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).)
Tuesday, November 18, 2014
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. Snyder. The 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.
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?
Friday, November 14, 2014
‘[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.
[T]he federal government lacks constitutional authority to determine marital status in a blanket way.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.
State-by-state policy diversity also facilitates experimentation, which can help resolve divisive questions reflecting deep-seated individual views about rights.
Only states can confer and define marital status under their police powers.
This Court has frequently, and recently, echoed that determining family status remains a State power.
DOMA … interferes with the States’ exercise of their reserved power to define marriage for their own purposes.
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.)
Thursday, November 13, 2014
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.)
Wednesday, November 12, 2014
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).
Tuesday, November 11, 2014
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.
Monday, November 10, 2014
The Sixth Circuit's recent split-panel ruling on the constitutionality of four states' legal definition of marriage as the union of one man and one woman has unleashed a wave of commentary. Most of the commentary I've come across has been critical of Judge Sutton's opinion for the panel majority.
Generally speaking, criticism by legal scholars has been more measured than popular criticism in both substance and tone; some academic critics have even acknowledged that Judge Sutton's opinion contains some respectable (or at least competent) legal arguments. My impression, nevertheless, is that most law professors (a substantial supermajority) have an opinion that resembles in substance and tone some of the more popular criticism. That may be one reason why it is hard to find commentary by law professors expressing agreement with Judge Sutton's opinion.
Another reason is the nature of the issues. One of the biggest challenges confronting the judges deciding these appeals was figuring out the best doctrinal framework for analyzing the legal claims. The Supreme Court (at least those in a Supreme Court majority) can determine this by fiat. But lower-court judges do not have that power. Judge Sutton addressed this challenge by looking at the core Fourteenth Amendment claims through seven different lenses, all in an admirably concise twenty-six pages (part II of the opinion, sections A-G, pp. 13-38). These were: (1) the perspective of an intermediate court [II.A, pp. 13-17]; (2) original meaning [II.B, pp. 17-18]; (3) rational basis review [II.C, pp. 19-24]; (4) animus [II.D, pp. 24-28]; (5) fundamental right to marry [II.E, pp. 28-31]; (6) discrete and insular class without political power [II.F, pp. 31-35]; and (7) evolving meaning [II.G, pp. 35-38].
Given the challenges posed by the variety of analytical frameworks, and in light of the range of sub-issues presented by each, my overall assessment of Judge Sutton's opinion is very positive. (No surprise there, of course for anyone familiar with my previous assessments of the constitutional issues and of Judge Sutton.) Judge Sutton's discussions of Baker v. Nelson [II.A] and of rational basis review [II.C] are particularly praiseworthy.
I had originally titled this post "in defense of the Sixth Circuit's marriage decision." But I abandoned that title because a post with such a title would have to be much longer or just part one of a series. Instead, I offer here three steps in a chain of reasoning designed to explain to critics of the Sixth Circuit's marriage decision where at least some of us who believe it to be constitutionally correct are coming from.
First, "[t]his [really, actually, truly] is a case about change--and how best to handle it under the Constitution." If the federal Constitution provides a right to marry a person of the same sex, then federal courts obviously must enforce that right regardless of what popular majorities think. But if the federal Constitution does not provide such a right, then federal courts have no authority to act as if it does. In resolving the legal questions surrounding the existence of such a right, Judge Sutton's consideration of the broader constitutional structure of which the Fourteenth Amendment is just one part was entirely appropriate.
Second, the relatively new belief that the federal Constitution provides a right to marry a person of the same sex is most readily understood as resulting from a change in public opinion rather than a change in the content of constitutional law.
Third, it is unlikely that the federal Constitution provided a right to marry a person of the same sex prior to the relatively recent changes in public opinion. It is possible, of course, but not likely.
There is more that one can say with respect to each of these three claims and how they relate. For example, a change in public opinion may have enabled judges finally to see that the Constitution has always (or at least since 1868) provided a right that prior generations have been unable to see. Or maybe the Constitution does and should change in response to changes in public opinion. But recognizing the centrality of change to the issues decided in the Sixth Circuit appeal should take critics a long way toward recognizing the reasonableness of Judge Sutton's disposition even if they are ultimately unmoved on the outcome.
In light of press reports from last week's oral arguments in Yates v. United States, my prediction that petitioner would lose unanimously seems unsustainable. Be that as it may, I remain puzzled about the legal grounds on which various Justices on the Supreme Court might vote to reverse petitioner's conviction.
As briefed, Yates is largely a statutory interpretation case: Does the criminal statutory prohibition of intentional destruction of evidence to impede a federal investigation apply to the disposal of the best evidence of the underlying civil violation? The most straightforward way to answer no, I think, is through Bond-style statutory interpretation. This is an approach to statutory interpretation that places very heavy reliance on statutory context in interpreting the text. Here that context is the surrounding language, the nature of the specific problems that motivated Congress to act, and an already bloated federal criminal code. Reliance on context in some form or another is always important for interpretation, of course. The weight of that context relative to the text, and what counts as relevant context, though, often divides interpreters, as it did in Bond. Concurring in the judgment in that case, Justice Scalia viewed the majority's statutory interpretation to be more in the nature of MacGyver-style interpretation. And that is my impression of petitioner's interpretation in Yates: "As sweeping and unsettling as the [evidence destruction statute] may be, it is clear beyond doubt that it covers what [Yates] did; and [the Supreme Court] has no authority to amend it."
There was some suggestion in the questioning at oral argument that constitutional concerns about fair notice were motivating some of the Justices' skepticism about the broad reach of the evidence-destruction statute at issue. This picked up on petitioner's arguments about constitutional avoidance and the rule of lenity. Standing alone, such arguments might not be enough for the Court as currently constituted. But these were only the last of petitioner's arguments in his opening brief. The lead arguments were about statutory context and the application of noscitur a sociis and ejusdem generis. Based on oral argument, these arguments apparently have more traction with the Court than I previously appreciated. In any event, those looking for new arguments in Yates will have read up to this point in vain. But this is where it ends. We will see soon enough if the government's arguments were good enough. In the meantime, the criminal law professors' arguments are also looking to be stronger than I believed they would be. If those arguments end up being adopted in an opinion for the Court (as they were by various Justices at oral argument), kudos to Rick Garnett and Greg Sisk for being on the right side of interpretive history on this intra-MOJ split.