QUESTION: I was just wondering in the Lawrence case why the comments after the case said that the Court did not explicitly spell out a standard for scrutiny when it seemed to me the Court was applying rational basis, as they used the language "legitimate" when discussing the State's interests?
ANSWER: Terrific question, and we will spend some time on this in class. You are of course correct that, near the end of the opinion, the Court states: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." This seems to connote rational basis review. But if the Court were actually applying rational basis review, why would it have talked at such length about the importance of the liberty interest at stake? If this were really rational basis review, then wouldn't the right at issue in Lawrence (however, exactly, we want to characterize it) be no more significant, for purposes of constitutional law, than the right of opticians to grind lenses without a prescription, or the right of milk distributors to sell skim milk with vegetable oil? The problem is that everything that precedes the sentence you identify suggests that this right is more important than the sorts of "rights," if we can even call them that, that trigger mere rational basis review. Indeed, every law, at least in theory, must be rationally related to a legitimate government interest to satisfy due process. So if any law would receive rational basis review, what explanation can there be for the Court to explain, over 30 pages, why what is at stake is more than just any right? We have to make sense of the whole opinion in its entirety, and not just that one sentence in isolation.
Wednesday, April 21, 2010
Thursday, April 15, 2010
The Court, politics, and the appointments process
QUESTION: I have a little bit of a rant here, but also a philosophical question to ask if you have time for it: Stevens was nominated by a Republican; now is seen as "liberal"; his confirmation vote was 98-0. I don't think such a vote is going to happen today. Are the appointments too politicized? And can anyone, those sitting on the court included, find a way to truly rise above politics and rule in an apolitical way? You've already noted the political leanings of the court throughout history. I am fascinated by 5-4 decisions handed down through the years and imagine how things might be different but for one vote. And how Professor Joondeph might be standing there presenting something totally different to us doctrinally but for that one vote. Is that something you contemplate as a teacher? I taught engineering classes for several years that were more concrete in terms of right and wrong answers and that shiftiness doesn't always sit well with me.
ANSWER: Lots of great stuff here. Let me try to take them in turn. Is the appointments process too politicized? In my view, no. These appointments have very significant political consequences; they shape the contours of constitutional law for years to come. Constitutional law, for instance, would be very different had Robert Bork become a justice rather than Anthony Kennedy. That said, I think a number of people behave ridiculously during these events, exaggerating the consequences and distorting candidates' records. But that is sort of a different question. I think the problem, if there is one, is that the country is more politically polarized than in prior eras. And that seems to be a product of the two parties opposing one another ideologically on just about every single major issue. In previous times, there were important political coalitions that crossed party lines. Northern Republicans voted with many Democrats (and southern Democrats voted with many Republicans) on civil rights issues in the 1960s and 1970s. Conservative Democrats voted with Republicans on labor questions. In short, our political system functioned with many cross-party coalitions. For whatever reason, that is now gone, and the parties are rather uniformly divided on most every issue. This has led to ideological polarization everywhere, including nominations to the Supreme Court. Nominations have been simply another place where this has played out.
Can anyone rule in an apolitical way? In a word, no. Constitutional law is inherently political. The issues are contentious, and many are deeply ideological. Most can be decided either way, with completely defensible legal arguments, supported by the traditionally accepted sources of legal authority. So no, it cannot possibly be apolitical. It could be less transparently political. Judges can be more self-aware, and we can ask judges to be more conscious of checking themselves, to try to examine whether they are being pulled too hard by the predispositions. But I think that is probably the most we can realistically hope for.
Might the law we are learning be totally different, but for one changed vote? Yes and no. In the short run, yes. What the particular justices think, based on their own ideological leanings, often make constitutional law what it is. And my job is to make some sense of it, regardless of its causal origins. I still think it is quite interesting, even if it is not "correct" in any way. In the medium or long run, I would say that those 5-4 votes are much less significant. The answers are still "political," but they are determined by the People, or at least the portion of the People that have political influence. The Court is shaped more than it shapes. So, while the justices resolve important questions in the short run, the long run is determined by elections, social movements, and much broader economic and cultural changes in society. 5-4 decisions that run counter to these larger forces will ultimately be discarded. Witness Slaughter-House, Lochner, and Plessy v. Ferguson.
Do I think about the randomness inherent this process of constitutional lawmaking? All the time. But I still think it is fascinating. Constitutional law represents a normative political vision. The subject is inherently political, as it shapes our national political life. It can never be anything like engineering as a subject matter, because the basic "rules" or "principles," unlike the law of gravity, will always be contested.
I think the best frame in which to view these things is to think about the Constitution as setting out a broad framework. Some of the rules are fairly hard-wired (each state gets two senators, laws must be passed by both houses, etc.). Others are very open-textured, and thus, to some degree, up for grabs. Each generation works within this framework, both to enact positive law (statutes and regulations) and to shape the open-textured elements of the constitutional text (what is the meaning of interstate commerce or due process?). It is always a work in progress. The Court is only one player. It is a very important one, especially in the short term. But it is more of a reflection of society's values in the long term.
ANSWER: Lots of great stuff here. Let me try to take them in turn. Is the appointments process too politicized? In my view, no. These appointments have very significant political consequences; they shape the contours of constitutional law for years to come. Constitutional law, for instance, would be very different had Robert Bork become a justice rather than Anthony Kennedy. That said, I think a number of people behave ridiculously during these events, exaggerating the consequences and distorting candidates' records. But that is sort of a different question. I think the problem, if there is one, is that the country is more politically polarized than in prior eras. And that seems to be a product of the two parties opposing one another ideologically on just about every single major issue. In previous times, there were important political coalitions that crossed party lines. Northern Republicans voted with many Democrats (and southern Democrats voted with many Republicans) on civil rights issues in the 1960s and 1970s. Conservative Democrats voted with Republicans on labor questions. In short, our political system functioned with many cross-party coalitions. For whatever reason, that is now gone, and the parties are rather uniformly divided on most every issue. This has led to ideological polarization everywhere, including nominations to the Supreme Court. Nominations have been simply another place where this has played out.
Can anyone rule in an apolitical way? In a word, no. Constitutional law is inherently political. The issues are contentious, and many are deeply ideological. Most can be decided either way, with completely defensible legal arguments, supported by the traditionally accepted sources of legal authority. So no, it cannot possibly be apolitical. It could be less transparently political. Judges can be more self-aware, and we can ask judges to be more conscious of checking themselves, to try to examine whether they are being pulled too hard by the predispositions. But I think that is probably the most we can realistically hope for.
Might the law we are learning be totally different, but for one changed vote? Yes and no. In the short run, yes. What the particular justices think, based on their own ideological leanings, often make constitutional law what it is. And my job is to make some sense of it, regardless of its causal origins. I still think it is quite interesting, even if it is not "correct" in any way. In the medium or long run, I would say that those 5-4 votes are much less significant. The answers are still "political," but they are determined by the People, or at least the portion of the People that have political influence. The Court is shaped more than it shapes. So, while the justices resolve important questions in the short run, the long run is determined by elections, social movements, and much broader economic and cultural changes in society. 5-4 decisions that run counter to these larger forces will ultimately be discarded. Witness Slaughter-House, Lochner, and Plessy v. Ferguson.
Do I think about the randomness inherent this process of constitutional lawmaking? All the time. But I still think it is fascinating. Constitutional law represents a normative political vision. The subject is inherently political, as it shapes our national political life. It can never be anything like engineering as a subject matter, because the basic "rules" or "principles," unlike the law of gravity, will always be contested.
I think the best frame in which to view these things is to think about the Constitution as setting out a broad framework. Some of the rules are fairly hard-wired (each state gets two senators, laws must be passed by both houses, etc.). Others are very open-textured, and thus, to some degree, up for grabs. Each generation works within this framework, both to enact positive law (statutes and regulations) and to shape the open-textured elements of the constitutional text (what is the meaning of interstate commerce or due process?). It is always a work in progress. The Court is only one player. It is a very important one, especially in the short term. But it is more of a reflection of society's values in the long term.
Thursday, April 8, 2010
More on the dormant Commerce Clause
QUESTION: I'm a bit confused about applying the Pike test. My understanding was that the Pike test was only to be applied to laws that were not discriminatory, but had discriminatory effects.
ANSWER: Correct and incorrect, respectively. If the law does not discriminate against interstate commerce (on its face, in purpose, or in practical effect), then the Pike balancing test applies. But if we come to the legal conclusion that the law "discriminates against interstate commerce in practical effect," such as in Hunt, then it is a discriminatory law, and the much more stringent form of scrutiny applies. Pike only applies with the law is non-discriminatory.
QUESTION: For laws that were facially discriminatory or had a protectionist purpose, the state had to prove that it had a compelling public interest to justify the law. Is this accurate?
ANSWER: No. The exacting scrutiny is with respect to the means, not the end. (See the preceding post on tiers of scrutiny.) The end merely must be legitimate--i.e., not protectionism. The means must be the only ones available--that is, there can be no nondiscriminatory alternative.
Tiers of scrutiny
QUESTION: I am a little confused on the strict scrutiny test spectrum. For instance, under rational basis, it says the objective language must be "legitimate," which is the language used for the Dormant Commerce Clause test. However, in lecture it was stated that if a law is found to be facially discriminatory then the Court applies the strict scrutiny test, but the language of "legitimate" implies a rational basis level of scrutiny. So I am a bit confused from the breakdown on the board today.
ANSWER: Perfectly understandable question. I was not meaning to present a fully comprehensive examination of all the different forms of judicial scrutiny applied in constitutional law. Rather, my intent was to illustrate the three tiers of scrutiny typically applied in "individual rights" cases: rational basis, intermediate, and strict.
You are absolutely right, in that the scrutiny applied to state laws that discriminate against interstate commerce is a sort of hybrid. It demands that the state interest merely be legitimate (i.e., something other than protectionism), and that the means be necessary (i.e., there is no feasible nondiscriminatory alternative). This is a technical point, but I would not call this "strict scrutiny" in its classic sense (though you would not really be wrong for doing so). The reason, as you say, is that we do not demand that the government's interest be compelling. It is sufficient that it be something other than protectionism.
Now, you might ask, why has the Court set up this sort of hybrid test? The reason lies in the ultimate purpose of dormant Commerce Clause--namely, to prohibit parochial, protectionist state regulation. When the government impinges on a person's constitutionally protected right, in contrast, we demand that the government have a really good (indeed, compelling) reason for doing so. But with the dormant Commerce Clause, the concern is different. Our goal is really just to root out one sort of legislative goal: economic protectionism. So the government's interests need not be compelling.
ANSWER: Perfectly understandable question. I was not meaning to present a fully comprehensive examination of all the different forms of judicial scrutiny applied in constitutional law. Rather, my intent was to illustrate the three tiers of scrutiny typically applied in "individual rights" cases: rational basis, intermediate, and strict.
You are absolutely right, in that the scrutiny applied to state laws that discriminate against interstate commerce is a sort of hybrid. It demands that the state interest merely be legitimate (i.e., something other than protectionism), and that the means be necessary (i.e., there is no feasible nondiscriminatory alternative). This is a technical point, but I would not call this "strict scrutiny" in its classic sense (though you would not really be wrong for doing so). The reason, as you say, is that we do not demand that the government's interest be compelling. It is sufficient that it be something other than protectionism.
Now, you might ask, why has the Court set up this sort of hybrid test? The reason lies in the ultimate purpose of dormant Commerce Clause--namely, to prohibit parochial, protectionist state regulation. When the government impinges on a person's constitutionally protected right, in contrast, we demand that the government have a really good (indeed, compelling) reason for doing so. But with the dormant Commerce Clause, the concern is different. Our goal is really just to root out one sort of legislative goal: economic protectionism. So the government's interests need not be compelling.
Tuesday, April 6, 2010
Privileges and immunities, Article IV and the 14th Amendment
QUESTION: I was just wondering if you could clarify for me the difference between national citizenship and state citizenship as applied to the privileges and immunities clause. I am confused on the distinction because both the Privileges and Immunities Clause of Art, IV, Sec 2. and the Privileges or Immunities Clause of the 14th Amendment discuss this idea of "fundamental rights," or what is vital to the nation as a whole, so I am wondering what the distinction is.
ANSWER: Actually, the Privileges or Immunities Clause of the 14th Amendment does not protect such "fundamental" rights--rights that bear on the vitality of the nation as a whole. The fact that states (and not the federal government), prior to the Civil War, were primarily responsible for protecting such "fundamental" rights was a critical part of the reasoning in Slaughter-House, as the majority believed it unthinkable that the new amendment would afford such protection. But these rights are not protected by the Privileges or Immunities Clause of the 14th Amendment. Indeed, that they are not so protected was the critical point of the Slaughter-House decision.
QUESTION: If something is vital to the nation as a whole (like not discriminating against out-of-state residents for job qualifications), then how is that something dealing with state versus national citizenship since it applies to the "nation" and not just the state?
ANSWER: I may not fully understand this question. If the right at issue "bears on the vitality of the nation" as a Union (whatever exactly that means, it is a "privilege" or "immunity" within the meaning of Article IV, section 2. But this does not mean it is covered by the Privileges or Immunities Clause of the 14th Amendment.
QUESTION: Also, it seems to be that the law overruled in Saenz v. Roe dealing with residency requirements seems to be more applicable to rights under state citizenship, since the individuals discriminated against were already state residents, whereas in the P and I cases we read under Art. IV, sec 2, we were dealing with individuals who were out of state being discriminated against.
ANSWER: Saenz did concern a "right," in the first instance, created by state positive law -- namely, the right to TANF payments. But the right actually vindicated by the Supreme Court's decision in Saenz was the right to interstate travel--or, more specifically, the component of that right that encompasses the right to interstate migration. This right is a right incident to national citizenship, not state citizenship. So the holding of Saenz is that a state cannot discriminate in the allocation or protection of state legal entitledments (whether we call them "rights" or something else) in a way that interferes with this national right of interstate migration.Thus, any discrimination among citizens based on the duration of a citizen's residency will be subjected to something akin to strict scrutiny.
Dormant Commerce Clause questions
QUESTION: I have been told on multiple occasions that you could be arrested if you leave PA to buy beer and wine in NJ or MD upon re-entry to PA. But, PA's laws have the practical effect that you can buy beverages cheaper, and in greater selection, in neighboring states. PA is also something of a "market participant" in that it regulates beer distribution and you can only buy liquor in "state stores." It would seem that their laws violate DCC in terms of discriminating against out of state distributors and placing unnecessary burden on IC -- blocking the transport of beverages across state lines -- unless there is some federal law that expressly says the states can do this (controlled substances across state lines?). So where does this authority come from?
ANSWER: There are several things going on here. First, for many years states were afforded more authority to regulate alcohol, even in discriminatory ways, due to the language of the Twenty-first Amendment. This largely ended in 2005 with the Supreme Court's decision in Granholm v. Heald, which invalidated discriminatory state rules regarding the shipment of wine. So it is possible that some of the laws you reference were, but are no longer, constitutional. Second, the regulation of distribution is not market participation. But, third, if the state is in the market of alcohol as a buyer and seller, it can discriminate in favor of local interests in this specific activity.
QUESTION: If a state law is challenged under dormant Commerce Clause, does the decision necessarily have implications for potential federal laws? That is, if a state law is struck down under DCC, does it follow that Congress could in future pass a law to regulate in that area and it therefore passes under Commerce Clause? Or the reverse, that if the state law is upheld, can Congress nonetheless pass a law to preempt it?
ANSWER: There are several things going on here. First, for many years states were afforded more authority to regulate alcohol, even in discriminatory ways, due to the language of the Twenty-first Amendment. This largely ended in 2005 with the Supreme Court's decision in Granholm v. Heald, which invalidated discriminatory state rules regarding the shipment of wine. So it is possible that some of the laws you reference were, but are no longer, constitutional. Second, the regulation of distribution is not market participation. But, third, if the state is in the market of alcohol as a buyer and seller, it can discriminate in favor of local interests in this specific activity.
QUESTION: If a state law is challenged under dormant Commerce Clause, does the decision necessarily have implications for potential federal laws? That is, if a state law is struck down under DCC, does it follow that Congress could in future pass a law to regulate in that area and it therefore passes under Commerce Clause? Or the reverse, that if the state law is upheld, can Congress nonetheless pass a law to preempt it?
ANSWER: Yes and yes. It should. The Court has said on several occasions that the reach of the dormant Commerce Clause is the same as that of Congress's commerce power. So a holding that a given state law is subject to dormant Commerce Clause scrutiny (whether upheld or invalidated) should mean that a federal law regulating the same subject is within Congress's commerce power. Congress could thus bless state laws that have been previously held by a court to violate the dormant Commerce Clause, or it could preempt state laws that courts have upheld against dormant Commerce Clause challenges.
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