I'm pleased to report that my article entitled "Rescuing the Fourteenth Amendment Privileges or Immunities Clause: How "Attrition of Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House" will be published in the upcoming volume of the William & Mary Bill of Rights Journal.
The article is available at SSRN and BePress Selected Works.
Here is the abstract:
"This Essay addresses a topic of great academic and practical interest currently facing the Supreme Court: whether the Fourteenth Amendment Privileges or Immunities Clause, which has lain dormant since the Court's erroneous 1873 SlaughterHouse Cases decision, should be resurrected in order to apply the Second Amendment to the States.
The Essay makes the unique argument that the textual basis for the SlaughterHouse Court's holding regarding the clause - i.e., the lack of parallel textual construction in the Section One's first two sentences regarding citizenship - was in fact the wholly unintentional product of what we might call "attrition of parliamentary processes." This analysis is not new to the Supreme Court. Borrowed from an oral argument made before the U.S. Supreme Court in 1882 by Roscoe Conkling (a member in 1866 of the Joint Committee on Reconstruction), the analysis played a vital role in leading the Court ot its 1898 conclusion that the word "person" in Section One's Due Process Clause should be read to include artificial persons, including corporations - an interpretation substantially broader than that given previously by the SlaughterHouse majority.
Just as the Court in the last decades of the nineteenth century corrected the Court's too-narrow interpretation of Section One "personhood," so it should now - finally - begin to correct its earlier misreading of the distinction in Section One between U.S. and state citizenship in order to restore the privileges or immunities clause to its full intended effect of applying the Bill of Rights (and more) to the States."
(I have previously posted here on related topics.)
Wednesday, August 26, 2009
Monday, August 17, 2009
Time to Legalize Drugs - Sensible WaPo Article
Today's Washington Post contains a well-reasoned OpEd entitled "It's Time to Legalize Drugs" by two former Baltimore City police officers and members of Law Enforcement Against Prohibition. This is something I've blogged on before here, and this OpEd makes the case yet again.
Written by Peter Moskos (a professor at John Jay College of Criminal Justice and the author of "Cop in the Hood") and Neill Franklin, (a 32-year law enforcement veteran), the OpEd explains that:
"after years of witnessing the ineffectiveness of drug policies -- and the disproportionate impact the drug war has on young black men -- we and other police officers [have] begun to question the system.
"Cities and states license beer and tobacco sellers to control where, when and to whom drugs are sold. Ending Prohibition saved lives because it took gangsters out of the game. Regulated alcohol doesn't work perfectly, but it works well enough. Prescription drugs are regulated, and while there is a huge problem with abuse, at least a system of distribution involving doctors and pharmacists works without violence and high-volume incarceration. Regulating drugs would work similarly: not a cure-all, but a vast improvement on the status quo.
"Legalization would not create a drug free-for-all. In fact, regulation reins in the mess we already have. If prohibition decreased drug use and drug arrests acted as a deterrent, America would not lead the world in illegal drug use and incarceration for drug crimes. "
...
Moskos and Franklin continue, "We simply urge the federal government to retreat. Let cities and states (and, while we're at it, other countries) decide their own drug policies. Many would continue prohibition, but some would try something new. California and its medical marijuana dispensaries provide a good working example, warts and all, that legalized drug distribution does not cause the sky to fall.
"Having fought the war on drugs, we know that ending the drug war is the right thing to do -- for all of us, especially taxpayers. While the financial benefits of drug legalization are not our main concern, they are substantial. In a July referendum, Oakland, Calif., voted to tax drug sales by a 4-to-1 margin. Harvard economist Jeffrey Miron estimates that ending the drug war would save $44 billion annually, with taxes bringing in an additional $33 billion.
"Without the drug war, America's most decimated neighborhoods would have a chance to recover. Working people could sit on stoops, misguided youths wouldn't look up to criminals as role models, our overflowing prisons could hold real criminals, and -- most important to us -- more police officers wouldn't have to die."
Sensible words.
Written by Peter Moskos (a professor at John Jay College of Criminal Justice and the author of "Cop in the Hood") and Neill Franklin, (a 32-year law enforcement veteran), the OpEd explains that:
"after years of witnessing the ineffectiveness of drug policies -- and the disproportionate impact the drug war has on young black men -- we and other police officers [have] begun to question the system.
"Cities and states license beer and tobacco sellers to control where, when and to whom drugs are sold. Ending Prohibition saved lives because it took gangsters out of the game. Regulated alcohol doesn't work perfectly, but it works well enough. Prescription drugs are regulated, and while there is a huge problem with abuse, at least a system of distribution involving doctors and pharmacists works without violence and high-volume incarceration. Regulating drugs would work similarly: not a cure-all, but a vast improvement on the status quo.
"Legalization would not create a drug free-for-all. In fact, regulation reins in the mess we already have. If prohibition decreased drug use and drug arrests acted as a deterrent, America would not lead the world in illegal drug use and incarceration for drug crimes. "
...
Moskos and Franklin continue, "We simply urge the federal government to retreat. Let cities and states (and, while we're at it, other countries) decide their own drug policies. Many would continue prohibition, but some would try something new. California and its medical marijuana dispensaries provide a good working example, warts and all, that legalized drug distribution does not cause the sky to fall.
"Having fought the war on drugs, we know that ending the drug war is the right thing to do -- for all of us, especially taxpayers. While the financial benefits of drug legalization are not our main concern, they are substantial. In a July referendum, Oakland, Calif., voted to tax drug sales by a 4-to-1 margin. Harvard economist Jeffrey Miron estimates that ending the drug war would save $44 billion annually, with taxes bringing in an additional $33 billion.
"Without the drug war, America's most decimated neighborhoods would have a chance to recover. Working people could sit on stoops, misguided youths wouldn't look up to criminals as role models, our overflowing prisons could hold real criminals, and -- most important to us -- more police officers wouldn't have to die."
Sensible words.
Wednesday, August 5, 2009
Healthcare Reform - Voices of Reason from Senators Wyden & Bennett
In a column entitled "How We Can Achieve Bipartisan Health Reform" in today's Washington Post, Senators Ron Wyden and Robert Bennett describe the bipartisan approach to healthcare reform that offers the best hope for getting something done on this contentious issue.
Writing for 12 senators from both sides of the aisle (including Sens. Debbie Stabenow (D-Mich.), Ted Kaufman (D-Del.), Daniel K. Inouye (D-Hawaii), Mary Landrieu (D-La.), Joseph I. Lieberman (I-Conn.), Bill Nelson (D-Fla.), Judd Gregg (R-N.H.), Michael D. Crapo (R-Idaho), Lindsey O. Graham (R-S.C.) and Lamar Alexander (R-Tenn.)), they rightly state that "It's time to stop trying to figure out what pollsters say the country wants to hear from us and focus on what the country needs from us. The American people can't afford for Congress to fail again."
Here are some of the details:
"Democratic activists have long campaigned for universal coverage and quality benefits. Republican activists zero in on empowering individuals and bringing market forces to the health-care system. Our approach does both. In our discussions on the Healthy Americans Act, each side gave a bit on some of its visions of perfect health reform to achieve bipartisanship.
"The Democrats among us accepted an end to the tax-free treatment of employer-sponsored health insurance; instead, everyone -- not just those who currently get insurance through their employer -- would get a generous standard deduction that they would use to buy insurance -- and keep the excess if they buy a less expensive policy.
"The Republicans agreed to require all individuals to have coverage and to provide subsidies where necessary to ensure that everyone can afford it. Most have agreed to require employers to contribute to the system and to pay workers wages equal to the amount the employer now contributes for health care. The Congressional Budget Office has reported that this framework is the only one thus far that bends the health-care cost curve down and makes it possible for the new system to pay for itself. It does this by creating a competitive market for health insurance in which individuals are empowered to choose the best values for their money and by cutting administrative costs and spreading risk across large groups of Americans.
"First, we allow all Americans to have the same kind of choices available to us as members of Congress. Today, more than half of American workers who are lucky enough to have employer-provided insurance have no choice of coverage. Members of Congress who enroll their families in the Federal Employees Health Benefits Program often have more than 10 options. This means that if members of Congress aren't happy with their family's insurance plan in 2009 or insurers raise their rates, they can pick a better plan in 2010. Our plan would give the consumer the same leverage in the health-care marketplace by creating state-run insurance exchanges through which they can select plans, including their existing employer-sponsored plan.
"Beyond giving Americans choices, our approach also ensures that all Americans will be able to keep that choice. We believe that at a time when millions of Americans are losing their jobs, members of Congress must be able to promise their constituents that "when you leave your job or your job leaves you, you can take your health care with you." Our approach ensures seamless portability."
Good stuff. Hopefully Congress can see its way clear, past all of the millions of dollars of "donations" from the healthcare industry (more like bribes - the old saying applies here, that if in a baseball game the players gave the umpires money we'd call it a bribe; but if the same happens in politics we call it a campaign donation), to do what a strong majority of the American people want and which is morally right - provide the opportunity for good healthcare insurance to all Americans at a reasonable price.
Wyden and Bennett conclude:
"Our point is not that our framework is the only way to reform the system or to reach consensus. But our effort has shown that it is possible to put politics aside and reach agreement on reforms that would improve the lives of all Americans. Insisting on any particular fix is the enemy of good legislating. A package that will entirely please neither side, but on which both can agree, stands not only the strongest chance of passage but also the best chance of gaining acceptance from the American people.
"We didn't undertake this effort because we thought it would be easy; in fact, we started working together because we knew it would be hard. Passing health reform is going to require that we take a stand against the status quo and be willing to challenge every interest group that is jealously guarding the advantages it has under the current system, because health reform isn't about protecting the current system or preserving the advantages of a few. We can't forget that we are working on life-and-death issues facing our constituents, our families, our friends and our neighbors."
Voices of reason from the U.S. Senate - how refreshing.
Writing for 12 senators from both sides of the aisle (including Sens. Debbie Stabenow (D-Mich.), Ted Kaufman (D-Del.), Daniel K. Inouye (D-Hawaii), Mary Landrieu (D-La.), Joseph I. Lieberman (I-Conn.), Bill Nelson (D-Fla.), Judd Gregg (R-N.H.), Michael D. Crapo (R-Idaho), Lindsey O. Graham (R-S.C.) and Lamar Alexander (R-Tenn.)), they rightly state that "It's time to stop trying to figure out what pollsters say the country wants to hear from us and focus on what the country needs from us. The American people can't afford for Congress to fail again."
Here are some of the details:
"Democratic activists have long campaigned for universal coverage and quality benefits. Republican activists zero in on empowering individuals and bringing market forces to the health-care system. Our approach does both. In our discussions on the Healthy Americans Act, each side gave a bit on some of its visions of perfect health reform to achieve bipartisanship.
"The Democrats among us accepted an end to the tax-free treatment of employer-sponsored health insurance; instead, everyone -- not just those who currently get insurance through their employer -- would get a generous standard deduction that they would use to buy insurance -- and keep the excess if they buy a less expensive policy.
"The Republicans agreed to require all individuals to have coverage and to provide subsidies where necessary to ensure that everyone can afford it. Most have agreed to require employers to contribute to the system and to pay workers wages equal to the amount the employer now contributes for health care. The Congressional Budget Office has reported that this framework is the only one thus far that bends the health-care cost curve down and makes it possible for the new system to pay for itself. It does this by creating a competitive market for health insurance in which individuals are empowered to choose the best values for their money and by cutting administrative costs and spreading risk across large groups of Americans.
"First, we allow all Americans to have the same kind of choices available to us as members of Congress. Today, more than half of American workers who are lucky enough to have employer-provided insurance have no choice of coverage. Members of Congress who enroll their families in the Federal Employees Health Benefits Program often have more than 10 options. This means that if members of Congress aren't happy with their family's insurance plan in 2009 or insurers raise their rates, they can pick a better plan in 2010. Our plan would give the consumer the same leverage in the health-care marketplace by creating state-run insurance exchanges through which they can select plans, including their existing employer-sponsored plan.
"Beyond giving Americans choices, our approach also ensures that all Americans will be able to keep that choice. We believe that at a time when millions of Americans are losing their jobs, members of Congress must be able to promise their constituents that "when you leave your job or your job leaves you, you can take your health care with you." Our approach ensures seamless portability."
Good stuff. Hopefully Congress can see its way clear, past all of the millions of dollars of "donations" from the healthcare industry (more like bribes - the old saying applies here, that if in a baseball game the players gave the umpires money we'd call it a bribe; but if the same happens in politics we call it a campaign donation), to do what a strong majority of the American people want and which is morally right - provide the opportunity for good healthcare insurance to all Americans at a reasonable price.
Wyden and Bennett conclude:
"Our point is not that our framework is the only way to reform the system or to reach consensus. But our effort has shown that it is possible to put politics aside and reach agreement on reforms that would improve the lives of all Americans. Insisting on any particular fix is the enemy of good legislating. A package that will entirely please neither side, but on which both can agree, stands not only the strongest chance of passage but also the best chance of gaining acceptance from the American people.
"We didn't undertake this effort because we thought it would be easy; in fact, we started working together because we knew it would be hard. Passing health reform is going to require that we take a stand against the status quo and be willing to challenge every interest group that is jealously guarding the advantages it has under the current system, because health reform isn't about protecting the current system or preserving the advantages of a few. We can't forget that we are working on life-and-death issues facing our constituents, our families, our friends and our neighbors."
Voices of reason from the U.S. Senate - how refreshing.
Friday, July 24, 2009
McDonald v. Chicago Amicus Brief - Volokh Conspiracy Link
My last post described the amicus brief filed by the Constitutional Accountability Center and signed by six law professors, including myself. Here is a comment on the brief and its signers from the popular legal blog, The Volokh Conspiracy.
Wednesday, July 22, 2009
Supreme Court Amicus Brief in McDonald v. Chicago
Following from a couple amicus curiae (friend of the court) briefs in cases before the Ninth Circuit(Nordyke v. King) and Seventh Circuit (McDonald v. Chicago), an amicus brief filed by the Constitutional Accountability Center and signed by six law professors (Richard Aynes, Jack Balkin, Randy Barnett, Michael Curtis, Adam Winkler and I) was filed on July 10 in the U.S. Supreme Court. It is available here.
The brief asks the Court to take this case (ie, grant certiorari), in order to clarify the misunderstandings that have existed ever since 1873, when the Court decided the SlaughterHouse Cases, about the scope of the fourteenth amendment privileges or immunities clause. The brief asserts, based on persuasive historical evidence, that the Court got it wrong in SlaughterHouse when it gave the privileges or immunities clause a very narrow reading; instead, the history suggests it was intended to apply broadly to apply the Bill of Rights (and more) to the States.
The brief asks the Court to take this case (ie, grant certiorari), in order to clarify the misunderstandings that have existed ever since 1873, when the Court decided the SlaughterHouse Cases, about the scope of the fourteenth amendment privileges or immunities clause. The brief asserts, based on persuasive historical evidence, that the Court got it wrong in SlaughterHouse when it gave the privileges or immunities clause a very narrow reading; instead, the history suggests it was intended to apply broadly to apply the Bill of Rights (and more) to the States.
Tuesday, June 23, 2009
Drawing the Line on the Obama Administration's National Security Practices
As I've stated here previously on numerous occasions, the Barack Obama presidency is a vast improvement over the disaster of the prior eight years of the Bush/Cheney administration. But nothing's perfect, including the Obama administration's positions on national security.
In particular, the Obama administration has shown a disturbing tendency to hedge on the core principles of liberty and due process that it espoused during the campaign; capitulating instead to a disturbing number of discredited Bush-era "war on terror" rationale for maintaining arguably unconstitutional practices.
Specifically:
1. "Prolonged detention" - President Obama has continued the Bush/Cheney practice of allowing indefinite detention without trial or proof of guilt. He should instead insist that all prisoners have access to a fair and speedy trial, as basic constitutional principles of due process require.
2. Transparency - President Obama showed good instincts in releasing the torture memos, but dropped the ball in blocking release of photos showing American soldiers' abuse of prisoners in Iraq and Afghanistan. When they were released several years ago, the Abu Ghraib photos exposed the systematic allowance, if not encouragement, by the Rumsfeld Defense Department (with Cheney, as usual, lurking) of a sickening culture of prisoner abuse. In that case, public outrage fueled reforms; if that needs to happen again, so be it - President Obama should stick by his commitments to transparency.
3. State Secrets doctrine - the Obama administration is perpetuating in the federal courts the "state secrets" theory developed by the Bush Administration. This doctrine holds that certain lawsuits, such as those involving allegations of extreme torture in the Bush/Cheney extraordinary rendition program, shouldn't ever go to trial, since even discussing the facts in court could threaten national security. This is ridiculous. There are all sorts of protections available to keep certain aspects of court proceedings confidential (e.g., in camera review of sensitive evidence, etc.) (When I blogged on this issue previously, in February, I was inclined to give the administration the benefit of the doubt; but no longer, given the administration's other equivocations.)
There is a temptation among supporters of President Obama to let these matters slide, on the rationale that the Obama administration's approach is, at its core, based on respect, decency and due process; and that they will not abuse the power that they are attempting to maintain.
But we must resist this temptation. We must be vigilant on these matters, and insist that the Obama administration not equivocate; because as the founders and framers well knew and repeated often, constitutional protections are not necessarily designed for the benign government (after all, the benign government will tend to respect peoples' rights and liberties), but rather for the aggressive government that tends to abuse the peoples' liberties. Lest we think the latter is not possible or likely, we need only remember Bush/Cheney, 2001-09. Bush/Cheney opened the barn door on these unconstitutional practices; Obama needs to close the door and rein in the horses before they permanently escape.
Yes, President Obama is a pragmatist by nature; and politically that's probably a good thing. But on the "liberty" side of the progressive-liberty equation, some things are non-negotiable, such as due process - and the sorts of issues upon which the president is now equivocating go to the heart of due process.
Specifically, the fifth amendment to the Constitution specifies: "nor shall any person ... be deprived of life, liberty, or property, without due process of law." At the very foundation of the Anglo-American concept of due process (with roots in 1215 Magna Carta, the 1628 Petition of Right and the 1688 English Bill of Rights) is the principle that if the King/government is to hold a person against his or her will, the person must be given a fair and meaningful hearing. The Constitution memorializes this concept in a number of provisions, including the Article I, Section 9 habeas corpus clause; and the numerous criminal procedural provisions in the Fourth, Fifth, Sixth and Eight Amendments of the Bill of Rights. The practices now advocated by the Obama administration - indefinitely holding prisoners, keeping evidence secret, & preventing matters from going to trial - run disturbingly afoul of these core constitutional guarantees.
History will remember President Obama more kindly if he resolutely and unflinchingly restores American principles of liberty and due process; otherwise, by perpetuating the abusive practices initiated by Bush/Cheney, for history's purposes they become the Bush/Cheney/Obama practices.
Not the sort of historical association that President Obama should embrace.
In particular, the Obama administration has shown a disturbing tendency to hedge on the core principles of liberty and due process that it espoused during the campaign; capitulating instead to a disturbing number of discredited Bush-era "war on terror" rationale for maintaining arguably unconstitutional practices.
Specifically:
1. "Prolonged detention" - President Obama has continued the Bush/Cheney practice of allowing indefinite detention without trial or proof of guilt. He should instead insist that all prisoners have access to a fair and speedy trial, as basic constitutional principles of due process require.
2. Transparency - President Obama showed good instincts in releasing the torture memos, but dropped the ball in blocking release of photos showing American soldiers' abuse of prisoners in Iraq and Afghanistan. When they were released several years ago, the Abu Ghraib photos exposed the systematic allowance, if not encouragement, by the Rumsfeld Defense Department (with Cheney, as usual, lurking) of a sickening culture of prisoner abuse. In that case, public outrage fueled reforms; if that needs to happen again, so be it - President Obama should stick by his commitments to transparency.
3. State Secrets doctrine - the Obama administration is perpetuating in the federal courts the "state secrets" theory developed by the Bush Administration. This doctrine holds that certain lawsuits, such as those involving allegations of extreme torture in the Bush/Cheney extraordinary rendition program, shouldn't ever go to trial, since even discussing the facts in court could threaten national security. This is ridiculous. There are all sorts of protections available to keep certain aspects of court proceedings confidential (e.g., in camera review of sensitive evidence, etc.) (When I blogged on this issue previously, in February, I was inclined to give the administration the benefit of the doubt; but no longer, given the administration's other equivocations.)
There is a temptation among supporters of President Obama to let these matters slide, on the rationale that the Obama administration's approach is, at its core, based on respect, decency and due process; and that they will not abuse the power that they are attempting to maintain.
But we must resist this temptation. We must be vigilant on these matters, and insist that the Obama administration not equivocate; because as the founders and framers well knew and repeated often, constitutional protections are not necessarily designed for the benign government (after all, the benign government will tend to respect peoples' rights and liberties), but rather for the aggressive government that tends to abuse the peoples' liberties. Lest we think the latter is not possible or likely, we need only remember Bush/Cheney, 2001-09. Bush/Cheney opened the barn door on these unconstitutional practices; Obama needs to close the door and rein in the horses before they permanently escape.
Yes, President Obama is a pragmatist by nature; and politically that's probably a good thing. But on the "liberty" side of the progressive-liberty equation, some things are non-negotiable, such as due process - and the sorts of issues upon which the president is now equivocating go to the heart of due process.
Specifically, the fifth amendment to the Constitution specifies: "nor shall any person ... be deprived of life, liberty, or property, without due process of law." At the very foundation of the Anglo-American concept of due process (with roots in 1215 Magna Carta, the 1628 Petition of Right and the 1688 English Bill of Rights) is the principle that if the King/government is to hold a person against his or her will, the person must be given a fair and meaningful hearing. The Constitution memorializes this concept in a number of provisions, including the Article I, Section 9 habeas corpus clause; and the numerous criminal procedural provisions in the Fourth, Fifth, Sixth and Eight Amendments of the Bill of Rights. The practices now advocated by the Obama administration - indefinitely holding prisoners, keeping evidence secret, & preventing matters from going to trial - run disturbingly afoul of these core constitutional guarantees.
History will remember President Obama more kindly if he resolutely and unflinchingly restores American principles of liberty and due process; otherwise, by perpetuating the abusive practices initiated by Bush/Cheney, for history's purposes they become the Bush/Cheney/Obama practices.
Not the sort of historical association that President Obama should embrace.
Sunday, June 14, 2009
Strong versus Weak Judging
As so often happens in the field of constitutional law, events converge that serve to illustrate how real-world practice often departs from constitutional principle. The same-day announcements on May 26 by President Obama of Sonya Sotomayor as his choice for the U.S. Supreme Court and by the California Supreme Court of its decision to uphold Proposition 8 is but another such serendipitous pairing.
First, constitutional principle suggests that President Obama owed the nation a strong nominee - and with Sonya Sotomayor, he delivered.
Those who framed the Constitution knew that it would take a special kind of person to guarantee equal justice to all - including the less powerful - even when majorities in the legislative and executive branches would not. “It is easy to see,” Alexander Hamilton wrote, “that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice in the community.”
Sonya Sotomayor understands the constitutional role of judges. As she commented in 1997, “I believe we should not bend the Constitution under any circumstances. It says what it says. We should honor it.” A strong judge like Judge Sotomayor knows that when majorities abridge the rights of individuals, it is the judge’s sometimes unpopular role to overcome the majority’s will.
Weak judges, by contrast, hide behind majority opinion to avoid protecting individual liberty and equality. The California Supreme Court’s decision Tuesday to uphold Proposition 8 (despite holding just last year that discrimination against gays is no less unconstitutional than discrimination based on race or religion) is an example of judging that is, well, weak.
As the lone strong voice, dissenting Justice Carlos J. Moreno, put it, “The rule the majority crafts today … weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”
Exactly right.
These principles apply to the federal Constitution as well. The framers believed that the whole point of majoritarian government is to protect liberty and equality for all. As James Madison explained in arguing for the Bill of Rights before the First Congress, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” And Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
In concept, the principle of judicial review is one upon which liberals and conservatives can agree. At his confirmation hearings in 2005, for example, Chief Justice John Roberts commented, “I don't think the Court should be a taskmaster of Congress. The Constitution is the Court's taskmaster, and it is Congress's as well.” Neither federal, state nor local majorities, in other words, may pass laws (including amendments to state constitutions) that abridge rights guaranteed by the federal Constitution - and it is the judge’s responsibility to make sure that they do not.
Viewed in this light, the “judicial activist” warhorse regularly trotted out by those opposed to judges doing their jobs to protect the rights of minorities (usually under the guise that such action constitutes inappropriate “legislating from the bench”) is exposed for what it is: a tired old nag ready for the glue factory.
First, constitutional principle suggests that President Obama owed the nation a strong nominee - and with Sonya Sotomayor, he delivered.
Those who framed the Constitution knew that it would take a special kind of person to guarantee equal justice to all - including the less powerful - even when majorities in the legislative and executive branches would not. “It is easy to see,” Alexander Hamilton wrote, “that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice in the community.”
Sonya Sotomayor understands the constitutional role of judges. As she commented in 1997, “I believe we should not bend the Constitution under any circumstances. It says what it says. We should honor it.” A strong judge like Judge Sotomayor knows that when majorities abridge the rights of individuals, it is the judge’s sometimes unpopular role to overcome the majority’s will.
Weak judges, by contrast, hide behind majority opinion to avoid protecting individual liberty and equality. The California Supreme Court’s decision Tuesday to uphold Proposition 8 (despite holding just last year that discrimination against gays is no less unconstitutional than discrimination based on race or religion) is an example of judging that is, well, weak.
As the lone strong voice, dissenting Justice Carlos J. Moreno, put it, “The rule the majority crafts today … weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”
Exactly right.
These principles apply to the federal Constitution as well. The framers believed that the whole point of majoritarian government is to protect liberty and equality for all. As James Madison explained in arguing for the Bill of Rights before the First Congress, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” And Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
In concept, the principle of judicial review is one upon which liberals and conservatives can agree. At his confirmation hearings in 2005, for example, Chief Justice John Roberts commented, “I don't think the Court should be a taskmaster of Congress. The Constitution is the Court's taskmaster, and it is Congress's as well.” Neither federal, state nor local majorities, in other words, may pass laws (including amendments to state constitutions) that abridge rights guaranteed by the federal Constitution - and it is the judge’s responsibility to make sure that they do not.
Viewed in this light, the “judicial activist” warhorse regularly trotted out by those opposed to judges doing their jobs to protect the rights of minorities (usually under the guise that such action constitutes inappropriate “legislating from the bench”) is exposed for what it is: a tired old nag ready for the glue factory.
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