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Wednesday, July 20, 2005

Missing the Quarter-Pounder for the French Fry

There's a heated debate going on in our comments section in response to this post by Dan Markel.  Mike and Paul are debating whether Judge Roberts got it right or wrong in the now infamous french fry case, explained in detail by Kim Lane Scheppele over at Balkinization.  In case you don't follow such things (and I know that you do), here's the short version:

DC adopted a zero tolerance policy against eating in the subway.  All minors caught eating were to be arrested.  All adults caught eating were to be ticketed.  A minor was caught eating a french fry on the subway and arrested.  Her mother brought suit on her behalf, claiming that the arrest violated equal protection and was an unconstitutional seizure.  Judge Roberts, on behalf of a unanimous panel, ruled in favor of the defendants.

It is very tempting to argue about whether this decision was right or wrong, and we will surely hear more about the fateful french fry feaster as the Roberts nomination heats up (mostly because there's nothing else in his paper trail to focus on).

But let's take a step back for a moment.  The real issue in this case was not the applicability of various constitutional provisions.  The real issue was the stupidity of a law that requires police to arrest a 12 year old who eats a french fry.

Focusing on the big issue, and putting aside the doctrinal legal questions, I'd call this a successful outcome, and a great example of the interplay between courts and lawmakers.  As a result of the press that this case generated--and in no small part due to the outrage generated by the court's opinion--the law was changed.  That's right: no more zero tolerance, mandatory arrests for 12 year olds in DC.  Sanity prevailed through democratic action.

I feel terrible for the kid in this case and for the others who were subjected to the policy.  And maybe a reasonable person could disagree with the court's decision. But in the grand scheme of things it is far more important to me that lawmakers and citizens realized how stupid this policy was and quickly overturned it than what Judge Roberts and the rest of the panel thought about its constitutionality.

If this analysis sounds familiar to you, it is probably because I have applied the same reasoning in the past.  Sometimes we lawyers are so locked into doctrinal minutia and the role of the court that we lose sight of the quarter-pounder for the french fry.

Posted by Hillel Levin on July 20, 2005 at 06:05 PM in Law and Politics | Permalink


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I think its pretty stupid that a minor was arrested just for eating a dang french frie. If people in america were arrested for eating french fries then the obbese people might actualy lose weight because the average humans consumes atleast 3% fries in their meals a month!!!!!!!!

Posted by: cristal | Sep 18, 2006 9:11:49 AM

I don't think there's mcu more I can add to this debate, I think we've pretty much covered it all, but I would add just a couple of notes.

they don't "do" anything, in the sense of actually amending, qua amending, the constitution.That's a point of view. You could equally make the argument that the first amendment didn't do anything either; refer to the quotes from Story and Hamilton in my last post (at n1): in a system of limited government posessing enumerated powers, what does it accomplish to restrain the government from the excercise of a power it does not posses? You might as well forbid Helen Keller from looking at blue objects (or, perhaps, forbid the Kings of Leon from making good records) - it's purposeless to ask someone not to do something they have no ability to do in the first place. So the amendments do have the effect of clarifying, and making explicit, what is already implicit. You could argue (and I have done so), what need for an amendment post-Kelo, when we already have the fifth amendment - to which a reasonable answer is that if something's insufficiently clear, perhaps it should be made more so, particularly when it's fundamental.

I'm not so familiar with Hamdan's case (Hamdan v. Rumsfeld, yes?), but I suspect that you and I would be in closer accord than usual where cases like Hamdi are concerned. Any controversial case where Scalia and Stevens sign on to the same opinion makes me sit up and take notice!

The Balkin piece is lovely to read, but as with most of Balkin's stuff, it is honey laced with arsenic. I agree with some of his points, but I feel uncomfortable with many of his underlying assumptions, so I will re-read this again before commenting further.

Posted by: Simon | Jul 29, 2005 3:10:18 PM

oh, & before you chide me for using the declaration of independence as an interpretive guide to "the constitution," I invite you to read this Balkin piece (it's short) and adopt his defense of same. (You can also read it just for the pleasure of reading it, it's incredibly eloquent, almost Ciceroian.)

Posted by: Paul Gowder | Jul 25, 2005 11:43:09 PM

I think our disagreement hinges around whether it's possible for a constitution amendment to "clarif[y] the blindingly obvious." It strikes me that this is a poor use of an entire amendment (or two!)

In other words, perhaps under your reading the 9th and 10th amendments do "mean" something, in the sense of comprehensibility and applicability, but they don't "do" anything, in the sense of actually amending, qua amending, the constitution.

It irkes me greatly that Story generally agrees with your interpretation. Yet Story indicates that this debate was not settled even in his time! "The attempts, then, which have been made from time to time, to force upon this language an abridging, or restrictive influence, are utterly unfounded in any just rules of interpreting the words, or the sense of the instrument." If there was a raging debate about the meaning of that amendment in Story's time, I doubt that his reading can be conclusive as to ours.

Actually, there's some really rich stuff in Story's commentaries on the bill of rights that are relevant to current debates. Check out, for example, footnote 65! Quick, someone send this to Hamdan's lawyers!

But anyway, on the 9th and 10th amendments, Story's interpretation doesn't make any more sense than yours. W while we're on the historical documents (sadly, I can't find a copy of Lloyd's Debates online) if you read the relevant minutes, you find that the reference to powers reserved to the people was expressly added at the last minute. Again, why? Why'd they add that phrase?

We're talking about framers that fought and debated over every word (like "expressly") -- why'd they just casually add the phrase "or the people," when the version without that phrase expressed exactly the meaning that you and Story ascribe to it?

Moreover, at least one of the framers was a natural law freak. Check this text from Sam Adams out:

In short it is the greatest absurdity to suppose it in the power of one or any number of men at the entering into society, to renounce their essential natural rights, or the means of preserving those rights when the great end of civil government from the very nature of its institution is for the support, protection and defence of those very rights: the principal of which as is before observed, are life liberty and property. If men through fear, fraud or mistake, should in terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of Man to alienate this gift, and voluntarily become a slave--

That text is inconsistent with the giving of all power to the states in their constitutions. Adams suggests that even if the people handed over such power, to the extent such handover was inconsistent with their natural rights, it would be void.

If this is the political theory that any of the other framers subscribed to, the 9th amendment (and by extension the last clause of the 10th amendment) express restrictions on the power of the government indeed. Natural law restrictions, no less. Inalienable rights, even! Now where did I hear that phrase before?

Indeed, the declaration of independence expressly declares a right of revolution against governments that enact laws contrary to natural law: whenever the government "becomes destructive of these ends," which are securing the "unalienable rights" of "Life, Liberty and the pursuit of Happiness," "it is the Right of the People to alter or to abolish it [by violent revolution]."

Once again, we see a vision of natural rights, effective against governments in general (including, one might presume, state governments), and which I submit to you is a far more natural understanding of what was encapsulated in the 9th and 10th amendments.

And I think Samuel Adams and Thomas Jefferson outrank Joseph Story, in terms of historical heft. :-)

Posted by: Paul Gowder | Jul 25, 2005 11:19:17 PM

I thought there was a trap coming, and said as much in my last posting. ;)

If I'm reading it right, your argument here vis-a-vis the tenth amendment and my treatment thereof is essentially the same as the argument you made above, at July 21, 2005 11:58 AM, vis-a-vis the ninth amendment and my treatment thereof. I disagreed with your logic there (see ante at July 21, 2005 07:20 PM at 1), and so I don't agree with it here. Essentially, I think it boils down to the fact that we seem to have substantially different ideas of what those amendments mean; I've elaborated on my views - and the underpinnings for those views - throughout this topic, and those views govern my reply here.

The tenth amendment, like the ninth, is far from meaningless, even if the results of what I contend to be its meaning are uncomfortable for those who favor an expansive Federal power. The Constitution was written to create and then define the limitations of, the Federal Government; the Bill of Rights was appended largely at the demand of the various ratifying conventions that the supremacy clause would permit the Federal government to intrude on rights guaranteed by State bills of rights, and because of concerns - shared by some of the delegates to the Convention - that the limitations in the Constitution weren't sufficiently concrete (n1). The tenth amendment clarified the blindingly obvious: that those powers that had not been delegated to the Federal government remained unchanged. Those powers which the people had already delegated to the state governments remained with the state governments; those rights which they had not, remained with the people. (n2) The ability of the people of each state to change this balance within their states is inherently necessary to meet the republican form of government test. Where I disagree with you - and with Justice Stone's inference in Darby - is that this robs the amendment of any - let alone all - meaning. I think its meaning is clear, specific and very, very relevant.

So I must not only reject that my view of it would "divest the end of the 10th amendment ...of any practical meaning", but I must also maintain, from my comments previously, that I'm far from sure that your vision of an expansive Federal power (and, via substantive due process, a virtually limitless federal judicial power) is in any way compatible with the tenth amendment as I understand its provisions.


n1. Relatedly, one of the reasons given in opposition to a bill of rights was that:"It might be affirmed, that a bill of rights, in the sense and extent, which is contended for, was not only wholly unnecessary, but might even be dangerous. Such a bill would contain various exceptions to powers not granted; and on this very account might afford a colourable pretext to claim more than was granted. For why (it might be asked) declare, that things shall not be done, which there is no power to do? Why, for instance, that the liberty of the press shall not be restrained, when no power is given, by which restrictions may be imposed?" (III J. Story Commentaries 1855; cf. Federalist 84)This is essentially the root of the argument I made previously (ante at July 25, 2005 05:53 PM, 2 et seq.), namely, that there is no substantive difference between denying a government the power to infringe upon a right, and declaring a right inviolable by the government. Because a constitution cannot create rights, it can only prevent their infringment, and there are different ways in which it can achieve what is fundamentally the same result.

n2. We've brought up Justice Stone's view of the tenth amendment from Darby, and since I have Story open already, he has this to say on the tenth amendment:"[The Constitution] [b]eing an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty." Commentaries, supra, at 1900Again, this is exactly what I've been arguing in this thread, excepting that Story puts it on the page better. ;)

Posted by: Simon | Jul 25, 2005 10:02:23 PM

Ok, I think my attempt to lure you into a reductio has succeeded enough to spring the jaws of my little trap, viz.:

I assume you agree that the powers of the states would be limited to what's in their constitutions even if there was no 10th amendment? After all, it's inherently the people's etc.

If so, then you've divested the end of the 10th amendment (reserving rights to the people) of any practical meaning (just like the 9th). If the only restriction on state power is what the people have put into the state constitution, and if that restriction exists without the last clause of the 10th amendment, then that clause is meaningless.

You've achieved much the same trick with the end of the 10th that I assert you've achieved with the 9th: you've turned those explicit reservations of rights to the people into empty surplussage. Banalities. Meaningless verbiage.

I submit to you that we must give effect to every non-preamble word in the constitution.

Posted by: Paul Gowder | Jul 25, 2005 7:37:19 PM

More or less. In my view, the scope of "reserved rights" is the total sum of those matters which are not dealt with in one form or another by the US Constitution, which is exactly what the tenth amendment says. The state cannot excercise a power which is not delegated to it by the people, and the people cannot delegate to a state a power which the state may not wield, by the terms of the Federal Constitution. (n1) That limitation aside, however, which powers are then vested in a State government via the state's constitution is a matter for the people in that state.

Of course, at any time, the people may add to the power of the Federal Government, or subtract from those powers which may be wielded by the states, by amending the Federal Constitution. Likewise, they may restrain a state by amending their state constitution, or by removing the issue from the sphere of action of the states by amendment of the Federal Constitution.

I'm not arguing that this is necessarily the best way to run a country, or that this system is perfect. Rather, this is my understanding of what the American constitutional regime is. I sense, however, in your brevity, an imminent challenge to that view. ;)


n1. Cf. U.S. v. Darby: "There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers" and, "the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end" (Emphasis added) The "reserved" powers, obviously, are all powers which are not granted to the Federal government or withheld from the states (by virtue of a direct prohibition, or the granting of that power to Congress where reasonable concurrency could not exist; I am acutely aware that this view brings me into sharp disagreement with Justice Thomas). However, I think Darby errs to preface the remarks quoted above by saying, almost dismissively, that "The amendment states but a truism that all is retained which has not been surrendered". It may state a truism, insofar as it is blatantly true, but it is an encapsulation, a distillation, a crystalization of the underlying principles of the American Constituional structure, just as Titus 3:3-7 is, essentially, the full glory of the Word of God condensed into a half-dozen lines of prose. Furthermore, it would only be possible to be so dismissive of the tenth amendment had the court not been busily engaged - and is still busily engaging - in permitting "the new national government...to exercise powers not granted", and prohibiting "the states [from the full] exercise [of] their reserved powers".

Posted by: Simon | Jul 25, 2005 5:29:56 PM

So the scope of the "reserved" rights of the people is those express limitations imposed on state power in the state constitution and on federal power in the federal constitution?

Posted by: Paul Gowder | Jul 25, 2005 4:38:00 PM

I don't think it's inconsistent, insofar as the people retain the right at any time to amend or entirely dispose of their existing constitutions. Of course, there are processes for how one may do that (n1), and they're not always easy to pursue (deliberately, I suspect), but the fact that the people are the source of sovereignty doesn't conflict with the notion that they can delegate powers to governments, which is obviously necessary for the very existence of government.

The people have all their inherent power, but I would differentiate inherent from reserved. In my conception, under the US Constitution, the people retain reserved powers in the sense that they retain any that they do not delegate to the United States, but they do not have any reserved powers in the sense that they can choose to delegate any or all of those powers to the States, at their own discretion, excepting those powers reserved to the Union or prohibited to the States, and provided that there is always a mechanism to undo that choice (which is implicit, I think, in Art. IV 4's guarantee of a republican form of government). The bill of rights, as I see it, is largely an extension of Art. I 9-10, insofar as it is a limitation placed on the governments by the people. This kind of plays into my view on a constitutional right as being a limitation on government as an expression of the right itself, which is to say that the constitutional right is merely an abstraction of the right itself. E.g., the second amendment is not a right to keep and bear arms; rather, the right already exists, and the second amendment declares a limitation on any government to infringe that right.

So you can apply that notion to abortion; do the people retain a fundamental right to commit infanticide? Well, some people would argue that you do, because the rights of the woman are paramount, while others would argue that you don't, because the rights of the child and mother are coequal (as with conjoined twins; doctors do not tend to just separate them and leave one to die, they try to save both). But anyway, there is a fundamental conflict of rights here, from which the Federal Constituion very wisely recuses itself, and leaves the matter to the States. If the States wish to create a law banning abortion, and that law is made pursuant to a power that the people have delegated the State government, then that law is valid. But, say the state in question is California, and say the voters of California have decided that they don't care about the child in utero - and they're so convinced of it, they don't even want the state to have the power to pass a law. There are, inexplicably, Republicans in California, so maybe people are afraid that maybe the CGOP might take control of the state legislature someday. So they can amend the Constitution of California; either they can simply constitutionally protect the right to abortion, or they can simply remove from the state government the power to legislate on that matter. To my mind, these are two faces of the same coin, insofar as it makes little difference whether the Supreme Court of California rules that a future law banning abortion is ultra vires, or whether it violates a constitutional right - the point is that the "right" is safeguarded by either means. So it's an abstraction, a restraint on government's authority and power, and as such, there are different ways in which it can be abstracted.

I assume in asking "is there a restraint that can be brought, by the people, against a state absent a prohibition in a state [or federal] constitution expressly prohibiting it?" you're referring back to Roberts and Hedgepeth, and so my answer is simply that, if the people choose to grant their government sufficient power to make silly laws like this, and choose not to place constitutional restraints on their government, then they will reap what they've sown. There is a huge hole in this theory, of course, as it applies to Hedgepeth, in that - as mentioned above - I'm really less than certain what the arrangements for D.C. are, and so that territory is at a disadvantage. I would submit that this is an extremely good argument for the return of the bulk of the city to the State of Maryland forthwith. ;)


n1. In my view, laws and constitutions are binding on future generations, and thus, where an amendment process is provided, that process must be followed. Likewise, Senate rules are binding on future Senates, unless and until the Senate votes to change its rules in accordance with the rules on changing the rules. This view is explicitly contradicted by Bret Boyce in Originalism & the 14th Amendment, 33 Wake Forest L. Rev. 909, insofar as Boyce rejects the authority of the Framers to bind future generations (ibid, at 930-935), yet provides no alternative basis on which to rest the legitimacy of the Constitution. Hence, in my view, he is making a de facto argument against the legitimacy of the Constitution, in support of his view that the text has no meaning other than that which can be ascribed at the whim of a Judge. Boyce's essay is possibly the very best argument against Originalism I've read, and yet it still isn't equal to the task.

Posted by: Simon | Jul 25, 2005 1:53:35 PM

So that implies that the only restrictions on the power that the people gave the states is what is encapsulated in their constitutions? I don't think that's consistent with your "people as source of all sovereignty" theory -- not, that is, unless the people are really into Hobbes. The idea of reserved rights to the people, again, suggests that there are some unwritten rights -- against the state -- that they've granted.

On your theory, is there a restraint that can be brought, by the people, against a state absent a prohibition in a state [or federal] constitution expressly prohibiting it? If so, how do the courts (state or otherwise) adjudicate this restraint? If not, how do the people have any reserved inherent powers? After all, state constitutions generally confer a general police power...

Posted by: Paul Gowder | Jul 22, 2005 11:49:08 PM

In terms of the tenth, if "the question for any court is 'whether or not the law violates the powers delegated to the state.'" is a great question, another good question is - which court?

It might be helpful to elaborate a little on how I conceptualize federalism. In my view, a) all sovereignty - that is, all power and rights - ultimately resides with the people, and b) the fundamental unit of of American political structure is the State. This latter point is a historical accident rather than for any more principled reason, but as I see it, after the revolutionary war, the people delegated certain powers to their state governments; some states gave the government relatively expansive powers, others relatively restricted. Those state governments were given written charters, spelling out what was delegated to them. Likewise, when the United States proper (i.e., under the Constitution, rather than the Articles) came into being, the people delegated some powers to the Federal government, and added further limitations on the state governments, in addition to those restrictions imposed state-by-state by the state constitutions. In other words, there is no difference, in my conception, between the delegation by the people of certain powers to the Federal government and the delegation by the people of certain powers to the state.

Thus, the tenth amendment's statement that the powers not reserved to the Federal Government are reserved to the states or the people is, as I see it, read as follows. The powers which the people do not delegate to the United States via the U.S. Constitution are entirely reserved to the people, excepting those powers they choose to delegate - or had, by the time of the ratification of the first amendment, already delegated - (and those rights they choose to give up) to their state governments. The Federal government cannot excercise a power that the people have delegated to a State government, but neither can it excercise a power which the people have not delegated to the state government - because, just as Congress excercises the full breadth of its power to regulate interstate commerce as it sees fit both with the regulations which it does adopt and equally those which it does not adopt, the people excercise their sovereign authority both by choosing to delegate some powers to the State government, but also in choosing not to do so.

So I might be compeltely wrong, but that's how I understand it, and I am to a large extent handcuffed by that view, in that it dicates how I read the relation between the Federal and State governments in the Constitution. This might not be an entirely eloquent statement of how I view it either, sorry, but again - hopefully you can see where I'm driving at.

Your original question asked if "the question for any court is 'whether or not the law violates the powers delegated to the state'", and I said "aha, but which court? The answer to both is dictated by my view of where government derives its powers. The answer is that, your question should be tried in the state court systems, and the question as to whether the law is ultra vires should be tried under the state constitution, just as a question as to whether a Federal law is ultra vires is tried under the Federal constitution.

Posted by: Simon | Jul 22, 2005 11:18:08 PM

Simon: I respect a lot of what you say there, although I think we have fundamental disagreements on the nature of "democracy" I think yours is a reasonable one. My view is that "democracy" exists not merely in the forms but in the people. A state with democratic institutions where the people fail to make use of them is, in my mind, not truly democratic. This is an old example, and people trot it out all the time, but it really does get the point across (absolutely NO comparision is intended): Hitler took power legally, under the democratic forms of the Weimar republic. I think that the democracy or non-democracy status of a country is not in whether the people technically have the power, but whether or not they use it. And I think not paying attention is equivalent to not using it.

In terms of the tenth amendment thing, let me just draw attention to a possible problem with your reasoning: you say that, if something isn't prohibited by the prohibitive provisions of the constitution ("prohibitive provisions" being my now-coining for "not the 9th under your theory"), the question for any court is "whether or not the law violates the powers delegated to the state."

Now how can any state action violate the powers delegated to the state? Put a different way: surely the fact (assuming you accept that fact) that the people haven't delegated all their powers to the state means that there's some constraint on state action there? If a state legislature passes a bill, can we ask "is the power to pass this bill one that the people have delegated to the state, or is it one that has been reserved to [by] the people?" And is there any substantive answer to that question, or is the mere fact that the state, as representative of the people, passed the bill enough to remove it from the people's reserved powers? If that's enough, then I'd suggest that the reservation to the people means nothing at all. After all, EVERYTHING the state does comes from the people, so a reservation of rights to the people stated separately from the state must mean that the people hold something that the state can't take away in the ordinary course of business, non?

Posted by: Paul Gowder | Jul 22, 2005 5:56:37 PM

As far as the tenth amendment is concerned, I believe that the 10th argument simply makes explicit what was already highly implicit in the constitution: that those powers which have not been delegated to the United States are retained either by the people or the state governments, at the discretion of the people through the democratic process. Put another way, the constitution and the tenth amendment thereto recognizes that sovereignty lies with the people, who may delegate any powers they see fit to their state governments, excepting those specifically prohibited to the states by the constitution, or those powers which they have already delegated to the United States which are not concurrent. I don't think that's the clearest I could have made that, but hopefully you can see where I'm driving at. Anyway, as a consequence of this view of the tenth amendment, I can't agree with your two "interesting things". My reading of the tenth amendment, as it relates to the french fry eating, is that if the people have not delegated french fry regulatory powers to the federal government, and the state governments have not been prohibited by the constitution from french fry regulatory powers, then the question is solely one of whether or not the law violates the powers delegated to the state. That is a matter for the state courts, if it is a matter for anyone. There is no federal question and no problem. Again - the constitution is more than capacious enough for dumb law and bad legislative judgement.

Addenda: I have to confess that I have no idea how the above decription applies to D.C., insofar as it obviously isn't a state, and I'm not sure in which ways its legal system operates. For all I know, the federal courts are the ONLY courts in D.C. - but even if that is the case, I still maintain that the Constitution of the United States does not prevent any government from making laws about the eating of French Frys. That is a question that belongs in - and is found in - the political arena, not the constitution.

I actually agree with you - without hesitation or qualification - that Federal elections days should be a public holiday, and I think this would potentially be a major help in improving turnout. If I recall correctly, Sen. Clinton introduced such a measure in the 108th, and I think that's very sensible. I hesistate slightly more in agreeing with your other points in this area - not because I disagree with them at all, but because (unlike the voting holiday), I'm not sure that there is any public policy remedy to those problems. I would vastly prefer to see people stop being so apathetic, and I would certainly like people to read the newspapers, and I would certainly like to see better turnout at elections. But none of these things can be forced, only gently coaxed - as, for example, with a public holiday on election day, and even, Federally-subsidized election day transport services. However, I would argue that the continuing draining of power from the states to the Federal government can only increase bad government and apathy. Apathy is the feeling that government is remote, that it is unaccountable, that "I can't make a difference"; a government which is remote from the people who its decisions affect is likely to foster apathy about its operations. Likewise, a government which is remote from the people who its decisions affect will make bad decisions.

I don't support unfettered democracy; I don't believe that there should be endless government by proposition, or referenda on every issue. Nor do I believe that America is a democracy (meaning majoritarian) - it is a Federal Republic which uses the mechanism of multiply-tiered representative democracies. As a scheme of government, it represents - in Jefferson's phrase - "unquestionably the wisest ever yet prevented to man", and I remain of the view that the plan should be followed. I oppose attempts to abuse that constitution, whether they come from your party or mine, and whether they come in the form of substantive due process or the nuclear option, neither of which are constitutional, in my view (this opinion, you might gather, does not make me very popular in Republican circles right now, but as Scalia says, "a pox on both their houses"; I would deny conservatives the same invalid tools to advance our agenda as I would deny liberals those tools to advance your agenda, if they are fundamentally incompatible with the Constitution. My political loyalties lie with the Constitution first, the Republic second and the Party a distant third.

As far as elections since Eisenhower are concerned - yes, I do think they were democractically valid. First, Why pick Eisenhower as a demarcation point? American elections have been hard-fought and nasty, literally since Washington demurred to seek a third term. On the other hand, I dislike Kennedy for introducing modern "image politics", but that's just my personal distaste. The people still vote. Second, Bill Clinton never won a majority of the popular vote, but who cares? It doesn't matter - he won the same way every other President has won: by winning a majority in the electoral college (another of the founders' ideas which has developed a usefulness that could not have - and specifically did not - contemplate). Just as Bush did in the 2000 election. A popular vote win is nice - I'm sure dubya felt very validated by it in 2004 - but it's secondary to the point.

Likewise, third, you mentioned above that many Bush voters "didn't even know his own positions" (on issues like Kyoto, the International Criminal Court, the test ban treaty, the land-mine ban and so on) and asked, "Is this consistent with a functioning democracy?". In a word - yes. Democracy does not mean the best candidate wins, or for "the right reasons". It is a process, not a result. I don't know if you're right or not that some Bush voters didn't know what he stood for, but with all due respect to those people - which is to say, none - if you didn't know what George W. Bush stood for, you weren't paying attention. There is a glut of information out there, including Bush's positions on all those issues - which he wears as a badge of honor, i.e., these are not things he tries to hide or sideline. Bush has aggressively and publicly opposed, for example, Kyoto and the international criminal court since at least the 2000 primaries. Anyone who thought that a vote for Bush was a vote for Kyoto probably isn't smart enough to make it to the ballot box in any instance.

So yes, I can honestly say that every election since Eisenhower was decided in accordance with the Constitution of the United States. Whether either of us likes the results is not relevant to the question of the validity of the process.

Posted by: Simon | Jul 22, 2005 2:15:07 PM

Simon: Good to see we've stopped insulting each other.

Although each side in the Culture Wars can certainly be charged with hypocrisy (the left says the 14th amendment is under-enforced, the right says the commerce clause is under-enforced, etc.) I think I'm less guilty of it than you suggest. For one thing, I agreed with Thomas's dissent in Kelo, and I do think the Court has inappropriately gutted the public use clause.

Nonetheless, let me suggest that my understanding of the appropriate limits of state and federal authorities (either/or) to arrest people for eating french fries is entirely consistent with the text of both the 9th and the 10th amendments. The 9th amendment we've talked about, so lets look at the 10th.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The first interesting thing about this amendment is that it doesn't say which powers the states have, and which powers the people have. If we were being a pure textualist, we might say that the 10th amendment doesn't prohibit the courts from enforcing individual rights against the states at all, since a power not delegated to feds/prohibited to states is not necessarily reserved to the states. It could be reserved to the people.

The second interesting thing about the 10th amendment is that it expressly subordinates itself to all other provisions of the constitution. It only reserves a right to the states if the constitution doesn't already prohibit it. So if our reading of the 4th amendment, or the 14th amendment, prohibits the states from arresting people for french fries, there's no basis in the 10th amendment for ruling to the contrary.

I'd like to point out that there is no principled updating of "arms" in the second amendment, by the way. If one interprets "arms" to mean "modern weaponry, the state of the art for defending against an oppressive state" then we'd all have ICBMs in the backyard. I assume you don't want that any more than I do?

In terms of "fundamentally undemocratic, unconstitional, and shows an absolute contempt for federalism as an idea and the United States as an ideal," I don't think you understand my critique of the way democracy currently functions in this country. I think the framers who established the ideal of the United States -- an ideal which I support -- would quake with horror if they saw the way politics happens in this country today. Looking from a time when people used to carry the constitution around in their pockets, and when serious dialogue (like the Federalist papers) was carried out to a world where the candidate with the best hair and the most pithy soundbite wins -- I would like to see the public once again take democracy seriously. I would like to see people bother to find out where their candidates stand on the issues they believe in, try to learn what their own position should be on those issues, and vote their conscience. I'd like to see a politics where third parties have a real chance, where you don't need a massive machine and corporate ties to have any chance in the high-money game of electoral politics. I'd like to see an America where there's more discussion and less advertising, more education and less propaganda. And yes, I'd like to see an America where the politicians don't feel privileged to lie through their teeth to the people. For heaven's sakes, I'd like to see an America where people get mandatory time off work to vote, where more than 55% of the people do vote, where people read the newspapers, where people stop being so damned apathetic -- whatever their beliefs.

If we ever get there -- or even substantially closer to there -- I will become a lot more comfortable with "judicial restraint." But until we get there, I'd like to restrain the government from arresting 12 year olds for eating french fries.

Simon, honestly, can you say that any national election since Eisenhower was decided in accordance with democratic principles?

Posted by: Paul Gowder | Jul 22, 2005 11:04:40 AM

The key word in my original post was "dishonestly". Courts that find jurisdiction where there is none act ultra vires and without power. That is bad and they should stop.I agree entirely. Jurisdiction is particularly relevant, of course, to the Guantanamo business, but in a more general sense, I agree that courts should refrain (or, if they won't refrain, be precluded) from ultra vires action. I do, however, suspect that my use of that term is a touch broader than the usage you have in mind. ;)

Paul - the simple fact is that everything you've written indicates that you don't like the constitution, and you seek to change it by extraconstitutional (and throughly undemocratic) means, i.e. through judicial fiat. It frustrates you, it seems to me, that the Federal Government is a government of limited and enumerated powers, and that the reach of the government is therefore limited. See comments here. And maybe you're right - maybe Federal power should be more expansive; maybe in this day and age, the Federal Government should have plenary power, and maybe every case, controversy and cry for validation should entail a Federal question; maybe the Federal courts should be the great platonic guardians of the best hopes of the nation, empowered to update the Constitution as necessary. That's not necessarily a terrible system - but it certainly isn't the system of hte U.S. Constitution. So you want to pass an amendment - change the Constitution, right? You want to convince enough of your fellow citizens and implement this drastic change the democratic way, right? Well, no. You just want to impose that change by judicial fiat. That is fundamentally undemocratic, unconstitional, and shows an absolute contempt for federalism as an idea and the United States as an ideal. That's why I made the accusation I made above, and I stand by it.

While you continue to suggest that my reading guts the ninth amendment, by the way, and while I doubt either of us are going to change our minds, since we seem to entirely disagree about what the amendment actually says, I'm still interested to hear how your expansive vision of the Federal Government does not gut the tenth amendment. Or do you just read the constitution selectively? The commerce clause must be interpreted loosely, with high levels of deference, but the establishment clause must be interpreted strictly, with no deference at all. The fourteenth amendment contains a boundless resevoir of limitations on government (a resevoir which will be tapped, drip-drip-drip, by the courts), but the public use clause offers no limitation at all on government. The meaning of "cruel and unusual" in the eighth amendment must be expansively updated in keeping with the standards of the present, but the meaning of "arms" in the second amendment must freeze in time in 1791 (actually, this last point is rehtoric, not reality, since liberals contend that the maximum extent of the "arms" that people are entitled to keep and bear are those things hanging by the side of one's torso; q.v. the 8th amendment). This is almost as silly as Mark Graber's recent comments, arguing that "Bush says that Roberts would not legislate from the bench; Graber thinks that Scalia and Thomas, and the Rehnquist Court generally legislate from the bench all of the time; Therefore it's doublespeak to say that Roberts won't."

Posted by: Simon | Jul 22, 2005 10:23:38 AM

So, do I take it that, in Newdow, you would disagree with the court's decision to "skip out" of "the real legal issue", "on procedural grounds", such as a lack of standing? Are you saying that courts should worry more about jumping directly to the meat of the issue before determining, for example, whether it even has jurisdiction? And if not, what do you mean by that post?

The key word in my original post was "dishonestly". Courts that find jurisdiction where there is none act ultra vires and without power. That is bad and they should stop.

But Courts that deny jurisdiction where they have it, or that work to sidestep an unpalatable result by invoking dubious prudential doctrines, make it harder for anybody to fix the underlying flaw in the law. So what I'm saying is that when courts *do* have jurisdiction they should not lie and find ways to dodge the question, and they should also be hesitant to invoke prudential standing grounds.

From my reading of Stevens' Newdow opinion Newdow had Article III Standing and was kicked out of court only on prudential grounds. Having granted cert., better to confront the question, decide the case, and let the yahoos in the political branches duke out whether the decision needed correcting.

As a corollary, when courts do decide the issue they should be as clear as possible about what grounds they're relying on. If a statute is unconstitutional we are entitled to know why and what part of the constitution makes it so, so we know what we would need to change or do differently in the future.

Posted by: Will Baude | Jul 22, 2005 9:49:51 AM


This has got to be idiotic conservative propaganda piece #1, and it's astonishing that people still try it. Every time anyone who you mouth-breathers disagrees with dares to criticize something, you accuse the critic of "hating" the thing they criticize. "I don't support the war." "So you don't support [hate] our troops?" "I don't support the president." "So you hate America?" "I don't think the courts apply the 9th amendment." "So you hate the constitution?"

How is it that you're not embarassed by the fact that that drooling simian nonsense comes out of your mouth, virtual or otherwise? Brian Leiter is right about the lot of you, and about the utility of trying to talk to you.

Lets get this out right now. It embarasses me to have to say this, the fact that it's needed confirms just about every dim view of humanity ever offered by even the darkest cynic, but apparently (once again) the cynics are right. Criticism is not hate. Blind fealty is not love. Once you learn that perhaps you'll be minimally competent to participate in a discussion between adults.

Your apparent vision of the 9th amendment is nonexistence, though you desparately deny it. You insist that the 9th amendment can't be enforced against the government. What the hell is the point of a constitutional amendment that can't be enforced? They might as well have written "we don't like cheese" into the constitution for all the 9th amendment is worth in your reading.

I'm not even going to address your blithering idiocy about elections.

(Fortunately for the youth (uh, or whatever), I don't teach anything at the moment, I'm in practice. I do, however, practice civil rights law. God save the impressionable courts I suppose.)

Posted by: Paul Gowder | Jul 21, 2005 8:31:00 PM

I'm not saying that the ninth amendment is meaningless, I'm saying that it means exactly as it says - the list of rights retained by the people is not limited to those protected by the constitution. Randy Barnett has evidently heard you on this one, as he promises today a forthcoming essay on "Five Originalist Models of the Ninth Amendment.". In the meantime, perhaps you'd like to tell us how substantive due process - and your expansive vision of the Federal Courts as a remedy for all ill - is compatible with the tenth amendment?

The rest of your comments are too silly to waste time responding to in any detail. What really worries me is that - if I recall correctly - you teach con law, right? Which means that you're no doubt busily indoctrinating a new generation with these views. You ever wonder where some on the right get the idea - as MJ said - that universities are bastions of liberals who hate America? Take a look at your posts in this discussion. When you're not bashing America, you're bashing the constitution, and when you're not doing that, you're whining that democracy doesn't produce the results you want. Get this into your head: you lost the 2004 election; you lost the 2002 election; you lost the 2000 election. You only won the 1992 and 1996 elections because of Ross Perot, and claimed no majority in either (despite the complaints about Bush lacking the same in 2000). You lost in 1988, 1984 and 1980. It's unclear when democrats last won the House of Representatives on any basis other than brute power of incumbency, but in any instance, you haven't won a house majority in over a decade. No wonder you aren't convinced that democracy works, and that you evidently hate the American constitution - you keep ending up on the losing side of it!

Posted by: Simon | Jul 21, 2005 7:20:54 PM

Mr. Gowder, the judges of the Eighth Circuit must have predicted this conversation, since just this morning, they published an opinion where a) hick cops arrested a black guy for, well, being too "uppity" and b) got sued. Pretty cool.

Posted by: Mike | Jul 21, 2005 6:22:49 PM

1983: I don't disagree with you, but I would suggest that your truth has grave implications for our democracy.

Posted by: Paul Gowder | Jul 21, 2005 3:05:35 PM

Paul, let's cut the crap. A few elite Democrats and elite Republicans know the issues. The rest of America votes how the TV tells them to. So for every ignant Republican voter, I can show you an equally ignant Democratic voter. Or, worse, I'll show you a Democrat who votes Democrat only so he can ensure his wages remain above what they'd be in a free market; or so that he can keep his welfare benefits. How noble - voting so that you can make more money than you would otherwise be entitled to. How enlightened!

Posted by: 42USC1983 | Jul 21, 2005 2:57:00 PM

MJ: there's a difference between disagreement and ignorance. To not know your candidate's positions on major international treaties that have been given a lot of play is the latter.

Posted by: Paul Gowder | Jul 21, 2005 2:48:57 PM

No Paul, you're right, the test ban treaty, the ICC and Kyoto Protocol are issues that everyone is deeply concerned about in their daily lives. That's what the folks down at the diner are usually talking about - that and the Dulfer Report. The fact that you have uncovered this is highly persuasive evidence that our democracy has ceased to function. We’re practically communist.

I'm in awe of how arrogant, how galactically self-important you have to be to believe that America doesn't work because it doesn't agree with the minutia that you think is important. Only a megalomaniac could think that honestly believe that voters are ignorant and/or dumbfounded if they don't vote the way the intellectuals up there with you on Olympus do.

Fire away, Paul - I'm done wasting my time arguing with you.

Posted by: MJ | Jul 21, 2005 2:21:39 PM

by the way, check out the end of that report. Bush voters didn't even know his own positions. A majority of Bush voters supported the Kyoto protocols, and believed Bush did too. Bush did not. A majority of Bush voters believed Bush supported the International Criminal Court. Bush did not. A majority of Bush voters believed Bush supported the test ban treaty. Bush did not. A majority of Bush voters believed Bush supported the land-mine ban. Bush did not.

Is this consistent with a functioning democracy?

Posted by: Paul Gowder | Jul 21, 2005 1:27:57 PM

My dear MJ, the right's temporary ability to talk a "majority" (except in 2000) into believing something through ruthless and savage lies and propaganda does not imply that the thing into which they have talked the majority is the truth. If you want hard evidence of this, check out this study, which provides empirical evidence for the fact that Bush voters had a dramatic information shortfall, compared to Kerry voters, on the Iraq war. For example, Bush voters didn't know what was in the Duelfer report, despite the fact that it has been available to the public. This isn't a difference in opinion on disputed factual questions, but a difference in awareness of the contents of published reports.

Where did they get this misinformation? Lies and propaganda. Any government that rules by lies and propaganda (and false arrests) is not democratic.

Posted by: Paul Gowder | Jul 21, 2005 1:19:38 PM

You point to a handful of incidents where law enforcement may have been overzealous when securing the President and attempting to keep order at political party events (because the folks from MoveOn would never say, try to interrupt the President's acceptance speech - would they) and think that you are describing tyranny? You have got to be kidding.

An election doesn't turn out the way you think it should and a country ceases to be a democracy? Did it ever, for even a second, occur to you that your views aren't in the majority for the simple fact that you couldn't possibly persuade a majority to agree with you sky-is-falling histrionics? That maybe our elected officials do actually represent the viewpoints of the majority of Americans? That your viewpoint will always be in the minority because it is disjointed from reality, yet there are hundreds of thousands of government employees who would risk there lives to protect and defend you?

You can sit around all day and tie your self to the tree of woe for all of the imagined travesties of justice that you think you see. But that doesn't make them valid and in my opinion you are pathetically off base and demonstrably wrong about the greatness of this country.

Posted by: MJ | Jul 21, 2005 1:08:33 PM

But why haven't the (surprisingly common) random kooks internalized the value of free speech? What is coming down from the executive that says that it's ok to arrest and harass people for carrying "no blood for oil" signs?

You talk about the left not being committed to democracy? We've never arrested Republicans for protesting us. (With the possible exception of abortion clinic protestors, and I'm opposed to arresting abortion clinic protestors except where they actually use force to prevent women from having access, and I think the left must bear some burden of guilt there.)

How is it that the Bush Adminstration can claim to be acting consistent with democracy when the secret service orders people to be arrested for protesting?

Posted by: Paul Gowder | Jul 21, 2005 1:02:41 PM

But Mr. Gowder, though those people might be arrested by random kooks, then can file a lawsuit - and they'll probably win. Sure, the "system" isn't perfect, but it has correcting mechanisms, including Sec. 1983. And, as you know, Congress will even make the wrongdoer's pay your legal fees (1988(b)). Hey, if you ask me, that's one hell of a country.

Posted by: Mike | Jul 21, 2005 12:57:40 PM

MJ: Wake up and smell the shit. Look around you for once, and look at the way this society actually works, at who holds the reigns of power, instead of just taking whatever garbage they jammed down your throat in high school civics class.

Look at Bush v. Gore, where our vaunted rule of law was reduced to pure party politics: the conservatives voted for Bush, the liberals voted for Gore.

Or... wait, you want to talk about people being incarcerated for espousing their opinions? How about Brett Bursey.

"We attempted to dialogue for a while, them telling me to go to the free-speech zone, me saying I was in it: the United States of America," Mr. Bursey said. Finally, he said, an airport policeman told him he had to put down his sign ("No War for Oil") or leave.

" 'You mean, it's the content of my sign?' I asked him," Mr. Bursey said. "He said, 'Yes, sir, it's the content of your sign.' "

Mr. Bursey kept the sign and was arrested; he said he watched Air Force One land from the back of a patrol wagon and spent the night in the county jail.

Or how about Bill Neel?

The police cleared the path of the motorcade of all critical signs, but folks with pro-Bush signs were permitted to line the president's path. Neel refused to go to the designated area and was arrested for disorderly conduct; the police also confiscated his sign.

How about when the Secret Service kicks people out of taxpayer funded "public events" because of their anti-Bush bumper stickers? And another story. And numerous more stories.

On August 23, 2002, at an appearance in a local park to support a Republican gubernatorial candidate, protesters were ordered behind a row of large, Greyhound-sized buses, which placed them out of sight and earshot of their intended audience. They were advised that if they went to the other side of the buses, a location visible to those attending the event, they would be arrested. People who carried signs supporting the President's policies and spectators not visibly expressing any views were allowed to gather in front of the buses

On January 22, 2003, President Bush came to town to announce an economic plan. Protesters carrying signs opposing the economic plan and criticizing the President's foreign policy were sent to a "protest zone" located in a public park, three blocks away and down an embankment from where the President was speaking. Neither people attending the event nor people in the motorcade could see the protesters in the protest zone. One protester was arrested for refusing to enter the protest zone. Standing near the location where the protester was arrested was a group of people who were not asked to move, including a woman who carried a sign reading, "We Love You President Bush." She was neither ordered into the protest zone nor arrested. Local police told the arrested protester that they were acting at the direction of the Secret Service.

Ooooh, here's a good one.

Of course North Korea is worse. But so what? In North Korea, their equivalent of our right is probably pointing to Nazi Germany as worse still, in order to justify their society. You can not justify wrong by pointing to still greater wrong somewhere else!

Posted by: Paul Gowder | Jul 21, 2005 12:45:32 PM

By the way, stupid though the D.C. policy might have been, when I was in D.C., I knew about the french fry case. And guess what: I didn't eat on the Metro (though, on other transit systems, I always smuggle coffee or a protein bar). So, maybe the law worked.

Posted by: Mike | Jul 21, 2005 12:34:20 PM

If you ever lived for 15 minutes in a non-democratic society, one in which the government may incarcerate you, or members of your family,or worse, simply for expousing your opinion - you would realize what a pathetically stupid, delusional, irrational and hysterical rant that was.

If you ever wonder why a great many on the right believe that the fringe of the left hates America, re-read the post that you just wrote and then consider that you live in the greatest country in the world, not North Korea - and then thank God that you will likely never have to find out what actual oppression feels like.

Posted by: MJ | Jul 21, 2005 12:21:09 PM

Oh, and I really wish that we'd stop fetishizing "democracy." In an ideal state, democracy might work. And I'd like to get us to that ideal state by, for example, improving the accountability of representatives to the people. But right now, we don't live in an ideal state, and we don't have anything approaching what we understand by the positive connocations of "democracy." The mere fact that people have a right to vote does not mean we're in a "democracy." We live in a world where public discourse is twisted and tainted by horrible lies and power relationships, where the president can convince the public of absolutely false nonsense (like Saddam Hussein's relationship to 9/11) to justify sending citizens off to die in a foreign land for the benefit of the rich, where corporations can purchase massive propaganda and create entire structures of false scientific research (the Tobacco Institute comes to mind) to sucker the public into believing whatever they want, where religious institutions are captured by liars and bigots who lure the people into saying love and voting hate ("with mercy on their lips and judgment in their hearts"), where public education is such a joke that the high schools are graduating people who can barely read a restaurant menu, let alone the policy proposals that their supposed "representatives" want them to support, where the only way to get elected in the first place is not to talk to the people but to make deals with the corporations that can buy advertising time, where even in the most hard-fought elections, half of the population doesn't vote, where voters are intimidated, where convicts are disenfranchised... how is any of this democracy?

Posted by: Paul Gowder | Jul 21, 2005 12:07:57 PM

So what you're saying is that the 9th amendment is absolutely meaningless? That it merely notes the existence of natural rights but says nothing about the right of the government to take those natural rights away at its whim?

Posted by: Paul Gowder | Jul 21, 2005 11:58:52 AM

I agree largely with MJ. The fundamental question is, "what is a constitutional right?"

The constitution does not create any rights - the declaration of independence and the 9th Amendment make it clear that a person's rights flow from their Creator (not from the government, and not from any legal document created by man), and a person retains all those rights. However, civilization requiring a willingness to subjugate or forgoe certain rights in the name of the common good, governments are instituted to work for the common good. The problem is that, while the people must necessarily surrender some freedoms to live in a civilized society, a government big enough to secure the rights of everyone is big enough to take away the rights of anyone. Therefore, in the American system, the Framers saw fit to place certain limitations are placed on what government can do (if they hadn't, obviously, they wouldn't have written the constitution down. The mere act of writing a constitution demands fealty to the text). These limitations, we call "constitutional rights". Or, as Tammy Bruce puts it, "the constitution doesn't grant anyone any rights - that's completely the wrong way to look at it. You already HAVE those rights - the constitution prevents the government from taking them away.

A federal constitutional right is a fundamental limitation on the powers delegated to the federal government (and, per the 14th amendment, the state governments - so, for example, the federal government may not abridge a citizen's right to keep and bear arms, and neither may the states abridge that privelege of a U.S. citizen. Except liberals aren't so keen on applying their dogma to the 2nd amendment). So when the due process clauses say that no American government can "deprive any person of life, liberty or property, without due process of law", they are not creating a right to those things, they are not saying that a person cannot be deprived of those things, they are placing a limit on the powers of arbitrary government. It is a procedural guarantee. I always wonder if the people who buy into substantive due process feel faintly embarrassed when a genuine due process challenge forces them to use a term that reveals substantive due process as the mockery that it is: "procedural due process".

In my view, I have a right to eat a McRib for breakfast; that right is gifted to me by my Creator and Ronald McDonald. If the state of Indiana passes a law that abridges that right - say, that McRibs cannot be consumed before lunchtime - or the McDonalds Foods Corporation decides as a matter of policy that they will not sell McRibs before 12pm, then my right is taken away. But to suggest that, should either do so, there has been a violation of the United States Constitution is preposterous. Contrary to worryingly popular belief, there are rights which you have which are not protected by the United States Constitution. Not everything that is wrong is necessarily unconstitutional, and the insidious reliance on the courts to illegitimately accomplish what cannot be legitimately accomplished through the democratic process is, in effect, an argument that democracy doesn't work. n1

I had always thought the McRib analogy far, far too simplistic to hold any weight, yet the plaintiffs in Hedgepeth were essentially asking the courts to decide exactly the same thing: they wanted the courts to delcare that a statutory limitation on what one may eat, when one may eat it, or in which geographic locations one may or may not eat it, violated the constitution of the united states. Somehow it seems vaguely offensive (or at least trivializing) to suggest that a document forged in the name of creating an effective national government while still guarding against the potential for tyranny might have something to do with the ability to eat a french fry - or a McRib - in a train station.


n1. But of course, democracy does work - liberals think that it doesn't work because, for example, the people haven't abolished the death penalty; but the goal of democracy is not to reach a certain, specific result desired by a subset of the people - it is to facilitate the views of the majority. If the people want the death penalty (which virtually every poll taken suggests they do), and the death penalty is constitutional (which it clearly is), and the people's representatives choose not to end the death penalty, then that's democracy in action.

Posted by: Simon | Jul 21, 2005 11:51:58 AM

MJ: the text of the constitution is a very broad document. It uses phrases like "due process" and "cruel and unusual" and "unreasonable seizure." If we give a damn about what the text of the constitution says, we will attempt to apply those words. (Here, I dissent from Fish's idiotic editorial...)

Atwater can be seen as just as activist as Roe supposedly is. The court read the word "unreasonable" out of the constitution, just like it read the words "public use" out of the constitution in Kelo and it read the word "no" out of the constitution in the obscenity cases (as Justice Black might note) and read the words "limited times" out of the constitution in Eldred v. Reno.

The term "unreasonable" might well incorporate "no screwing of the helpless." The term "equal protection of the laws" might equally well incorporate "no screwing of the helpless." The Ninth Amendment might well incorporate a right to not be subject to arrest for utter nonsense.
I take no responsiblity for how the Court has twisted those things. But to say that one "invents" constitutional excuses to invalidate blatant insanity when the constitution has extremely broad language in it that can easily cover that insanity is -- well, it's exactly what your Conservative Icon, Justice Thomas, constantly pitches a fit about. The fetishizing of state decisis over what the constitution says.

Now, in terms of the binding of the lower courts on the fourth amendment claim, you're correct as I've acknowledged in the other thread. But do we really need to start the equal protection thread again?

Posted by: Paul Gowder | Jul 21, 2005 11:35:51 AM


More mindless, liberal "I-don't-like-the-law-therefore-it-must-be- unconstitutional" blathering.

After Atwater, there was no question that a district court and court of appeal were bound to say that there was no Fourth Amendment violation.
You say "the helpless and powerless". There is no support for the argument that suddenly minors are a protected class.

"Tugs at my heart strings" is not an justification for a court to invent a constitutional excuse to decree what they'd rather have the law be.

Posted by: MJ | Jul 21, 2005 10:52:24 AM

By the way... in terms of the political outcry about the french fry girl... what Judge Roberts didn't tell you is that the WMTA Police are still doing it.

About 6:30 p.m. July 16, Willett was eating a PayDay candy bar while riding the escalator from 11th Street NW into the Metro Center Station. Metro Transit Police Officer Cherrail Curry-Hagler was riding up.

The police officer warned Willett to finish the candy before entering the station because eating or drinking in the Metro system is illegal.

Willett nodded, kept chewing the peanut-and-caramel bar and stuffed the last bit into her mouth before throwing the wrapper into the trash can near the station manager's kiosk, according to both Willett and Curry-Hagler.

Curry-Hagler turned around and followed Willett into the station. Moments after making a remark to the officer, Willett said, she was searched, handcuffed and arrested for chewing the last bite of her candy bar after she passed through the fare gates. She was released several hours later after paying a $10 fine, pending a hearing.

* * *
"We've been doing our best to crack down on people who are consuming food and beverages in our stations because we get so many complaints about it," said Lisa Farbstein, a Metro spokeswoman. "In this instance, the woman was given a warning, which she ignored, and she jammed the rest of the candy bar into her mouth and continued to chew."


Farbstein said Willett violated the rules. "Chewing is eating," she said.

Yes, they arrested someone for chewing -- not for actually putting the food in their mouth in a metro station, but for chewing the already-in-mouth food... This is July 2004...

And a few months later, the same WMTA police threw a 5 months pregnant woman on the ground for talking too loud in a cell phone.

Guess the political system didn't do to much too rein 'em in, eh?

Posted by: Paul Gowder | Jul 21, 2005 10:40:51 AM

Juggling geese doesn't screw the weak and the helpless.

Posted by: Paul Gowder | Jul 21, 2005 10:27:25 AM

Will:Dishonestly skipping out on procedural grounds or failing to make clear the real legal issue can make a legislative fix much harder to work.So, do I take it that, in Newdow, you would disagree with the court's decision to "skip out" of "the real legal issue", "on procedural grounds", such as a lack of standing? Are you saying that courts should worry more about jumping directly to the meat of the issue before determining, for example, whether it even has jurisdiction? And if not, what do you mean by that post?

Posted by: Simon | Jul 21, 2005 10:15:13 AM

I mean to say that the real world problem that created this lawsuit is that we have a stupid, ill-conceived, bad law ...And that problem was solved by democratic concensus. Could it have been solved by Judge Roberts? Perhaps. Should it have? I withhold any judgment on that issue. All I'm asking is that we lawyers not pretend that our courts act in a vacuum.AH, I'm on the same page now. Well, that being the case, I concur in part and dissent in part. ;) I agree entirely that when the public sees fit to implement stupid, bad (but none-the-less constitutional) laws through the democratic process, they are - and must be - free to uphold or repeal them through the same democratic process. I think we both previously agreed on the example of the 18th and 21st Amendments here as an example of democracy being a self-correcting mechanism, and the fact that DC legislatively repealed a dumb law (sounds like a good idea for a website!).

I also agree that the courts don't operate in a vacuum, but I dissent insofar as I think they should operate as if they did. The best example is probably Pollock v. Farmers Loan & Trust, Co., 157 U.S. 429 (1895). I don't know, but I suspect that judgement - which ruled unconstitutional the Federal Government's primary (given the craze, then as now, for free trade) source of income - sent shockwaves out from the court that would make Lopez look like a blip. The effect, though, of proper judicial review, is to say to Congress: "look, we accept that you think that this law is a good idea. But it isn't constitutional, which means that either a) you don't think it's all that good an idea and drop it, or b) you still think it's a good idea, and you think it's good enough to warrant Article V procedings". And thus, Pollock - with all proper (which is to say, scarcely any) regard to how the ruling would affect the government - threw the question back to the Congress, and after mulling it over for a bit, they passed the 16th Amendment.

Of course, the court could have taken into consideration that it wasn't operating in a vacuum, and it could have considered that the federal government needed that tax - and in doing so, it would have gutted the direct tax clause of Article I 9 - effectively deleting it from the Constitution (we're both consistent on this point, I think - the same logic which leads us to our disagreement over Kelo, where I previously made this same "the court can't delete a clause of the constitution" argument, will likely lead us to disagree about Pollock and Hedgepeth). But it is this latter course of action which would constitute judicial activism or legislating from the bench, because a) the thought leading to the decision to issue such an atextual judgement would necessarily require the court to have decided to pass over the constitution in favor of making an affirmative policy judgement about the wisdom of the tax involved (legislating from the bench), and b) it would uphold a clearly unconstitutional act of the Federal Government, in complete dereliction of its constitutional duty (judicial activism).

The D.C. metro ordinance was clearly silly, and the public outcry generated over its heavy-handed application was significant and serious enough to force the law's repealment. This should have had no bearing on the court's deliberations, though; the ordinance should have been found constitutional, even if the D.C. authorities made it clear that it would not be repealed. Such an action is not only demanded by the constitution, but if anything, increases the incumbency on the people to agitate for the repeal through the democratic process, as we both agreed, I think, vis-a-vis the 18th/21st Amendments. It isn't the court's job to prevent the people from shooting themselves squarely in the foot, which would be the result of declaring the ordinance unconstitutional - by doing so, one takes an issue off the democratic stage (as, for example, the framers did - intentionally or not - by including the public use clause in the 5th amendment), such that it can only be fixed by later court action or amendment (which, of course, is why liberals and many legal types really like Roe - which, by the way, is hopelessly in conflict with Kelo, in that one can subscribe to the underlying logic one or the other, but not both). This week the people think it's a stupid idea, next week they may change their minds - if it was repealed properly, no problem, but if it was ruled unconstituional, even if it wasn't unconstitutional, they're stuck. They have two choices: pass an amendment, or return - hat in hand - to the courts and the lawyers. You surely must see, even if you don't agree, why that kind of constitutional jurisprudence - which first makes everything a potential federal question under a substantive due process challenge, and then renders the court the unchallengable center of power on any issue on which it buys into such a challenge - leads some people to a vision of "robed masters"?

The United States Constitution leaves room for the people to pass mind-bendingly dumb laws, and so should the federal courts. Some people juggle geese!

Posted by: Simon | Jul 21, 2005 10:10:31 AM

I, of course, agree.

I add a postscript, though, to note how important of a role a judge plays in this legislative process. The tone of a judge's opinion can energize or deflate political interest. The clarity of the opinion can make clear what is at stake, or obscure it entirely. Dishonestly skipping out on procedural grounds or failing to make clear the real legal issue can make a legislative fix much harder to work.

Which is to say that those who care about making sure the political branches can do their job should probably value honest, modest judges with great writing skills with much less regard for their political or philosophical affiliations.

Posted by: Will Baude | Jul 21, 2005 9:48:14 AM


You are using the word "case" in the narrow sense, as in a "lawsuit" in which one entity sues another based on a particular legal theory.

That's all well and good, but it is not the sense in which I am using "case." I mean to say that the real world problem that created this lawsuit is that we have a stupid, ill-conceived, bad law. That's what the real issue is. And that problem was solved by democratic concensus.

Could it have been solved by Judge Roberts? Perhaps. Should it have? I withhold any judgment on that issue. All I'm asking is that we lawyers not pretend that our courts act in a vacuum. Lawyers and judges are not the only actors in the legal system, and they aren't even the most important actors.

Posted by: Hillel Levin | Jul 21, 2005 6:59:35 AM

But let's take a step back for a moment. The real issue in this case was not the applicability of various constitutional provisions. The real issue was the stupidity of a law that requires police to arrest a 12 year old who eats a french fry.I disagree. The real issue - meaning the one that was presented to (and should be considered by) the court - was not whether the law was stupid (which I think everyone agrees it was), but whether the law was unconstitutional. Roberts got it exactly right, echoing Justice Potter Stewart who (correctly, in my view) dissented in Griswold saying "We are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that, I cannot do."

Posted by: Simon | Jul 20, 2005 10:53:10 PM

Losing sight of the big picture is understandable, but that is where wisdom needs to rise to the surface. Judge Roberts may be a legal genius, but is there any wisdom in that neatly groomed head of his?

Posted by: CJ | Jul 20, 2005 6:22:08 PM

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