Friday, September 18, 2015

Supreme Court and Constitutional Questions

The term "judicial review" is tainted and fraught with bias because, from this doctrine's beginning in 1803, it has been used for partisan political purposes. The intent of the Framers of the Constitution was that judicial restraint and limited review be exercised, not a wholesale judicial repeal or rescuing of laws just because the justices or their partisan masters desired that they make certain findings. 

In both Dred Scott and NFIB v Sebelius, concurring opinions fundamentally disagreed with the Chief Justice's reasoning. This is not unusual, but shows that the concurring justices did not agree with the logic of the Chief Justice in his essentially one-man opinion.
Supreme Court Justices in 2010

Concurrent opinions in NFIB thought Supreme Court Justice John Roberts' rewriting of the law was unneeded. Dissenters thought it subversive. Dissenters and concurers in the 1857 Dred Scott case likewise thought the Chief Justice's logic was off base.

Roger B. Taney, Chief Justice 1836-1864

Amendments XIII and XIV may have been, at least partly, unneeded as the way of overturning Taney's decision. Amendment XIII abolished slavery and XIV, among other things, declared categorically that all African-Americans are citizens of the United States. It is a truism of constitutional thought that Taney's decision was overturned by these post-Civil War amendments but it could have been overturned by removing one justice, Taney. The Civil War itself put slavery on a fast path to extinction; the benefit of the Thirteenth Amendment was that it did cleanly put an end to slavery, completely and once and for all (at least in the West). However, Dred Scott could have been overturned in whole by a Court that recognized the logic of the two dissenting opinions written by John McLean and Benjamin R. Curtis. They did not agree with Taney that slavery was enshrined in the original Constitution. They did not need amendments to reach this conclusion, only logic.

It is frequently assumed in court opinions that other courts as well as legislatures knew what they were doing when they handed down a decision or passed a law, respectively. No doubt sometimes they do, but equally obviously, sometimes they don’t. Did the Framers of the United States Constitution and the members of the first Congresses know what they were doing when they kicked the can down the road on slavery? I think not. Would they have been horrified had they been able to look into a crystal ball and foresee the American Civil War and subsequent racial disharmony that resulted from their indecision? Many would have felt excruciating remorse. The cases of Thomas Jefferson and Benjamin Franklin are illustrative: Jefferson had qualms about slavery even though he was a slave owner; Franklin had already decided that slavery was wrong when he went to the Constitutional Convention in 1787, but he held his tongue because he feared that if the issue of abolition was raised then there would be no United States at all.

Marbury v Madison (1803) was a Supreme Court (SCOTUS) decision tainted by partisan political bias. Chief  Justice John Marshall was a member of the Federalist Party and his decision favored members of his party against members of the Democratic-Republican Party. It is  a famous case for its establishment of the doctrine of Judicial Review, that SCOTUS may review laws in an unlimited way and that it could declare acts of Congress to be unconstitutional. The expansion of judicial power lay in the fact  that the Court need not present a reasonable legal argument but only the semblance of a reasonable argument. And there is no appeal of its ruling, however egregious, because it is the highest court in the land.

John Marshall, Chief Justice 1801-1835

Ever since, judicial review has often been tainted by political bias. Marbury was the first time that SCOTUS declared an act of Congress unconstitutional. Dred Scott v Sandford (1857) was the second. In one of the many examples of dubious opinion dragged into a SCOTUS decision, Chief Justice Roger Taney ruled in Dred Scott that the Framers had uniformly viewed African-Americans as "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." This was Taney’s opinion more than that of the Framers as a dissenting opinion by Justice McLean pointed out.

Taney also declared that whether slave or free, “no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States." By this he seemed to mean that a slave could neither become free nor be made a citizen of a state; this seems a violation of state's rights, especially since one of the dissenting opinions in the case pointed out that several precedents made slaves into freemen and into voting citizens, as well. Even though Taney decided that Scott therefore had no standing and SCOTUS had no jurisdiction in the case, he went on to decide the very issues over which the Court had no jurisdiction. The absurdity of this was pointed out by both Justice Samuel Nelson in his concurrence and Justice Curtis in his dissent. Further exceeding the mandate of the case, Taney declared an act of Congress, the 1820 Missouri Compromise, to be unconstitutional. This act had already been superseded by the Kansas-Nebraska Act of 1854, but Taney, who personally preferred the outcome of the latter act, weighed in here to clear up any lingering doubt that the Missouri Compromise was a dead letter. (Erstwhile President Franklin Pierce had wished that the Missouri Compromise could be found unconstitutional as an alternative to Kansas-Nebraska; Taney was late but in earnest by giving the ex-president and others what they had wanted three years earlier.) In their dissents, both Justices Curtis and McLean pointed out that no Framer of the Constitution living at the time of the Missouri Compromise had objected to it on constitutional grounds.

To show how idiosyncratic these decisions can be, Justice Nelson wrote a concurrence that was a quasi-dissent in which he did not disagree with the outcome of Taney’s decision in that Scott remained a slave, but he did not declare as Taney had that the federal circuit court had had no jurisdiction to begin with or that the Missouri Compromise had been unconstitutional. Nelson was not as ambitious as Taney was to make new law that would uphold his personal political prejudices. 

Samuel Nelson

Benjamin R. Curtis*
John McLean
 Arguing from strong precedent, both Curtis and McLean argued that Taney’s statement that African-Americans could not be citizens was wrong. McLean in particular showed that African-Americans had already been able to vote in five states at the time of the ratification of the Constitution and were therefore citizens. Moreover, in an 1835 case, Marie Louise v Marot, the Louisiana Supreme Court had ruled that, once freed, a former slave could not be returned to slavery. (Something that allegedly occurred in the Scott case and which Taney had even entertained as a hypothetical but, which, nevertheless, did not change his opinion.) As the dissenting opinions indicate, Taney’s opinion in this case was far from temperate and was not in accordance with a sober interpretation of the Constitution.
It is often said (see, for example, the Wikipedia article on the Dred Scott Decision) that the Scott Decision was "overturned" by the 13th and 14th amendments, but was that really necessary? Although Chief Justice Taney wrote the opinion that was considered to be the governing one in the case, it is striking that every single justice on the Court wrote his own opinion whether he concurred or dissented. This implies that all of the other justices found something troubling in Taney's legal reasoning. At least four justices (Nelson, Grier, Curtis and McLean) strongly disputed his declaration that an act of Congress, the Missouri Compromise, was unconstitutional. It seems that the only thing needed to overturn that part of the Dred Scott Decision was the replacement of a single justice, Taney. The whole decision might have been overturned if another Court later saw that Curtis and McLean were correct and that their interpretation should have governed the majority.

The decisions in the Marbury and Scott cases seem to show that SCOTUS ruling Congressional acts to be unconstitutional has always been fraught and has actually unleashed a great deal of mischief in American history. (Scott, for example, has been called one of the immediate catalysts of the Civil War.) More recently, the decisions in NFIB v Sebelius (2012) and King v Burwell (2015) might suggest that  some subsequent Courts have erred in the exact opposite direction by trying NOT to declare a law unconstitutional even if it meant that the Court had to “help” Congress out of a cul de sac created by its own poorly written legislation.

In two different cases the Court bent over backward to preserve the same law (the Patient Protection and Affordable Care Act, that is, “Obamacare”) even though the law’s own language threatened to cause its collapse. To accomplish this, in NFIB, the Court redefined a penalty (unconstitutional) as a tax (constitutional). In the King case, SCOTUS said that the language of the PPACA that referred to exchanges "established by the state" really meant "established by the state and federal government.” In other words, both decisions essentially rewrote key parts of the law in order to preserve them. A philosophy of true judicial restraint and more limited authority to review would have led the Court to rule that the language as written in the law meant what it said and that if Congress could not bring itself to write a coherent law, then it is not up to SCOTUS to rescue it.

It is telling that, although it did not spawn the nine-way multiplicity of opinion that the Scott Decision did, nevertheless, NFIB saw concurring opinions that, like that of Nelson in 1857, agreed with the outcome of Chief Justice John Roberts' decision but basically disputed his legal reasoning as unnecessarily tortured.  Re-writing the law was not needed, in the views of Ruth Bader Ginsberg and the other justices who concurred. (And it was subversive in the eyes of the justices who dissented.)
Hudson v McMilian (1992) is a case in which the Court decided to apply the Eighth Amendment to a case in which prison guards had taken it upon themselves to beat a prisoner. Justice Clarence Thomas dissented on the grounds that there were plenty of remedies for the plaintiff short of the Eighth Amendment to the Constitution, which only applies to judicial sentencing. Therefore, the amendment did not apply and the case should not have been heard. It is not the function of the Supreme Court to apply the Constitution to right every wrong in every case. (I would point out that it was not as if the judge who had sentenced the plaintiff to prison had made regular beatings by the guards an official part of his punishment; the guards, themselves, had violated state and federal laws in administering these extra-legal beatings.)

In Hudson, then, SCOTUS expanded the Constitution in ways that violated the meaning and original intent of the text of the law itself, twisting the Constitution to mean what it does not mean and to do what it was never meant to do. Thomas’ unheeded advice to the Court was not to hear cases where the Constitution does not apply.

This judicial restraint is an antidote to decisions that stretch the authority of SCOTUS beyond its intended limited review to a point where the implication of its decisions is best described by what the dissent in NFIB said about the Court’s application of the Necessary and Proper Clause in that case: “its application rests upon a theory that everything is within federal control simply because it exists.”

* A pet peeve of mine is noting the many good things done by President Millard Fillmore, the most under-rated president IMHO. One thing he did was to appoint Curtis to the Supreme Court.

Wednesday, September 2, 2015

The original debate over the Constitution: Weaknesses on both sides fateful for U.S. today

Insight from listening to “The Great Debate: Advocates and Opponents of the American Constitution” by Prof. Thomas L. Pangle (a lecture series produced by the Great Courses series):

The weaknesses on each side of the debate between the Federalists and Anti-federalists were mirror images. While the Federalist proposal  (what became the United States Constitution) over the long haul proved to be insufficient to protect the American people from a tyrannical U.S. government (internal threat), the Anti-federalists’ alternative was insufficient to protect the nation from potential foreign enemies (external threat). Today we have a national government ready to impose tyranny on its own people but unwilling or incapable of defending the country from its enemies. Today, we live in the worst of both worlds.

Currently, I am also reading Mark Levin's book, "The Liberty Amendments," something of a counterpoint to Pangle's lectures. While mentioning later historical developments, Pangle is primarily concerned with what those who debated the Constitution in the 1780s knew and could know as well as what they guessed might happen in the future. Levin is more revealing about what actually did happen as the Constitution became the object of wrangling, especially, but not only, by the courts.

Levin calls our current times "post-constitutional," because we have changed the Constitution through practice so much that it does not stand today, as it once did, as a bulwark protecting our liberties. Too many jurists and legal theorists have had their way in massaging and reinterpreting the Constitution so that it no longer means what it originally did, and the result would not be recognizable to the Framers.

James Madison, Father of the Constitution

Alexander Hamilton, one of the Framers of the Constitution
Most insidiously, the second guessing that has led to so much reinterpretation is often assumed to be harmless. This is still the United States and we still have the rule of law, which is the same Constitution. Right? Levin would say, no. The Constitution is more fragile than we assume. It is a balancing act, and we have upset the balance so that the Constitution cannot stand as a reliable bulwark against predations by any government foreign or domestic.

What we think of as the rule of law is more often a rule of whim. Someone in a black robe thinks he or she knows better how things should be run or what result should be achieved, and so they change the interpretation of the law in accord with a personal preference. They want this new interpretation to become the law of the land, but it is little more than a whim. (In one of the most remarkable assaults on the original interpretation, some Supreme Court decisions have begun to cite foreign legal precedents in support of changes in their interpretation of the Constitution.)

In my view, the problem goes back to Madison and the Constitutional Convention's invention of the Constitution. The most obvious tension in the post-Revolutionary period was that between the national and state governments. The natural thing to have done would have been to construct a constitution in which the states were given powers that allowed them to counter the power of the federal government. Instead, Madison designed a Constitution that primarily balanced against itself, with three branches meant to check each other. This system was intricate and clever, but it more or less ignored the more natural relationship of the states to the central government.

Over the succeeding two centuries, the checks and balances between the federal departments - executive, legislative and judiciary - have broken down. Part of the problem is that the people in these different departments have more in common than they have differences. Many of them are lawyers who often have ambitions to work in other branches of the federal government, they are all paid by the same Treasury, and it dawns on many of them, sooner or later, that if one branch scratch the backs of the other branches and helps them to increase their power, turn about will eventually lead the other branches to help the back-scratching branch to expand, too.

Meanwhile, the few features of the Constitution that did give the states even a limited ability to check the federal government have been taken away. Originally, the state legislatures chose U.S. senators and gave them instructions on how to represent the state in the upper house of Congress, but the Seventeenth Amendment, passed early in the twentieth century, changed that balance by making senators popularly elected. About six years ago, my district's then-representative in Congress, a Democrat, expressed stunned disbelief that anyone would think it better to have the legislature choose senators instead of the general voters. What could be wrong with the people electing their senators? My reaction was, "I thought the same thing when I was your age." (He is twenty-three years my junior.) I once thought the Seventeenth Amendment was an improvement in that it brought the people into direct electoral contact with their national senator who would then represent the people of his or her state, but I came to realize that this is not what senators were originally sent to the national legislature's upper house to do. We have Representatives in the lower house of Congress to do that. In the beginning, senators were supposed to represent their STATE and its interests.

Robert Livingston, initially strongly opposed Constitution

One of the ironies of the change wrought by the Seventeenth Amendment is that whereas it was once argued that the amendment was needed because the U.S. Senate had become corrupt, it is arguable that the Senate has become more corrupt since passage of the amendment. Part of the reason for this is that U.S. senators were set loose to represent whoever could get them elected. Senators beholden to their state legislatures for their positions were not as wide-ranging in their influence peddling as today's senators who are truly national in their orientation and connections. Rather than bringing them closer to the interests of their state and its citizens, popular election has put senators further away from their states and, necessarily, the interests of their supposed constituents. Senators not only live in Washington, D.C., but they tend to live more for D.C. and its encampments of special interests than for their states. Pork spending that sends federal tax dollars to their home states is necessary, of course, for vote buying, but the question of whether a useless statue or even a worthless bridge improves the welfare of the people of the state is no longer a question. It is just one station on a political pilgrimage along which schmoozing with wealthy donors - as likely from states other than one's own - is another and even more important concern.

Meanwhile, as Levin points out, the much celebrated doctrine of "judicial review" was actually one of the earliest assaults on the Constitution, which did not anticipate the judiciary taking unto itself so sweeping a right to judge the constitutionality of laws as the high court began to do with the 1803 Marbury v. Madison decision. This was a purely political decision that favored the Federalist Party over the Democratic-Republican Party. Chief Justice John Marshall, a Federalist, claimed his own right to favor Federalist appointees of an out-going Federalist president over the wishes of the incoming Republican president. The next time a Supreme Court found United States law unconstitutional was Dred Scott v. Sandford (1857), a more outrageous decision than Marbury because Chief Justice Roger Taney 1) projected his own extreme racism onto the U.S. Constitution and its Framers and 2) declared an already dead federal law unconstitutional even though Framers still alive at the time the law had been passed never thought that it was.

In practice, the wide scope of this kind of judicial review has come to mean that, at any given time, five imperfect human beings can make a decision that interprets the law as it applies to everyone else, and there is no guarantee that they will follow logic or wisdom as they dictate how everyone else shall live henceforth. And there is no recourse except to wait for the Court to be replaced by a more judicious one. The term "judicious review" better describes what judicial review ought to mean but does not. Justices ought to look at what the Constitution says and what it means, and not reinterpret it on the quicksand of intellectual constructs that are alien to the genius of the Framers.

When conservatives complain that liberal justices are engaging in judicial activism of this sort, it is common to hear the rejoinder that conservative judges change legal precedent, too, and isn't that also judicial activism? Well, yes and no. It isn't in the sense that it is often restorative rather than changing the Constitution away from what it was meant to be; on the other hand, it is a counter-judicial activism in the same sense that restoring order, after a revolution has plunged a society into chaos, is counter-revolutionary by definition; the point being that no justice should have been practicing activism in the first place, and the conservative justice would not have to do it, too, if the activists did not start it process. Unfortunately, the taking of countermeasures to counteract dangerous innovations can be like swallowing a spider to catch a fly, making the Constitution - if not a Rube Goldberg machine - then at least a document that shows the signs of wear from having been tinkered with.

Of course, historically - especially when we understand that the too wide interpretation of judicial review itself is the problem - we see that it has little to do with left and right. Chief Justice John Marshall, who was responsible for introducing judicial review, was a conservative, at the time using judicial review to protect members of his own political party. Later, Chief Justice William Taney probably thought he was being conservative when he used judicial review to - in effect - pass sweeping edicts about the right of his fellow slave holders to spread slavery across the nation. Taney's decision thereby upset the truce between slave and free states that the Congress had worked out (albeit that agreement was arguably not constitutional, either) and thereby triggered the Civil War.

After expounding on the damage done by unlimited judicial review, Levin laments that the doctrine has been so engrained in our legal thinking that there is no realistic way of setting back the clock by trying to remove the doctrine from the armamentarium of the High Court. His solution is to nibble at the edges by limiting the length of time that a justice can serve and, intriguingly, giving the Congress and the states power to override Supreme Court decisions. This would indeed restore some democratic balance to the current system of judicial oligarchy, and it has the additional appeal of giving the states more of that power to check the federal government that was originally missing in the Constitution.

This is a topic worth returning to at some other time: The Constitution with its successes and failures, its fragility, and the tendency of people to take for granted that reinterpreting it on a whim will not really cause any damage.

Musical Chairs with Political Labels

BTW, the Great Debate over ratification of the Constitution was perhaps the first instance of a time-honored - if basically dishonorable - political practice: "Federalism" means a system in which the states remain largely sovereign in relation to a limited national government; yet, as one of the Anti-federalists complained, the Constitution has only enough federalism in it to lull citizens into thinking that it is federal; meanwhile it supports enough national government to overwhelm the states - exactly what has come to pass. The so-called Federalists, then, were actually "Nationalists" while the so-called Anti-Federalists were the real "Federalists." Naturally, once the Nationalists started calling themselves Federalists, the name was taken, and the opposition was forced to call itself the Anti-Federalists - even though one of the Anti-Federalist writers called himself  "A Federal Farmer" precisely because "federalist" was his true political stance.

This is what I call playing musical chairs with political labels, and it has happened again and again in history. For example, in the last century, the Progressives began calling themselves Liberals, even though a liberal is someone who believes in free market capitalism and universal civil liberties. The progressive dream, by contrast, is the centralized command economy and the dictatorship of an elite. Set adrift without a label, the old liberals eventually settled on the label "libertarian," which in countries and cultures outside the United States means "anarchist"; but although a few writers, such as Paul Goodman, had tried to introduce the term "libertarian" with its anarchistic meaning into the American political debate, that definition never took hold in this country; consequently, "libertarian" became available to the old liberals and their disciples.

Unfortunately, the magnetism of the anarchistic denotation and connotation of the word has led many, particularly young, libertarians toward  anarchism. Some don't even see Constitutionalism (as I do) to be of pragmatic value. I happen to see the U.S. Constitution as a bulwark against tyranny, which is exactly where progressive/socialist reinterpretation of the Constitution is leading us in what Levin characterizes as our post-Constitutional present in which the Constitution's protections are being watered down. Many libertarians seem not to see that without constitutional order, liberty itself is vulnerable to attack. (F.A. Hayek, one of the idols of many libertarians, wrote a book entitled "The Constitution of Liberty," it should be remembered.)