The salt principle urges that we read texts of the constitution cum grano salis, which indeed is routinely done by pretty much everybody.
Few would agree the First Amendment ought to be read as ensuring the freedom to shout "Fire!" in a crowded theater, or as prohibiting legally enforceable non-disclosure agreements, or as rendering unenforceable laws punishing revelation of classified information.
No one reads the free exercise clause as guaranteeing a right to religiously practise human sacrifice.
So let us not be absurd and read Article II, Section I, "The executive Power shall be vested in a President of the United States of America," in the manner of the strong theory of the unitary executive expounded by Scalia and others, as excluding the existence of any federal executive agencies, departments, services, or officials that are not subordinate to the authority of the president.
That is, let us not read it so as to exclude the very existence of independent counsel whose job would be to investigate and when appropriate indict and prosecute crimes independently of the authority of the president, counsel who do not report to him and cannot be fired by him and whose work he cannot in any way interfere with.
And let us not read it, as some do in the name of that theory, as affording a unique constitutional shield to the president, disallowing laws, or interpretations of laws, that might result in the president's exercise of his executive authority being criminal, as for example being an abuse of power or being an obstruction of justice, as some seem to have done.
Let us read it with a grain of salt.
Hat tip to Erwin Chemerinsky, We the People, p 133 f.
Showing posts with label Erwin Chemerinsky. Show all posts
Showing posts with label Erwin Chemerinsky. Show all posts
Saturday, April 20, 2019
Friday, April 19, 2019
Erwin Chemerinsky: The Electoral College is unconstitutional and should be declared so
Reading We the People, p 86 ff.
In sum:
The court has held that 5th Amendment due process makes the equal protection clause binding on the federal government.
For half a century the court has held that equal protection imposes the principle of one person, one vote; "every person must have an equal ability to influence the outcome of an election".
[So every person must have the vote? Children? Mental incompetents? Noncitizens? What? - PV]
The Electoral College is inconsistent with this basic principle of democracy.
For example, each presidential vote in Wyoming is worth far more than a vote in California, writes EC, appealing to an argument that conflates a state's total population with its total number of voters.
Still, it's a good point, though it might have been better made by appeal to a principle insisting on equality of representation, which makes total population the relevant factor, rather than "one person, one vote" or "every person must have an equal ability to influence the outcome of an election", which both certainly seem to make the number of voters rather than population the decisive consideration.
He continues (p 87) saying "the judicial role is most important when the political system is incapable of reforming itself. That is why the Court's decisions concerning apportionment were so crucial. . . . [T]hose who benefitted from this [malapportionment] were not about to redraw legislative districts to vote themselves out of power. . . ."
"Earl Warren remarked that the most important decisions during his tenure on the Court were those ordering reapportionment precisely because the political process was never going to solve the constitutional problem. . . . It is especially important for the Court to act because the political process will never deal with the clear unconstitutionality of the Electoral College."
Democrats are not brave enough to pack the court, let alone commit such a brazen act of interpretation so very far from anything resembling original meanings, aims, or expectations.
Do they dare to eat a fig?
I doubt it.
In sum:
The court has held that 5th Amendment due process makes the equal protection clause binding on the federal government.
For half a century the court has held that equal protection imposes the principle of one person, one vote; "every person must have an equal ability to influence the outcome of an election".
[So every person must have the vote? Children? Mental incompetents? Noncitizens? What? - PV]
The Electoral College is inconsistent with this basic principle of democracy.
For example, each presidential vote in Wyoming is worth far more than a vote in California, writes EC, appealing to an argument that conflates a state's total population with its total number of voters.
Still, it's a good point, though it might have been better made by appeal to a principle insisting on equality of representation, which makes total population the relevant factor, rather than "one person, one vote" or "every person must have an equal ability to influence the outcome of an election", which both certainly seem to make the number of voters rather than population the decisive consideration.
He continues (p 87) saying "the judicial role is most important when the political system is incapable of reforming itself. That is why the Court's decisions concerning apportionment were so crucial. . . . [T]hose who benefitted from this [malapportionment] were not about to redraw legislative districts to vote themselves out of power. . . ."
"Earl Warren remarked that the most important decisions during his tenure on the Court were those ordering reapportionment precisely because the political process was never going to solve the constitutional problem. . . . It is especially important for the Court to act because the political process will never deal with the clear unconstitutionality of the Electoral College."
Democrats are not brave enough to pack the court, let alone commit such a brazen act of interpretation so very far from anything resembling original meanings, aims, or expectations.
Do they dare to eat a fig?
I doubt it.
Sunday, April 14, 2019
Reading "We the People"
EC does advert to rulings concerning the 2nd Amendment.
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
EC writes that before Heller no Supreme Court had ever stricken down any law for violating this amendment.
"The Court", he says, "always ruled that the Second Amendment was about a right to have guns for the purpose of militia service" (page 8).
Heller struck down a DC ordinance prohibiting private ownership or possession of handguns, 5 conservatives vs four liberals.
Two years later the same majority held the 2nd protects a fundamental right against state and local governments, too, in McDonald.
.
Scalia went there, to incorporation of the 2nd.
Scalia articulates the position of the court that the part of the text before the comma is merely "prefatory" and only the part after it is "operative".
That part, read fairly, says without qualification that the right of the people to keep and bear arms shall not be infringed.
EC regards the claim that the first part is merely prefatory as arbitrary and in any event cites this case as part of his argument that conservatives only insist upon judicial restraint when it is liberals they want to restrain, and denounce judicial activism when it is liberal judicial activism.
(He says liberals do the opposite).
I mention all this to point out that the conditional view of the text as a legitimate originalist reading seems not to have been considered by anyone, though it fits quite nicely with liberal values as it makes the amendment entirely inoperative.
So to speak.
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
EC writes that before Heller no Supreme Court had ever stricken down any law for violating this amendment.
"The Court", he says, "always ruled that the Second Amendment was about a right to have guns for the purpose of militia service" (page 8).
Heller struck down a DC ordinance prohibiting private ownership or possession of handguns, 5 conservatives vs four liberals.
Two years later the same majority held the 2nd protects a fundamental right against state and local governments, too, in McDonald.
.
Scalia went there, to incorporation of the 2nd.
Scalia articulates the position of the court that the part of the text before the comma is merely "prefatory" and only the part after it is "operative".
That part, read fairly, says without qualification that the right of the people to keep and bear arms shall not be infringed.
EC regards the claim that the first part is merely prefatory as arbitrary and in any event cites this case as part of his argument that conservatives only insist upon judicial restraint when it is liberals they want to restrain, and denounce judicial activism when it is liberal judicial activism.
(He says liberals do the opposite).
I mention all this to point out that the conditional view of the text as a legitimate originalist reading seems not to have been considered by anyone, though it fits quite nicely with liberal values as it makes the amendment entirely inoperative.
So to speak.
Reading "We the People"
The Fourteenth Amendment and originalism.
Recall that Scalia frequently insists on the narrowest, text-only version of originalism, but in practise sometimes allows the supposed aims of the framers, authors, ratifiers, or whoever to play a decisive role, and sometimes the expectations of such persons as regards how their work would or would not be read.
No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.
These include the questions (1) who is to be protected equally, (2) from what are they to be protected, and (3) with whose protection is theirs is to be compared.
As to (1), leaving aside anything fishy in your 18th Century dictionary of American English and consulting only the meanings of the word, it is as clear as one could wish that the clause protects everybody.
And as to (3), again adverting to the bare text, is appears the protection of each is to be compared to that of everyone and anyone else.
Putting it together in a nutshell, all are to be protected equally. No one may be discriminated against as regards protection from whatever it is that they are to be protected from.
But EC cites a WAPO report of an interview in California Lawyer in which Scalia claims (as EC reports) that the clause does not protect women because the framers of the amendment never meant to protect them.
There is no indication why we should believe that.
Elsewhere EC points out that while it is pretty certain the framers of the clause at least meant to guarantee equal protection to the freedmen, it is abundantly likely they meant also to guarantee their descendants in perpetuity.
As for myself, I think that if those groups were the only ones they meant to guarantee protection they would not have chosen the universal language of the clause.
As to (2), again adverting to the bare text, it appears we may suppose that the clause is to assure equality of protection against anything law protects people from.
And that would include, say, crimes, violations of contracts, and the like.
Crimes such as lynching, raping, arson, robbery, kidnapping, bullwhipping, and torture – pretty much the entire repertoire of the followers and heirs of Nathan Bedford Forest would be covered.
Elsewhere he alludes to the argument that, since the same congress that passed the 14th Amendment also imposed segregation on the DC schools, they clearly did not aim at protecting anyone from that, and would have expected it not to be read as offering such protection.
He point outs that the unanimous court that ruled in Brown against the constitutionality of segregation was perfectly aware this was not an aim of the framers, and contrary to their likely expectations.
I note that Brown appears to prohibit, via the equal protection clause, not merely unequal protection by the law, but more broadly unequal treatment at the hands of state governments.
Recall that Brown held that separate is never in fact equal, and that segregation of the races imposes an indelible and undeniable stigma, a brand of inferiority and unworthiness, on the people of one race.
That is very far from equal treatment at the hands of the state.
In this way the decision goes beyond the original meaning as well as the aims and expectations of the framers.
Since that time various laws and courts have shifted the ground a little more taking the equal protection clause to require or anyway license governments to ensure equality of treatment (or non-discrimination) by employers, service providers, schools, and so on.
It’s become a quite large and complicated part of the law, based on readings of the clause far from and in some ways even contrary to any or all of the text as originally meant, the aims of the framers, and the expectations of the framers.
And all of that in service to the liberal value of equality and defiance of the strictures of originalism.
But EC also cites a case not based on the 14th Amendment as an instance of judges departing that far from anything originalism could countenance, in furtherance of liberal values and direct opposition to the conservative values served expressly by the text and contrary to anything credibly ascribed to the framers as relevant aims and expectations.
In Home Building and Loan v. Blaisdell (1934) the Court upheld a Minnesota law prohibiting foreclosure of farm mortgages, despite Article 1, Section 10 (EC wrongly cites Section 9) of the constitution.
No state shall . . . pass any law . . . impairing the obligation of contracts.
The words, the aims, and the expectations of the framers were that exactly such laws were to be forbidden by this clause.
But the country was in the depth of the Great Depression, and exceptional times call for exceptional measures, the court explained.
EC approves, and so do I.
The usual suspects do not.
BTW.
Recall that Scalia frequently insists on the narrowest, text-only version of originalism, but in practise sometimes allows the supposed aims of the framers, authors, ratifiers, or whoever to play a decisive role, and sometimes the expectations of such persons as regards how their work would or would not be read.
No honest originalist reading can depart from or ignore these, nor can any honest decision defy these.
To escape the cage of originalism there is only recourse to Article V.
Recall, too, that he does not accept incorporation as being available to anyone in that cage, though lately some have floated arguments to the contrary concerning the framers aims and expectations regarding the privileges or immunities clause of the 14th Amendment.
Early in his book, EC alludes to a number of issues concerning the equal protection clause of this amendment.
No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.
These include the questions (1) who is to be protected equally, (2) from what are they to be protected, and (3) with whose protection is theirs is to be compared.
As to (1), leaving aside anything fishy in your 18th Century dictionary of American English and consulting only the meanings of the word, it is as clear as one could wish that the clause protects everybody.
And as to (3), again adverting to the bare text, is appears the protection of each is to be compared to that of everyone and anyone else.
Putting it together in a nutshell, all are to be protected equally. No one may be discriminated against as regards protection from whatever it is that they are to be protected from.
But EC cites a WAPO report of an interview in California Lawyer in which Scalia claims (as EC reports) that the clause does not protect women because the framers of the amendment never meant to protect them.
There is no indication why we should believe that.
Elsewhere EC points out that while it is pretty certain the framers of the clause at least meant to guarantee equal protection to the freedmen, it is abundantly likely they meant also to guarantee their descendants in perpetuity.
As for myself, I think that if those groups were the only ones they meant to guarantee protection they would not have chosen the universal language of the clause.
As to (2), again adverting to the bare text, it appears we may suppose that the clause is to assure equality of protection against anything law protects people from.
And that would include, say, crimes, violations of contracts, and the like.
Crimes such as lynching, raping, arson, robbery, kidnapping, bullwhipping, and torture – pretty much the entire repertoire of the followers and heirs of Nathan Bedford Forest would be covered.
Elsewhere he alludes to the argument that, since the same congress that passed the 14th Amendment also imposed segregation on the DC schools, they clearly did not aim at protecting anyone from that, and would have expected it not to be read as offering such protection.
He point outs that the unanimous court that ruled in Brown against the constitutionality of segregation was perfectly aware this was not an aim of the framers, and contrary to their likely expectations.
I note that Brown appears to prohibit, via the equal protection clause, not merely unequal protection by the law, but more broadly unequal treatment at the hands of state governments.
Recall that Brown held that separate is never in fact equal, and that segregation of the races imposes an indelible and undeniable stigma, a brand of inferiority and unworthiness, on the people of one race.
That is very far from equal treatment at the hands of the state.
In this way the decision goes beyond the original meaning as well as the aims and expectations of the framers.
Since that time various laws and courts have shifted the ground a little more taking the equal protection clause to require or anyway license governments to ensure equality of treatment (or non-discrimination) by employers, service providers, schools, and so on.
It’s become a quite large and complicated part of the law, based on readings of the clause far from and in some ways even contrary to any or all of the text as originally meant, the aims of the framers, and the expectations of the framers.
And all of that in service to the liberal value of equality and defiance of the strictures of originalism.
But EC also cites a case not based on the 14th Amendment as an instance of judges departing that far from anything originalism could countenance, in furtherance of liberal values and direct opposition to the conservative values served expressly by the text and contrary to anything credibly ascribed to the framers as relevant aims and expectations.
In Home Building and Loan v. Blaisdell (1934) the Court upheld a Minnesota law prohibiting foreclosure of farm mortgages, despite Article 1, Section 10 (EC wrongly cites Section 9) of the constitution.
No state shall . . . pass any law . . . impairing the obligation of contracts.
The words, the aims, and the expectations of the framers were that exactly such laws were to be forbidden by this clause.
But the country was in the depth of the Great Depression, and exceptional times call for exceptional measures, the court explained.
EC approves, and so do I.
The usual suspects do not.
BTW.
EC at one point says, judging by the likely aims and/or expectations of the framers, ratifiers, voters, of whoever, and though the use of masculine pronouns, given the grammatical conventions in play, is not decisive, no woman can be president.
I think he is right about those aims and expectations, and right that those aims and expectations commit any honest originalist to insist the constitution does not allow women to hold that office.
Don't like it?
Go get a suitable amendment passed.
It is worth thinking about that understanding the First Amendment to protect forms of expression and media other than audible speech heard in person and live and anything producible by an 18th Century press takes us out of the cage of originalism.
So does taking that amendment to protect freedom of association.
So do the extensions of the right to privacy (or disestablishment, as you will) to insulate much of our sex lives from control by laws imposing traditional Christian sexual morality.
So does regarding a warrant as needed in case the police want access to GPS data tracking someone's movements (that is neither a search nor a seizure of that person or his effects, and whatever corporate entity has such records is not the suspect in such a case).
So do the Air Force and paper currency.
So does a lot of the invisible ink constitution, which, according to EC, is where we have to look for constitutional warrant for Judicial Review of federal laws and executive actions.
A huge body of what can be constitutional only outside the cage of originalism would never be challenged by any sane conservative, not even one claiming to be an originalist.
Again, BTW.
EC refers to an early case of his in which a person was sentenced under California's three time loser law to life with no possibility of parole for 50 years for shoplifting $153 worth of video tapes.
The defendant had no history of violent crime and no one in the history of the US had ever been sentenced to life for shoplifting before.
That sentence was appealed to the Supremes as contrary to the 8th Amendment exclusion of cruel and unusual punishments.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
5-4, conservatives vs. liberals, the court said the sentence was fine.
Since the punishment was egregiously both cruel and unusual and no argument is cited referring to the aims or expectations of the Framers, ratifiers, or whoever, EC opines they just wanted to send a strong law and order, get tough with crime message.
And when you read of this and think of the slap on the wrist that career criminal, Paul Manafort, got for a lifetime of much worse and much more numerous crimes you cannot possibly avoid disgust with the classism rampant in law enforcement from the ground up.
California voters later changed the law to require that the third strike had to be for a serious or violent crime, and the fellow was released.
Reading "We the People"
Picador pb, 2018, by Erwin Chemerinsky.
Fascinating, amusing, information rich, but very poorly edited.
Subtitle: A Progressive Reading of the Constitution for the Twenty-First Century.
I've read to the end of Chapter 2.
Gorsuch's originalism is apparently much like Scalia's.
The book came out late enough for EC to know Chump would name another, but too soon to know it was Kavanaugh.
EC several times defines "originalism", most commonly as insisting a provision of the constitution be read according to the meaning of its words as they would have been understood by an adequately informed reader at the time of adoption.
Departures from such meaning can only be licensed, Scalia insists, by a constitutional amendment.
Scalia in his writings rejected recourse to intentions in the sense of aims or purposes, and expectations as to how provisions would or would not be read or understood, of relevant persons regarding a provision (Framers, authors, ratifiers, voters, or whoever), and heaped contempt upon incorporation.
EC joyfully recounts numerous of his decisions in which he crucially relies on these.
And others in which he flagrantly departs from or flatly contradicts anything remotely like the original meanings of the actual words, sometimes in such cases appealing to aims or expectations as decisive.
And others yet in which he departs conspicuously from all these factors: original meanings, aims, and expectations.
Of course what Scalia never departs from is commitment to reading the text in accordance with conservative ideology in service to conservative values and conservative goals.
EC's point is that originalism is a hoax and a smokescreen, a pretense of objective and value free judging behind which conservatives provide readings and rulings infused with conservative values in service to conservative preferences.
Most of the time what originalism requires we do can't be done, anyway, and mostly when it can it shouldn't.
EC supports a method of interpretation according to which neither the presumed original meanings of the words, nor the aims of relevant persons regarding a provision, nor the expectations as to how it would or would not be read of relevant persons, at the time of adoption, need be controlling.
Any or all may be departed from, and he gives highly persuasive, generally liberal examples, citing cases.
More to come.
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