Friday, October 31, 2014
Jeremy Waldron has posted his paper, "Judicial Review and Judicial Supremacy". Here is the abstract:
This paper attempts to identify a particular constitutional evil -- namely, judicial supremacy -- and to distinguish the objection to judicial supremacy from the broader case that can be made against judicial review. Even if one supports judicial review, one ought to have misgivings about the prospect of judicial supremacy. The paper associates judicial supremacy with three distinct tendencies in constitutional politics: (1) the temptation of courts to develop and pursue a general program (of policy and principle of their own) rather than just to intervene on a piecemeal basis; (2) the tendency of the highest court to become not only supreme but sovereign, by taking on a position of something like broad sovereignty within the constitutional scheme (thus confirming Thomas Hobbes in his conviction that the rule of law cannot be applied at the highest level of political authority in a state because any attempt to apply it just replicates sovereignty at a higher level)); (3) the tendency of courts to portray themselves as entitled to "speak before all others" for those who made the constitution, to take on the mantle of pouvoir constituant and to amend or change the understanding of the constitution when that is deemed necessary.
In my view, Waldron's critique (here and elsewhere) of certain versions and understandings of judicial review (i.e., the judicial-supremacy version) is important and powerful. I borrowed from his critique in this very short piece, "Judicial Enforcement of the Establishment Clause."
(Revised) I was sorry to learn, from this piece, that at an event featuring some of the very best journalists covering the Supreme Court (includes Bob Barnes, Tony Mauro, and Lyle Denniston), an appearance was made by the tired (and unfair) complaint that the annual "Red Mass" in Washington D.C. is (in Mauro's words) a "regularized ritual" reflecting the fact that "[t]he Roman Catholic Church, maybe more than any other churches, has made a project of trying to impose its doctrine on the judiciary and other parts of the government.” [Note: I was happy to learn, via Twitter, from Mr. Mauro, that he was referencing someone else's views, and not endorsing this statement himself.] The Mass is a "ritual" of course, but the sentence about this alleged "project" is unfair, inflammatory, and unworthy, and traffics in some of the (to put it mildly) less-attractive themes in American history. To propose is not to impose, and to support the enactment of laws that one believes to be consonant with human rights, human dignity, and social justice -- that is, to, like the Catholic Church, advocate for immigration reform, social-welfare programs, an end to capital punishment . . . and religious freedom and legal protection for unborn children -- is not to "impose doctrine."
Another participant, CUA's Marshall Breger, said, with respect to the Hobby Lobby case, said "the notion that the Hobby Lobby owners could be implicit in a sin perpetrated by the company’s employees, in this case taking birth control, was probably rooted in Catholic doctrine." But, this "notion" was the belief asserted in the litigation by Hobby Lobby and their non-Catholic owners, the Greens. The Catholic justices did not posit or endorse the belief, but simply note that it was sincerely held and, as a result, RFRA requires careful scrutiny of government-imposed burdens on that belief. Nothing nefarious -- or even distinctly Catholic! -- about that.
Finally, Lyle Denniston -- whose coverage of the Court is, again, outstanding -- fell short of his usual standard when he said (assuming he is quoted accurately in the piece): “To accept the notion that a corporation, which is an artificial being, can have some manner of religious belief system transferred to it by its owners, aside from being pretty close to ludicrous, is highly debatable in terms of social philosophy." Actually, the notion is unremarkable and, in any event, this wasn't really the notion that the Court was asked to accept (see, e.g., pp. 20-25 of the Court's slip opinion). As Justice Alito explained, neither "corporate" status nor the profit motive categorically excludes a claimant from RFRA's protections. The question is not whether a corporation has a soul (as some have put it) but whether a law's application to a corporation can impose a substantial and unjustified burden on someone's religious exercise. And, as the Court explained, sometimes it can.
Wednesday, October 29, 2014
(From Tom Berg:) With oral argument approaching in the Supreme Court pregnancy discrimination case of Young v. United Parcel Service, UPS has announced that (as the Washington Post reports), "[S]tarting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well." The change in policy was announced to employees and in UPS's brief filed in the Court.
This is great news for UPS's female workers, those who are and those who will become pregnant. It also sends a high-profile message that accommodating pregnant workers is the just thing to do, especially when similar physical conditions stemming from (e.g.) on-the-job injuries are accommodated.
The Post reports that the brief of numerous pro-life organizations (which Lisa, Teresa Collett, and I helped draft) may have helped put pressure on UPS to change:
Young’s supporters say the UPS policy change comes as Young’s case has drawn increasing support from all across the political spectrum, including conservative groups opposed to abortion, like Americans United for Life, business groups, women’s groups, workers’ rights advocates and the left-leaning American Civil Liberties Union.
“This has been a public relations nightmare for UPS,” said Tom Spiggle, an employment attorney and author of a book on pregnancy discrimination, “You’re Pregnant? You’re Fired!”
This will not moot the Young case, because UPS still says its earlier denial of accommodation to Peggy Young was legal, and it's still defending against her damages claim.
Cross-posted at Whole Life Democrat)
I recently taught Tinker v. Des Moines Independent School District, the famous 1969 student speech case in which the Supreme Court held that the First Amendment protects the right of high school and junior high students to wear black armbands at school to protest the Vietnam War. There’s an odd reliance on precedent in a crucial passage of Tinker, though. Justice Fortas writes:
First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.
The authority for this sweeping characterization of half a century of student free speech rights? In the next sentence, Justice Fortas cites Meyer v. Nebraska (and its companion case, Bartels v. Iowa), the 1923 case striking down a state statute prohibiting foreign language instruction (a legacy of anti-German prejudice amid World War I) on the grounds that the Fourteenth Amendment protects the liberty of parents and teachers. (In dissent, Justice Black—ordinarily a free speech absolutist, but not for students—rejects Meyer as a vestige of Lochnerism.) The more obvious (but more recent) cite for student free speech, West Virginia v. Barnette (1943), is part of a string citation later in the paragraph and is discussed more fully in the next paragraph.
I suppose this is as an effort by the Court in Tinker to claim a longer historical precedent for recognizing student free speech, but it’s also an interesting re-reading of Meyer itself, albeit one that engages in rank anachronism and revisionism. Meyer was decided roughly a couple decades before incorporation of the First Amendment against the states, so the Court in Tinker (post-incorporation) is implausibly turning Meyer into a speech case (Justice McReynolds’s opinion in Meyer never refers to the First Amendment or to freedom of speech). And while those discomfited by Fourteenth Amendment substantive due process might like to save Meyer (and Pierce v. Society of Sisters, decided a couple years later) now by turning them into free speech cases, there’s something cavalier about Justice Fortas’s anachronistic treatment of Meyer. And then there’s the fact that the defendant in Meyer was a German language teacher (not the student), and Justice McReynolds refers throughout to the rights of teachers and parents but only once to any “rights” of students (the statute “interferes…with the opportunities of pupils to acquire knowledge”).
A final note about the political currents underlying these cases. Tinker and Meyer are surely the most famous constitutional cases to come out of Iowa and Nebraska, and they reflect the two neighboring states’ different political climates. Tinker recognizes the rights of anti-war protesting students in Des Moines, Meyer recognizes the rights of traditional German-American communities in rural central Nebraska to be free of conformist state interference. Iowa is slightly more urban (relatively speaking for the Midwest) and Nebraska more rural (Iowa has nine non-suburban cities with over 50,000 people, Nebraska only three—and Grand Island only barely), reflecting the urban-rural difference between the claimants in Tinker and Meyer. Iowa has historically had more Anabaptists (there are large Amish and Mennonite communities around the Amana Colonies, for example) and liberal Protestants, including the father of the Tinker children (a Methodist minister and American Friends Service Committee member). Late ninteteenth- and early-twentieth century Nebraska had an influx of German (like the defendant in Meyer) and Eastern European Lutherans and Catholics, historically more conservative groups. And so in next week’s US Senate elections, while Ben Sasse coasts to election as a conservative Republican in Nebraska, next door in Iowa another conservative Republican, Joni Ernst—while slightly favored to win—is in a much closer race. It’s all there in the rich history of Tinker and Meyer.
Professor Michael Rappaport has a really neat post about common law rights that are constitutionalized, and how one should interpret such rights. The post is particularly interesting for me because in my constitutional theory seminar, we are in between two classes that consider, respectively, the role of tradition and historical practice in constitutional interpretation, and the relationship between precedent and interpretive theory. But as Professor James Stoner has shown, there are many textual features of the Constitution that use terms rooted in common law understandings. What are the interpretive possibilities in such cases; what happens to a common law right that has been constitutionalized? Rappaport sets out 3 options:
1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.
2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.
3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.
It is not surprising that Professor Rappaport ends up opting for choice #3, because this choice maps fairly neatly onto his general interpretive defense (with Professor John McGinnis) of original methods originalism! See the post for his reasons. What is of special interest to me is the extent to which the Constitution depends upon common law terminology and common law ideas. For this, you really can't do better than Professor Stoner's work. But I suspect there is much more to be done in that area. In fact, sometimes I wonder whether anybody has ever reviewed the English experience with the term "establishment of religion" in the centuries before the Constitution's drafting (surely someone has).
Tuesday, October 28, 2014
The Liberty Law Talk podcasts hosted by Richard Reinsch are a wonderful resource (if you have an iPhone, you can subscribe via Apple’s podcasts app). A recent conversation with Roger Scruton was especially interesting and included the following--and typically insightful--comment from Scruton (transcribed from the recording beginning at 15:30):
I think my position is that you can’t detach what we are now from the history of our civilization, and the very fact that we have all these really remarkable ways of dealing with social conflict like the legal process, democratic process, and so on. The fact that we have those things is not to be understood as some kind of a priori invention. These are the byproducts of a civilization which was founded on something else. It was founded on a sacramental vision of what brings people together and the church has always exerted this control over people’s lives to remind them of this. It doesn’t do so anymore, of course, because we in many ways are in a post-Christian society but it...the Catholic Church made penitence into a sacrament and made the whole business of confession, accepting guilt, atoning for your faults, and begging for forgiveness--it made that into the fundamental religious experience, more fundamental than any other, and that worked its way into the legal system and the political system of the European states. You can certainly find it there in the law of tort in English common law and you can find it in everything until recently. I think we should always remember that we are downstream from this great spiritual inheritance.
Monday, October 27, 2014
Villanova hosted a noteworthy symposium recently on one of last term's major free speech cases, McCullen v. Coakley. Video of the event is available here, with remarks from Eleanor McCullen (lead plaintiff), Mark Rienzi (CUA and also Mrs. McCullen's counsel), Greg Magarian (Washington University-St. Louis), Carrie Severino (Judicial Crisis Network), and Kevin Walsh (Richmond). In addition to the significance of hearing directly from the plaintiff in such a case (as John Noonan long ago observed, we are apt to neglect the experience of actual, living persons behind a major case), the symposium was a rich conversation among participants who all (like the justices on the Court) basically agreed on the outcome of the case but for different reasons (and with different assessments of McCullen's long-term importance to such areas as public forum doctrine and content-neutrality analysis).
Saturday, October 25, 2014
John Gray has a long, superb essay on the subject (h/t L. Joseph), with scathingly acute criticisms of the modern sense in which evil is eminently conquerable through (of all things) politics, or really doesn’t exist, or must somehow be the result of somebody’s mistake, or could be cleared up as a simple matter confusion. Particularly keen are Gray’s comments about the way in which the old religious traditions offer certain insights on the matter, insights that are today largely either ignored or disbelieved. Read it all, including this:
It’s not that [most western leaders] are obsessed with evil. Rather, they don’t really believe in evil as an enduring reality in human life. If their feverish rhetoric means anything, it is that evil can be vanquished. In believing this, those who govern us at the present time reject a central insight of western religion, which is found also in Greek tragic drama and the work of the Roman historians: destructive human conflict is rooted in flaws within human beings themselves. In this old-fashioned understanding, evil is a propensity to destructive and self-destructive behaviour that is humanly universal. The restraints of morality exist to curb this innate human frailty; but morality is a fragile artifice that regularly breaks down. Dealing with evil requires an acceptance that it never goes away.
No view of things could be more alien at the present time. Whatever their position on the political spectrum, almost all of those who govern us hold to some version of the melioristic liberalism that is the west’s default creed, which teaches that human civilisation is advancing – however falteringly – to a point at which the worst forms of human destructiveness can be left behind. According to this view, evil, if any such thing exists, is not an inbuilt human flaw, but a product of defective social institutions, which can over time be permanently improved.
It’s in the Middle East, however, that the prevailing liberal worldview has proved most consistently misguided. At bottom, it may be western leaders’ inability to think outside this melioristic creed that accounts for their failure to learn from experience. After more than a decade of intensive bombing, backed up by massive ground force, the Taliban continue to control much of Afghanistan and appear to be regaining ground as the American-led mission is run down. Libya – through which a beaming David Cameron processed in triumph only three years ago, after the use of western air power to help topple Gaddafi – is now an anarchic hell-hole that no western leader could safely visit. One might think such experiences would be enough to deter governments from further exercises in regime change. But our leaders cannot admit the narrow limits of their power. They cannot accept that by removing one kind of evil they may succeed only in bringing about another – anarchy instead of tyranny, Islamist popular theocracy instead of secular dictatorship. They need a narrative of continuing advance if they are to preserve their sense of being able to act meaningfully in the world, so they are driven again and again to re-enact their past failures.
Many view these western interventions as no more than exercises in geopolitics. But a type of moral infantilism is no less important in explaining the persisting folly of western governments. Though it is clear that Isis cannot be permanently weakened as long as the war against Assad continues, this fact is ignored – and not only because a western-brokered peace deal that left Assad in power would be opposed by the Gulf states that have sided with jihadist forces in Syria. More fundamentally, any such deal would mean giving legitimacy to a regime that western governments have condemned as more evil than any conceivable alternative. In Syria, the actual alternatives are the survival in some form of Assad’s secular despotism, a radical Islamist regime or continuing war and anarchy. In the liberal political culture that prevails in the west, a public choice among these options is impossible.
There are some who think the very idea of evil is an obsolete relic of religion. For most secular thinkers, what has been defined as evil in the past is the expression of social ills that can in principle be remedied. But these same thinkers very often invoke evil forces to account for humankind’s failure to advance. The secularisation of the modern moral vocabulary that many believed was under way has not occurred: public discourse about good and evil continues to be rooted in religion. Yet the idea of evil that is invoked is not one that features in the central religious traditions of the west. The belief that evil can be finally overcome has more in common with the dualistic heresies of ancient and medieval times than it does with any western religious orthodoxy.
There follows an interesting discussion of Manicheanism and the views of Augustine, and then this:
In its official forms, secular liberalism rejects the idea of evil. Many liberals would like to see the idea of evil replaced by a discourse of harm: we should talk instead about how people do damage to each other and themselves. But this view poses a problem of evil remarkably similar to that which has troubled Christian believers. If every human being is born a liberal – as these latter-day disciples of Pelagius appear to believe – why have so many, seemingly of their own free will, given their lives to regimes and movements that are essentially repressive, cruel and violent? Why do human beings knowingly harm others and themselves? Unable to account for these facts, liberals have resorted to a language of dark and evil forces much like that of dualistic religions.
The efforts of believers to explain why God permits abominable suffering and injustice have produced nothing that is convincing; but at least believers have admitted that the ways of the Deity are mysterious. Even though he ended up accepting the divine will, the questions that Job put to God were never answered. Despite all his efforts to find a solution, Augustine confessed that human reason was not equal to the task. In contrast, when secular liberals try to account for evil in rational terms, the result is a more primitive version of Manichean myth. When humankind proves resistant to improvement, it is because forces of darkness – wicked priests, demagogic politicians, predatory corporations and the like – are working to thwart the universal struggle for freedom and enlightenment. There is a lesson here. Sooner or later anyone who believes in innate human goodness is bound to reinvent the idea of evil in a cruder form. Aiming to exorcise evil from the modern mind, secular liberals have ended up constructing another version of demonology, in which anything that stands out against what is believed to be the rational course of human development is anathematised.