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Monday, March 10, 2008

The Fed Soc Symposium and "voting with your feet"

Like Rick Hills, I participated in this weekend's annual Federalist Society Student Symposium, at the University of Michigan.  (Congratulations to the U of M students who clearly worked very hard to make the event a success, and thanks to Dean Evan Caminker for hosting the event.)  As it happens, Rick and I (along with Doug Laycock and Amy Wax) were on a panel whose topic, "Judicial Interference with Community Values", touches -- at least a bit -- on the "deference" discussion that Paul and Rick are having. 

The claims presented for the panel's consideration were, first, that "it is a basic assumption of federalism that individual communities can be different"; second, that "it is a benefit of federalism that free people can 'vote with their feet' and migrate to communities that share their values"; and, third, that "pervasive judicial review" can undermine this benefit, and this assumption, and "destroy local identity by homogenizing community norms."

Doug Laycock, in his remarks, suggested that the "vote with your feet" mechanism might not be applicable, or normatively attractive, when we are talking about fundamental rights.  My own remarks were, I think, consonant with Doug's; I suggested that the hard question is not whether "pervasive judicial review" can "homogenize community norms" but is, instead, when should judges charged with enforcing those norms to which our national community has committed itself in the Constitution invalidate local communities' efforts to express through law their norms.  Rick Hills shared some very interesting thoughts (maybe he'll re-present them here?) on the "bottom up" way that federalism generates rights.  And, Amy Wax reflected on the courts' role in the social-welfare-rights revolution.

UPDATE:   I just noticed Rick Hills' question, to me and others of my ilk, about Grutter, Kelo, and Davey.  Some quick thoughts after the jump . . . .

So, for what it's worth, my recollection is that Rick asked me about Dale, with which I basically agree, and not about Grutter, Kelo, and Davey.  But, in any event . . .  I might be the wrong person to answer Rick's question.  I think my views on the constitutional questions presented in Grutter and Kel0 are similar to Rick's.  I'm not convinced that the Fourteenth Amendment prohibits all programs that, in some way, take account of race.  (Whether the Justices in Grutter actually applied the "strict scrutiny" standard that, in previous cases, we were told -- for better or worse -- should be applied in such cases is, it seems to me, like the question of the wisdom of universities' affirmative-action policies, another matter.)  And, my sense is that the Kelo majority was right to conclude that the Constitution's use of "public use" does not rule out re-development plans of the kind that were at issue in that case.

Which leaves Davey.  I filed an amicus brief in that case, which focused on the history and meaning of the so-called "Blaine Amendments", and wanted it to come out the other way.  And, I have some thoughts in this paper about why I don't think people-who-like-federalism are necessarily locked in to deferring to states' more-demanding-than-the-Establishment-Clause anti-aid policies.

Posted by Rick Garnett on March 10, 2008 at 10:13 AM in Constitutional thoughts | Permalink


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I didn't say anything about the Blaine amendments "obviously" violating the 14A, or the P-or-I clause saying anything "clearly." But I do think there's a strong argument that can't be brushed aside with "Blaine supported the 14A." That's on a par with Taney's "Jefferson owned slaves; so 'all men are created equal' must not include black people as 'men.'" The privileges or immunities clause protects the privileges or immunities of citizens, and in context it's a guarantee against second-class citizenship, religiously-based second-class citizenship included. Unless I can find Blaine or his fellow travelers explaining why not--that is, discussing the text of the Fourteenth Amendment and explaining in a compelling way why it allows discrimination against Catholics--I won't regard this evidence as decisive. Of course, if you have any evidence that the proponents of Blaine Amendments explained why they were consistent with the Fourteenth Amendment, you should present it. But Jefferson and Blaine and all of us are capable of asserting principles inconsistent with our actions.

Posted by: Chris | Mar 10, 2008 4:32:47 PM

The notion that the P&I clause clearly endorses anything specific at all, let alone a principle that would obviously condemn the Blaine Amendment, is really stretching the concept of textual clarity to the breaking point. In any case, such an interpretation of text would surely be news to James Gillespie Blaine, representative from Maine in the 38th-43rd Congresses, and avid Republican advocate of the Fourteenth Amendment.

What exactly is the point of suggesting that text expresses a sense that someone like Blaine -- an astute politician and legal draftsperson (he was Speaker of the House in the 43rd Congress) -- could not detect? Such a concept of textual clarity seems meaningless to me.

Posted by: Rick Hills | Mar 10, 2008 4:03:03 PM

Anti-Catholicism might've been important in 1866, but it surely wasn't the issue for Republicans. Certainly it wasn't prominent at any point when the text of the Fourteenth Amendment was being explained. At any rate, what's important as I see it is the historic textually-expressed sense. The Republicans didn't embody their anti-Catholicism in the constitutional text, and I've never read an explanation of the Privileges or Immunities Clause that explains why its text does not entitle Catholics to equal citizenship.

Akrasia needn't be some sort of short-term thing. It's possible to live with long-standing conflicts between one's principles and one's actions. The Framers were eminently capable of "asserting principles inconsistent with those on which they were acting." In lieu of an explanation why the text doesn't mean what it seems to, I'll assume that Republican departures from what equal citizenship would require were either the exercise of such a power or were based on some factual error.

Posted by: Chris | Mar 10, 2008 3:30:25 PM

Anti-Catholicism was the heart and soul of the Republican Party in the 1850s-1890s. It was not an oversight: It was probably second only to free soil ideology as the Party's raison d'etre. That's why the Republican Party absorbed the American Party votes (aka the Know-Nothings) in the 1860 election. Incidentally, the Republicans also absorbed the rest of the American Party's program -- advocacy of a "Maine" (anti-liquor) law, advocacy of English-only schools, and so forth. As innumerable historians have exhaustively documented, the central tenet of Republican ideology from the outset was a Yankee-Pietist ideology against immigrants, Catholics, booze, and aid to parochial schools. Calling this akrasia or weakness of will is like calling the Gettysburg address a momentary lapse of judgment on Lincoln's part.

Posted by: Rick Hills | Mar 10, 2008 2:31:06 PM

"It ['No Discrimination'] is indefensible in terms of original understanding: With the exception of Governor Seward (who made a bid for Catholic voters in the 1850s as governor of NY),the Reconstruction Republicans were strident supporters of anti-Catholic measures like the Blaine Amendment..."

But we need to distinguish the original textually-expressed sense of the language from the originally-understood reference. The Anti-Catholic stuff might've been based on factual errors or been instances of akrasia.

"It is hardly required by text which is, remember, not the First Amendment but the Due Process clause."

But really, it should be the Privileges or Immunities Clause, which does on its face bar giving special privileges to certain citizens. For more, see here, section III.

Posted by: Chris | Mar 10, 2008 1:04:30 PM

Grutter was wrongly decided under any theory of judicial review (and not an example of "judicial restraint"), because the express language of Title VI of the Civil Rights Act bans race discrimination, without any exception for "diversity," and "racial balancing," the actual motive of the university in that case, is expressly declared not to be a legitimate form of desegregation by the language of another section of the Civil Rights Act.

The 14th Amendment may not create a bar against racial discrimination, in the eyes of some. But Title VI surely does (as does 42 USC 1981, which the Grutter plaintiffs argued provided an independent statutory basis for striking down the racial preference they were challenging).

The clearest duty of the courts is to enforce statutes passed by Congress without judicial evasion or rewriting.

Posted by: Hans Bader | Mar 10, 2008 12:42:39 PM

Having just looked over Rick's first-rate piece on the Theology of the Blaine Amendments, I have to confess that I am not persuaded by his rebuttal of the federalism-based defense of Locke v Davey and, more generally, states' super-separationism.

The essence of Rick's argument is a reductio ad absurdum: If the "no-discrimination principle" of Rosenberger, Widmar, etc, is the right view of religious freedom, then states ought not to experiment in ways that erode the right view. "After all," says Rick, "a State would not likely succeed with the argument that its own experiment with a more communitarian or public-safety-oriented approach to the balance between privacy and law-enforcement needs should permit a federalism-based dispensation from the Court's Fourth Amendment caselaw."

Note two things about this argument. First, it relies on a false premise -- that the Court does not modify what would otherwise be constitutional rights to accommodate state interests. But, of course, the court does so all the time -- even with the Fourth Amendment. What else is the Leon "good-faith" exception except an effort to modify the Fourth Amendment doctrine with an accommodation of state discretion to make honest policing judgments? What is Miller's use of jury findings on community standards regarding obscenity except an effort to give local communities a power to define an aspect of federal speech rights? And what else is San Remo's and Tahoe-Sierra's incorporation of state property law as the benchmark for Fifth Amendment takings rights except the modification of federal constitutional rights to accommodate widespread state law?

Second, Rick's method really does not provide any room for federalism in the definition of rights. Instead, one comes up with one's best theory based on the usual sources of authority, and then one enforces that best theory regardless of whether a large percentage of the states reject it and a large percentage of constitutional theorists have a rival and plausible theory. The states simply get whatever powers are left over once federal rights, deduced without reference to states' policies, are defined.

The True Federalist does not take such a stance. Instead, one builds federalism into the definition of the right. This means that one rejects or strictly limits broad, bright-line definitions of rights like the Rosenberger "no discrimination" principle when these definitions clash with reasonably plausible rival theories of liberty that have been adopted by lots of states and that are not motivated by any hostility towards some discrete and insular minority.

"No Discrimination" principle is fine as a theory of free speech/free exercise. But does it really deserve to be forced down the throats of the entire nation? Why, exactly?

(1) As a matter of precedent, it is of extraordinarily recent vintage in the precedents -- dating back to, say, Widmar and the early 1980s, when Fundamentalist Christians decided to mend relations with Catholics and end their opposition to vouchers. (See Jim Ryan's and John Jeffries' excellent article on the political history of the establishment clause);

(2) It is indefensible in terms of original understanding: With the exception of Governor Seward (who made a bid for Catholic voters in the 1850s as governor of NY),the Reconstruction Republicans were strident supporters of anti-Catholic measures like the Blaine Amendment;

(3) It is hardly required by text which is, remember, not the First Amendment but the Due Process clause.

(4) Most important, the "no discrimination" principle is unnecessary to preserve religious believers from hostile legislation: What they lose from penny-ante discrimination in denial of scholarships, they more than regain from the exemptions from generally applicable laws and taxes provided under the "no aid/no burden" principle of Lemon/Walz 9or their state analogues). That's why Rehnquist emphasized in Locke that there was no indication of hostility towards religion in the State of Washington: Washington had gone beyond Smith to extend exemptions from generally applicable regulations to religious groups.

So, yes, if you are a True Federalist rather than a Window-Dressing Federalist, then the First, Fourth, and other Amendments ought to be constrained by federalism principles. One should not deduce some abstract right from some controversial principle and then nationalize it against the states unless one can make some minimally plausible argument that the beneficiaries of the right suffer from some sort of hostility or freeze-out in the state political process analogous to that suffered by the Freedmen after the Civil War. Those freedmen are, after all, the paradigmatic beneficiaries of the Due Process clause. Unless you think that the "little Blaines" are the equivalent of the Black Codes -- and Rick denies such an equation with commendable candor -- then I think that you cannot be a True Federalist and a dissenter in Locke.

Posted by: Rick Hills | Mar 10, 2008 12:27:14 PM

So, I'm not sure Rick and I disagree (except with respect to the question whether Locke v. Davey was correctly decided). "How much diversity on rights can you stomach" strikes me as a good way to put the question. And, like Rick, I think that "eminent domain and a bit of affirmative action" are things that, if federalism means anything, those who oppose these things just have to stomach. (That said, the "just have to stomach" conclusion depends on it being true, and I think it is true, that We the People have *not* nationalized a hard-and-fast no-affirmative-action rule, etc.) I'm not sure the same is true, though -- even though I'm happy to agree with Rick that one could reasonably conclude it *is* true -- of singling out kids who want to major in theology for exclusion from scholarship aid to which they are otherwise entitled.

Posted by: Rick Garnett | Mar 10, 2008 10:49:30 AM

It seems to me that the best question for both Doug and Rick from our panel is psychological rather than logical. it is, of course, logically Indeed, tautologically) true that we should enforce those rights against subnational governments that the nation has seen fit to nationalize.

But the real question is psychological: How much diversity on rights can you stomach? If you think that every darn disagreement with your favorite liberties is a "fundamental" disagreement, then you will tend to want to nationalize a lot. If you are like me and have a strong stomach and a thick skin, then you'll be prepared to tolerate a lot of diversity, even on matters about which you might care a lot.

On this ground, I think that Kelo, Grutter, and Locke are easy cases. If you cannot stomach eminent domain and a bit of affirmative action -- if you think that these sorts of programs are affronts to basic norms of civic decency on which the nation as a whole has come to some consensus -- then, by all means, nationalize away. But, if you do, federalism is simply a lost cause.

And don't go citing Scalia's dissent in Casey about the importance of federalist diversity in rights where we the national people disagree about them. In a world in which eminent domain of the sort at issue in New London is an affront to cherished human liberties, laws against abortion easily qualify as a violation of fundamental human rights.

Posted by: Rick Hills | Mar 10, 2008 10:29:53 AM

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