Monday, July 12, 2010

Kagan Nomination--More Questions, Pt. 3 (Judicial Interpretation: "law as written," "the intent," "precedent," "legislative & people's wishes," etc.)

6 Months Since the Earthquake
[Again: No, I'm not there. Just keeping Haiti in mind, as well as other places where tragedy has caused suffering that demands assistance and reminding.]

Those Kagan hearings are over. But, as with hearings in the past, there are plenty of questions. Both about the nominee and, perhaps even more so, about the issues raised. Yep, "The song is over, but the melody lingers on."

[For anyone interested, a video of a brief interview I did with Liz Benjamin on the hearings is available at:

The questions raise questions. About the nominee, about the Senators who questioned her, and especially about the questions themselves. About the Justices' and the Court's role in interpreting (should be "interpreting") the law. In the long run, it's those questions that are the most critical. The assumptions they make. The nonsense, that is, that they--and the Senators who ask them--presuppose.

Will the nominee apply the law "as written"? Will the nominee interpret the law in accord with "the intent" of those who enacted it? Will the nominee abide by "precedent"--and especially "settled precedent"? Will the nominee defer to the "wishes," or "choices," of the people and their representatives in Congress and in the States?

And the question that should be asked of those who ask such questions: Really? [Or with due credit given to the SNL Weekend Update skit with Seth and Amy: REALLY!?!]

So when the Justices decide a case, we want to be sure they do what the Senators suggest, and sometimes insist? When the Court confronts Constitutional issues--because that's what the Senators are virtually always asking about--the Justices should abide by the Senators' exhortations?

These are the cases, for example, where the Court decides issues about free speech (as in the recent campaign finance decision protecting corporate spending, Citizens United v. F.E.C. [2010]). About equal protection (as in "reverse discrimination" decisions protecting white persons, such as Gratz v. Bollinger [2003], or gender discrimination decisions protecting women, such as U.S. v. Virginia [1996]). And about the protection of fundamental rights against state and local governments (as in the "incorporation" of the 2d Amendment into the due process clause of the 14th Amendment to make the right to bear arms enforceable against those governments, such as the recent decision in McDonald v. Chicago [2010]).

Yep. Just try the Senators' exhortations to apply the law "as written," or according to its underlying "intent," or in abidance with "settled precedent," or with deference to the choices of the Congress, the States, and the People they represent. Do the Senators--or any other partisans or ideologues, conservative or liberal--really want the Justices to do that? Again, REALLY!?!

Let's just try that on those 4 Constitutional provisions just mentioned: freedom of speech, equal protection, right to bear arms and due process.

We've already discussed the 1st Amendment's guarantee of free speech in previous post on the New York Court Watcher. It explicitly allows "no law abridging the freedom of speech." So apply it as written? No law against obscene speech, against speech inciting a riot or urging the assassination of a government official or (as currently in the news) advocating the killing of white babies, or a soldier's responding "F_ you" to the order of a commanding officer, or deliberately and maliciously defaming someone? Do any of the Senators insisting on judicial application of the law "as written" really (as in REALLY!?!) want such a literal application? I'll go out on a limb on this one. Probably not.

But maybe the 1st Amendment is the exception. OK, let's try the next Constitutional provision mentioned above. Equal protection. The 14th Amendment is quite unequivocal: "No State shall deny to any person within its jurisdiction the equal protection of the laws." So, the States' laws must be equal toward gays, lesbians, bi-sexuals, transgenders? What about foreigners, undocumented/illegal aliens, inmates, previously convicted felons, sex offenders, terrorists and "suspected terrorists? Do any of the Senators who have been urging law "as written" really want equal protection applied as unequivocally and unqualifiedly as it is written?

And the 2d Amendment? Notwithstanding any ambiguity flowing from the prefatory "well regulated militia" clause, the Amendment does state without limitation that "the right of the people to keep and bear Arms shall not be infringed." As written, no infringements, period. So no registration? No background checks? No restrictions for individuals convicted of violent crimes? No restrictions on the mentally diseased? No restrictions on criminal defendants during trial? No restrictions during air travel? Need it even be asked? The Senators believe that?

Then there's due process, the last of the 4 Constitutional guarantees mentioned. This presents other "as written" problems. The 14th Amendment provides: "nor shall any State deprive any person life, liberty, or property, without due process of law." How is that to be applied "as written"? "Liberty" is not defined, and no definition is clearly referenced or clearly incorporated from elsewhere in the Constitution.

And neither is the meaning of "liberty" qualified or limited in the 14th Amendment. So unconditional liberty? Freedom of anyone to do anything? Of course not. But what about freedom of speech and freedom of religion? Most everyone would agree that, at the very least, those 2 must be included in any American sense of "liberty."

But what about the freedom to use birth control, to choose an abortion, to engage in homosexual intimacy? Or the right to bear arms, to spend money on election campaigns, to have prayer group meetings in public places? Etc., etc., etc.

No way of getting around it. The Justices must read meaning and limits into "liberty." Just can't get there from "as written."

And what about the "due process" that's guaranteed in that provision? There's only one thing the due process clause of the 14th Amendment actually forbids "as written." It only says that liberty (or life or property) cannot be deprived "without due process." So if a State does provide appropriate "process," then "liberty" may be deprived?

Let's try this on those freedoms that everyone--or virtually everyone--agrees that "liberty" must at the least include. Again, freedom of speech and freedom of religion. The due process clause, "as written," would allow free speech and free exercise of religion to be deprived (and let's add the right to bear arms"), as long as a State did so with due process. Apparently either appropriate trial or legislative procedures--but some process that's "due."

So any laws depriving "liberty"--even those abridging the freedom of speech or prohibiting the freedom of religion (or infringing the right to bear arms)--are fine as long as the States pass those laws through the legislative process? Or enforce them through a trial process? Should the Justices really apply the Constitutional "due process" provision so literally?

Fortunately, the Justices have not applied the liberty/due process clause of the 14th Amendment as written. Nor, fortunately again, have they done so with the 1st Amendment's freedom of speech (some necessary laws are permitted), the 2d Amendment's right to bear arms (some restrictions have been endorsed, even in McDonald), or the equal protection guarantee of the 14th (some circumstances certainly justify different treatment). Or with most other provisions of the Constitution.

Of course, you say. That only makes sense.

Exactly. Sense. Wisdom. Not "as written."

But surely, you might say, the Framers of the Constitution and the drafters of the 14th Amendment must have intended these provisions to mean what good sense and wisdom dictates. So why not interpret these provisions according to their sensible and wise intent? So, OK, not "as written," but as intended. Sounds good. That's it!

In the next post on the New York Court Watcher, we'll explore judicial interpretation of the Constitution according to the "intent" of those who enacted its provisions. Fashionably referred to as "original intent," the avowed enemy of the "living Constitution." We'll see how that would work.

[For previous posts on free speech and the Kagan hearings, see Free Speech Addendum; Re: General McChrystal, June 23, 2010; Kagan Nomination--Questions for Her & Her Questioners, Part 2 ("Judicial Activism" & the Constitution [Free Speech]), June 18, 2010; Kagan Nomination--Questions for Her & Her Questioners ("Judicial Activism" & the Constitution), June 14, 2010; See Supreme Court: Kagan Nomination--the "No Judicial Experience" Bugaboo, June 2, 2010.

On the Court's 2 gun rights decisions over the past 2 years, see
Supreme Court: Gun Right Decision #2--A Fundamental Right & A Blatantly Ideological Court, June 30, 2010; Supreme Court: Right on the Gun Right, June 27, 2008.

On the Court's corporate spending/campaign finance decision, see Supreme Court: Lessons from the Campaign Reform Decision, Jan. 23, 2010.)