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A Blog for and by ACS members nationwide. Links
Archives The ACS Weblog is maintained by ACS members and is not otherwise affiliated with or sponsored by the ACS National Office.
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Saturday, May 31, 2003
The flip side of the New Federalism's constraints on Congressional power is its lack of constraints on State power by the U.S. Constitution. Inconsistent application of those constraints illustrate the hypocrisy of the New Federalism philosophy. Look at the most recent Supreme Court term. The Court had no problem with a state punishing a guy with life in prison for stealing a handful of children's videos or a few golf clubs (Ewing v. California; Lockyer v. Andrade), but, just a month later, it said a state had gone over the constitutional line in punishing a corporation by making it pay what the Court considered were excessive punitive damages (State Farm v. Campbell). In the Ewing case, the court found that the State had every right to take into account the golf club swiper's past conduct: "In weighing the gravity of [defendant's] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions." However, when it comes to punitive damages against a corporation, the State's consideration of habitual bad conduct is a constitutional violation: "A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business." When did cynicism replace justice as the primary product of Supreme Court jurisprudence? -David E. (via Email) Friday, May 30, 2003
The Spirit of Interstate Commerce Preface The central swipe against "liberal judicial activism," as I understand it, is that the judiciary usurps the power of Congress and legislates liberal results from the bench. This claim, of course, would apply to conservative activism as well. It's certainly an idea we can all get behind -- the judiciary is there to interpret the Constitution and settle disputes arising under the law. But the rise of the New Federalism has led to an interesting result. We now have a two-part directive to the federal government: 1. The judiciary may not make law. That is for Congress. 2. Congress may not make sweeping national legislation under the Commerce Clause that is not couched in Morrison's version of the CC. [The cynic adds a third for the Executive branch: We are at war with terrorists, so do whatever the hell you want. See Hamdi v. Rumsfeld (4th Cir.)]. Now let's add another: 3. The ability to grant individuals the power to sue their states for money damages under congressional legislation is limited by (what amounts to) the spirit and understanding of the Eleventh Amendment, and/or the Constitution generally. The Spirit of the Commerce Clause So how can Congress create positive social legislation under its broadest grant (the CC) in this world of a narrowed commerce clause? Here's an idea: Let's get into this "structure and history" thang. I admit to being the farthest thing from a Constitutional scholar, but my understanding of federalism is that the Constitution envisions a limited federal government; consequently, the powers granted to the federal government were supposed to be only those that a centralized federal government would actually need. Thus, the Commerce Clause makes a lot of sense -- what's the point of having a centralized, supreme government if it can't enact legislation to solve inequities and inconsistencies among the several states? This is a record we've heard before -- in the state sovereign immunity arena. It goes something like this: "Thus, state sovereign immunity makes a lot of sense -- what's the point of having a limited central government if it can willy-nilly allow citizens to intrude on the treasuries of the several states?" I happen to disagree with the state sovereign immunity version of the sentence, but I'm not looking to debate the merits of Seminole Tribe. So given that we have ST and it's progeny, what now? ST tells us to look at the importance of a limited central government. But inherent to that argument is the recognition is a sort of reverse-10th Amendment: that is, those powers that are delegated to the federal government are there for a reason. And extra care, as we know, went into putting them there; if they were going to be the supreme law of the land, they'd better be just right. Furthermore, let's not forget Alden. That decision tells us that we can supplement the Constitution's text if something comports with its "structure and history." And what better way to effectuate the "structure and history" of the Constitution than by supplementing Congress' broadest grant? So here's a thought: forget about this whole "Commerce Clause" thing. From now on, it's just the "Clause." So lobby the heck out your Congressperson for whatever you want. Because I guarantee you States don't agree on it. And where there's state disagreement in need of a big brother to settle the score, we get.... the Clause! Sure, Congress isn't the sole legislator of, well, anything, but now they can step in a legislate whatever they want. You might argue that this kills the 10th Amendment -- but who cares, because we now know, thanks to Alden, that the Constitution extends way past its text. Makes perfect sense to me. (Maybe I'm just being sarcastic... and maybe not.) (Simul-posted at my personal blog). From a reader: Did anyone else notice that the lawyer heading the defense team in the Guantanamo Bay detainee tribunals--who answers to the Pentagon--said that he wishes he could have been the prosecutor so that he could be a hero to the American people? As quoted in the Washington Post:"This is not a position that I sought out," he said. "I immediately recognized the glamour position was that of chief prosecutor, the opportunity to be America's hero." With a short postscript to the excellent posts below, I'd agree that the power to assign can utterly change the destiny of a case. As is well-known Court lore by this time, Chief Justice Burger voted with the majority in Roe v. Wade merely to obtain assignment power. According to legend, he assigned the opinion to Justice Blackmun -- then a reliable member of the Minnesota Twins -- hoping to keep the opinion's reach as narrow as possible. And, in doing so, he may have succeeded. It's quite likely that, had Justices Brennan, or Douglas, or Marshall written the opinion, its sweep would have been broader (penumbras, anyone?), and its logic more coherent than the quasi-legislative trimester theory. With that in mind, there's a lot to be scared of by a Chief Justice Thomas. Thursday, May 29, 2003
Substantive Powers of the Chief Justice: Of course, I think Steph's criticism is accurate. The understatement was intentional because I did not want it distracting from my broader point. Nonetheless, it is important not to over-state the case; the ability of the chief justice to affect the outcome of a case is greatly limited, even considering the opinion assigning authority. If nothing else, I suspect deference to the integrity of the Court and institutional constraints provide strong opposition to a would be chief justice who otherwise might aspire to more greatly affect the substantive outcome of a case. a quick note ...before I go back to work. I think Greg's sentence, "Nonetheless, some procedural requirements of the office can affect substantive outcomes," is a bit of an understatement. As many commentators have noted, the Chief Justice, when he or she is in the majority, gets to assign who writes the opinion for a given case. And that, in turn can be pretty important. See Frank B. Cross, Book Review, The Justices of Strategy: A Review of The Choices Justices Make, by Lee Epstein and Jack Knight, 48 Duke L.J. 511, 516 n.27(1998) (citing how, for example, how Justice Warren would protect "a bare majority by giving the writing assignment to its least certain member," how Justice Burger would "assign opinions to the 'least persuaded' member of his majority coalition," and how there is "evidence that Chief Justice Rehnquist also engages in strategic opinion assignments") (internal citations omitted). Moreover, as the book review notes, there is evidence that assigners "tend to keep particularly important decisions for themselves to retain more control over the ultimate opinion of the Court." Id. at 517. Sorry about the not-entirely-on-point nature of this post---I've got some Commerce Clause-y stuff pending right now (alas, this restricts my commentary on my personal blog, too)---but I'll try to chime in with random contextual stuff whenever I can. The Thomas Court?: Jay Nordlinger’s piece up this morning on NRO contains a call for Justice Thomas to be nominated as the Supreme Court’s next chief justice: William Rehnquist may step down this year, and we'll need a new chief justice. My choice, I guess, is somebody already on the Court: Clarence Thomas. The more I read about him, the more impressed I am with him. He is a brave and independent-minded man, embodying many of the qualities that an American should have — that anyone should have. But he is also a formidable judge, consistently writing intelligent, lively, and eloquent opinions. (More important, they are right opinions.) I could spend all day discussing Justice Thomas’s “intelligent, lively, and eloquent opinions,” but let me address just one: Lopez. In his concurring opinion, Thomas espoused his view of how the commerce clause should be properly interpreted: At the time the original Constitution was ratified, "commerce" consisted of selling, buying, and bartering, as well as transporting for these purposes. Oh, you wanted more? Too bad. Justice Thomas tells you why there is no need for further analysis of how to interpret the commerce clause in the modern world: …interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems. “Intelligent, lively, and eloquent,” indeed. And Lopez is representative of Thomas’s jurisprudence generally: detached from reality, rigid, and too extreme to garner even one joining vote from another member of the conservative bloc. It is the former in that series, though, that presents what I see as the biggest problem with Thomas’s jurisprudence. Although writing in somewhat of a different context and about another individual, Professor Balkin has aptly summarized—in my opinion—Thomas’s commerce clause jurisprudence as espoused in Lopez: The distinction between local and national subjects of regulation, while fuzzy even at the time of the Framers, at least made some economic sense in 1787. Within only a few decades, however, the original understanding proved seriously naďve. (63 N.Y.U. L. Rev. 911) But I don’t mean simply to harp on Thomas’s commerce clause jurisprudence; I think the criticism—both mine and Balkin’s as I have applied it—stretch across his jurisprudence. But should this prevent him from being chief justice? As everyone knows, the chief justice has little substantive authority. The majority of the chief justice’s extra duties are procedural in nature. Nonetheless, some procedural requirements of the office can affect substantive outcomes. Moreover, there is just something of a putrid ring to it: "The Thomas Court." And away we go... The most disturbing Hibbs-related possibility, in my mind, was mentioned over at How Appealing: What if the Chief's Hibbs vote was merely quid pro quo for a favorable O'Connor vote in the Michigan affirmative action cases? This is a scary proposition, at least for me. Not just because it's the AA cases, either; vote-swapping would be troublesome if it involved Tax or ERISA cases that I'll likely never read (here's to hoping that's true!). Meanwhile, Howard has a nice note on the 11th Amendment in his Hibbs wrap-up: And Justice John Paul Stevens wrote an opinion concurring in the judgment in which he again advanced the bold concept that the Eleventh Amendment should be understood to mean merely what it says, and such an understanding causes it not to apply to this case. Apply the Eleventh Amendment to mean what it says!!! What fun would that be? Poor Howard... he's 113 years too late for that argument. And besides, who needs the meaning of the Amendments when the Constitution's structure and history are so much more fun? Wednesday, May 28, 2003
I was happily suprised to read the decision in Nevada Department of Human Resources v. Hibbs, upholding the right to sue any employer in federal court (even a state employer) for violating a federal employment law. Fishing around for the most extreme reaction to the decision I found this bit by The Federalism Project and provide the link for your enjoyment. Especially nice is how they take the seemingly benevolent and decent purpose of the statute - letting workers take time off to care for sick relatives - and refer to it derogatorily as "12-weeks off to look after sick Aunt Minnie." Now, would they be so hostile if this was a state statute providing the same protections upheld against constitutional challenge? I really doubt it. So why the rhetoric? And, frankly, why the concern? The narrowness of the opinion aside, do we really needed to worry about the slippery-slope-precedent-for-federalism issue with this court? A great example of ideology running away with reason. PS If you have a candidate for "Most Extreme Reaction to Hibbs" (especially one of the "Rehnquist's Liberal Swansong" variety) please send it in! Tuesday, May 13, 2003
My word. Such attention for an empty page. The Feds are chomping at the bit, (showing no tolerance for alphabetical order, ideological diversity, or both- can't really tell). Just set it up to reserve the space. No slights intended (Bashman). Building a team. Honing my html. Finishing Exams. Stay tuned. Thursday, May 08, 2003
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