Archive for June, 2009

Over on Bench Memos, Roger Clegg has made a couple of posts discussing Section 5 of the Voting Rights Act and, in particular, an apparent statement by Senator Leahy that finding Section 5 to be unconstitutional would be an act of “conservative [judicial] activism.”  While I think the question is close enough that throwing around the label of judicial activism is unwarranted, I do have to disagree with Roger that it would be appropriate for the Court, today, to strike down Section 5.  I suppose you could say that I am of the school of thought which believes that “the Court cannot legitimately conclude that Section 5 might once have been constitutional but, because of changes in the facts, isn’t any longer,” and I find unpersuasive Roger’s argument to the contrary.

Roger’s attempted counterargument hinges on the observation that “courts determine facts all the time, and changes in factual circumstances may mean that what once met an — unchanging — constitutional standard no longer does.”  In a his follow-up post, he adds this analogy:

If a policeman asks a judge for a search warrant and produces no evidence, he won’t get it; if he produces good evidence, then he will get it. That’s not judicial activism. Likewise, as the evidence of severe discrimination peculiar to the South diminishes, so will the defensibility of Section 5 before the courts. That’s not judicial activism either.

To be sure, Roger’s observation is accurate and his policeman example is an excellent and familiar demonstration of what he observes.  Unfortunately, Roger misses one key difference between warrant requirements and the Voting Rights Act: The warrant requirements mandated by the Constitution itself.

When the Constitution tells us in the 4th Amendment that “no Warrants shall issue, but upon probable cause,” it is expressly requiring the courts to make a factual determination.  In order for a warrant to issue, the police must set forth sufficient facts to establish that they have probable cause.  If the police cannot carry their burden to show probable cause, the Constitution tells us that “no Warrants shall issue,” which means that if any warrant does issue, that warrant is unconstitutional.  Facts make all the difference because the Constitution says that they do.

The Constitution makes no similar factual demands in the 15th Amendment upon which Section 5 (and the Voting Rights Act in general) is based.  Instead, the 15th Amendment declares a right, declares a list of things which may not infringe that right, and then tasks Congress with enforcement.  Nowhere does the 15th Amendment impose factual requirements on Congress; there is no standard of evidence which Congress must meet to show that its actions are allowed.

As Americans, we should all rightly expect that Congress will bases its acts of legislation on solid factual grounds.  I am more than convinced that with respect to the blind renewal of preclearance requirements, Congress has failed to do so.  Every legislator who voted in favor of renewing preclearance deserves to face tough questions about how they could possibly, on the basis of present day facts, have found racial discrimination of such severity that intruding on state sovereignty remains necessary.  But in this case it is up to the political process, not the courts, to make sure that those questions get answered.

16
Jun

Liberals on Crime?

   Posted by: Robert    in Philosophy

I had this thought during a conversation with Elizabeth who was talking about the effect of gun free zones on crime.  It’s a cynical idea, but I wonder how much truth it may contain.

More crime means you need more government to control crime. In particular, more police. When liberals are asked to cut budgets, the first thing they cut are police. But people hate that, and will often concede to tax increases instead. Victory: liberalism.

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16
Jun

Gun Rights and the States

   Posted by: Robert    in Law

More a post of first impression than anything else, but I again find myself irritated at the NRA and the rather bizarre copy of the Constitution that they appear to possess.  As SCOTUSblog reports here and here, the NRA has filed an appeal in the Supreme Court asking the justices to apply the Second Amendment against the states, through a method known as incorporation.  While the affront to federalism brought by incorporation is disturbing in any case, it is particularly so in the Second Amendment context, given that amendment’s deep ties to federalist concerns.  But what occurs to me is that there may be another way for the NRA to get what it wants without needing to cast any pretense of concern for state sovereignty to the winds to get there.

The key is a practice I’ve seen used by state courts that usually comes up in the equal protection context where state constitutional provisions are held to be identical in scope to their federal constitutional counterparts.  In the case of equal protection, I have generally heard state courts say, in essence, that their state equal protection guarantees extend no further than federal equal protection guarantees.  Of course, equal protection guarantees cannot be less.

While state courts certainly are not bound to maintain equivalence, there is a compelling logic to keeping a consistent meaning for the same set of words when those words appear in both federal and state law.  At a minimum, it promotes a consistency of law which is well within the role of the courts to foster.  More importantly, when state constitutions adopt pre-existing provisions of federal law or the federal Constitution, it tends to be because they want to adopt the meaning of the federal provision, which is precisely what the Supreme Court had declared.

Of course, differently worded state constitutions and state courts which choose to disagree with the Supreme Court as far as their own state constitutions go remain a risk to the NRA position under my approach.  Nevertheless, it is far less judicially activist and destructive to federalism than the path currently being charted by the NRA, and it would certainly not preclude them from returning to the Supreme Court with their activism later if the more modest approach doesn’t pan out.

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13
Jun

Re: Catholic Recusals on the Supreme Court

   Posted by: Robert    in Law

Over at Bench Memos, Matt Franck points out his response to an op-ed published by Joyce Appleby, apparently asking the question of whether Catholic justices should recuse themselves from cases reaching the Supreme Court on issues where the Catholic Church has taken a position.  Matt Franck, ably demolishes her argument, but the whole exchange kind of planted a thought in my mind:  I think the Chief Justice must have missed this one in Caperton v. A. T. Massey Coal Co.

I’m sure the depth of a judge’s religious convictions would have seemed an obvious 41st consideration in retrospect.

11
Jun

PAYGO back again?

   Posted by: Robert    in News

I guess now we know that President Obama is starting to sense that people are getting a bit tired of his plans for bottomless spending from the Federal coffers.  Like all good politicians who think they have a fiscal responsibility problem, Obama has once again started talking up PAYGO.

As a ruse to sound like you know what you’re talking about, being a champion for PAYGO is a pretty good trick.  It helps that the idea is more or less sound, at least at the level of broad sweeping policy.  It also helps that most people think about spending the way most people have to think about spending, as opposed to the way government actually does.  It sounds good that the President wants to turn PAYGO into law, even though that really doesn’t mean anything to Congress.

Of course, then there’s actual reality, which should leave all of us looking just a bit nervous.  It should be well known at this point that Congress never follows through on PAYGO, which is probably why Obama tells us that it should be law.  What never gets mentioned, though, is that Congress is not actually bound by law; they an always change or ignore their past pieces of legislation when they sit down to write the next one.  That doesn’t even count all of the exceptions that would likely be baked in, or the way every Democrat spending bill would somehow be covered by one of those exceptions, though equivalent Republican bills would not.

And then there’s the “negative PAYGO” effect that we would certainly come to discover.  How this basically works is, PAYGO says no new spending without budget cuts elsewhere.  Though it is fallacy to do so, is there any reason to doubt that Congress would construe PAYGO as also requiring budget cuts to be met with new or increased spending elsewhere?  Especially when a rule of fiscal responsibility could be used to lock in Obama’s fiscal irresponsibility?  Especially since, as we should all know by now, it won’t be Democrats who lift a finger to cut a cent from the bottom line.

If Obama is serious about PAYGO, I have a simple formula for him.  He should have Congress make it retroactive to the day he took office.  That way he could blame Bush for all of Bush’s “irresponsible” spending and say (with retroactive accuracy, if not full honesty) that he has kept spending under control for every day of his presidency.  He probably should at least talk that rhetoric up anyway; it isn’t like Congress is actually going to follow along.

7
Jun

Healthcare costs so much because it costs too little

   Posted by: Robert    in News, Politics

According to the Associated Press, Senate Finance Committee Chairman Max Baucus has managed to find a way to make even less sense than Obama on the subject of healthcare.  Assuming that the AP article is an accurate reflection of what Senator Baucus actually said, he has just added another huge contradiction to the healthcare debate.

From the article:

A key Senate chairman says he hopes to convince President Barack Obama that taxing some employer-provided health benefits will help control escalating health care costs  … Baucus says the tax-free benefit packages Americans now enjoy are a big factor in the high costs of the country’s health care system, because they provide workers free or low-cost access to too many health care services.

So, according to Senator Baucus, a “big factor” which makes healthcare more expensive are “tax-free benefit packages … [that] provide workers with free or low cost access to … health care services.”  Put another way, healthcare costs so much because people don’t  have to spend a lot of money to get it.  Yet a third way, healthcare is expensive because it’s not.

Senator Baucus’s solution, which I guess is pretty obvious if you can swallow the contradiction above, is to tax private healthcare benefits.  The line of reasoning is certainly sound: Make healthcare more affordable by increasing the price.  Of course, with President Obama wrangling with care providers to knock costs lower, the only way to jack up the price is to do so artificially, with a tax.

Of course, it is possible that I misrepresented the Senator, and honesty demands that I address his “too many” straw man.  While some people certainly do behave this way, I know of very few people who seek out medical services that they do not actually need.  Indeed, part of the reason America’s emergency rooms are so full is the fact that most people don’t seek out medical services until they’ve long past needed them.  Even if you assume that people are overconsuming healthcare, are they doing so to the tune of offsetting nearly 46 million people who are not insured at all, and for whom President Obama wants to guarantee “free or low-cost” coverage?  And even if the answer is somehow, astonishingly, yes, exactly how is the government going to determine when a person has used “too many … services”?  And why wouldn’t private insurers do the same thing if they could?

The string of illogic given to us by Senator Baucus is only reconcilable with the proposition that he wants to end private insurance without saying so.  If President Obama goes back on his campaign rhetoric mocking McCain for supposedly having similar ambitions, it will be proof even stronger that his goals are the same.

Perhaps we should have given honest debate a health insurance plan ages ago.

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