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.

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.

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.

It’s been an interesting week or so for gay marriage in America, with two more states jumping on the bandwagon in fairly rapid succession.

The first state, Iowa, has picked up gay marriage as the product of a story which is all too familiar.  The Iowa Supreme Court, in a grand act of contempt for democracy which is consistent with other judicial impositions of gay marriage, did not appear to break any meaningful new ground in their writing.  The Iowa is perhaps (but only perhaps, for I do not know Iowa law on this point) different from other recent cases only in that this decision may have affected substantive rights, in contrast to the decisions of the California and Connecticut courts which mandated, only, that one particular term for a set of rights be used rather than another.  If indeed there was a difference in fact and substance between the legal protections available to homosexuals as compared to heterosexuals, then the ultimate outcome of the case is likely far less egregious than the line of reasoning used by the court.

The line of reasoning makes clear, however, that legal inequality was not the court’s primary concern, if indeed the court cared about it at all.  The tragedy of legal absurdity to follow was foreshadowed early on by the court as it listed off several things which unmarried “couples” have no entitlement to in Iowa, with the capstone being “the inability [of homosexuals] to obtain for themselves and for their children the personal and public affirmation that accompanies marriage.”  Such an affirmation, however, cannot be conjured into being by the courts.  In a society characterized by representative government, the law typically reflects those things which are currently accepted by society and are typically neutral or hostile to things which are not; in other words, laws embody the beliefs of the people.  As we should have learned from the Jim Crow era following the Civil War, people seldom embody (or follow) the beliefs underlying laws with which they disagree.

Changing the people, as we have been seeing in the nation generally and now showcased in Vermont in particular, is a purely democratic endevor.  Although proponents of gay marriage remain a minority when compared to opponents of the practice, the numbers have tended to level out with time.  I have little doubt that within the next decade or so, the balance will shift and proponents of gay marriage will outnumber those opposed.  An unfortunate consequence of judicial activism today is that it will take several decades to build a sufficiently strong gay marriage majority to overturn the constitutional amendments which now restrict the practice.

While it is impossible to say whether Vermont would have approved gay marriage had they not had civil union imposed upon them years ago by their courts, their grant of marriage now is an outstanding example of how the process ought to run.  By building a democratic consensus strong enough to survive a veto, the acceptance of gay couples in Vermont by their fellow citizens — the people whose acceptance actually matters in the end — will be far greater and more stable than it is likely to be in Iowa.  Vermont now actually has something to be proud of, as the first state to voluntarily grant marriage rights to gay couples.

I recently happened across an article published by Jed Rubenfeld in the Stanford Law Review entitled The End of Privacy.  Although that phrase is usually thrown about in the context of discussions about how the government is increasingly intruding into private life (and let me just say, Mr. NSA Agent, you have a very handsome shirt), the essence Mr. Rubenfeld’s article actually has almost nothing to do with that.  Instead, his core argument is against believing that the Fourth Amendment is a privacy amendment at all.  His argument is interesting on several levels.

From a textualist standpoint, Mr. Rubenfeld gets us a fair bit closer to what the Fourth Amendment actually says than anything the courts have done in recent memory.  His essential argument begins with the observation that the word “private” does not appear anywhere in the Fourth Amendment.  The word “secure” does.  Therefore, what the Fourth Amendment must actually protect is security rather than privacy, or the “reasonable expectation” (Katz v. United States, Harlan, J., concurring) thereof.

If the textual argument alone is unpersuasive, Mr. Rubenfeld goes on to dismantle the “reasonable expectation” doctrine, and does so rather handily.  He points out the circularity problem, which boils down to the observation that the amount of privacy a person can “reasonabl[y] expect[]” is fundamentally tied to how much privacy they know they are actually being afforded.  Mr. Rubenfeld tells us that the courts have avoided the circularity problem by “root[ing] individuals’ privacy expectations in widespread social norms drawn … from outside the law enforcement context.” (The End of Privacy, pg 8)  This avoidance mechanism, as a practical matter, has led the courts to develop what Mr. Rubenfeld calls the “Stranger Principle,” the principle that anything “we have exposed to perfect strangers, we cannot claim to be private.” (ibid)  Replace “perfect strangers” with “third parties” (Smith v. Maryland) and you have the effective destruction of any meaningful limit on what information the government might actually be able to obtain.

With the privacy logic thus dealt with, Mr. Rubenfeld moves on to talking about security.  At the risk of oversimplifying what would often be a subtle distinction, what Mr. Rubenfeld seems to be proposing is a reading of the Fourth Amendment in which the government is disabled from not only taking information from you directly, but also from taking information indirectly through third parties, and from conducting espionage undercover operations against its own citizens.

The remainder of the article eventually turns to arguments of how this approach to the Fourth Amendment could have stopped Bush from doing some of the things he allegedly did.  I found these arguments to be overstated, though they did expose some interesting other aspects of Mr. Rubenfeld’s thinking.  Of greatest interest was his conception of the Fourth Amendment as being both an individual and collective right in which the individual security right may be violated when the government engages in activities (e.g. NSA wiretapping) which tend to decrease the sense of security held by society as a whole.  Also interesting was his view that courts would be disabled from engaging in balancing tests.

Although it is a bit long for general consumption, there is a lot to like about Mr. Rubenfeld’s article.  His foundation strikes me as being a whole lot closer to the actual text of the Fourth Amendment than the current practices of the courts.  That is not, of course, to say that his argument is perfect, and it appears to leave some important questions unanswered.  it does, however, create a good starting point for anyone looking for a way out of the wilderness of Fourth Amendment “privacy.”

In what is bound to be but one of many examples of the current government showing its lack of concern for the Constitution, I see that the Senate has voted to approve the DC Voting Rights Act of 2009.  Although a more flagrant violation of the Consitution is hard to imagine, the most surprising aspects of this bill actually have very little to do with its primary intent.

In what is quite possibly an attempt to trick Republicans other than the misguided Senator Hatch (R-Utah) into voting for this bill, it apparently also spends some time establishing new media policies, the most noteworthy of which is that it declares the Fairness Doctrine to be prohibited.  Exactly what this has to do with giving DC a voting member in the House, I have no idea.  Equally elusive to me is the reason why anyone should care in the first place whether or not Congress has passed a law to forbid this Doctrine.  Any legislative prohibition in the hands of the current Congress is just so many words.  The law does not currently mandate a Fairness Doctrine, the FCC (citing constitutional concerns) does not enforce one, and any prohibition passed by Congress can always be repealed or inverted later.  One need only look at the blighted history of “pay-go” to realize that a congressional promise to not do something is not worth the paper it takes to print the promise.

But the fun doesn’t stop there.  Using what is probably also an attempt to buy Republican votes, the Act also includes a bunch of pro-gun provisions which, at least at a cursory glance, seem to pretty much get rid of the DC gun laws which have the NRA types all upset.  This part of the Act has the distinction of being the only part which appears both relevant and constitutional.  This part is also what Congress should have done instead of filing an amicus brief in Heller.  Most interestingly, however, is that this part of the Act brings with it a deep irony for those who truly believe that DC deserves to have a vote in the House: The very law which would give DC a vote would directly overrule DC law without letting DC vote on the issue.

At the end of the day, the obligation that members of Congress have to vote against this piece of legislation is clear.  There are too many reasons, both practical and constitutional, why this Act is not deserving of any of the 61 votes it has already received.  Republican legislators need to not be swindled by the carrots being hung in front of their noses, for beyond that tasty snack is a cliff as deep as history.  The Republican consituency will surely be told that their lawmakers voted against prohibiting the Fairness Doctrine and against gun rights in DC; paying attention to those charges would be the gravest of errors.  May the Republicans stand strong.

I happened across a curious post on one of my more liberal leaning legal blogs a couple of days ago.  Apparently, a group of voters has filed a lawsuit in one of Alabama’s circuit courts challenging the legality of the Constitution adopted by the state in 1901.  The complaint and supporting document present the claim that the Alabama Constitution is invalid under the Federal Constitution.  Their complaint essentially boils down to the argument that the Constitution was ratified as a result of racist, pro-white voter fraud, making the document and the government it creates illegitimate.  As I see it, this complaint faces a number of deep flaws.

The first and most obvious question to ask in a case like this is, “What about the 14th Amendment?”  It is relied on as one of the two main authorities in the case under which the plaintiffs seek to have the Alabama Constitution declared invalid.  However, as the Utah Supreme Court observed in Dyett v. Turner, there are historical reasons to doubt the legitimacy of the 14th Amendment as well.  Despite these comments from the Utah Supreme Court, there is no indication that any court (Utah’s Supreme Court included) actually believes that the 14th Amendment is not, in fact, an enforceable part of the Federal Constitution.

Moving on to more legalistic matters, the Alabama courts would face an immediate problem if they rule in favor of the plaintiffs in this case.  Plaintifss seek, as a remedy, that the Court “issue a permanent injunction enjoining the [State] from continuing to enforce the [Alabama Constitution].”  More to the point, they believe that the “Constitution was never passed by the people of Alabama” and is, therefore, “invalid.”  If the Court rules that the Alabama Constitution is invalid, it must necessarily also rule that it has no legal authority upon which to base its judgment.  Like all of the other departments of government, Alabama’s judicial department derives its authority, ultimately, from the Alabama Constitution.  Therefore, if plaintiffs are correct, they have asked for relief from a tribunal which has no more legal authority than I have.

Since plaintiffs would put me on equal footing with the Alabama courts, I might as well spend a moment or two talking about the actual merits of their claim.  I find it interesting that in their entire complaint, plaintiffs cite only a few brief words in regard to things like poll taxes and property requirements which, even assuming that those are sitll operative provisions of the Alabama Constitution, are assuredly not enforced (or enforceable).  Importantly, although “[t]he harm … is experienced by each new generation of voters,” (complaint) they fail to set out any harm more tangible than some kind of inherited disenfranchisement.  This  hardly strikes me as the type of claim which is “concrete and particularized” (Lujan v. Defenders of Wildlife).  As far as the complaints about the racist history and language go, I know of no precedent holding that laws with racist history or which use racist language are automatically invalid in the absence of actual racial disparity, and there is no actual disparity claimed.

With a bit of luck, the Alabama courts will find a way to resolve this case quickly and at minimal taxpayer expense.  The easy, obvious, and proper thing to do would be to dismiss the case on a matter of standing or some other preliminary issue without even giving the lawyers an opportunity to try presenting the merits of their claim.  To be sure, logic forbids any Alabama court from ruling in plaintiffs’ favor, which is reason enough to bounce the case as soon as possible.

A couple of days ago, I happened to be linked to an opinion piece written by Michael Barone of US News and World Report.  In his writing, Mr. Barone holds up an argument, which I suppose he tripped over in his wandering around the Internet, which seems to imply without outright stating the author’s belief that the White House cannot constitutionally oversee the Census.  My skill at reading tea leaves is a bit on the weak side on this issue, but the impression I get is that this issue is going to linger for a while before finally being put to rest.  What should be clearer than Mr. Barone or the argument he discovered suggest is that the propriety of White House involvement in the Census is entirely a policy concern.  There is nothing unconstitutional to be found here.

The argument cited by Mr. Barone makes much ado about whether it is the President or Congress with authority over the Census.  As the argument goes, “the Constitution did not place the census function in Article II – the Executive branch but in Article I – the Legislative branch, it is not at all within the President’s reach unless the legislature places it there.” (emphasis original) The problem with this line of reasoning is that within the President’s reach is exactly where Congress chose to place the Census.  In particular, the Census is run by the Census Bureau, which is part of the Department of Commerce.  The Department of Commerce is the department run by the Secretary of Commerce.  The Secretary of Commerce, of course, is a member of the President’s Cabinet.  The Census Bureau, therefore, is within the Executive Branch.

To make the point even more strongly, consider the argument’s statement that “Director of the Census … shall perform such duties as may be imposed upon him by law, regulations, or orders of the Secretary.” (internal quotation marks omitted) (citing 13 USC 1.21) This passage establishes a line of authority from the Secretary of Commerce to the Director of the Census.  The argument then goes on to note that there is “[n]o president mentioned.”  However, that note fails to consider the law in context.  The President certainly can issue orders to the Secretary, including an order that the Secretary order the Director to do something.  It is the merest of formalism to think that the President could not issue an order to the Director directly.

The argument concludes by telling us that “[t]he Secretary of Commerce does not even report his findings to the President, but rather is instructed to ‘publish’ them.”  Unfortunately, this is simply wrong.  According to the Census Act, “[t]he tabulation of total population by States … as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States. Using this information, the President must then transmit to the Congress a statement showing the whole number of persons in each State … and the number of Representatives to which each State would be entitled.” (Department of Commerce vs. US House) (internal quotations omitted, citations omitted, emphasis added)  The inescapable conclusion is that the President is involved in this process on the basis of specific instructions of law.

Of course, none of this is to say that the President has the authority to declare that the Census be conducted in a way other than what the law allows.  He is still bound by the “[m]anner” described “by [l]aw” (US Const., A1, S2) and it is certainly an important exercise to ensure that he does not step outside the law.  However, his involvement alone is not sufficient to form the basis of a legal complaint, and it certainly is not unconstitutional.

It is hard to ignore all of the chatter about the appointment of Roland Burris to the US Senate.  One of the most significant questions I have seen posed about the behavior of the Senate Democrats is whether or not the Senate even has the power to exclude Burris as long as he meets the qualifications given in the Constitution.  I have mostly seen that question answered in the negative by way of citation to Powell v. McCormack, a case decided in 1969 with some strong parallels to the current situation.  Although it does touch strongly on the issue currently before the Senate, I find the Court’s opinion in Powell most interesting for what it has to say about what it means to judge.

The case arises from Article 1, Section 5 of the Constitution which states that

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members

On the way to deciding that Powell could not be excluded from taking his seat as long as he satisfied the qualifications set forth in Article 1, Section 2, the Court spent a decent amount of time exploring whether or not the House could add qualifications other than the age, citizenship, and residency requirements given in the Constitution. What is noteworthy is that much of what the Court said about the judging power of Congress is similar in tone and scope to what judicial conservatives say about the judging power of judges.  Nowhere is this more clear than in the words of Senator Murdock of Utah, quoted favorably in Powell by Justice Douglas:

Mr. Murdock: I construe the term “judge” to mean what it is held to mean in its common, ordinary usage. My understanding of the definition of the word “judge,” as a verb, is this: when we judge of a thing, it is supposed that the rules are laid out; the law is there for us to look at and to apply to the facts. But whoever heard the word “judge” used as meaning the power to add to what already is the law? (88 Cong.Rec. 2474.) (Douglas, J., concurring)

This is stunning from the man who told us that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” (Griswold v. Connecticut)  It is also entirely correct.  Although Senator Murdock was not then talking about the judiciary, the term “judge” is most often associated with the courts as both the title and job of those on the bench.

The majority opinion in Powell is equally clear in its condemnation of Congress exceeding the enumerations set forth in the Constitution.  It would be pleasent indeed if the Court’s tone were carried through to all of the other powers Congress has taken for itself in excess of its other enumerated list (Article 1, Section 8).  Precedent, the Court tells us, would not even be an issue: “That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date.” (Powell)

It is disappointing, though not surprising, that the Court apparently saw no conflict between limiting the judicial power of politicians — who are answerable to the people — while leaving the judicial power of judges — who are not — even further expanded, all in the name of ensuring “that the people should choose whom they please to govern them.” (Powell, citing Hamilton, 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876))  Regardless, it was nice to see the limited role of judging layed out in such clarity.