As one would not doubt expect from today, the media has been abuzz with thoughts and comments related to this afternoon’s oral argument in the case of McDonald v. Chicago. Most of the reporting has managed to crystallize around two salient facts: The Supreme Court will incorporate the Second Amendment, but the won’t do it through Privileges and Immunities.

With respect to the first fact, no piece of reporting I’ve yet to see has managed any more than a statement of agreement or disagreement with that the Court is poised to do. I’ll join this silly straw poll: Incorporating the Second Amendment would be an activist decision; Incorporation ignores the original understanding of the scope of the amendment, it ignores the unique anti-federal-involvement-in-state-gun-laws purpose which motivated the amendment, and it has no basis in the Constitution’s text.

More interesting is the bizarre confusion about what’s at stake when it comes to the use of the Privileges and Immunities Clause for bringing about that incorporation.

Under the Court’s current precedent, the Due Process Clause of the 14th Amendment provides every tool that McDonald could ever need to bring about incorporation of the 2nd Amendment. It also contains a great many other things. Most of what the Due Process Clause is said to contain has been rightly criticized by conservatives as being impossible to support under any reasonable reading of the text of the amendment. The Due Process Clause has become, in essence, an open-ended clause which allows the Court to pretty much do whatever it wants.

Perhaps recognizing that they would eventually need to reconcile their appropriate disdain for “substantive due process” with their misplaced desire to allow the Court to make activist decisions which favor conservative policy preferences, there has been a push to breathe new life into the Privileges and Immunities Clause of the 14th Amendment. Leading with a smear campaign against the Slaughterhouse Cases and culminating with today’s argument in McDonald, conservatives have certainly put up a good fight.

Despite an effort to promote the Privileges and Immunities Clause as being somehow more restrained than “substantive due process,” it was apparent that the justices saw at least partly through the charade. A parenthetical on SCOTUSblog tells the tale:

(In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)

A more appropriate question might have been, “Why does the Constitution need two open ended clauses?” Or perhaps, “What does anyone gain by replacing one open ended clause with another?”

And if, as Roger Pilon states over on Bench Memos, “[most 14th Amendment cases] should have been decided under the more substantive Privileges or Immunities Clause,” might not one be forgiven for wondering what the point is in promoting this distinction without a difference? When the Court can turn Due Process (among other things) into “emanations from penumbras” into a “right to privacy” into a right to abortion on demand, it seems unlikely that any amount of “history,” no matter how much “better [it] informed the Court,” would have done anything to have “better checked the Court’s occasional activism.” After all, activism happens when a court ignores the overwhelming weight of text and history to arrive at a preferred decision.

I continue to be disappointed that conservatives have generally failed to remain true to the principles of judicial restraint when it comes to carrying guns. As I said at the time, the Court in Heller got to the right conclusion — individual right, no flat ban on handguns — but did so in a terribly activist way with an opinion I would not have joined. In this case, however, I continue to believe that incorporation is nowhere to be found in the Constitution and that, while a respect for precedent may council against disicorporating the Bill of Rights, there is no reason to extend its impropriety beyond where it has already gone.

Tags: 2nd Amendment, constitution

Much has been made in the press and the blogosphere about the Supreme Court’s supposed embrace of some concept of corporate “personhood” falling out of the decision in Citizens United v. FEC.  Most of this discussion seems to key from the dissent filed by Justice Stevens, which spends a fair amount of time diving into that very issue.  Exactly where this concept is to be found in the majority opinion eludes me.  Justice Kennedy’s writing may take a long and winding road to get to the same place that The Chief Justice and Justice Scalia would reach in far fewer pages, but even he avoids wandering off into the wilderness of anthropomorphisis.  Nor does the Constitution offer any reason to think that corporate personhood is somehow necessary to support the Court’s holding.

The language of the First Amendment is simple and absolute: “Congress shall make no law … abridging the freedom of speech.”  Based on that language, the operation of the amendment is not difficult to understand: It points out a thing which Congress may not do.  The amendment is written without reference to persons or corporations and without reference to the type, content, or character of speech.  If a law is an abridgment of the freedom of speech, Congress shall make no law causing it.

Nobody has argued that the law in question is anything other than an abridgment of (corporate) speech.

The lack of reference to personhood in the First Amendment is noteworthy in light of some of the other “rights” to which a person-corporation would presumably be entitled.  The most frequent straw man that I have seen is to the right of a person-corporation to vote.  But this comparison is untenable when the text of the First Amendment is compared to the text of the Fifteenth, which speaks of “[t]he right of the citizens of the United States.” (emphasis added)  Neither the majority in Citizens United nor the First Amendment rest the right secured on citizenship, whereas the Fifteenth Amendment does so explicitly.

The notion that Citizens United is somehow dependent on a concept of corporate personhood is further discredited by considering the original understanding of what the Bill of Rights sought to accomplish.  One of the founding era arguments against the Bill of Rights was the understanding that none of the things which it explicitly forbade Congress from doing were within Congress’s power in the first place.  Nowhere do the Articles of the Constitution suggest that Congress has the authority to limit the freedom of speech.  Nowhere does the Constitution suggest that Congress gets additional power when legislating against a corporation.  The Articles, thus, reinforce the understanding that corporate personhood is entirely irrelevant to the conclusions reached by the Court in Citizens United.

Although the attempted reducto ad absurdum argument of corporate personhood sounds interesting, in reality it is little more than a meaningless straw man.  Corporate personhood is not required for the Court to have decided Citizens United as it did, and the Court gave no particular indication that it was doing so.  While there may be other precedents that point in the direction of regarding corporations as human beings, I am sure that Citizens United, if read honestly, does not belong listed among them.

Tags: 1st Amendment, constitution, court opinions

I always find it troubling when I disagree with Matt Franck, but at least partial disagreement is where I find myself today.  In a post on Bench Memos, he discusses what he believes to be the judicial role in evaluating the constitutionality of the federal health care bill.  He doubts that there is a proper role for the courts in evaluating the health care bill, including the individual mandate that the law would impose.  I believe that the mandate does fall within the scope of judicial review, though not on the basis of anything Roger Pilon or George Will had to say.

The basic function of the judicial process is to determine what law applies to a given set of facts.  In making that determination, courts look to the laws passed by Congress, to the dictates of treaties and other legally binding agreements to which the US is a party, and to the Constitution to determine which laws are applicable.  Courts have a number of ways to deal with laws that conflict with one another.  Among statutes, or between statutes and treaties, the usual rule is that whatever happened most recently overrides older law if the conflict is unavoidable.  The famous exception to this usual rule applies when a law comes up against the Constitution; in that case, the Constitution overrides the statute or treaty. Determining whether the Constitution has overridden some other law is what we know as Judicial Review.  And, while we regularly talk about courts “striking down” laws, my understanding of the physics of that action are really closer to a court saying “we cannot apply this law to any set of facts.”  The statute still exists, but the law it creates is unusable.

Implicit in that entire process is the fact that what the courts are evaluating are, indeed, laws.  Because the (originalist) Constitution only enables Congress to pass laws within certain enumerated categories, it naturally follows that anything which does not follow from that authority cannot be considered a law. Because courts are not in the business of applying things which are not laws, it must follow that the courts cannot find constitutional any penalty which results from a law beyond the federal government’s authority to create.

In other words, the government may very well impose an individual mandate and hope that most people comply, and their doing so would seem to be just outside the realm of court review.  But the instant they impose a penalty on people who do not obey the individual mandate — the instant they seek to impose a fine — the courts now have a subject to address which is well inside the proper judicial role.  The courts can, and should, find the individual mandate unconstitutional because it imposes penalties which the federal government has no authority to impose.

Tags: constitution, healthcare

I have recently been spending some time thinking about some of the arguments being made in the Chicago handgun case, McDonald v. City of Chicago, currently before the Supreme Court.  At issue in that case is whether it is constitutional for states and local governments to ban the possession of handguns, in light of last year’s ruling n DC v. Heller.  The case naturally hinges on the question of incorporation, a doctrine created and selectively applied by the Supreme Court to bind portions of the Bill of Rights against the states through the Due Process Clause of the 14th Amendment.  Legal conservatives, like those bringing McDonald, have long complained that the Due Process Clause, properly understood, contains no such doctrine.  To supplement the shortfall, they have brought before the Supreme Court an argument that the 2nd Amendment is incorporated by the Privileges and Immunities Clause of the 14th Amendment.  I do not think this is so.

The history of the Privileges and Immunities Clause in the 14th Amendment is best understood by reference to the Slaughterhouse Cases which gave the clause its first judicial interpretation.  The Slaughterhouse Cases involved a challenge to a state law in which Louisiana established a state-wide slaughterhouse corporation and prohibited the slaughter of animals in any facility not operated by that corporation.  The law was challenged broadly on 14th Amendment grounds, including the Privileges and Immunities Clause.

Critics contend that the Slaughterhouse Cases effectively “gutted” the Privileges and Immunities Clause and now hope to use that Clause as a vehicle for a new, “conservative” foundation for incorporation.  But would a flawed doctrine by any other line of constitutional authority not smell as sweet to the activists who seek to promote the rule of judges over the text of the Constitution?  Are the advocates in McDonald prepared to argue that years of complaining about the constitutional fallacy of “substantive due process” is really no more interesting than a semantic disagreement; that the judicial authority they have decried has been there the whole time, just under a different name?

A simple reading of the text and reference to the parallel P&I provision of the original Constitution reveals that the language of the Privileges and Immunities Clause cannot support incorporation.  In Slaughterhouse, the Supreme Court noted that “[The original P&I Clause's] sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”  In other words, a state cannot discriminate against the citizens of another state.

The 14th Amendment takes the same language and adds only the slightest change.  Whereas the original P&I Clause referred to the “Citizens of the several States” (US Const. Article 4, Section 1), the new clause referred to the “citizens of the United States.” (US Const. Amdt. 14, Section 1)  This second clause comes immediately after a blanket grant of US citizenship to “all persons born or naturalized in the United States” and of state citizenship to “the state wherein they reside.”  Anyone residing in a state, or who otherwise has state citizenship, is covered by the original P&I Clause.  However, the 14th Amendment created a class of people (admittedly more hypothetical than real) who may be citizens of the United States, having been “born or naturalized” here, but do not “reside” in any state, and therefore hold no state citizenship.  The 14th Amendment P&I Clause extends coverage to those people as well.

Nowhere can I recall having heard an argument that the privileges and immunities granted by any state are automatically incorporated against the rest through the original Privileges and Immunities Clause.  Such an understanding of the P&I Clause would surely have seemed bizarre to the founders, and is strange to us today.  The minor linguistic changes between the original and the 14th Amendment P&I clauses are certainly not significant enough to invite the creation of an incorporation doctrine.

As the Supreme Court considered in the Slaughterhouse Cases (with emphasis added):

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the 78 plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

I am equally convinced, and believe that the P&I argument in McDonald must fail.

Tags: 14th Amendment, 2nd Amendment, constitution

Looking around the Internet today, I happened across a three part discussion of sorts between some folks over at the National Review Online.  The essence of the discussion begins as Jeff Rowes and Clark Neily attempt to convince us that it would not be an act of judicial activism for a court to strike down a law banning compensation to organ donors, to the extent that the law bans compensation for bone marrow donation.  Their argument is made in the first post, which is filled with policy reasons why compensation for bone marrow donation should be legal.  The entire discussion, such as it is, is hardly noteworthy, except that it makes clear the hazard that comes from an all too common misunderstanding about the nature and purpose of the Constitution.

Jeff and Clark complain that “[Ramesh Ponnuru's] view, shared by an unfortunate number of conservatives, is that the Constitution created a legislature with the unbridled authority to deprive citizens of liberty arbitrarily, at least in the absence of a (sufficiently) enumerated right.”  They reply by stating:

[It is] just wrong as a matter of text, history, and original understanding of the Constitution. Government officials in America have never had the power to act arbitrarily, and among the most important roles assigned to — though not always discharged by — our judiciary is ensuring that the other branches act within the constitutional bounds assigned to them. Irrationally denying citizens their right to participate in safe, effective, lifesaving medical care is not a legitimate exercise of power. It is not only appropriate but vitally important for courts to fulfill their constitutionally assigned role as a check on the arbitrary exercise of government power,

What is wrong is that Jeff and Clark, like so many others from every political walk of life, and including judges, even those who sit on the Supreme Court, treat the Constitution as some sort of limiting document which restricts the otherwise unbounded power of the federal government.  It is that view which is “just wrong as a matter of text, history, and original understanding of the Constitution.”  Far from being a limiting document, the Constitution is best read as an enabling document.  It is best read according to the following procedure:

1. The government has no power.
2. Except these powers, which the Constitution explicitly grants to the government.
3. Except these powers, which are nowhere in the explicit grants anyway, but which are so important to keep away from the government that we’re going to call them out by name in the Bill of Rights.

The historic defense against arbitrary laws is the fact that the federal government, until around the New Deal era, was understood to not have a great deal of authority with which to enact them.  Indeed, it is hard to imagine which provision of the Constitution would act to enable the federal government to regulate abortion donations at all, at least as long as the organs never crossed state lines to trigger the Interstate Commerce Clause.  Yet, we readily accept that the federal government has this power, absent some specific Constitutional instruction to the contrary.  Jeff and Clark chose the Due Process Clause (presumably the “substantive” flavor), and now get to hope for the best with their argument that the law is arbitrary.

The mere formulation of the essential argument made by Jeff and Clark points out the trouble with interpreting the Constitution backwards.  They are essentially asking a judge to decide whether or not there is a “rational medical reason to imprison people for five years for compensating marrow donors, but not imprison people for compensating blood or sperm donors.” (emphasis added)  A judge, who probably has no training in medicine, is being asked to decide whether or not a law is medically rational?  And yet, that is the required burden to prove that the law is arbitrary.

Under an originalist reading of the Constitution, we would have little need to wonder whether this law is arbitrary.  It would never withstand scrutiny, because it would fall entirely outside the realm of federal power.

Unfortunately, nobody asks anymore where in the Constitution the federal government has the power to do most of the things that it does.  The neglect makes sense; our courts have taught us for nearly a century that between the Commerce Clause, the Due Process Clause, the Necessary and Proper Clause, the General Welfare clause, and emanations from penumbras of all of the above and more, nothing is beyond the federal power except those few things mentioned in the Bill of Rights.  But, if the Constitution is to have any meaning at all, we must ask for the source of federal authority — rooted in the text of the document itself, not what the courts have said about it — in every matter that Congress takes up.

Jeff and Clark deserve deserve to win.  I just wish were practical for them to use a different argument.

Tags: constitution

It took some work for me to find a video of the question posed by Katy Abrams to Senator Arlen Specter which included his response, but the reward was well worth the effort.  Katy’s question is interesting not only for its power (which is obvious enough from the response she got), but because it is the most crystal clear delivery to date of the question Americans should be asking.

At so many of these town halls, citizens are standing up and asking tough questions to their politicians about the proposed health care reforms.  Many come prepared with questions about the House bill, some speak more in general.  There are questions of taxes, of who pays, of what will happen to private insurance, and all of the other details.  These are important questions which must be asked.

What Ms. Abrams asks, though, is a question which is far more important.  She says it herself, that what she wants to know is not just about this, or that, or the other thing.  Her question — the one all of us need to ask — is what any of these things mean for the foundation of the country.  Even if the health care plan was perfect, as Americans and proud believers in constitutional government, we cannot neglect to ask ourselves if the government is acting within its constitutional authority.  As believers in liberty, we must not neglect to ask ourselves if the government is acting within its appropriate role.  If either of those two questions are answered in the negative, then none of the rest even matters.

Senator Specter’s response is telling in a number of ways.

After stammering around for a bit, he offers a platitude about his work defending the Constitution, then instantly changes the subject completely away from health care.  I do not believe, Senator, that however zealously you may have defended the Constitution in the past, that you or any other government official may be excused from defending the Constitution now or in the future, as long as you continue to serve.  The oath you swear is always and everywhere; it has no provision for “I did good last time,” or “I’ll get the next one.”

From there, Senator Specter proceeds to talk about how our “social compact” has a “provision to take care of people who need some help.”  Whatever his “social compact” may be, I guarantee that it is not the Constitution.  Nowhere can I find in the Articles or Amendments a “help those in need” clause.  Not that they needs one, of course.  The Founders knew what history has shown time and again: The best way for a government to help those in need is to stand back and get out of their way.  The people themselves can — should — take care of their own, and that’s what a “social compact” is all about.  It is an agreement of and among the people, far different from a constitution which is a contract between the people and their government.

Our Constitution, of course, is not one that is admitting of government operated health care.  The power to provide health care is certainly not “delegated to the United States by the Constitution,” which means that it must be “reserved to the States … or to the People.” (US Constitution, Amendment 10)  As that language makes clear, it is impossible to uphold and defend the Constitution and support government health care at the same time.

When the government has no authority to do something, the vote should be simple and  clear.  “No.”  The people understand this, and they proclaim it proud and true from every side of the aisle.  But to get the answer, we must do as Ms. Abrams and ask the question.  Defending our freedom is at the pinnacle America’s “social compact.”

Tags: constitution

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.

Tags: 14th Amendment, 2nd Amendment, constitution

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.”

Tags: 4th Amendment, constitution

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.

Tags: 14th Amendment, 15th Amendment, constitution