The Enlightened Despot

• How about that? An enthusiastic reception and the most flattering picture I’ve seen of her from the New York Post. Hometown love trumps ideology. Incidentally, you can count on seeing a headline reading ‘SOTOMAJORITY’ the first time she writes an important majority opinion. It’s not quite as obvious in advance as the ‘Exit Sandman‘ headline we’ll see in 2010, but it’s close.
• The controversy over Sotomayor’s ‘wise Latina’ comments doesn’t, I think, have legs. It really is superficially offensive, pace the counter-outrage on the left, and I’m still not wild about it in context. At the very least, she could have been more careful with her words. But it’s pretty clear that she was referring to judgement on issues concerning women and minorities. She didn’t mean that a wise Latina will just be a better judge than a white man in general, though that is what she said. She will no doubt get grilled about this, but it won’t change the fact that she is a shoo-in.
• All the griping about identity politics and affirmative action is ugly. It’s all well and good to argue against preferential treatment and lowered standards on the basis of race as a general practice, but if you really think Sotomayor is a mediocre talent who got the nod because she is hispanic, then clearly the part to focus on is that she is a mediocre talent. Your empirical evidence for this fact is what lead you to conclude that racial preferences are afoot, right? The theory about Obama’s motivations is really just a side show, not particularly germane to the discussion. Of course, it’s a lot easier to demonstrate that someone is a Latina than that she is incompetent. But laziness is no defense for racism.
• You will hear a lot about how Sotomayor’s decisions are overturned at a high rate. Nate Silver points out that this is based on a very small sample, and that the sample actually shows the opposite. So you can put that in the straightforward lie file. The Volokh Conspiracy tries to plug Sotomayor into the results of a more rigorous statistical study, which shows her to be more or less in the middle of the pack. The methodology is murky at best, though. I doubt that there is any statistical shortcut here - if you want to figure out how smart and capable a judge is, you just have to read some of her opinions. Alternatively, you could acknowledge that she will be confirmed, for good or ill, and change the channel.

Law professor John Culhane responds to my earlier post thus:

Your vituperative post (”this man is a law professor”) overlooks the possibility that I’d read and digested the briefs, heard the three hours of oral argument, and understood the legal issues on both sides before the ruling was handed down. In fact, though, all of these things are true. My reaction was based on what I knew the court to have done, and I had a pretty good sense of the reasons it might have given for doing so. Mostly, I was right. (I’ve since done a sort of long legal analysis, but one geared for the “lay” audience.)

Admittedly, I could have been clearer about what I meant by “blinking”; it’s not surprising you were at a loss. What I meant, and should have conveyed more clearly, is that the court, with at least a couple of key justices soon up for retention, was intimidated by the populist rhetoric to the extent that its judgment was occluded; a judgment that I thought should have gone the other way, pretty much along the lines expressed in Justice Moreno’s dissent.

I confess freely that I was writing with a good deal of vituperativity. Public discourse on matters of jurisprudence have a way of filling me with mind-numbing despair, so perhaps I was lobbing criticisms a bit too erratically, rather than inflicting targeted scorn on the world, as per usual. But I would have hoped it was clear that Culhane’s understanding of the law wasn’t my target here. I was highlighting the post he actually wrote as an example of the way we think and talk about judicial review.

I suppose I did “overlook[] the possibility” that he had been through the briefs already, but not out of nastiness, but simply because it didn’t matter much to the point I was making, which is that the response of a law professor to this news was a condemnation of the court that made no reference to the legal merits of the case. I also pointed out, and was much nastier about, a post from an opponent of gay marriage, which also ignored the legal questions at hand.

The clarification over the “blinking” business is helpful. That was certainly the heart of my complaint, so I’m happy it was merely a misunderstanding on my part. But I do think that the order of operations here - a post reacting to the awful news, with a legal explanation for the lay audience to follow - reinforces my point that the nuts and bolts of legal reasoning are essentially epiphenomenal to the process through which people make up their minds about these issues. (Culhane’s charge that my post was ‘vituperative’ clearly establishes that it is Vocabulary Day, thus licensing my use of ‘epiphenomenal’. There’s  precedent here.) There’s nothing particularly original or groundbreaking about that observation, but that doesn’t make it any less accurate.

So, John Culhane, I’m sorry I spilled my vituperation on you, it was to a large extent unwarranted. I still think the fact that you can blog about the tragedy of a decision to an audience that you assume does not yet have enough information to know what is wrong with that decision is a pretty good example of the cognitive dissonance our society maintains regarding judicial matters. But I also realize that actually being bothered by this puts me in a small, crazy minority. And, as should go without saying at this point, on the actual substance at issue here I am firmly on your side, not Maggie Gallagher’s.

As was widely expected, California’s Supreme Court has upheld Proposition 8, which amended the state’s constitution to ban gay marriage, but held that existing gay marriages were still legally valid. Here are two reactions that sum up why I find constitutional law so depressing. First, John Culhane:

Yet I’m overcome by a profound sense of grief. The courts are supposed to be on the side of justice and protection of the rights of minorities. This time, the California Supreme Court — admittedly with precedential justification — blinked.

They blinked! Now, we all know from our dear friend Sarah Palin that blinking is a terrible thing to do, but I’m at a loss as to what constitutes judicial blinking. Culhane notes that he hasn’t read the decision yet, and legal analysis will follow. But he already knows the court did wrong. Not based on the merits of the case, mind you, but because courts are supposed to stick up for minorities. This man is a law professor.

Now, here’s Maggie Gallagher, who is thrilled, because she doesn’t like gay people, but cautious, because she doesn’t like Californians or judges either:

Six to one. Even in California there is only one justice willing to strip 7 million voters of their core civil right, expressly guaranteed, to amend their own constitution. I should be grateful, right?

Amending one’s constitution by a direct majority vote of the electorate is a core civil right? That’s bad news for anyone who lives in, say, the United States of America where no such right exists. True, Californians are expressly granted that right in regards to their Constitution. But the bar for revising the Constitution is different. The legality of Prop 8 comes down to whether it constitutes and amendment or a revision. Perhaps Gallagher is aware of this, but the argument she actually puts forward is that amending constitutions is a core civil right. Neat.

For what it’s worth, ‘revision’ - as opposed to ‘amendment’ - refers to a “substantial alteration of the entire constitution rather than to a less extensive change in one or more of its provisions.” That’s pretty vague, but it’s as good as it gets. You might think that the treatment of marriage is pretty obviously just a set of provisions within the document. On the other hand, you might think changing the Constitution froma document that doesn’t draw distinctions between the union of men and women and the union of men and men or women and women to one that does is a pretty substantial, overarching disaster. I’m not really sure, but I am sure that just about nobody cares.

Which is fine, so far as it goes. I’m not wild about giving practically unlimited legislative authority to unelected lawyers, but it’s a system that’s worked well enough for us so far, and it’s not going anywhere. What is frustrating is the near-universal denial about what is going on. As far as I can tell, these three things are true of almost everyone:

1.) They believe that legislators should interpret the law, rather than read into it what they want. ‘Legislating from the bench’ is a bad thing.

2.) The right decision for the courts to make on the major Constitutional issues of contention (abortion, affirmative action, gay rights, abortion, abortion, etc.) is - happily! - the decision whose outcome lines up most closely with what they think the law should be.

3.) They have absolutely no idea what the legal arguments on which these questions balance are. Not a clue. There are core, Constitutionally guarunteed rights that people are certain are in there, but they wouldn’t know what Article to open to to find them.

This is a fairly ludicrous combination, but I find it to be true even of most well-educated people. There are some differences of degree, especially with regard to item 1. Conservatives will talk about strict, literal interpretations, whereas liberals are generally more happy with talk about ‘the spirit of the law’, whatever that might be. But this is nonsense. Conservatives want the courts to do conservative things and liberals want them to do liberal things. How many conservatives had to look at precedents on the distinction between ‘amendment’ and ‘revision’ in Californian Constitutional Law?

There are some lefties - especially younger ones, it seems to me - who are pretty openly happy about saying they think Justices should make stuff up to justify decisions that will help people. But for the most part, conversation about the Supreme Court is located firmly within a collective fantasy about what it does. And it hurts my head.

On the other hand, I note with some satisfaction that Sotomayor is - according to our president, anyway - a life-long Yankees fan. So her heart is in the right place. And that’s what matters, isn’t it?

First they took the joy out of disliking the French. Now, it seems, Dick Cheney fans have made me into a leftist. Commenter Dan challenges me:

It would be interesting to hear you mention, if not discuss, your crazy right-wing views. Your common ground with lefty intellectuals, which you mention above, is much more apparent in many of your posts. Getting a sense of where you differ would help put things in perspective.

It’s true, much of what I feel the need to write about these days is more in tune with the left than the right, but I have been considered a right-wing extremist by most of the people around me for most of my life, and my views haven’t changed all that much. In the most abbreviated manner possible, here’s why I think I still deserve my conservative card:

• Many people all over the political spectrum think that it is absurd that someone can be old enough to die for his country, but not old enough to drink alchohol. I agree, but I think this understates the problem: an eighteen year-old is also old enough to chose whether or not to wear a seatbelt while driving with an AK-47 across his lap to the corner store to pick up a few crack rocks to pay the hookers at his favorite local casino.
• Some of the activities described above might be hazardous to the practitioner’s health. I don’t think this constitutes even a prima facie case for making them illegal. It is, however, a serious problem for nationalized healthcare, because creating a fiscal obligation for the government to care about how its citizens treat themselves is a very, very bad thing.
• As I’ve said before, the facts that we don’t have anything like a free market in healthcare, that there is no serious movement to create one, and that the current system is a fiscal disaster constitute sufficient reason to embrace a reform along the lines envisioned by Democrats. But that doesn’t change the fact that I deem the notion that the wealthy shouldn’t be able to pay for better healthcare than is available to the rest of the population to be thoroughly evil. I also think absolutely everyone stands to suffer from the (very popular) impulse to reduce profit margins for the pharmeceuticals industry.
• As delighted as I am by Barack Obama’s victory, I am constantly depressed by reminders that he wants Supreme Court justices “who [understand] justice is not just about some abstract legal theory, but about how laws affect Americans’ daily lives.” I’m not sure what justice is, but if it has to do with Americans’ daily lives, the SCOTUS shouldn’t have anything to do with it. The rule of law would be a much more serious force in the world if we had judges who had never met any Americans and didn’t know anything about their daily lives. Sadly, the fields of linguistics and artificial intelligence are not yet advanced enough to do away with these people altogether, but I wish they were.
• I recognize that if people took the Constitution seriously, there would be a lot of changes to the law of which I wouldn’t approve, and I have no problem with that. On the other hand, even on the issues over which I agree with the left, I wouldn’t really share their pain. Laws against abortion are a bad, bad thing, but thankfully I like federalism every bit as much as I like the Constitution - that is, as much as Republicans pretend to. If Constitutional law were a serious enterprise, Kansas would be allowed to ban abortions, which is too bad, but not all that much worse than the fact that Iran doesn’t allow them.
• It seems fairly clear to me that the recent spike in inequality in the US is in part due to legal and regulatory failings that benefit the wealthy, and that should be addressed. But inequality, in and of itself, doesn’t keep me up at night.
• I hate to see people slaughtered in Darfur or Rwanda as much as the next guy, but I’m not convinced that using military force for purely humanitarian reasons is ever such a hot idea.
• I don’t even know who Terry McAuliffe is running against, because I find his continued existing too depressing to think about for more than a few minutes at a time. Assuming it isn’t David Duke, I would vote for whomever it is if I were a Virginian.
• Worries about the environmental and labor policies of third world countries are nothing but window-dressing for protectionism to curry favor with labor unions. Sweat shops don’t say much for the moral compasses of the people who operate them, but on the whole, they are a good thing for the countries in which they operate, and for the people who get to work in them. That is, after all, how they recruit workers. Furthermore, pretending that farmers are so awesomely American that we should pay them for their trouble is not just stupid, it’s evil.
• I do not believe in a supreme being, but I suppose I must believe in hell, because I am absolutely certain that there is a special place in it reserved for the folks who have inflicted upon the owners of bars and restaurants in major American cities the requirement that they ban smoking and transfats

There’s more, but I hope this is sufficient. I don’t approve of torture and I don’t hate gay people or science. I realize those are all deep red sentiments these days, but I suspect it won’t be more than a decade or so before the Republicans once again strike me as the less loathesome party.

It doesn’t sound plausible, but a lot of people feel very strongly that the city needs three more elected officials, specifically two Senators and a Congressman. The argument in favor of this is very straightforward: the hundreds of thousands of people living there are currently not represented in congress, which is extremely undemocratic. The arguments against it are a little more varied, but the bottom line is that awarding the Democratic Party a bunch of permanent votes in congress is a pretty big deal, and a pretty shitty one if you’re a Republican (or an independent who doesn’t want anyone getting too comfortable).

An oft-proposed third way is once again making its way through congress, and looks to be in fairly good shape. Under this proposal, rather than making (most of) D.C. its own state, the district’s status would remain unchanged, but it would be awarded a voting member of the House. On the surface, this seems like a very conservative compromise. In the long run, the Democrats net one vote in the House, which isn’t such a big deal, especially compared to the massive impact of a permanent two Senate seat swing. In the short run, they don’t net anything at all, because Utah would be granted an extra seat as well. Meanwhile, D.C. residents would be represented, though not in the Senate. Not perfect in terms of democracy, but a definite improvement, and with minimum fuss. Right?

Well, no. What makes this odd as a compromise is that it is in some ways vastly more controversial than what it is a proxy for. Adding new states to the Union is a power the Constitution explicitly grants to Congress, subject to a few conditions (I think there might be a case to be made that Virginia and Maryland, which ceded land to D.C., would both have to sign off on statehood). Whereas granting Congressmen to entities that aren’t States is almost certainly unconstitutional. It’s not clear who would have standing to challenge the matter in court, but if it ever got there, it’s not at all clear that a D.C. Representative would survive judicial review.

So if making D.C. a state is both more legitimate and a much, much bigger prize, why aren’t Democrats pushing for it? Here’s the YZA pondering that question:

To actually admit DC as a state of the union would only require a majority vote in both houses of congress. To meet the constitutional requirements, you’d need to carve out a rump “federal district” encompassing the White House, the Capitol, the Supreme Court, the Mall and some of the adjacent buildings. You’d need to work out the logistics, but the logistics are not insurmountable. And the political obstacles, though serious, are basically the same as the political obstacles to universal health care or comprehensive climate change legislation. Indeed, admitting DC as a state would substantially reduce the political obstacles to universal health care or comprehensive climate change legislation. But the striking thing is not how strong Republican opposition to this idea is, it’s how tepid Democratic support for it is. You don’t hear Democratic leaders articulating this as a goal. And when the House of Representatives put it to a vote in 1993 it lost 277 to 153. Of course, even if Democrats were to support DC statehood, the GOP would still filibuster. But the filibuster could—and should—be reformed, and it’s plausible—even likely—that Democrats will pick up at least one Senate seat in the 2010 midterms. If that happens, admitting DC as a state would be both a blow for justice and also a significant means of entrenching progressive political power. It would also partially redress the structural under-representation of all urban core areas in the United States congress.

I don’t think it’s that striking that Democratic support is tepid. Yglesias is wrong that the filibuster could be reformed any time soon - though he is right that it should be - but, yes, the Democrats could very easily hit 60 Senate seats in 2010. Yet I don’t think you’ll see them chomping at the bit to add another state. The problem, I think, is that creating the state of New Columbia would be too easy and too beneficial to the Party - it would look like a massive power grab. And, even if it is the right thing to do, it would be a massive power grab. And a frightening precedent: New York City statehood has its advocates. And why stop there? The next time the GOP was in power, they could start slicing up Texas or Mississippi. We could have domestic state building, gerrymandering on steroids.

Now, I don’t seriously think that would happen. But it’s yet another gaping loophole the founding fathers left wide open, and the tendency is for politicians to tread carefully towards these, for fear of looking despotic. There is nothing unconstitutional about the way the filibuster is used nowadays, for instance, but it took us a very, very long time to get to the point where employing it was the default form of opposition. Legislating yourself new Senators is a much bigger deal, so it’s only natural that Democratic lawmakers aren’t charging full speed ahead.

TNR has a review of Philip Hamburger’s Law and Judicial Duty by Richard Posner, and anyone who is at all interested in judicial review and has a little time on his hands should read it. If you are daunted by the length of the piece, but are sort of interested anyway, this is the post for you!

Hamburger’s book is actually more about the history of judicial review - the ability of the courts to strike down laws it deems in conflict with the Constitution - than about its merits or current practice. Specifically, it is written to contradict a common account of how the Supreme Court ended up with this power. To oversimplify horribly, this account holds that judicial review isn’t written into the Constitution, so John Marshall made it up in Marbury vs. Madison. Hamburger contends, on the other hand, that it wasn’t written into the Constitution because it was so thoroughly entrenched in our legal tradition that it just went without saying (again, a crude summary, but that’s the gist of it.)

I’m not going to dwell on the history - if that’s your thing, read the article, or, hey, even the book (a book is like a really long blog post with no links that you have to read offline). Briefly, Posner thinks Hamburger’s account is implausible, and I’m inclined to agree. For what it’s worth, my understanding is that the narrative he is arguing against is wrong too - my hazy recollection of the history here is that judicial review isn’t written into the Constitution not because everyone had agreed it was awful, or because it never occured to anyone, but because the framers couldn’t agree on whether we should have it, so they agreed to punt instead. This, I would argue, has not worked out so well for us.

In any event, the real meat is what the history means for the theory. I’ve always thought of the Marshall-made-it-up view as something judicial review’s critics liked to harp on, for fairly straightforward reasons. Hamburger points out that this is also an appealing narrative for advocates of aggressive judicial activism. Since the very right of the courts to strike down laws was established by a ruling that strays very far from the letter of the Constitution, it goes without saying that judges are free to appeal to “the spirit of the law” in exercising it. How can a strict constructionist justify evaluating laws in the first place?

If one accepts Hamburger’s history, this isn’t a problem. Judges can’t quite be confined to the letter of the law, since the Constitution doesn’t say anything about judicial review, but, since the framers thought this power went without saying, you can get by with “the intention” of the law, without getting into this spirit nonsense. Hamburger thus advocates for “judicial modesty”, and while he mostly sticks to the history, the implication is that the judiciary should be far more literal in their interpretation.

I think Hamburger is wrong on the history, but, as regular Despot readers will no doubt have detected by now, I am very much in his camp on the theory. Indeed, I’m a little farther in his camp than he is. There is a narrow sense in which it is impossible to derive any meaning from any form of language without reference to intention (see Grice, though he takes it too far), but past that, we’re better off without them, the foolishness of consulting them in interpreting texts has been particularly well demonstrated*, and when a text is written by a large group  of people who don’t agree about much of anything, worrying about intentions is completely inane. As for the spirit of the law, if such a thing exists, it should be the concern not of the judiciary, but of the Ghostbusters. I, for one, feel haunted.

With an official announcement of the Clinton nomination (finally) immanent, Ben Smith has weighed in on the emoluments issue. In short, his position is that the legal question is hard to judge, but that no one cares or plans to do anything about it:

And there are serious lawyers who see this, legally speaking, as a real obstacle.

It is not, however, an actual political problem, any more than it was when Sen. Lloyd Bentsen became Treasury secretary in 1993 or when Richard Nixon made Sen. William Saxbe attorney general in 1973.

Nixon’s lawyers used what’s now known (in very small circles) as the “Saxbe fix,” by which Congress re-lowered the salary for the job, deciding that that got around the constitutional issue.

The dodge actually goes further back than that, though: Taft’s secretary of state, Philander Knox, came through the same loophole; his salary was brought back down to $8,000 in February of 1909.

(This doesn’t mean that it’s legally unquestionable. The Reagan administration, Eugene Volokh writes, decided not to name Orrin Hatch to the Supreme Court in part based on a legal opinion that the Saxbe fix wouldn’t do.)

That people think this may well be unconstitutional but don’t care should not be shocking; if the laws of our land were a movie, the producers might run some ads with a phrase like “inspired by the controversial 1787 document”, but the framers definitely wouldn’t get a writing credit. Personally, I think getting rid of it altogether or actually doing what it says would both be better than our current system, but neither is at all plausible.

Here’s what is shocking: Reagan was thinking of appointing Orrin Hatch to the Supreme Court? Really? God bless emoluments:

I had more fun reading this post from Josh Patashnik than I’ve ever had reading about an obscure piece of Constitutional law:

Adam Bonin and Eugene Volokh weigh in on the debate over the application of the Emoluments Clause of the U.S. Constitution (Art. I, § 6, cl. 2), which provides:

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.

As it happens, the secretary of state’s salary was increased by executive order this past January, which would seem to clearly disqualify her from the job. The relevant debate here is whether the so-called “Saxbe fix” (named after Richard Nixon’s last attorney general, former Sen. William Saxbe of Ohio, who ran into the same difficulty Clinton is facing now) would rectify the problem: couldn’t the salary just be lowered to where it was prior to the beginning of Senator Clinton’s current term?

The answer hinges on whether the phrase “have been increased during such time” refers to a net increase over the period of time in question, or to any individual instance of an increase. If it’s the latter–which, according to the two Emoluments Clause experts (isn’t legal academia wonderful?) quoted at length by Professor Volokh, is the more reasonable reading of the clause–then Clinton would be ineligible to serve as secretary of state until 2012 and nothing could be done about it.

Volokh prefers the ‘net increase’ version:

Here’s my very tentative thinking: I think the phrase “the Emoluments whereof shall have been encreased during such time” is ambiguous. It could mean “shall have been increased at least once,” or it could mean “shall have been increased on net.” If you’re thinking about buying a computer, for instance, and you ask “Has the price of this computer been increased during the last year?,” it seems to me quite possible that you would mean “Has it been increased so that it now costs more than it cost a year ago?,” rather than “Has it been increased at all, even if the price hike was entirely rolled back a month later?”

I think this is obviously wrong.

(more…)

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.

Those commas are a disaster, but at the end it says “shall not be infringed.”  It might be nice to infringe that right these days, but I don’t see how you could possibly argue it was constitutional.  Try this out as a comparison:

A free speaking people, being necessary to the security of a free State, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Nor does it make any difference if the premise is mistaken or irrelevant:

Santa Claus, being a well known pederast, No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The fact that Santa Claus is neither a pederast, nor exists, nor is in any way germane to the question of quartering soldiers, seems immaterial to whether the rest of that hypothetical amendment is in force.