Mirror of Justice

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Thursday, December 11, 2014

"The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History." (Lord Acton)

Like many, I have read reports about the recently released Senate report on torture, but have not read the report. And if I were to read the report, I'm sure that I would have many questions that remain unanswered. But in thinking about the issues raised by the reports, it helps to be as clear-eyed as possible about the immorality of torture as an intrinsic evil. An act that is intrinsically evil is one that is never permissible, regardless of its circumstances. 

The relationship between intrinsic evil and the criminal law is complicated. So, too, the relationship between moral judgment and the judgment of history. For a stringent take on both, though, one can turn to Lord Acton. I have included below some selections from his letters, which can be viewed in context at the Online Library of Liberty's page, Acton on Moral Judgment in History:

No doubt the responsibility in such a case is shared by those who ask for a thing. But if the thing is criminal, if, for instance, it is a licence to commit adultery, the person who authorises the act shares the guilt of the person who commits it.

Here again what I have said is not in any way mysterious or esoteric. It appeals to no hidden code. It aims at no secret moral. It supposes nothing, and implies nothing but what is universally current and familiar. It is the common, even the vulgar, code I appeal to.

I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority, still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it.

Here are the greatest names coupled with the greatest crimes; you would spare those criminals, for some mysterious reason. I would hang them higher than Haman, for reasons of quite obvious justice, still more, still higher for the sake of historical science.

Quite frankly, I think there is no greater error. The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History.

If we may debase the currency for the sake of genius, or success, or rank, or reputation, we may debase it for the sake of a man’s influence, of his religion, of his party, of the good cause which prospers by his credit and suffers by his disgrace. Then History ceases to be a science, an arbiter of controversy, a guide of the Wanderer, the upholder of that moral standard which the powers of earth and religion itself tend constantly to depress. It serves where it ought to reign; and it serves the worst cause better than the purest. . . . My dogma is not the special wickedness of my own spiritual superiors, but the general wickedness of men in authority—of Luther and Zwingli, and Calvin, and Cranmer, and Knox, of Mary Stuart and Henry VIII., of Philip II. and Elizabeth, of Cromwell and Louis XIV., James and Charles and William, Bossuet and Ken.

The greatest crime is Homicide. The accomplice is no better than the assassin; the theorist is worse.

Of killing from private motives or from public, from political or from religious, eadem est ratio; morally the worst is the last. The source of crime is pars melior nostri, what ought to save, destroys; the sinner is hardened and proof against Repentance.

Crimes by constituted authorities worse than crimes by Madame Tussaud’s private malefactors.

Murder may be done by legal means, by plausible and profitable war, by calumny, as well as by dose or dagger.

December 11, 2014 in Walsh, Kevin | Permalink

Monday, December 8, 2014

Oral argument before Tenth Circuit panel to be held this morning in the Little Sisters of the Poor mandate challenge

A three-judge panel of the United States Court of Appeals for the Tenth Circuit will hear oral argument this morning in three cases brought by religious nonprofits seeking relief under RFRA and the First Amendment from compliance with the federal government's contraceptives mandate. These three cases are Little Sisters of the Poor v. Burwell, Southern Nazarene University v. Burwell, and Reaching Souls International v. Burwell. The three judges are Judge Scott M. Matheson, Jr., Senior Judge Monroe G. McKay, and Senior Judge Bobby R. Baldock.

Of these three cases, the Little Sisters of the Poor case is probably the highest profile because the Little Sisters' case was only of only two in which religious nonprofits who sought preliminary relief were without it by late afternoon on New Year's Eve 2013. Justice Sotomayor's grant of temporary relief to the Little Sisters that evening , followed by the full Court's provision of such relief a few weeks later, was covered by national press. (The other case was Notre Dame's, but Notre Dame did not seek the same emergency Supreme Court relief that the Little Sisters sought.)

Although the complaint was filed over a year ago, this morning's hearing is the first time that lawyers for the Little Sisters of the Poor (as well as two Christian Brothers entities with whom the Little Sisters offer a health benefits plan) will appear in a courtroom with government lawyers to argue in person. Everything else has been done on paper.

The arguments were originally scheduled for September, but ended up being moved back to today. As the Little Sisters have noted: "December 8th is the feast of the Immaculate Conception, the patroness of the United States and our Congregation’s patroness. Little Sisters around the world renew their vows each year on the feast of the Immaculate. Please be assured of our prayers for you on this beautiful feast day." 

This kind of correspondence is not without precedent. The Supreme Court heard oral arguments in Hobby Lobby on March 25, the Feast of the Annunciation. (Admittedly, the Catholic Church does have many feast days.) In any event, even if you can't make it to the Byron White United States Courthouse in Denver this morning, please keep the Little Sisters, Christian Brothers, and their lawyers in your prayers. (If you're Catholic, you can do this while discharging your duty to attend Mass on this holy day of obligation.)

December 8, 2014 in Walsh, Kevin | Permalink

Friday, November 21, 2014

The interpretive significance of the Constitution's positivity in a classical natural law jurisprudence

At The Originalism Blog, a recent post by Mike Rappaport distinguishes among "three main arguments for originalism" and explores a hybrid approach "that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law."

The three main arguments for originalism Rappaport identifies are: "1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law)." Later in the post, Rappaport links "the positivist theory" to a theory that relies on a "rule of recognition." This linkage makes clear that the third kind of argument in Rappaport's taxonomy really is "positivism" rather than simply about the original meaning of the Constitution being positive law. This distinction is important because positivism need not be the only game in town when it comes to jurisprudential frameworks for (1) understanding the Constitution as positive law, or (2) underwriting a positive-law-based argument for some form of constitutional originalism. 

In particular, it seems to me that classical natural law jurisprudence has the potential to provide a powerful set of arguments for something like what Steve Sachs has recently (and aptly) called "original-law originalism." To be clear, I do not contend that classical natural law jurisprudence on its own does (or can) prescribe anything nearly as specific as, say, original-law originalism. The idea instead is that classical natural law jurisprudence may be able to explain the kind of positive law that the Constitution is in a way that supports original-law originalism as a jurisprudentially superior approach to rival theories of constitutional interpretation. 

This post is but a stab at a start. Whether to continue this inquiry and how far to take it will depend on how well arguments that I have not yet worked out actually do work out. (For earlier analysis and discussion of some issues that I may touch on, see this exchange between Robert George and James Fleming published in 2001 in the Fordham Law Review: George essay, Fleming critique, George reply, Fleming surreply, additional comments by George).

A good place to begin is classical natural law theory's account of the law's authority. Finnis writes:

Natural law theory's central strategy for explaining the law's authority points to the under-determinacy (far short of sheer indeterminacy) of most if not all of practical reason's requirements in the field of open-ended (not merely technological) self-determination by individuals and societies. Indeed, the more benevolent and intelligent people are, the more they will come up with good but incompatible (non-compossible) schemes of social coordination (including always the 'negative' coordination of mutual forbearances) at the political level--property, currency, defence, legal procedure, and so forth. Unanimity on the merits of particular schemes being thus practically unavailable, but coordination around some scheme(s) being required for common good (justice, peace, welfare), these good people have sufficient reason to acknowledge authority, that is, an accepted and acceptable procedure for selecting particular schemes of coordination with which, once they are so selected, each member of the community is morally obligated to cooperate precisely because they have been selected--that is, precisely as legally obligatory for the morally decent conscience. (CWJF IV.5.114-14)

Situating the Constitution of the United States within this account, the moral obligatoriness of the Constitution takes the form of legal obligation to cooperate with the Constitution as the posited scheme of coordination for serving the common good.

(Note: References to the Collected Works of John Finnis will take the form "CWJF Volume.Chapter.Page(s).)

November 21, 2014 in Walsh, Kevin | Permalink

Tuesday, November 18, 2014

Animus-based invalidation of really old man-woman marriage laws

I guess I should have been reading blog posts instead of law review articles. A little earlier today, Dale Carpenter published a Volokh Conspiracy post criticizing one part of Judge Sutton's rational basis analysis in DeBoer v. SnyderThe first link in that post is to an earlier VC post by Professor Carpenter about a district court decision holding unconstitutional a Michigan law prohibiting localities from extending benefits to employees' same-sex domestic partners. And that earlier post includes a discussion about the scope of animus-based arguments against legal definitions of marriage as the union of one man and one woman. After identifying five factors for an animus analysis (textual, contextual, procedural, effectual, and pretextual) and contending that they show the unconstitutionality of the state constitutional amendments that "constitutionalized marital definitions of the first time," Professor Carpenter turns to the marriage statutes that preceded these amendments. He writes: 

Even the remaining exclusion of same-sex couples from marriage reflected in longstanding state statutes may be vulnerable to animus attacks based on the other objective factors noted above. It can hardly escape notice that states have consciously and steadfastly refused to include same-sex couples in their marriage statutes, in addition to specifically excluding them through anti-SSM state constitutional amendments and through state "mini-DOMAs" that deny all recognition to married same-sex couples from out of state. A failure to include, as well as an affirmative act to exclude, may also reflect animus against a class. That is at least a question the Supreme Court may now consider.

If animus-based invalidation extends to encompass statutory definitions from the late-eighteenth and early-nineteenth century, then the remedial question asked in my prior post has an easy answer. The remedy for animus-based invalidation of state constitutional amendments defining marriage as the union of one man and one woman cannot be a return to the status quo ante because that status quo was also unconstitutional.

This expansive understanding of animus seems to present problems of its own. For example, Professor Carpenter describes animus analysis as a type of purpose-based constitutional test. But it would not have been possible to form the purpose to exclude same-sex couples from marriage at least until it was possible to conceive of marriage as potentially including same-sex unions. That may be why Professor Carpenter focuses on conscious and steadfast refusal to expand marriage definitions, which in turn would seem to raise a state action problem. In any event, I wanted to link to Professor Carpenter's posts because they contained one answer to the question asked in my last post.

November 18, 2014 in Walsh, Kevin | Permalink

Why isn't the remedy following from animus-based invalidation of more recent marriage laws return to the status quo ante?

Judicial holdings of unconstitutionality come in various shapes and sizes. And the shape and size of the judicial remedy following from an unconstitutionality holding depends in significant part on the substantive constitutional law that specifies the precise nature of the constitutional problem identified. These are uncontroversial commonplaces.

There is often room for controversy, though, over just how the relationship between right and remedy should be specified in particular cases. One aspect of Judge Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder that has not received as much attention as it should is his discussion of the limited remedy that would follow from invalidation of relatively recent state constitutional amendments regarding marriage on the ground that they were enacted out of anti-gay animus. This discussion comes at the end of Part II.D of his opinion, right in the analytical middle of his examination of the constitutionality of man-woman marriage definitions. (The analysis of animus-based invalidation is in the fourth of seven sections in Part II.) But the groundwork for the argument appears in Part I, where he discusses the genealogy of current marriage law in each of the four states whose definitions of marriage were at issue.

Michigan, Kentucky, Ohio, and Tennesse each defined marriage as the union of one man and one woman well before same-sex marriage was contemplated in any state. Each of these four states also enacted a constitutional amendment locking in the man-woman definition in the first decade of the twenty-first century. Sutton contends that the argument for animus-based invalidation is limited to these constitutional amendments, and that accepting that theory of invalidation would simply return each state's marriage law to the pre-amendment status quo: 

Even if we agreed with the claimants that the nature of these state constitutional amendments, and the debates surrounding them, required their invalidation on animus grounds, that would not give them what they request in their complaints: the right to same-sex marriage. All that the invalidation of the amendments would do is return state law to where it had always been, a status quo that in all four States included state statutory and common law definitions of marriage applicable to one man and one woman--definitions that no one claims were motivated by ill will. The elimination of the state constitutional provisions, it is true, would allow individuals to challenge the four States' other marital laws on state constitutional grounds. No one filed such a challenge here, however.

This argument sounds right to me. But perhaps I misunderstand the scope of the argument for animus-based invalidation. If heteronormativity equals animus, for instance, then the argument for invalidation runs all the way down and back. But if a "go-slow" rationale for maintaining the pre-Goodridge status quo could defeat an animus argument against a state's more recent marriage amendment, as Dale Carpenter has suggested might be the case (see fn. 31) while also suggesting there may be other constitutional problems apart from animus, then codification of the heteronormative status quo in the late eighteenth or early nineteenth century is probably not vulnerable to an animus-based attack either. Hence the title of this post: Why isn't the remedy for animus-based invalidation of more recent marriage laws return to the status quo ante?

November 18, 2014 in Walsh, Kevin | Permalink

Friday, November 14, 2014

SSM & S5MT -- two objections answered and six federalism scholars questioned

I’ve argued previously that one can reason back from Congress’s lack of power to enact legislation requiring states to provide marriage for same-sex couples to the conclusion that Section 1 of the Fourteenth Amendment does not require states to provide marriage for same-sex couples. The argument is straightforward in form. If Section 1 of the Fourteenth Amendment requires states to provide marriage for same-sex couples, then Section 5 provides Congress with power to enact legislation compelling states to satisfy that requirement. But because Congress lacks such power under Section 5, Section 1 must not impose such a requirement.
 
This is a Section 5 modus tollens argument: If P, then Q; not Q; therefore, not P.
 
This is not a typical form of argument about the meaning of the Fourteenth Amendment. The interdependence of Section 1 and Section 5 is widely recognized, but this modus tollens argument breaks into the circle in an unusual spot. It uses the lack of congressional power to argue for the absence of a constitutional right. The argument usually runs the other way; one takes the presence or absence of a Section 1 right as a premise and uses that to draw a conclusion about the presence or absence of derivative congressional power under Section 5.
 
Is the usual way the only permissible way? Is there something wrong, as a matter of constitutional law, with arguing from the absence of Section 5 power to the absence of Section 1 right?
 
Two potential objections to Section 5 modus tollens come to mind.
 
One is that congressional power under Section 5 to enforce a Section 1 right is contingent on prior judicial recognition of such a right. 
 
This judicial pre-recognition requirement would be odd as a matter of original meaning given the evident congress-empowering function of Section 5. It would also extend beyond the requirements of current doctrine as I understand them. True, Boerne v. Flores requires congruence and proportionality between Section 5 legislation and the requirements of Section 1 as previously set forth by the Supreme Court. And given Baker v. Nelson, federal legislation that required states to provide same-sex marriage might be doomed under Boerne if enacted today. But if the Supreme Court simply had not spoken one way or the other on a constitutional right to same-sex marriage, I’m not aware of a doctrinal requirement that Congress would have to wait for explicit judicial recognition of such a right under Section 1 before enacting legislation to enforce it under Section 5.  The understanding of Section 1 underlying such legislation would be subject to displacement by a contrary judicial understanding of the requirements of Section 1 (something like a hypothetical Baker v. Nelson II (2015)). But the risk of invalidation because Congress predicts incorrectly what the Court would hold should not deprive Congress of the ability to predict. After all, maybe Congress and the Court will agree. If Congress had statutorily required states to provide interracial marriage the year before Loving v. Virginia, for example, that legislation would have and should have been valid even though enacted before the Supreme Court had explicitly confirmed the unconstitutionality of state prohibitions of interracial marriage.
 
A second potential objection to Section 5 modus tollens is that the legal validity of the premise about lack of congressional power simply cannot be known with the requisite legal certainty given legal uncertainty about the existence of a Section 1 right from which the existence of such Section 5 power could be derived. As long as this uncertainty persists, the assertion that “there is no Section 1 right because there is no Section 5 power” can always be met with the counter-assertion that “there is Section 5 power because there is a Section 1 right.”
 
This objection seems mistaken. If Section 1 right and Section 5 power stand or fall together, there is no reason in principle to think that we cannot eliminate legal uncertainty about one through legal certainty about the other. For example, we can know that Congress lacks power to eliminate equal representation of the states in the Senate. From that, we can infer that Section 1 does not provide an individual right to equal personal representation in the United States Senate. And we can be confident about the absence of such a Section 1 right even though one can generate plausible arguments for the existence of such a right from existing constitutional doctrine. 
 
What, if anything, can we know about Section 5 power without knowing one way or the other whether a Section 1 right exists? One place to start may a brief filed by a group of federalism scholars in United States v. Windsor. This brief expressed agnosticism about the existence of a constitutional right to same-sex marriage under the Equal Protection Clause. (I assume the scholars were similarly agnostic about the existence of such a right under the Due Process Clause or the Privileges or Immunities Clause as well, but this is not stated explicitly in the brief.) And the focus of the brief is on Congress’s enumerated powers, by which the scholars meant enumerated in Article I. The statements in the brief should therefore not be taken as assertions about the scope of congressional power under Section 5 of the Fourteenth Amendment. But in considering some of these statements about the absence of congressional power to define marriage, a question for those scholars and their lawyers is: Why not extend these claims to Section 5 as well? 
 
 Here are some statements from their brief about congressional power to define marriage:
 
‘[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.’ Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). … Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.
[3-4]
 
The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do.
[5]
 
[T]he federal government lacks constitutional authority to determine marital status in a blanket way.
[7]
 
In divisive social controversies like the debate over same-sex marriage, federalism lets each State and its citizens decide how to proceed, largely free of national pressure.
[9]
 
State-by-state policy diversity also facilitates experimentation, which can help resolve divisive questions reflecting deep-seated individual views about rights.
[10]
 
Only states can confer and define marital status under their police powers.
[26]
 
This Court has frequently, and recently, echoed that determining family status remains a State power.
[27]
 
DOMA … interferes with the States’ exercise of their reserved power to define marriage for their own purposes.
[31]
 
These statements support the claim that Congress lacks authority to require States to adopt a particular definition of marriage, such as one that recognizes same-sex unions as marriages. To be clear, though, the brief cautions: “Any State’s choice remains subject, of course, to the Fourteenth Amendment’s constraints, and we do not argue that state sovereignty provides any reason to narrowly construe the Equal Protection Clause. But unless equal protection requires recognition of same-sex marriage, the Constitution best protects liberty of same-sex marriage’s proponents and opponents by guaranteeing each State the right to decide for itself.” Given this reservation, it would not be inconsistent for one of these scholars to affirm Section 5 power for Congress to require states to provide marriage to same-sex couples. But why not interpret the Equal Protection Clause in light of the Constitution’s reservation of authority to the states to define marriage? 

November 14, 2014 in Walsh, Kevin | Permalink

Big D.C. Circuit loss for religious nonprofits in contraceptives mandate cases

A three-judge panel of the D.C. Circuit unanimously rejected all RFRA, APA, and constitutional challenges to the federal contraceptives mandate brought by a collection of religious nonprofits. Judge Pillard wrote the opinion for the court in Priests for Life v. HHS, in which Judge Rogers and Judge Wilkins joined. 

There is much to consider in the 86-page opinion. But from an initial review, the opinion seems to be the best that the government could have hoped for. On the RFRA claim, for example, the panel not only concludes that the mandate imposes no substantial burden because of the "accommodation" for non-exempt religious nonprofits, but also goes on to conclude that the government's scheme is the least restrictive means of advancing a compelling government interest. The main problem for the government, though, is that the opinion reads much more like Justice Ginsburg's Hobby Lobby dissent and Justice Sotomayor's Wheaton College dissent than Justice Alito's opinion for the Court in Hobby Lobby.  

(Note: Because I serve as counsel in a similar case that remains pending, I have tried to steer clear from getting too deep into blog analysis and criticism. I plan to maintain that course with respect to this opinion as well.) 

November 14, 2014 in Walsh, Kevin | Permalink

Thursday, November 13, 2014

Linda Greenhouse on King v. Burwell and "the devoutly Catholic chief justice" (Trinity Code Ed.)

Linda Greenhouse detects a possible conservative conspiracy to "put the heat on John Roberts." Her evidence is an opinion piece by John Yoo at National Review Online. In that piece, Yoo lays out four reasons that the Supreme Court is likely to agree with the petitioners in King v. Burwell that the Patient Protection and Affordable Care Act only authorizes subsidies to purchase insurance coverage for those who purchase from a state-established exchange. 

Yoo's reason three is that the case provides Chief Justice Roberts "the chance to atone for his error in upholding Obamacare as a valid use of the taxing clause in that case." Yoo argues that "it will be the mission of [Roberts's] Chief Justiceship to repair the damage." 

As the careful reader has no doubt already discerned from this language, Yoo is obviously trying to influence Chief Justice Roberts by appealing to his Catholicism. Linda Greenhouse explains: "His choice of the words 'atone' and 'mission,' with their religious resonance addressed to the devoutly Catholic chief justice, is no accident." Obviously. And that is really only scratching the surface. Maybe because Greenhouse is not Catholic, she did not know that part of our code is to send these religiously resonant messages in our third point. Because, the Trinity. (I have no idea whether Yoo is Catholic, but if not, he probably knows the Trinity code secret from some of his Catholic friends.)

Or maybe Greenhouse just did not want to pile on. Maybe her knowledge of the Trinity code is what explains her focus only on the first three sentences of Yoo's point three. Once you know what message is really being conveyed, you can ignore obvious surplusage like the fourth sentence: "Plus, the insincere misreading of the statute will grate especially hard on Roberts's professionalism--he seems to take seriously getting the right lawyerly answer to technical statutory questions." You see, Yoo obviously cannot believe that or expect his readers to believe it either. Plus, that fourth sentence, like this fourth sentence, begins with plus. Plainly surplusage, like this paragraph. (As any good Catholic coder would, I made my real point in the third paragraph. In case it wasn't obvious, and to help the uninitiated, that's why my third word in my third paragraph was "careful" and my third sentence was just one word: "Obviously." For those keeping score at home, extra points for just one word in sentence three of paragraph three and triple word score bonus for third word in title reading "no" spelled backwards.)

November 13, 2014 in Walsh, Kevin | Permalink

Wednesday, November 12, 2014

The South Carolina same-sex marriage order, limits on judicial power, and judicial supremacy

A federal district court in South Carolina issued a decision today that applied binding Fourth Circuit precedent to require same-sex marriage in South Carolina. (HT: Howard Wasserman at Prawfsblawg.) The district court refused to issue a stay pending appeal but did issue a temporary stay to give state officials time to seek a stay from the Fourth Circuit or the Supreme Court. In doing so, the court noted that a stay request in a similarly situated case from Kansas is pending at the Supreme Court right now.

On one level, this was a super-easy case, as easy as they come. A federal district court must follow binding circuit-court precedent. But there are some tough issues in the case as well. Consider the juxtaposition of the decision on the merits (plaintiffs win and should get their marriage license) with the practical effect (plaintiffs cannot get their marriage license while the ruling remains  stayed). Consider, further, the district court's acknowledgment that the temporary stay was unwarranted under the normal test for a stay:

The Court is mindful that the strict application of the four part test for the granting of a stay would result in the denial of even this one-week temporary stay. However, sometimes the rigid application of legal doctrines must give way to practicalities that promote the interest of justice. Providing this Court's colleagues on the Fourth Circuit a reasonable opportunity to receive and consider Defendant Wilson's anticipated petition for an appeal stay justifies this brief stay of the Court's injunctive relief in this matter.

Part of the problem here is that nationwide constitutional change is a messy process when carried out via federal courts of limited jurisdiction. Even if one thinks the Constitution is what the courts say that it is, the Constitution today means something different in Columbus than it does in Charleston until the Supreme Court promulgates a ruling from its perch in the District of Columbia. (And even that assumes we know what the Constitution means in Charleston while the ruling effectuating same-sex marriage there is stayed.)

There are many problems with judicial supremacy, but one of its touted benefits is a settlement function of sorts to eliminate messy disputes about constitutional meaning once the court of supremacy has spoken. This settlement function is not always successful; some Supreme Court rulings exacerbate constitutional conflict, as with Roe v. Wade. But in theory, at least, judicial supremacy provides a solution to problems presented by constitutional change.

By providing, roughly speaking, that our country's supreme law is what the Supreme Court declares the Constitution to mean, judicial supremacy serves the functions served by all three kinds of secondary rules identified by H.L.A. Hart as necessary for a well-working legal system. These are rules of recognition, rules of change, and rules of adjudication. Judicial supremacy looks like a rule of recognition. You know what the law is by looking to what the Supreme Court says that it is. But it operates via rules of adjudication. These govern how and when the Supreme Court can declare what the law is. And it functions as a rule of change. Constitutional law changes as the Supreme Court, following rules of adjudication, authoritatively declares it to change (rule of recognition). 

November 12, 2014 in Walsh, Kevin | Permalink

Tuesday, November 11, 2014

Section 5 Modus Tollens and Same-Sex Marriage via Federal Legislation

Suppose we assume that Congress lacks the constitutional authority to require states to redefine marriage to include same-sex unions. From this assumption, it can be shown rather easily that the Supreme Court lacks the same authority, at least insofar as such authority depends on interpretation of Section 1 of the Fourteenth Amendment. We can call the way of showing this Section 5 modus tollens. The same-sex marriage version of it goes something like this:

(1) If Section 1 of the Fourteenth Amendment provides a constitutional right to marry a person of the same sex, then Congress has authority under Section 5 of the Fourteenth Amendment to require states to redefine marriage to include same-sex unions.

(2) Congress possesses no such authority.

-------

(3) Section 1 of the Fourteenth Amendment does not provide a constitutional right to marry a person of the same sex. 

This is a valid form of argument: (1) if P, then Q; (2) not Q; (3) therefore, not P. If the argument is unsound, it must be that one of the premises is wrong.

Perhaps one might question the connection between the existence of a Section 1 right and the existence of Section 5 enforcement authority. But premise (1) seems pretty solid. Even those Justices who insist on a pretty tight connection between Section 5 enforcement legislation and the existence of constitutional violations under Section 1 would recognize the validity of federal legislation that prohibits states from defining marriage in a way that causes widespread and recurring constitutional violations stemming from the regular denial of marriage to same-sex couples possessing a constitutional right to enter into marriage.  

The pressure point for the argument must be premise (2). Even if Congress generally lacks the power to insist on a particular definition of marriage, it possesses authority to enact legislation ensuring that state definitions do not cause constitutional violations. Just as Congress could have enacted a valid federal statute requiring the provision and recognition of interracial marriage, for example, Congress can enact a valid federal statute requiring the provision and recognition of same-sex marriage. That's how the argument would go, anyhow.

The interdependence of Section 1 and Section 5 of the Fourteenth Amendment provides some reason for caution relating to the judicial recognition of new rights under the Fourteenth Amendment. The stakes are higher because individual rights and the growth of federal legislative authority go hand in hand. Judicial expansion of individual rights under Section 1 increases federal legislative authority under Section 5. As far as I am aware, however, the only federal circuit court opinion thus far addressing a version of this Section 5 argument in connection with a right to same-sex marriage is Judge Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder.

Judge Sutton's discussion of Section 5 came in the portion of his opinion addressing why United States v. Windsor did not support the application of heightened scrutiny: "A decision premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage nationally to include same-sex couples not only would divest the States of their traditional authority over this issue, but it also would authorize Congress to do something no one would have thought possible a few years ago--to use its Section 5 enforcement powers to add new definitions and extensions of marriage rights in the years ahead. That would leave the States with little authority to resolve ever-changing debates about how to define marriage (and the benefits and burdens that come with it) outside the beck and call of Congress and the Court. How odd that one branch of the National Government (Congress) would be reprimanded for entering the fray in 2013 and two branches of the same Government (the Court and Congress) would take control of the issue a short time later."

Given the convoluted mess of Section 5 doctrine at present, Judge Sutton may have overstated the expansion of Section 5 legislative authority that would actually result from adoption of heightened scrutiny to analyze the constitutionality of state laws defining marriage as the legal union of one man and one woman. Fresh off of recognizing a new constitutional right to same-sex marriage, Justice Kennedy could try to contain the federalism logic of that expansion, I suppose. But the linkage between Section 5 federal legislative enforcement authority and Section 1 individual rights recognition is undeniable and important. It has also been largely unappreciated up to this point.

November 11, 2014 in Walsh, Kevin | Permalink