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Wednesday, March 26, 2008

The Coming fight over incorporation: Will there even be one?

We need to have a discussion about incorporation of the Bill of Rights in SCOTUS. Provisions of the Bill were incorporated against the states with ridiculous casualness in cases like Gitlow and Cantwell v CT. But there is a strong argument that the Bill ought to apply in different ways against different levels of government, based on the different risks that each level poses for liberty. The problem is that we rarely see this argument in SCOTUS.

For instance, I love Richard Epstein’s theories of takings – but I do not want to see them nationalized, because I love local democracy more. Hathcock and Kelo, to my mind were BOTH rightly decided. And I think that I agree with the likely outcome in Heller – overruling DC’s gun control ordinance – but I do not want to see THAT Second Amendment doctrine imposed on the states, for the same reason.

The problem with nationalized rights is that we Americans disagree passionately about the scope of private liberty, and the enforcement of one person’s theory of fundamental liberties is often the abridgment of other person’s equally reasonable conception of liberty. Why not accommodate both sides through federalism?

Richard Epstein has a decent argument for a fairly strict and broad definition of “private property.” But (as I noted in our exchange), a very reasonable person could object that We the National People never clearly endorsed such a radically nationalizing doctrine. Forcing such a rule down Our the People’s throats just because one can get 5 votes on SCOTUS strikes me as a denial of equal concern and respect to the views of those Americans who believe that Epsteinian “property” deprives them of their “property right” to environmental regulation. In other words, it could be that both Tahoe-Sierra AND Measure 37 in Oregon are both correctly decided.

How, then, to decide the degree to which some national liberty ought to be enforced against the states? Here’s a quick thought: Look to see whether there is some systemic failure of the state to protect one group of people’s rights because of “lock-in” by a single political party or faction. Yes, I know: It is not an original idea. But it might be the Original understanding: remember that the 14th Amendment is really inspired by the freedman’s plight.

For instance, I would not enforce the Second Amendment against the states unless there was some showing that the state or city government had systematically failed to provide police protection to some subgroup within the jurisdiction. If crime is rampant in poorer areas of town, if the police are corrupt, lazy, or just plain incompetent in responding to 911 calls from the wrong side of the tracks, then maybe the self-help provided by the Second Amendment makes sense as an implementation of our right to equal protection. But, otherwise, I’d defer to the local majorities’ conception of how best to insure each person’s right to personal security.

The alternative, of course, is to hope that your favorite version of liberty will win 5 votes from SCOTUS, defeating another plausible conception through sheer majoritarian power. But I guess that I think that such naked nationalistic majoritarianism denies what Jeremy Waldron calls our “right of rights” – our right to adopt differing conceptions of rights democratically.

At least, I'd like to see the Court think about this issue instead of blindly enforcing the Bill jot for jot against the states.

Posted by Rick Hills on March 26, 2008 at 08:17 AM in Constitutional thoughts | Permalink

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"If you are confident about the Court's ability to 'come up with a theory of the historically-situated language of the Privileges or Immunities Clause' that is persuasive to all reasonable people, then, of course, you'll have no need for federalism where rights are concerned."

I never said anything about persuading all reasonable people. I just want the Court to get the right answer to a question that is, as I see it, basically a historical issue about the meaning of "of" and "abridge" in a particular context. And federalism might still be important even once we latch on to the correct view of the Privileges or Immunities Clause.

"The problem is not that we lack a 'a theory of the historically-situated language of the Privileges or Immunities Clause.' The problem is that we have too many such theories -- John Harrison's, Epstein's, mine, yours -- and there is no principled way to choose among these theories ..."

I haven't read Epstein's work in enough detail to know exactly what his theory is--he's promised another post explaining his interpretive theory. I like Harrison's view that the privileges or immunities of citizens are "abridged" by caste legislation, though I think he's too quick to dismiss supplementing it with Glucksberg-style protection for traditionally-respected rights. And your discussion of faction might be similarly relevant to when a law imposes second-class citizenship. But at bottom, I think the dispute is really just about the meaning of "of" and "abridge" in a particular historical setting. That's a difficult historical question, but far from an impossible one, as I see it.

"...that would persuade reasonable people that they are wrong and you are right."

Again, I don't claim that my view can do that. Constitutional interpretation can be hard, and there's a huge amount of evidence to sift through. Most reasonable people don't have time to do that. I certainly don't mean to brand those who disagree with any sort of Unreasonable label.

"Lately, the Court has come to sound a little bit more like faint-hearted Rick and less like Confident Chris: In Lawrence, Glucksberg, Atkins, Troxel, and other cases, they base many of our rights on what most states do."

I'm not sure why you call me Confident Chris, and I'm not sure at all how these cases favor your view. I tried to strike a properly diffident might-be-wrong-about-this-but-here's-how-it-seems-to-me attitude. In any event, let me strike such a posture now. The substantive dispute isn't between faint-heartedness and confidence; it's between anti-outlier-protection-of-traditions Chris and Carolene-footnote-4-Ely-procedural-defect Rick. And if "what most states do" is the key concern, that points pretty clearly in favor of anti-outlier-protection-of-traditions Chris.

"In San Remo and Tahoe-Sierra, they define 'property' in the Fifth Amendment by reference to state laws and state judicial decisions. They define 'obscenity' (in part) by reference to whatever local juries declare to offend community standards."

As far as I can see, this sort of approach makes good sense. But again, I don't see how these tilt in favor of a faction-based interpretation of the Privileges or Immunities Clause.

Posted by: Chris | Mar 27, 2008 7:24:02 AM

Ooh, ooh! And what will you do about racial discrimination?

"That's easy," you say. "That's a "systemic failure of the state to protect one group of peoples rights..."

Hold it. I don't mean "discrimination against an obvious minority group defined by skin color; you know, like school segregation before Brown. I'd like you to tell me how your test would protect the victims of affirmative action. Who are they? They are "members" (by your definition, not necessarily by theirs) of some "majority" group who are discriminated against on the basis of their group membership at one level.

Let me offer a hypothetical drawn from current affairs. Suppose some law school admits 250 students every year. They get about 1000 applications every year. 10% (100) of the applicants are black. When the school ranks applicants by colorblind academic criteria[1], only 5 black applicants end up in the top 250. But, the school has an affirmative-action quota (excuse me, "critical mass") of 10% for blacks. In order to admit 25 blacks, the school will drop 20 whites off the bottom of the admission list. (Of course we're abstracting away "yield" considerations and so-forth.)

Those 20 whites are the bottom 8% of the top 25% of applicants. They are unmistakably victims of invidious racial discrimination: each of them, but for his/her skin color, would have been admitted.

How will your test protect them? Are the victims members of a group (non-black bottom 8% of top 25% of applicants) you would recognize? Or would you label them "members" of some larger group ("all white applicants") and decide that group wasn't suffering?

A court enforcing a "fundamental right" to equal protection would order the school to stop choosing admittees on the basis of race. A "democratic" legislature might not-- we have existence proofs that our American democratic institutions are incapable of resisting popular demands for racial discrimination.

What do you think we should do?


[1] LSAT, undergrad GPA (possibly reweighted by course difficulty), recommendations, extracurriculars, etc. Crude proxies for race like "coming from a poor inner-city neighborhood" are not academic criteria.

Posted by: Mark Seecof | Mar 26, 2008 10:41:16 PM

"Look to see whether there is some systemic failure of the state to protect one group of people’s rights because of “lock-in” by a single political party or faction."

How small can the disfavored group be? How about a "group" of one? Most of the rights of interest are personal rights, not "group" rights. That is why they are always in danger from "majoritarian" policies promoted by factions of rent-seekers.

There are an infinitude of political factions ready to push weaklings out of the political herd so others can eat their portions. Most people are attached, simultaneously though with different degrees of interest, to many of these factions. Logrolling ("coalition building") ensures that assortments of factions often manage to pass laws inimical even to many of their nominal supporters. Some people, by force of personality or business ability, become factional leaders and reap particularly large rents.

Consider "urban growth boundaries." These represent pure rent-seeking by "in-bounds" landowners. Enacting a UGB transfers wealth from people outside the line to people inside it without regard to race or political party.

Would you interpret your formula to protect the rights of property owners outside a new UGB, where the only factions involved are "those who gain" and "those who lose?"

(What about people who just hadn't bought houses before some UGB made them unaffordable? You might say "well, those people haven't suffered any loss," but they have, really-- they're effectively paying a tax to fund a transfer to earlier landowners. That's an equal-protection violation because the government isn't abating or preventing a nuisance, it is just implementing a rob-Peter-to-pay-Paul policy.)

You worry that enforcing one (5-4) conception of some "fundamental right" would pose a danger to democracy. But what's the point of listing personal rights in our Constitution if we're hardly ever going to enforce them? Consider property rights again. It's easy to build a faction to rob other people of their property rights. You need not target members of some group (racial, religious, whatever) that liberal law professors care about. It's better to target people who do not belong to some mutually-supporting tribe or faction. That is why eminent domain abuse usually involves taking land from individuals or small families, not, e.g., big businesses.

Finally, what would you do about Baker v. Carr -type situations? Where existing institutions permit an illegitimate "majority" to abuse people whose only group identity is "those excluded from full participation?"

I think your appeal to "democracy" is very weak-- the American social compact includes Constitutional limits to "democratic" power because democracy only works when the voters are reasonably equal. When some have much more power than others "majoritarian" rule devolves into "rule by elites." An unconstrained democratic system can easily fall into nasty positive-feedback loops. Consider UGB's again. Some faction succeeds in enacting a UGB. This transfers a huge amount of money from landowners outside the boundary to those within it. The insiders spend some of their booty on campaign contributions and bribes to cement their position-- the outsiders cannot compete very well precisely because they have been robbed. With thinner wallets, in the next political round they will have even less influence than they did before (so they're likely to be downzoned again-- say, from 5 acres per house to 160 acres per house-- or worse, as in Oregon).

Please explain how you think "democracy" can work in the longer run without constraints ("rights") enforced by some counter-majoritarian institution.

Posted by: Mark Seecof | Mar 26, 2008 8:16:59 PM

To Bryan: If you want, you can read my earlier post on the folly of Article V (http://prawfsblawg.blogs.com/prawfsblawg/2008/week11/index.html)

To Chris: If you are confident about the Court's ability to "come up with a theory of the historically-situated language of the Privileges or Immunities Clause" that is persuasive to all reasonable people, then, of course, you'll have no need for federalism where rights are concerned.

Instead, you'll want the Court -- or, more likely, five members of the Court or their law clerks and, indirectly, those clerks' academic mentors -- to concoct up their favorite theories of rights. Any misgivings about whether these theories might burden other people's rival conception of rights can be waved away by declaring your own preferred conception to be Fundamental and declaring those other people are just Unreasonable.

Of course, you might be a bit shaken by the large number of unreasonable people out there: 5-4 splits seem to occur with disquieting frequency, and legal academia seems split down the middle on the proper scope of most controversial rights. What's worse, one person's right is another person's poison. Rick Garnett says, for instance, that the right to equal access to public money is essential for religious believers. But Separationists claim that public funds going to churches violate the fundamental right to disestablishment.

Nevertheless, if you are really confident about your own ability to come up with compelling constitutional theories and really dismissive about those rival arguments out there that suggest that your theories are not persuasive, then you should have no use for federalism.

By contrast, federalism is for the constitutionally faint of heart. Some people are jaded souls like myself who tend to think, after a decade and a half of teaching or studying constitutional law, that most constitutional questions are largely indeterminate and that the catch phrase "Fundamental Right" is just a conversation-stopper, not an argument. The problem is not that we lack a "a theory of the historically-situated language of the Privileges or Immunities Clause." The problem is that we have too many such theories -- John Harrison's, Epstein's, mine, yours -- and there is no principled way to choose among these theories that would persuade reasonable people that they are wrong and you are right.

Lately, the Court has come to sound a little bit more like faint-hearted Rick and less like Confident Chris: In Lawrence, Glucksberg, Atkins, Troxel, and other cases, they base many of our rights on what most states do. In San Remo and Tahoe-Sierra, they define "property" in the Fifth Amendment by reference to state laws and state judicial decisions. They define "obscenity" (in part) by reference to whatever local juries declare to offend community standards.

To True Believers, this is pretty craven. For me, this seems like a good strategy for showing equal concern and respect for different reasonable conceptions of rights. If only I had more faith in constitutional theory....

Posted by: Rick Hills | Mar 26, 2008 4:42:43 PM

What exactly is a "Fundamental Right"? Is it not a right that, under any circumstance, would not be subject to erosion or annexation from a class of eligible citizens?

As for the Court's decision, I hope that they fiercly protect the fundamental rights of every citizen, whether it be related to the 2A or any other concern, no matter how unpopular the exercise of that right may be. There is a remedy for popular viewpoints to prevail via the Constitution's 5th Article. Why is this path insufficient?

Posted by: Bryan | Mar 26, 2008 12:59:21 PM

Sorry for the verb repetition there at the end.

Posted by: Chris | Mar 26, 2008 9:33:33 AM

"The alternative..."

I don't think these are the only two alternatives. I'd prefer that the Court come up with a theory of the historically-situated language of the Privileges or Immunities Clause that explains when a particular right is a privilege or immunity of the citizens of the United States. The key interpretive issue to resolve is what "of" means in "the privileges or immunities of citizens of the United States." The anti-outlier, protection-of-traditions theory of Duncan and Glucksberg makes a lot of sense textually, I think: the constitutionally-protected privileges and immunities are the privileges that have, for the most part, been given to citizens by all or almost all states. The widespread existence of state constitutional provisions protecting 2A-style rights would be, on that sort of view, be an important consideration in favor of incorporating the 2A.

Posted by: Chris | Mar 26, 2008 9:24:08 AM

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