The New York Times has a nice profile of Judge Ed Korman, the judge who faced down HHS in the Plan B case. See Jonathan Adler’s posts, here, here, here, and here. Whatever one thinks of the merits, it takes great fortitude for a district judge to stand up to a recalcitrant administration. As for Judge Korman’s judicial philosophy: “I basically share Bork’s view that the Constitution should be interpreted based on the understanding of the framers of Constitution.” Korman is a first-rate judge. [...]
For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as justification for rejecting originalism itself rather than for rejecting court decisions such as Loving v. Virginia, which struck down anti-miscegenation laws. At the same time, most scholars have also argued that the original meaning of the Amendment permits states to adopt affirmative action programs.
Recent scholarship has called this conventional wisdom into serious question. In 2011, Northwestern law professor Steven Calabresi and Julia Rickert published an important article outlining an originalist case for striking down laws that discriminate on the basis of sex. More recently, both Calabresi (with Andrea Matthews) and David Upham have published originalist defenses of the result in Loving.
Just a few days ago, Michael Rappaport posted this paper questioning the conventional wisdom on originalism and affirmative action (which I myself questioned much less thoroughly here). It is not my view that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs. But the application of the original meaning to these programs is far from being as clear as the conventional wisdom suggests.
I don’t think the work of Calabresi and his coauthors, Rappaport, and Upham will definitively end the debate over originalism and discrimination. Critics of originalism will likely develop rebuttals to their arguments. But this new wave of scholarship does mount a strong challenge to the previously dominant conventional wisdom. [...]
At today’s Proposition 8 oral argument, Justice Scalia asked Ted Olson, the lawyer for the plaintiffs, “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” The intuition behind Scalia’s question is that if a law would not have been unconstitutional on the day the Fourteenth Amendment was adopted, it cannot be unconstitutional under that Amendment at all.
But the latter doesn’t necessarily follow from the former. Laws that are constitutional at Time X can easily be unconstitutional at Time Y if relevant factual circumstances have changed. This is true not only under “living Constitution” theories, but even under originalism.
I. Originalism and Changing Circumstances.
How could this be so? Whether a law violates the original meaning of the Constitution depends not just on the words of the text, but on relevant factual circumstances. For example, the Fourth Amendment bans “unreasonable” searches and seizures. Whether a search is reasonable depends at least in part on the state of technology, the likelihood that the search will catch a criminal, and other factual circumstances. As technology changes and our knowledge increases, a search that could be considered reasonable at Time A might not be reasonable at Time B, even though the meaning of the Fourth Amendment has not changed at all.
The constitutionality of sex discrimination is a particularly telling example. Steven Calabresi and Julia Rickert have shown that the original meaning of the Fourteenth Amendment constrains discrimination against women if that discrimination lacked a compelling rationale beyond a desire to subordinate them as an inferior “caste.” But 19th century understandings of biology and social science led most people to believe that a wide range of laws discriminating against women were constitutional because they were rational responses to fundamental differences between the [...]
The University of Pennsylvania Journal of Constitutional Law is hosting a very promising symposium on Friday, January 25. My colleague and co-blogger Randy Barnett will be on the first panel. I will be giving the keynote address. And the second half of the symposium is largely dedicated to (eviscerating) my work! [...]
“Everyone loves money. That is why they call it MONEY.” – David Mamet.
The trillion-dollar coin is a proposal to avoid the debt ceiling through a loophole in a federal statute that authorizes the U.S. Mint to coin platinum in any denomination. Platinum is reserved for commemorative issues, and the obscure statutory provision was certainly not intended by Congress to authorize the effective borrowing of a trillion dollars, but as a statutory matter, the trillion dollar coin may work.
I have not examined the matter too closely, but at least one constitutional question pops up here.
Congress is authorized to “coin money.” The proposed trillion-dollar coin is certainly a coin – but is it money? Money is created for circulation. As Justice Story put it in his Commentary on the constitution, the power to coin money is designed to “preserve a proper circulation of good coin of a known value.” Vol. 2, § 1118. That is why it is put into the convenient form of coins or bills. Specie never intended for circulation, one might argue, is simply not money.
The link between circulation and coinage has been noted by courts, though obviously nothing has been decided, at least as far as my brief inquiry revealed. Veazie Bank v. Fenno, 75 U.S. 533 (1869) (“It cannot be doubted that under the constitution the power to provide a circulation of coin is given to congress.”)
Let us turn to the dictionaries. “Money” is “metal coined for public use,” according to the 1788 edition of William Perry’s The royal standard English dictionary. This may lead to a debate about what a “public use” is, reminscent of the “general welfare” question in the Spending power. I would guess it means “use by the public,” a view supported by “Metal coined [...]
Judge Robert Bork was an outstanding legal scholar and jurist. It is often forgotten that he first became prominent thanks to his path-breaking work on antitrust law and economics in the 1960s and ’70s. In this area, he made major advances that have become conventional wisdom for scholars across the political spectrum….
Bork’s theories on constitutional law are far more controversial. Nonetheless, he undeniably made a major contribution to the defense of originalism. He played a key role in bringing it from the margins of legal thought to the center….
In his later years, Bork ran into two contradictions that bedevil conservative legal and political thought more generally. The first is the tension between originalism and judicial deference to the democratic process. In many cases, enforcing the original meaning of the Constitution requires imposing tight constraints on legislative and executive power…. Second, Bork advocated extensive government regulation and “censorship” (his word) of the culture, without considering the possibility that this form of government intervention is often prone to the same pitfalls that he had earlier identified in government economic regulation.
The controversy over his 1987 Supreme Court nomination and the continuing ideological divide over judicial review make it difficult to objectively assess Judge Bork’s legacy. In the long run, however, I think he will be remembered for his important contributions to legal thought — even by those who, like myself, disagreed with many of his conclusions.
I am grateful that Akhil Amar has taken the time to respond to my post criticizing his theory that the original meaning of the Fourteenth Amendment bans racial discrimination by the federal government as well as the states. Akhil makes some good points, but I think he continues to fall short on the central point at issue. Neither of his posts adequately substantiates his argument that the original meaning of the Citizenship Clause of Section 1 of the Fourteenth Amendment protects African-Americans and others born or naturalized in the United States against federal racial discrimination simply by virtue of guaranteeing them citizenship.
In his new post, Akhil explains that his argument only applies to federal government discrimination with regards to “civil rights” (e.g. – rights to property and freedom of contract) rather than political rights (e.g. – voting and participation in juries and the military). I know that he has distinguished between the two in previous work. However, in the quote from his new book that he included in his earlier post criticizing me, Akhil makes the sweeping statement that the Citizenship Clause of the First Amendment means that “Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence” [emphasis added]. I think a reasonable reader could be forgiven for assuming that by “any law” Akhil means “any law.” Laws excluding blacks or women from the franchise, jury service, or military service certainly seem like laws “heaping disabilities or dishonor upon any citizen by dint of his or her birth status.” Perhaps this very broad statement is qualified elsewhere in the [...]
I am grateful to Akhil Amar for his comment on my post challenging claims that the original meaning of the Fourteenth Amendment allows affirmative action because Congress, in the 1860s and 70s adopted programs that gave “racial preferences” to recently freed African-American slaves. In my earlier post, I pointed out that these were federal government policies, and that the part of the Fourteenth Amendment which includes the Due Process Clause, the Equal Protection Clause and the Privileges or Immunities Clause), explicitly applies only to states.
Professor Amar rightly points out that the first sentence of Section 1 of the Amendment, which guarantees citizenship to all persons born or naturalized within the United States, applies to the federal government as well. I don’t deny this, and even added an update to my post, where I noted that “I have updated this post slightly to make clear that it is the text of Section 2 [I meant to say the latter part of Section 1] of the Fourteenth Amendment (which includes the Equal Protection Clause and the Privileges or Immunities Clause) that only applies to state governments. Some other parts of the Amendment (e.g. – [the first part of Section 1] which gives citizenship to all person born in the United States, and Section 3, which bans some former Confederates from serving in Congress) also constrain the federal government. But [the latter part of Section 1] is the provision relevant to affirmative action.” My original post was badly worded on this point; and I also briefly conflated the second part of Section 1 with Section 2, which foolish error is explained but not excused by the fact that I was very tired at the time I wrote the update). But the update (which I first added before Professor Amar’s post went up) [...]
In this recent SCOTUSblog post on the upcoming Supreme Court case of Fisher v. University of Texas, David Gans and UCLA law professor Adam Winkler take conservative originalist opponents of affirmative action to task for ignoring originalism in their arguments against the constitutionality of racial preferences for minorities. They particularly single out Supreme Court Justices Clarence Thomas and Antonin Scalia, who have taken a hard line against affirmative action in their opinions, but have never provided any evidence that this position is consistent with originalism. Gans and Winkler also argue that originalism in fact supports the constitutionality of affirmative action because “[t]he same elected officials who wrote and endorsed the constitutional amendment guaranteeing the equal protection of the laws to all persons also enacted several measures embodying ‘racial preferences.’” The latter argument builds on the work of previous academic defenders of affirmative action, such as Yale law professor Jed Rubenfeld.
Gans and Winkler are right to criticize Scalia and Thomas for neglecting originalism in their affirmative action opinions. But they are wrong to assert that originalism clearly supports their own side of the affirmative action debate. Without exception, all of the nineteenth century “racial preferences” that they cite are federal laws, such as the Freedman’s Bureau programs intended to aid recently freed slaves. But the text of the latter part of Section 1 of the Fourteenth Amendment, the provision at issue in affirmative action litigation, only applies to state governments: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [emphasis added].
Beginning with the famous case [...]
Well-known legal commentator and former Scalia clerk Ed Whelan has an interesting critique of Judge Richard Posner’s very negative review of Justice Scalia’s recent book on legal interpretation (coauthored with Bryan Garner). [...]
Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.
There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.
Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.
For at least 30 years, many conservative scholars and jurists have also been urging strong judicial enforcement of constitutional property rights. Rehnquist was a leader on that issue too, notably in his dissent in the key 1978 Penn Central case, which [...]
In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.”
Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.
The above language is a plausible argument for the Chief Justice’s tax/penalty analysis. But by discussing a window tax, the Roberts opinion provides one more reminder why the individual mandate, if it is a tax, is a direct tax, not an indirect tax. Direct taxes must be apportioned by state population. Art. I, sect. 9, cl. 4. If the individual mandate is a direct tax, then it is unconstitutional, because it is not apportioned by state population.
Pursuant to the 16th Amendment, direct taxes on income need not be apportioned, but neither the individual mandate nor the hypothetical window tax are taxes on income. Constitutionally, “income” subject to the federal income tax must be ”undeniable accessions to wealth.” Commissioner v. Glenshaw Glass Co., 348 U.S. [...]