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Wednesday, January 18, 2006

DeMoss on De Constitution

Occasionally a mini-controversy will brew when some judge or other says something "controversial" outside the office of the judicial opinion, in some public popular forum or another -- Posner being the locus classicus for such a proposition; a more recent example being the teapot-tempest over whether Judge Alito's Third Circuit colleagues acted properly by speaking in his support.  So I'm not sure why we haven't seen more of a reaction to this piece in the Houston Chronicle by Judge Harold DeMoss of the Fifth Circuit arguing that, Griswold and Roe notwithstanding, there simply is no right to privacy in the Constitution. 

Now, although most current nominees are expected to, and generally do, pledge that they have no interest in revisiting Griswold (Alito included), I have no problem with DeMoss making such an argument publicly, nor with broad attacks on the constitutional footing of a right to privacy or other unenumerated constitutional rights -- the right to obtain contraception, the right to send your kids to a private religious school, and so forth.  (Wait, you like those rights?  Too bad.  Take it up with the legislature.)  Those arguments may be right or wrong, but I have no problem with the discussion -- although I'm not terribly impressed by Judge DeMoss's contribution.  So let me say I'm not challenging his right to say it; just suggesting that since judges speaking out publicly on public issues seem usually to attract notice, this example is worth notice too.

I do find a couple of things interesting about his piece.  The minor point is that although there is an air in Judge DeMoss's piece of wondering at what the newfangled "living constitution" types will think of next, and a suggestion that the whole concept of unenumerated rights is strictly a modern innovation, arguments for fundamental but unenumerated rights have been floating around at least since 1798's Calder v. Bull.  That it's old doesn't make it right, but it does mean this line of argument is not just the product of modern liberalism or fluoridization. 

The major point is that, having schooled us in the obligation to follow the Constitution as it is, not as we would have it be, Judge DeMoss then argues that we should settle the constitutional status of the right to privacy by -- a popular referendum!  If, he says, a majority of people in the majority of states rejected the Supreme Court's finding of a right to privacy, "[t]he will of the people would then override any judicially fabricated constitutional amendment, and the right of privacy would not be treated as part of the Constitution." 

My copy of Article V just doesn't say anything about that method of constitutional amendment -- and that is surely what he is calling for, if he means to find a method of overriding a series of constitutional decisions of the Supreme Court.  Granted that one might argue that since Griswold is not really constitutional "law," no obedience to the Article V process is necessary to overrule the Court.  But whatever other arguments there are against such an argument, it is still the case that no popular national referendum, as such, has any legal effect, so it would be no more effective than if the people attempted to overrule a statutory ruling via national referendum.  Moreover, DeMoss also writes that if the people voted via referendum to affirm the Court's right to privacy rulings, then "the right of privacy should be treated as a part of the Constitution, just as if it had been adopted by the amendment process in Article V."  So he does seem really to argue that in some sense a national referendum should have some force and effect as a means of amending the Constitution.  Again, there is just no such mechanism in the constitutional text.

Perhaps, quietly, Judge DeMoss is or has become an Akhil Amar acolyte and thinks any constitutional provision should be capable of amendment by majority vote; his reference to a majority of people in the majority of states would suggest as much.  Nothing wrong with that, I suppose, although I don't share Amar/DeMoss's position on popular amendment outside Article V.  But it is peculiar to read a whole op-ed by a sitting federal judge dedicated to the proposition that we ought to obey the constitutional text, and which quotes George Washington's reminder that any defects in the Constitution should be corrected by amendment "in the way which the Constitution designates" -- and which then ends up by suggesting an extratextual method of constitutional amendment.  A "modest proposal," perhaps?

Posted by Paul Horwitz on January 18, 2006 at 08:46 PM in Constitutional thoughts | Permalink


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Tracked on Jan 19, 2006 8:51:54 PM


I spotted about a dozen errors in his rant, but a dozen good points too. Not every single word is wrong. I may have even learned something - I may want to go read the district court opinion in Roe.
I think we could treat his national referendum as a non-binding interpretative tool that could aid courts' understanding of the 9th.
But, does congress have any ability or authority to call national referenda? I would think that would need to be done state by state.
I suspose they could do a mail ballot using franking, since it's nonbinding anyway, more like a survey.
I am willing to respect that this is a thought experiement. But could it be seen as some form of contempt of the high court? What powers does the court have in regulating lower court judges for out-of-court speech of this sort? I did find it interesting and thought provoking, so although it's wrong, it's a useful contribution to an important debate.

Posted by: arbitrary aardvark | Jan 19, 2006 11:12:51 PM

Such a referendum is designed to create the outcome the Judge wants. The less than 1 million people in Montana would have as much power as the 40 million in California. His preferred referendum would place the outcome in the hands of the sparsely populated rural states.Yes, but then again, so does the Article V amendment process. I don't have an objection to that, only to extraconstitutional methods of amendment, which would include a national majority vote.

Posted by: Simon | Jan 19, 2006 9:28:42 PM

The Judge's op-ed was self-contradictory and filled with distortions.

As to his referrendum idea, he does not even say what people should be voting on. In addition, he would want to poll "a majority of the people in each of a majority of the states"

Such a referendum is designed to create the outcome the Judge wants. The less than 1 million people in Montana would have as much power as the 40 million in California. His preferred referendum would place the outcome in the hands of the sparsely populated rural states. As could be seen during the last election, most of the electoral map was red, but only one more state was needed for a Kerry victory. A majority of States are conservative on the issue of abortion, while a majority of people are not.

I have ranted a bit more about this.

Posted by: c&d | Jan 19, 2006 8:40:03 PM

It seems rather odd for a judge to reject judicial activism as an extraconstitutional method of amendment, only to embrace, in the same breath, another extraconstitutional method of amendment.

Non-formalist conservative legal thought? Hmph.

Posted by: Simon | Jan 19, 2006 1:55:42 PM

I took the popular vote idea as calling for a mini-constitutional convention, as it is broken up state by state.

Let's not forget, the Constitution that we have today was not a proper amendment, procedurally, to the Articles of Confederation, the then-governing document.

Posted by: The Angry Clam | Jan 19, 2006 11:25:32 AM

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