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Toward an Expanded Right to Legal Counsel

July 31, 2017 Leave a comment

In declaring America’s independence, the emerging nation’s founding fathers included this memorable statement of principle:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

In further recognition of the unalienability of these rights, the Constitution itself provides for a guarantee of legal assistance when faced with the judicial deprivation of life or liberty:

In all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.

Const. Am. VI.

The Sixth Amendment’s affirmative provision is robust and significant, but it attends only to two of the three unalienable rights identified in the Declaration. Of course, that third right, “the pursuit of Happiness,” is, at least on the surface, little more than a Jeffersonian flourish. It barely disguises the origin of the complete statement of rights, however, which Jefferson borrowed from John Locke, the English political philosopher, who referred to the importance of protecting individual’s life, liberty, and property.

If the Constitution protects us– by way of the right to legal counsel– when the government threatens to deprive us of life or liberty, shouldn’t that right also extend to deprivations of property?

United States governing bodies at the federal, state, and local levels continue to exercise their authority to take private property by eminent domain, a legal theory derived from the British concept of the divine right of the monarch. The Constitution, in the Fifth Amendment, demands that the government afford individuals both due process and just compensation in such instances, but there is no express right to legal counsel in order to help guarantee the protection of those Fifth Amendment rights of individuals facing eminent domain takings. If we truly regard property rights as unalienable as our rights to life and liberty, shouldn’t the protective right to legal counsel be extended to cover all three?

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Categories: Law, Legal, Privatize

The Oldest Vulnerability in the Constitutional Checks-and-Balances System

January 31, 2017 Leave a comment

The United States Marshals Service famously is the nation’s oldest federal law-enforcement agency. It supports the administration of the federal judiciary by providing courthouse, judge, and witness security and handling prisoner custody and fugitive apprehension, among other things that are difficult for judges, who tend to be limited to activities like issuing written orders and rulings, to accomplish as a practical matter.

Our conventional understanding of the checks-and-balances system does not accord much checking authority to the judiciary, however, which essentially is limited to declaring that a congressional or executive action is unconstitutional. If the chastised branch does not come to heel, there would seem to be little the judiciary can do, except perhaps issue another order.

In 1955, the Supreme Court did just that. Faced with inaction following its landmark ruling in Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954) (Brown I), which rejected in public schools the separate-but-equal segregation regime previously authorized under Plessy v. Ferguson, 163 U.S. 537 (1896), the Court issued its Brown II decision, demanding that schools desegregate “with all deliberate speed.” Brown v. Bd. of Educ. of Topeka, 349 U.S. 294, 301 (1955) (Brown II).

(Somewhat interestingly, some view the “with all deliberate speed” language not to mean “quickly,” which I think is how it is taught today, but as creating a “loophole . . . that allowed Southern states to stall racial equality.” This view may stem from the procedural particularities of the Brown II ruling, which sent various post-Brown I challenges back to various federal trial courts and charged those courts with the task of entering new “orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Id. Thus, “without an official court order, states could essentially take as little or as long a time as they deemed necessary to desegregate their school system.”)

Still, despite the Brown II reprimand, inaction persisted in some quarters such that necessitated President Dwight Eisenhower’s use of federal soldiers to force compliance in Little Rock.

Less than two weeks into his term, President Donald Trump’s administration has presented the nation with a similar sort of constitutional problem. On Friday, he issued an executive order banning non-citizens from entering the United States from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen for ninety days and suspending the Refugee Assistance Program for 120 days. The executive order also provides that, “upon the resumption of the [Refugee Assistance Program] . . . the Secretary of Homeland Security [] is further directed to . . . prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Given the executive order’s focus on countries with majority-Muslim populations, many recognize this language as a religious-based carve-out for Christians. Among other things, the executive order also places a cap– at 50,000– on the number of refugees who will be allowed to enter the country during fiscal year 2017.

The next day, multiple federal trial judges separately issued temporary restraining orders to petitioners who had arrived in the country with previously valid immigrant visas but were detained at airports under the new executive order and lawful permanent residents. The court orders are supposed to halt enforcement of key provisions of the executive order and prevent removal of affected individuals from the country. (Numerous other legal actions have been filed challenging the order.)

Precise information is difficult to come by, but there have been reports that U.S. Customs and Border Protection (the sub-agency of the Department of Homeland Security charged with law enforcement at the nation’s borders) officials were refusing to comply with the court orders staying enforcement of the executive order by continuing to detain or deport people attempting to enter the country and denying detainees access to legal counsel. A DHS press release stating that the agency would continue to enforce the executive order mentioned, though seemingly deemphasized, the court orders. A more recent press release from CBP asserts that the agency “immediately began taking steps to comply with the [court] orders and did so with professionalism.”

A refusal by the executive branch to comply with federal court orders could present an even more significant constitutional problem than the one at issue surrounding Brown, because it would present a direct challenge to the judiciary by a coequal branch, and because an Eisenhower-like intervention would be unavailable.

There is no obvious path to resolution of such a head-on affront to the authority of one branch of the federal government by another, and this particular gap in the federal governing apparatus is the most vulnerable one. While some have looked to the Marshals to address the currently brewing conflict, it remains unclear what they actually could or would do:

In the meantime, while the possibility of a constitutional crisis looms, uncertainty likely exists as a very real detrimental consequence for those directly affected by the conflicting executive and judicial orders.

As a momentary closing point, here is a recent passage from a judicial decision written by Judge Neil Gorsuch, the person President Trump this evening nominated to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia, quoted in a news report, that suggests that a Justice Gorsuch would be concerned about separation-of-powers matters and would look upon an expanding executive branch in that context with a critical eye:

GUTIERREZ-BRIZUELA v. LYNCH: In this 2016 case, Gorsuch wrote for a panel of judges who sided with a Mexican citizen who was seeking permission to live in the U.S. The case gave Gorsuch an opportunity to raise an issue he has championed in his time as a judge: whether courts should so readily defer to federal agencies in determining what laws and regulations mean.

Referring to high-court cases that Gorsuch believes cede too much power to agencies, he wrote: “There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is [Supreme Court precedent addressing executive-branch authority] permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

Categories: Compassion, Current, Law, Legal, Politics

Could the Wording of a Ballot Question Cost DeKalb County Homeowners?

November 7, 2016 1 comment

When they enter voting booths tomorrow, some Atlanta-area residents will see this question on their ballots:

dekalb-homestead

This is why you study for tests. Good lucky, everybody.

Categories: Current, Language, Law, Politics, Tax

Things to Do in Alabama When You’re Dead

July 31, 2015 Leave a comment

If you die in the United States and your death is someone else’s fault, your surviving family members probably can recover legal damages (i.e., money) from the person who wrongfully caused your death. For example, Georgia allows a surviving spouse to recover “the full value of the life of the decedent, as shown by the evidence.” O.C.G.A. § 51-4-2(a). Placing a monetary value on a human life is a notion and, subsequently, a process fraught with moral, ethical, and practical obstacles, but, as democracy is to forms of government, we have come up with scant else in the way of providing a legal remedy to the surviving victims of a wrongful death. (Indeed, the availability of civil wrongful death actions offer these victims at least two things the criminal justice system does not provide: 1) the possibility of receiving tangible compensation– again, in the form of money– for the loss of their family member, and 2) the ability to control the legal action directly, as the plaintiff in the lawsuit, rather than as an observer to a criminal case controlled by a government prosecutor, who is not strictly bound by the wishes of surviving victims.)

If someone decides that you are going to make Alabama your eternal sweet home, though, things will go a bit differently for your surviving kin than they would had you died in neighboring Georgia, or, really, anywhere else in the country. Unlike those in other states, Alabama’s wrongful death statute does not afford survivors the right to recover based, in some measure, on the value of the life of the decedent; instead, Alabama courts have made clear that only punitive damages are available to wrongful death plaintiffs. Atkins v. Lee, 603 So.2d 937, 942-43 (Ala. 1992). Rather than compensating the surviving family of the deceased for the lost value of their deceased relative’s life, punitive damages are designed to punish the wrongdoer and thereby deter such wrongdoing in the future. Instead of the value of the life of the particular deceased individual, in Alabama, the sole measure of damages potentially available to wrongful death plaintiffs is based on the (jury’s view of the) reprehensibility of the wrongdoer’s action:

The amount of damages should be directly related to the amount of wrongdoing on the part of the defendant or defendants. In assessing damages, [the jury is] not to consider the monetary value of the life of the [deceased], for damages in this type of action are not recoverable to compensate the [family] of the deceased from a monetary standpoint on account of his death, nor to compensate the plaintiffs for any financial or pecuniary loss sustained by the family of the deceased on account of his death.

Id. at 943. As the Alabama Supreme Court explained, this restricted approach “rests upon the Divine concept that all human life is precious.” Id. at 942.

sfoa

Alabama’s adoption of the legislative premise, whether “Divine” or otherwise, “that all human life is precious” is laudable, but the state’s unique wrongful death statute does not necessarily operate to advance the goal of valuing all human life equally. First, it simply does not treat each case identically, as different juries will award different amounts to wrongful-death plaintiffs in different cases (based upon the reprehensibility of the wrongdoer’s action). Second, by taking a purely punitive stance, the civil action essentially duplicates the purpose of any companion criminal action. Third, and related to the second point, it is not obvious that a strictly punitive civil arrangement operates as a greater deterrent on actions resulting in wrongful deaths than the more common, compensatory schemes of other states. Fourth, and related to the third point, the practical effect of this statute is that it is more difficult for wrongful-death plaintiffs to collect in Alabama than it would be if their deceased relative died in a different state, because they must convince a jury of the (degree of) wrongfulness of the defendant’s actions that caused the decedent’s death instead of focusing on the value of the life lost, which can be challenging when the act that caused the death looks more like mere negligence than intentional homicide. Indeed, and fifth, the result of Alabama’s approach is that the wrongdoer effectively is allowed to determine the value of the life lost; whatever label the state applies to the variety of damages recoverable, it seems likely that plaintiffs in Alabama will, for all practical purposes, view whatever they recover in a wrongful death action to represent a measure of what they wrongfully lost.

There is nothing necessarily wrong with enacting idealistic or aspirational legislation. Such pronouncements can serve practical purposes, and a document like the Declaration of Independence would seem to serve as a good example. Legislatures must take care, though, that the immediate practical effects do not serve to undermine, in actual effect, the principled stance taken. When that happens, one rightly wonders about the government’s true aim. Is Alabama’s goal to treat “all human life [as] precious,” or is it simply to make the legal landscape less hospitable to wrongful death plaintiffs and their attorneys?

Categories: Compassion, Incentives, Law, Legal

A More Perfect Union?

June 30, 2015 1 comment

Last week, the United States Supreme Court delivered its decision in Obergefell v. Hodges, 576 U.S. ___ (2015), deciding unequivocally that “same-sex couples may exercise the fundamental right to marry in all States” and “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” (Slip op. at 28).

While there is no question as to the result of the case, the Court’s journey to reach that result, as helmed by Justice Anthony Kennedy, does leave for the future some stones unturned, as highlighted, in part, by the dissenting opinion of Chief Justice John Roberts. In particular, the majority’s reasoning does not go as far as it could have to secure the protection of same-sex rights.

For all of its quotable flourishes, the majority opinion is, in Roberts’ words, “difficult to follow,” at least as concerns its technical underpinnings. Obergefell, 576 U.S. at ___ (Roberts, C.J., dissenting) (slip op. at 23). While Kennedy purports to rely upon both the due process and equal protection clauses of the Constitution’s Fourteenth Amendment, his equal protection analysis departs in all material respects from the Court’s established jurisprudence. This light treatment of the equal protection analysis is not so much a problem for this case– I believe the outcome can stand on the due process basis alone– as it is for future cases. Obergefell leaves unanswered a question many see as critical to the course of development of homosexual rights: what degree of scrutiny must courts apply in reviewing regulations that discriminate based upon sexual orientation?

Under the Fourteenth Amendment, equal protection generally means that the government must treat everyone the same. Courts have recognized that there are some instances when it is appropriate for the government to treat people differently, however. Men and women, like the old and the young, are alike in many respects, but not all, and there may be areas in which it makes sense for a law to treat people differently on the basis of their gender or age. When reviewing a law that discriminates based upon race, though, courts hold the government to a much higher standard, on the notion that there are few legitimate reasons to differentiate people on the basis of their race. Through the development of equal protection law, the Court has established a hierarchy of sorts that informs courts as to the degree of scrutiny they should apply in their review of a law that discriminates along a given line. The Obergefell majority missed an opportunity to enunciate where in that hierarchy sexual orientation belongs and thus establish a precedent for future treatment of state laws that discriminate on the basis of sexual orientation.

The meat of the disagreement between Kennedy’s majority opinion and Roberts’ dissent involves the due process component of the decision, and it boils down to a disagreement over the essence of the basic question presented to the Court.

The Fourteenth Amendment’s due process clause prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. Am. XIV, s 1. As Roberts helpfully explains, “[t]his Court has interpreted the Due Process Clause to include a substantive component that protects certain liberty interests against state deprivation . . . . The theory is that some liberties are so rooted in the traditions and conscience of our people as to be ranked as fundamental, and therefore cannot be deprived without compelling justification.” Obergefell, 576 U.S. at ___ (Roberts, C.J., dissenting) (slip op. at 10) (citations and internal quotation marks omitted). The basic question under the due process analysis thus is whether the right asserted “rank[s] as fundamental.”

The disagreement between Kennedy and Roberts is not so much about the fundamentality of the right sought to be protected– although they do disagree along those lines– as about the very right itself. They do not even agree about what they are being asked to decide.

For Kennedy and the majority, the due process question is whether the right to marriage is fundamental. For Roberts, it is whether the right to same-sex marriage is fundamental. It is hardly a surprise that their paths would diverge when they began from different starting points. (Starting points they chose purposefully and with the bigger picture of the case in mind, to be certain.) For both, the analysis flows fairly naturally from there. Kennedy cites from ample historical and legal authorities to show that marriage is fundamental, while Roberts repeatedly points to the (many would say understandable) absence of the express inclusion same-sex couples in the historical and legal discourse surrounding marriage. While each seeks to score points against the other in the lengthy literature review portions of their opinions, the spread that matters is the one between the descriptions of the question before the Court.

While I appreciate Roberts’ structural critiques of the majority opinion, I find his framing of the question presented and the due process analysis that follows unsatisfying. On the other side, I agree that the result Kennedy reached is the correct one, but I think his reasoning could have been more robust.

One of the numerous subplots in this case involves whether and when courts should defer to legislatures, and while that subplot is less deserving of comment here because justices’ preferences for deference seem to shift with their preference for the legislative act at issue, Roberts makes a broader point with which I agree as a matter of fact: political results achieved through the democratic process (i.e., legislatures) are more robust than those achieved through litigation (i.e., the judiciary). See id. at 26-27. Roberts’ conclusion– that the Court should not intervene here because a result through the legislature would be more effective– does not follow, however. If the government has infringed upon a fundamental right, those injured as a result of that infringement should not have to wait for a remedy from their legislature, the very body that has acted to their detriment, simply because success there might prove more more immediately widely respected than a judicially ordered remedy.

Categories: Current, Law, Legal, Privatize

The Unconstitutionality of the Affordable Care Act: A Comparative Case Study in Enforcement Discretion

December 31, 2013 3 comments

The Affordable Care Act already has survived direct and indirect legal challenges in the courts, the early stages of which I analyzed here three years ago.

Facial legal challenges cast aside, the health reform legislation is facing a fresh round of scrutiny in 2013 as the time for implementation of the law has arrived.

In July, the President stated that he was suspending the law’s “employer mandate” provision for one year, meaning that employers would have additional time to meet their obligations under the Act. As former federal judge Michael McConnell explained, however, the president does not have the authority to refuse to enforce certain portions of a law:

President Obama’s decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government.

Article II, Section 3, of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.

This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II’s use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that “the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”

To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.

Michael McConnell, Obama Suspends the Law, Wall Street Journal, July 8, 2013 (emphasis added).

McConnell closed his article by explaining that such unauthorized executive action is likely to remain unchecked and could have ongoing, troublesome consequences:

The courts cannot be counted on to intervene in cases like this. As the Supreme Court recently held in Hollingsworth v. Perry, the same-sex marriage case involving California’s Proposition 8, private citizens do not have standing in court to challenge the executive’s refusal to enforce laws, unless they have a personal stake in the matter. If a president declines to enforce tax laws, immigration laws, or restrictions on spending—to name a few plausible examples—it is very likely that no one will have standing to sue.

Of all the stretches of executive power Americans have seen in the past few years, the president’s unilateral suspension of statutes may have the most disturbing long-term effects. As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress “would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice.”

Id.

In support of his selective enforcement approach, subsequently used again to try to make good on his promise that Americans could retain existing health insurance coverage (which the Affordable Care Act actually did not allow in some circumstances), the President relied upon “an expansive reading of Heckler v. Chaney, an important Supreme Court decision from 1985 [in which] the Court held that agencies have wide discretion to decide whether, when, and how to enforce the law“:

No agency, the Court explained, has enough resources to police every technical legal violation. Instead, agencies must set priorities based on a host of factors—the harm caused by the violation, the likelihood of prevailing, the need to conserve scarce resources, and the like. Courts shouldn’t second-guess how an agency weighs all those factors. Enforcement, in the legal jargon, is “committed to agency discretion by law.”

Nicholas Bagley, Is Obama’s “like it/keep it” fix legal?, The Incidental Economist (Nov. 18, 2013, 8:00 AM). Professor Bagley, someone not unsympathetic to the Affordable Care Act, doubts the viability of the President’s discretionary enforcement approach. Echoing McConnell, above, he writes that the President may have stretched Heckler‘s discretionary principle too far: “Although federal agencies have wide discretion to decline to prosecute, they can’t dispense with the law altogether. That would contravene the President’s constitutional duty to ‘take Care that the Laws be faithfully executed.'” Id. In setting out the reasons why he doubted the President’s authority to act in this context and manner, Bagley explained that, in effect, the President simply was rewriting the law:

Heckler’s general assumption that agencies have enforcement discretion can be rebutted where a statute constrains that discretion. Here, the ACA probably does. On Thursday, the president acknowledged that he was trying to “fix” the ACA’s grandfather clause, which, in his view, was drafted too narrowly. But doesn’t that clause stand as persuasive evidence that the plans that it covers are the only ones that Congress wanted to grandfather? Whatever the scope of its enforcement discretion, the administration probably can’t exercise that discretion to deliberately rewrite the statute.

Id. As Professor Jonathan Adler added, the grandfather clause “fix” also imposed new obligations on private insurers, something he is skeptical the President has any authority to do:

Whether or not requiring such disclosure is a good idea, I am aware of no provision in the law that authorizes such a requirement and, more importantly, I do not see how the Administration can impose such a requirement through an exercise of its enforcement discretion outlined in a press conference and a guidance letter.  Put another way, if the Administration wishes to impose such an obligation on insurers, it could conduct a rulemaking and promulgate regulations. What it cannot do is simply announce that it will forbear enforcing the law provided that regulated entities “voluntarily” agree to a new, unauthorized set of regulatory requirements.

Jonathan Adler, More on the Legality of the Latest ObamaCare Fix, The Volokh Conspiracy (Nov. 18, 2013, 11:52 PM).

The simple lesson here is that, while the executive branch has some discretion in how it enforces laws, it generally must live with the terms of laws as passed by Congress and signed by the President.

_______________________________________________________________

Beyond the the primary question of enforcement discretion is the question of the President’s discretion to exercise that discretion. While he was willing to do so in July to ease the burden of the Affordable Care Act on businesses, as described above, he was not willing to short circuit Congress in November, when he was asked to ease the burden on immigrant families being split up as a result of deportation. Perhaps the criticism he received about his handling of the Affordable Care Act imparted upon him a newfound respect for congressional authority, the Constitution’s separation of powers, and Article II, Section 3’s Take Care Clause.

President Barack Obama renewed his call for the House to pass immigration legislation, framing the issue as crucial to boosting the U.S. economy in remarks that also included an unscripted exchange with a young man protesting deportations.

“When it comes to immigration reform, we have to have the confidence to believe we can get this done, and we should get it done,” Mr. Obama said. “The only thing standing in our way right now is the unwillingness of certain Republicans in Congress to catch up with the rest of the country.”

During his speech, the president was interrupted by a protester who urged him to take immediate executive action to halt deportations, saying that his own family had been separated.

The president told the man—who later identified himself to reporters as 24-year-old Ju Hong —that he couldn’t take direct action without the cooperation of Congress.

“The easy way out is to try to yell and pretend like I can do something by violating our laws,” Mr. Obama replied. “And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal that you want to achieve. But it won’t be as easy as just shouting.”

Deportations have become a central issue for immigrant-rights groups as prospects for legislation have dimmed. Nearly 12 million immigrants live in the U.S. illegally, according to the nonpartisan Pew Hispanic Center. The Obama administration has been deporting about 400,000 immigrants annually, more than during the Bush administration.

Alejandro Lazo, Obama Immigration Speech Gets Heated Input, Wall Street Journal, Nov. 25, 2013.

This secondary level of discretion practically illustrates the danger to democracy this brand of selective enforcement presents. To place President Obama’s exercise of this discretion in context,

Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed [that the president may decline to enforce laws he believes are unconstitutional, but that he has no authority to refuse to enforce a statute he opposes for policy reasons]. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.

McConnell, supra.

Categories: Current, Law, Legal, Politics

Proposition Hate: A Question of Origins

March 27, 2013 1 comment

Yesterday, the Supreme Court heard arguments in Hollingsworth v. Perry, a challenge to Proposition 8, a California ballot proposition that amended the state’s constitution to restrict the recognition of marriages to those between heterosexual couples.

During oral arguments, Justice Antonin Scalia and Ted Olson, the lawyer representing the Proposition 8 challengers, had the following exchange:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became
unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

(Emphasis added.) The full transcript from yesterday’s oral arguments is available here.

Scalia’s question is deceptively fundamental in nature, and it (surely unintentionally) raises a practical question about his own approach to civil rights. Summarily, his approach is to recognize as protected only those rights clearly shown to be protected within the Constitution’s text or, in some cases, in (very) long-established tradition. For him, unless a claimed right finds clear, preexisting contemplation and protection in the Constitution, the claimed right does not exist.

One practical benefit, at least to Scalia, of this approach is that it is fairly convenient to operate on the back end– that is, the time when a judge is adjudicating a claim of a right violated. Following the alleged violation, the judge simply needs to look to the Constitution to see whether the claimed right is mentioned or clearly contemplated. If not, the claimant does not have a case. If so, the judge proceeds to determine whether there was an infringement of the established right in that particular instance.

Where Scalia’s approach is problematic, though, is on the front end. While principles of democracy and separation of powers properly keep the judiciary out of the legislature’s policy-making business, the historical fallacy of approaches like Scalia’s is that there was a time in the past when policy makers purposely set forth all the rights of the citizenry. Such an exhaustive effort has never been undertaken at the federal level, yet it would appear to be a necessary precondition for Scalia’s approach to make logical sense. If policy makers never set out an exhaustive enumeration of rights, Scalia would have no such source to which to point and state authoritatively that if the claimed right was not included, it did not exist. (Scalia’s inclusion of longstanding history as, along with the Constitution, the other source of rights, conceptually undermines his position, I think, and is a topic best left for another day.)

As I explained at length here, the Constitution’s Bill of Rights is not such a document. Neither its terms nor the intent of its drafters make any claim to exhaustiveness, and the same is true of subsequent constitutional amendments.

Returning to yesterday’s oral arguments, Scalia’s question– “When did it become unconstitutional to exclude homosexual couples from marriage?”– both deeply illustrates his view of civil rights and exposes the flaw in that view. That an asserted right does not appear on a list of rights that neither is nor claims to be an exhaustive list of rights is not a fully sufficient support for the consequential position that the asserted right does not exist. See generally here.

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Another moment during yesterday’s argument of interest, if of lesser importance, came during an exchange between Justice Elena Kagan and the attorney for the Proposition 8 defenders, Charles Cooper. Keep reading…

Categories: Current, Discourse, Law, Legal