would overturn that section of Slaughter-House.  Which brings us back to the Institute of Justice, a basically libertarian group that, I presume, would live to see Slaughter-House fully overturned.

I wonder which groups would find their appelate briefs much easier to write with the privileges or immunities tool.  Who would be the political winners and losers?  How would the present Court read the clause – would U.S. citizens’ privileges or immunities resemble the Bill of Rights, or something broader or more narrow?

 

February 3, 2009

the slaughtered 14th

Posted by Andrew under constitutional law, post
[6] Comments 

I just finished The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction, having grabbed it after hearing the author mention in a lecture that he tried to explain in there Reconstruction’s legal deconstruction.  With a book that reads like a very sad episode of law and order, Charles Lane did just that.  He provides the diverging accounts of, and then the historical underpinnings of, and finally the facts of the Colfax Massacre.  After no one could agree on the 1872 election results, and the Governor sent mixed messaged regarding commissions in Colfax, Louisiana, the Republican partisans took possession of the local courthouse.  The group, which ultimately became the local black male population, was then surrounded by a large band of white supremacists.   Surrounded, outnumbered, and outgunned, the group of 70-80 men surrendered and began to leave the courthouse, whereupon the whites fired on them.  Later that evening, several blacks taken prisoner were executed.  

Like L&O, the story then shifts to the prosecution.  First, figuring out exactly how to charge the culprits.  Then, rounding them up.  And finally the trial, then a re-trial, then the Supreme Court’s decision.

Lane fits this episode into the white terrorism that plagued the former Confederacy, and the attempt via the Enforcement Act to find a solution with federal law.  It is ultimately a story of failure – but I had not really grasped the kind of failure Reconstruction seems to have been.  

Where I had thought the effort was hasty or insincere, it appears through Lane’s telling more to have died from fatigue.  It feels more to me now more like a losing battle against poverty than a back-room political deal.  The politics are more nuanced than I had known – particularly what in hindsight is the obtuse appeasement strategy of many to the southern trouble-makers.  

What was really a shock though–with apologies if I missed this in class back in the day–was that the Slaughterhouse cases were writted with, apparently, an intention quite separate from the result.  For constitutional law students, Slaughterhouse is quick slang for the notion that the 14th amendment is to be understod narrowly; it protects only privileges and immunities given by the federal government, as opposed to state-derived rights.   Here is the text:

 
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

When I read “…the laws,” I don’t mentally add “of the federal government, and not the state government.”  The argument for that mental supposition is that the amendment instructs states to refrain from abridging the privileges and immunities of US citizens, and so it only refers to US citizen-centered privileges and immunities.  The logic relies on the fact that we are (1) US citizens AND (2) [your state here] citizens.  As such, we have two sets of rights, and the 14th is telling states to respect the US rights.  

The twist that Lane’s book taught was that Justice Miller, Slaughterhouse’s author, was trying to shut down the plaintiff that argued for a broad 14th amendment to allow him more fodder for challenging Reconstruction laws.  By doing so, though, Miller closed a heavy door for later civil rights cases.

 

June 26, 2008

barely

Posted by Andrew under constitutional law
[2] Comments 

Having read the water-cooler talk but not the decision, the chatter suggests that today’s decision linked the gun-owning right to self-defense. We’ll get to the decision, dissent, and fallout in time. For now, I want to get to this talk of originalism somehow triumphing today. Perhaps it did – because only extra-textual historical interpretation could link the following to self-defense rather than to a state power to arm local militiamen:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

« Previous Page — Next Page »

Follow

Get every new post delivered to your Inbox.

Join 41 other followers