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Looking for a New Plessy v. Ferguson

Perry v. Schwarzenegger, also known as “The Prop 8 Trial,” or the first serious test of the federal case for gay marriage, concluded earlier this week, following pointed pre-closing questions from Judge Walker, effective answers, and closing arguments for which reviews are, preliminarily, positive for the side of Justice. This is enough to make David Boies, the litigator’s litigator, optimistic to the point of naiveté:

Boies said he thought it likely that Judge Walker would issue his ruling in August—my own hunch is that he will rule for the pro-same-sex marriage side—and that either side would appeal immediately. Indeed, Boies and Olson hope the Perry case will be appealed all the way up to the Supreme Court, and that they will ultimately win a decision comparable to Loving v. Virginia, the 1967 Supreme Court case that declared laws against interracial marriage unconstitutional.

It’s not naïve to expect a victory before Judge Walker. In fact, I share Boies’ confidence, and the New Yorker’s, that, especially because Judge Walker appeared to take Romer v. Evans deadly seriously, as one should, we’ll get a pro-equality ruling that, while not recasting gay men & women as a “protected class,” will nonetheless find that the Prop 8 advocates impermissibly relied exclusively on gay-baiting, animus, and bigotry to make their case, and that Prop 8 is therefore void as a textbook case of the majority abusing an unpopular, but otherwise harmless minority.

Of course, the bad guys will immediately take an appeal, but will be, by that point, stuck with an extremely favorable, pro-equality, and frozen factual record (factual findings can only be disturbed on appeal for “clear error”), and thus will be forced to argue not that animus didn’t exist here, but that its existence is irrelevant. That’s an uphill battle. Such an uphill battle that victory before the 9th Circuit is also a realistic possibility, given the right selection of judges (though if the case is heard en banc, either at the outset or on a motion for rehearing, that calculus changes).

Should Boies & Olson secure that victory, they’ll have done a great thing, but they’ll not have won. Politically, a Supreme Court reversal of any favorable verdict is essentially guaranteed. They will, however, have forced the Supreme Court into making an unpopular, clearly incorrect decision for nakedly political reasons. The reversal will happen in one of two ways. The first, and most likely option, entails a 5-4 court reversing or limiting Romer v. Evans, which will require Justice Kennedy to gut his own opinion. There’s some elegance to that. The second, more insulting option would require the Supreme Court to essentially disregard the trial record, validating Romer but engaging in some fiction about how plaintiffs never carried their burden of proof, lower court be damned. This would be outrageous but not unheard of. Justice Kennedy, and therefore the modern Supreme Court, in fact has very little regard for trial court findings in matters carrying even slight political import. See Gonzales v. Carhart, 550 U.S. 124 (2007) (reversing three federal circuits, each of whom had, relying on a strong, unchallenged trial record, struck down the Partial Birth Abortion Act of 2003). Either way, the eventual reversal will look, and in fact be, ridiculous.

Query whether Boies & co. know this, and whether such a defeat is, itself, the victory they’re hoping for. In America’s brief history, we’ve seen our fair share of nakedly wrong decisions, and they never stand for long. In fact, sometimes they focus the debate, and render eventual victory a near-certainty. Scott v. Sanford showed just how disgusting the justification for slavery actually was, and pushed that question towards its bloody resolution, while Plessy v. Ferguson, by stating clearly the narrow assumption upon which its validity depended, gave activist groups a clear target. If it comes to a Supreme Court reversal, then, the anti-equality lobby will end the day weaker than they began it, and be forced to defend an increasingly ridiculous premise from a population suddenly aware of its toxicity. And that, as they say, is not nothing.

You May All Go To Hell

But the rest of the country, it seems, will go to Texas. Andrew Sullivan highlights massive migration to Austin, Texas, which is, truly, heaven on earth. Left unspoken are the likely effects of this migration. Apart from impacts on Austin itself, whose Edenic status almost depends on its relative obscurity (how many town houses can fit around Lake Travis before it’s no longer Lake Travis?), a sudden influx from “blue” states runs a nonzero chance of realigning America’s biggest, greatest red state — especially when counting the effects (legal) immigration will have on the state in the near future.

I’ve said before that one man (or woman) could spend his life turning Texas blue, and die secure in the knowledge that this was a life well-lived. I stand by that. There’s an allure to Texas that’s almost irresistible — as soon as you start to fight it, you’ve already lost — and an emergent consciousness that acknowledges the social changes of the past few decades, while still preserving the “frontier state” mystique that will always define the state.

This is partly because Texas conservatism is not mainline conservatism, but a more individualistic breed that, with noted exceptions, manages to evade the rigid dogmatism and fundamentalism of the national movement. (Politicians like Rick Perry constitute unfortunate exceptions, not a general rule.) It may also be due to the sheer size of the state, and the dominance of its environment, peripheral constants that will always influence an increasingly dynamic core. Combined with now-unavoidable demographic changes, these qualities make the state winnable for the left, but suggest that we won’t realize it is winnable until the process is substantially underway.

It’s time to take Texas seriously, not as a stereotype or a perennial progressive foe, but as a natural ally whose curious relationship with modernity will, sometime soon, fuse the best of both worlds, balancing social and technological progress with a respect for our past, our national spirit, and our environment.

The 17th Amendment: What’s (Surprisingly) Up For Grabs

One of the tea party movement’s more radical ideas — the termination of the direct election of Senators, effected by the outright repeal of the 17th Amendment — is easy enough to mock. It’s not every day one of the defining elements of modern democracy comes into question. But perhaps curiously, the argument for a return to the days of a state-appointed Senate gets some support, even among the educated classes. Why?

We can accept, for the sake of argument, that democracy for its own sake is not necessarily a virtue, and therefore not on its own a reason to prefer direct election. We are not, after all, a direct democracy, and with good cause. By vesting lawmaking authority in representatives, we impose a desirable filter between the people and the government, thus mediating conflict and facilitating simpler decisionmaking.  Sometimes, when sound policy calls for it, we even further sever the link between the people and their functionaries, by requiring that one set of representatives appoint another. But in almost all of those cases, the elimination of a democratic influence is the point, not a by-product of some other structural concern — as is the case in the selection of federal judges. Why relegate federal Senators to the same undemocratic status as federal judges, a condition that conservatives elsewhere bemoan?

The argument must depend on the notion that, when federal Senators are selected by a state’s legislature, and thus by its people only secondarily, some undesirable influence is somehow excised, and some structural interest somehow validated. But contra Glenn Beck –

– it’s not clear the Founders actually gave much thought to this position. Madison-as-Publius defends the initial procedure for selecting Senators only in passing. Beck magnifies Madison’s argument about the desirability of a strong interaction between the federal legislature and state counterparts to suggest that a Senator with a legislature as his constituency will be more mindful of state problems than one accountable to actual people. Maybe — though that’s by no means clear — but to what end? The elimination of any federal laws that disproportionately advantage one state over another? That may be politically advantageous to the conservative movement, as further fulfillment of its antiregulatory dream, but it’s systemically disastrous, fostering fractious sectionalism and the piecemeal resolution of truly national problems. Neither of those are goals supported by the text or structure of the Constitution.

The notion that the legislative appointment process is less susceptible to interest group capture than direct democracy, too, is nowhere supported by the evidence. Although any direct election creates the potential for a lobbyist to “buy” a representative by disproportionately funding the candidate’s war chest, that’s just the point: any election entails that risk. State legislators are just as easily corruptible, and perhaps more so, because their foibles are less publicized. Letting state legislatures appoint federal Senators would kick corruption down the chain, but not eliminate it. If “tea party” conservatives were actually serious about cutting down on lobbyist influence, they’d support contribution caps, publicly funded elections, and other meaningful campaign finance reforms. But just the opposite is true, and it’s about to get worse.

Finally, state legislatures suffer from a myriad of grave problems that would only be magnified by repealing the 17th Amendment. The political composition of the New York Senate, for example, is massively distorted by shocking gerrymandering and bizarre population-counting rules, two factors that, together, produce a gridlocked body substantially more conservative in character than the state’s actual population. Such distortion isn’t unique to New York, and isn’t unique to state legislatures, either — gerrymandering is rampant in federal Congressional elections, too — but because Senators are elected statewide, they’re somewhat insulated from these negative influences. Repeal would compound such problems, and provide another avenue for corruption to influence federal elections.

Tea party conservatives might win the originalist argument against the 17th Amendment. I don’t know, and frankly, I don’t care. 18th century America was a very different place, and at the end of the day, arguments about changing the fundamental structure of our democracy should be won or lost based on the way our country has actually fared, not how the founding generation expected it to fare. Originalism has its use in interpreting passages of the Constitution, but has is starkly silent on the question of how it could be improved.

The Perils of a Revolutionary Culture

Somewhere along the line, we appear to have forgotten what the American Revolution was about — at least, this is the conclusion to draw from this nakedly seditious political spot out of Alabama.

If the Revolution was “about” taxes, it was so only secondarily. The founding generation revolted not to resolve policy differences with Westminster, but to replace an unelected government, imposed by force, with one representative of and accountable to the governed. The American colonists’ grievances with England grew solely out of the procedure used to enact British laws — not the substance of the laws themselves. Just so, the Declaration of Independence takes issue with British taxes only to the extent that King George made a habit of “imposing Taxes on us without our Consent.” As the rejection of the Articles of Confederation would prove, the first Americans were quite fine with the taxation as a concept — so long as that power remained as close to the people as possible.

In fact, the Founders nowhere purported to justify revolution as a means of resolving policy differences. Quite the opposite, the Constitution recites the traditional talismans of the dignity of the state by, among other things, utterly separating the civilian government from the military order, and retaining treason as a punishable offense, the only “common law” crime permitted in all of American law, thus making clear that a properly constituted and duly elected government is, and should be, unassailable, and protected from domestic enemies. Because they were building a civilization to last throughout the ages, the founding generation would’ve regarded the overthrow of a duly-elected government as a defeat, not as a vindication of some pre-existing principle. The American Revolution terminated the only wrong capable of justifying it: in the absence of an actual, existential threat to Democracy writ large, our history will not justify its repetition.

Why, then, do so many of us imagine it to be otherwise, and treat our revolutionary history as an excuse to threaten (or actually bring about) violence? Presumably, because the American Revolution isn’t the only internecine war in our history, and the theory that animated that other war, it turns out, does support revolution to resolve policy differences. Maybe it’s easy, for some, to conflate the two wars. But it shouldn’t be.

“Deliberately Open-Ended Guarantees”

For those of you in the legal community, this is old news, but deserves second reflection; for the remainder of my admittedly small readership, read this speech by Justice David Souter, given at Harvard, on the difficulty of providing a meaningful resolution to complex constitutional questions.

He explains that, at best, we expect the law to be syllogistic — major premise applied to discrete factual situation compels simple resolution:

The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this.  A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution.  The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed.  Once they have been determined, the facts on their face either do or do not support the claim.  If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim.  On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.

But a Constitution is not a statute. It neither contemplates nor attempts the exhaustive resolution of all possible questions:

There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it.  [. . .]  But cases like this do not usually come to court, or at least the Supreme Court. And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.

Even a moment’s thought is enough to show why it is so unrealistic.  The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.  These provisions [. . .] call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Accordingly we must routinely look beyond the Constitution to resolve constitutional questions. In defense of this position, and against the alternative “fair reading” approach to constitutionalism (a hybrid textualism/originalism), Justice Souter marshals two arguments: societal assumptions change, compelling different results (Brown v. Board of Education), and the Constitution asks us to vindicate competing values, thus requiring judges to balance them, and foreclosing resort to simple absolutes (New York Times Co. v. Sullivan).

To these points we can add one more, expanding on Souter’s characterization of constitutional rights as “deliberately open-ended guarantees.” The founding generation knew how to write a static law. They also knew they were building a country whose life would be measured not by generations, but by centuries, and as witnesses to history, knew that such a future implied levels of societal change that could not be anticipated, much less legislated in advance. Towards that end they gave us not an exhaustive rulebook but a guide to the values we should seek to balance when resolving novel conflicts. Judges aren’t bound by the way society looked in 1789, then, or by the precise letters of the Constitution, but by the overall structure of the document, and the types of balances it strikes. This reading preserves for the document a dignity of which simpler approaches would rob it. And, in light of the abhorrent compromises intermittently struck by constitutional scholars throughout the history of the document, lets the Constitution, and its drafters, serve as the instruments of their own redemption. It also validates the core assumption of the American dream: that the future can be better than the past.

Shar’ia or Liberal Activism: Pick a Side, We’re at War!

“Liberal activist judges,” the common trope goes, want to expand the Constitution to protect everyone. Even the gays! And from there, there’s no stopping them: once homosexuality is legal, polyamy and bestiality will be too. Just terrible. All because liberals have no respect for the narrow values protected by the Constitution.

Or is it, because liberals hate America so much, they would, instead, implement Shar’ia law, which would require gay men and women to die? These seem to be contradictory, but not to identified Oklahoma state senators.

The notion that Shar’ia law is coming to America has always been founded on paranoia, and nothing else. It’s never happened in a Western nation; where it has, it’s been a result of courts (briefly) accepting binding arbitrations from religious courts, before realizing exactly what that rule imports, and frantically overturning the relevant statute. To my knowledge, no judgment has actually become final based on Shar’ia law, and none ever will in America, especially because of the conservative movement’s erstwhile foe, the First Amendment. I understand that the contrary position is a useful windmill for the far-right to tilt against, but that’s all it is.

Delegation as Executive Aggrandizement

From The National Review’s The Corner blog:

A bipartisan effort to halt the EPA from regulating greenhouse gases just failed in the Senate. I don’t want to hear a liberal bemoan executive supremacy ever again. This is Congress abdicating its own authority because the Democrats know they can’t get the votes to pass cap-and-trade.

Huh. That has the superficial ring of validity to it, doesn’t it? After all, it uses the right vocabulary. But no. Even if delegation does work a worrisome aggrandizement of the executive branch, first, this case doesn’t present the harm, because the Murkowski Amendment would’ve curtailed the EPA’s lawfully delegated authority, see Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007); and second, delegation can pose a separation of powers problem, but not the kind of separation of powers crisis to which President Bush nearly forced us. His problem was taking power not given to him, or simply cutting Congress out of the lawmaking loop — the axiomatic violation of the classical Locke/Montesquieu separation theory (“negative” separation of powers). The President has some substantive lawmaking authority, but whatever it is, it is not the plenary authority that Bush asserted. When, as here, Congress hands the contested power to the President on a platter, everything’s rosy. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Well, most of the time. Congress can overdelegate, presenting an issue in “functional” separation theory — i.e., where a policy organ shirks the responsibilities for which it was designed. There’s even a good argument that Congress has done just that, systematically. When The Corner reads enough modern separation theory to make that argument, we’ll come back to it. In the meantime, confusing functional and negative separation of powers issues? Awww.

Gay Marriage & the Finite Nature of Fabian Delay

This post was scheduled for this morning — but I made a huge mistake. Apologies!!

Insofar as it exists, the rational case against gay marriage depends upon surprise and caution — homosexuality, the argument goes, is new, at least as an institution, and its repercussions on family life can’t yet be fully gauged. We should wait and see how this pans out before embracing the “gay family” as a new institution.

Perhaps this argument is compelling at a superficial level, but it’s a little disingenuous. Homosexuality isn’t new, and the gay lifestyle isn’t new. The only part of gay life that is new is its existence as a viable alternative to a life of pretending to be straight — an option that carries its own, acknowledged, and disastrous consequences. And, the argument only works if the harm to come from deferring the dream is outweighed by the harm avoided by caution. That balance is nowhere indicated, and because American society tends to look askance at laws that create second-class citizens, accepting that opponents of gay marriage must show this balance saddles them with a heavy burden.

Further, like Fabius’ strategy for handling Hannibal, the delay argument is only a temporary solution. After a certain amount of time, we as a society will have to make a decision, and that moment draws nearer every day. The media began accepting the validity of “out” gay life early last decade, and with every state that legalizes gay marriage, either as marriage or through some institution of lesser dignity, another clock starts ticking down the time until we’ll “know” what a world where gay marriage is fully legal would look like.

In fact, the time to decide might’ve already come. Earlier this week, a long-term study concluded that far from the nightmare scenario envisioned by “family values” conservatives, the children of lesbian couples are actually pretty damn happy. Happier, even, than the children of straight couples. As facts like these emerge, we can stop treating guesses about potential damage as authoritative — see Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. ILL. L. REV. 833 — and engage with a known reality. And as the contours of that reality become clear, it’s starting to look like one where there’s literally no objective reason not to treat gay families with the respect they deserve.

Helpful social science, though, doesn’t make the legal battle much easier. Studies like these compel no result of their own force, because the law lags far behind social science, and because current doctrine requires only that governments invent an excuse to discriminate not blatantly based on animus. Those are easy to fabricate, and courts not otherwise inclined to do so won’t look too closely at them. See, e.g., Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004).

That leaves us precisely nowhere — still. But as the moral high ground continues to solidify, the fact of an eventual positive result approaches a certainty.

The Law as a Political Tool: Bad-Faith Briefing in Healthcare Litigation

When it became uncool to discriminate against African-Americans and women, conservatives deployed a fallback position: that if discrimination is to be illegal, legislatures, not “unelected activist judges,” should make those decisions. Since then, rancor against the law, and especially the law as a tool of social change, has become a regular weapon in the conservative arsenal of freedom, deployed in modern times against the judiciary’s halting half-steps towards protecting other unpopular minorities –e.g.,  gays — from an irrationally hateful majority.

Perhaps unsurprisingly, this is the latest conservative principle to fall victim to the movement’s struggle to reinvent itself, and forge a new direction, while in exile. When they lost the fight against meaningful healthcare reform, right-wing attorneys general wasted no time appealing to the courts to overturn the law, in seeming violation of any notion of judicial restraint. The Supreme Court hasn’t invalidated a major federal regulatory regime in nearly 80 years — and the Patient Protection and Affordable Care Act isn’t a close enough call to break that trend. Time has only made it worse: while the attorneys general at least once had a good faith argument against the constitutionality of healthcare reform, the latest round of briefing in Ken Cuccinelli’s case barely makes those points before degenerating into something resembling a Tea Party Patriots pamphlet — complete with ahistorical recitations of foundational history. And that’s just the beginning of their troubles.

Cuccinelli attempts to characterize the federal courts’ prudential and constitutional limitations on lawsuits — mootness, standing, and other jurisdictional barriers to suit — as assaults on a state’s right to sue the sovereign (PDF page 12). But far from an aggrandizement of federal power, doctrines like standing are limitations on federal power, which prevent federal courts from hearing a case whose resolution would require the issuance of an advisory opinion — i.e., substantive lawmaking not incidental to resolution of a discrete case or controversy. See Antonin Scalia, “The Doctrine of Standing as an Essential Element of the Separation of Powers,” 17 Suffolk University Law Review 881 (1983).  Limitations on standing may on a case-by-case basis benefit the federal government, but they exist for the opposite purpose.

He goes on to blatantly mischaracterize the case’s main issue, by comparing the instant challenge to cases where, upon presentation of a justiciable controversy, the Supreme Court struck down laws posing a conflict between the states and the federal government. But if his cases stand for that general point, the cited authorities — McCullough v. Maryland and New York v. U.S. — substantially undercut his larger conclusion. McCullough reaffirmed federal hegemony over the states by invalidating Maryland’s attempt to destroy a comprehensive federal regulatory regime (sound familiar?); and New York v. U.S. simply stated that the federal government can’t force state officers to enact its policies. Because these citations do nothing to support his standing argument, and substantially undercut the later Commerce Clause argument, query whether they indicate bad lawyering or simply an attempt at deception.

It is to to the Commerce Clause argument that we now turn. While that argument began with some superficial air of plausibility, it takes a similar turn for the absurd, as Cuccinelli’s crack legal team appears to argue (I think — the relevant section is not a model of clarity) that a congressional regulation of commerce must itself qualify as commerce:

[Commerce's] hallmarks are spontaneity and voluntary activity; not a command to buy something.

While that’s a way of getting around the Founding generation’s broad understanding of “commerce” — which the brief acknowledges and incorporates — that’s not what the Commerce Clause requires. The Commerce Clause requires that Congress regulate commerce. It doesn’t matter if the individual mandate isn’t itself a commercial activity; only that it regulates a commercial activity, which Cuccinelli appears to concede. It’s all very strange.

The remainder of the brief either treats Lochner v. New York as governing law — which it emphatically is not (one searches the brief in vain for citation to one of the many cases overruling it) — or as a desirable state of things.

With respect to citizens, the reach of the Commerce Clause was limited by the Fifth Amendment which, prior to 1938, was held to protect economic liberty through substantive due process.

That hasn’t been the way of things since West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and Lochner isn’t a more accurate representation of the Founders’ intent just because it’s older. That’s not how originalism works. Whether Cuccinelli’s arguing that Parrish was wrong, or that it doesn’t control, the argument depends on a fantasy, and for its failure to cite Parrish or comparable cases, is made dishonestly.

Plus, LEXIS citations to unpublished cases? Please. We all use Lexis for initial research and internal discussion, but where at all necessary, professionals cite to WestLaw in briefs. That’s just how it’s done.

Some of these failings can be explained by ineptitude — but not all of them. The rest just make clear that this litigation was conceived, and is now being executed, in bad faith, made only more shocking by conservatism’s supposed distaste for such exercises. Progressives routinely push the boundaries of the law, but we do it by acknowledging those boundaries’ existence, and showing how the past compels a novel future. We don’t bastardize originalism to reanimate dead case law, and we don’t glide over or mischaracterize away contrary authority. Seriously, disbar the whole team.

How Far to Generalize the Gulf Oil Spill?

Palin’s latest absurd Facebook rant suggests the Gulf spill is a byproduct of the peculiarities of offshore drilling, and jumps from there to blaming liberals, who’ve foreclosed “safer” grounds, like Palin’s own state. Among other problems with her argument — Palin appears to assume that oil companies have to despoil some precious tract of land, and, perhaps counter to her intention, that offshore drilling can’t be done safely — we now hear that BP’s safety record in Alaskan operations suggests that the company has been, for years, risking a major spill up north. Even though she’s abandoned the state, a responsible steward of Alaska’s resources would react to this news with anger. I predict we’ll hear nothing.