Monday, August 3, 2015

Supremely Awful Arguments: Constitutional Nonsense (Part 1)

Arguments the Justices sometimes make.
Pure nonsense. [And that's euphemistic.]

We hear plenty of these arguments from talk show hosts, from "expert" commentators, and from the Justices themselves--either fuming or ecstatic about some constitutional ruling. They are spewed by both conservatives and liberals, Republicans and Democrats, on and off the bench. But only when those arguments support their respectively preferred results. They are otherwise disregarded--as they should always be.

To be clear. This is NOT about whether a particular constitutional ruling (e.g., on same-sex marriage, campaign finance, abortion rights, gun rights) is legally correct or sound policy. This is solely about the bona fides of some of the arguments repeated incessantly as though they were compelling. In fact, they are utterly without merit in constitutional cases. Again, pure nonsense.

Let's begin with this favorite:
This matter should be left to the states

Where to start with this one?

First, it totally begs the question.
It begs the question at the very heart of virtually every constitutional issue for which it is raised.
That question is whether a constitutional right is involved in the first place.
If such a right is involved, then it's certainly not up to the states whether to honor that right or violate it.
[N.B., we are discussing United States Constitutional rights. The states are generally free to protect a claimed right under their own State constitutions or their own laws--whether or not the same right is protected under the federal constitution or other federal law. We are here addressing arguments made about United States Constitutional matters at issue at the United States Supreme Court]

It's certainly not up to the states whether to honor or violate freedom of speech, or free exercise of religion, or the right to counsel, or the right to trial by jury, or the prohibition against forced self-incrimination or against cruel and unusual punishment--or any other right protected under the United States Constitution.

Nor is it up to the states whether to treat persons equally on the basis of race, or gender, or religion, or ethnicity, or any other classification that the United States Constitution protects against discrimination.

No, the states don't get to choose when it comes to United States Constitutional rights.
If such a right is involved, the states are not free to violate it.
So the threshold question--before leaving it to the states--is whether such a right is involved.
If no such right is involved, then the matter can be left to the states.

Stated otherwise, to argue that the matter should be left to the states is to presume that no United States Constitutional right is involved. But that's the essential question to be decided.

And who decides that?

Second, under our system, the courts decide whether a constitutional right is involved and whether it has been violated. Ultimately, regarding the United States Constitution, it's the United States Supreme Court that has the last word.
Not the states.

States don't get to decide whether same-sex marriage, campaign spending, abortion rights, gun rights, or any other claimed right or liberty is protected under the United States Constitution.
States don't get to choose whether they can abridge, infringe, or deny a claimed right that is protected under the United States Constitution.

No, in our system, the judicial branch decides those matters--i.e., judicial review.
And the ultimate authority in making such decisions under the United States Constitution is the United States Supreme Court--i.e, Chief Justice John Marshall, Marbury v. Madison, the Federalist Papers.

So, in cases involving a claim of right under the United States Constitution, it is of course pure nonsense to argue that the issue should be left to the states.
Nonsense to argue that the states get to construe the United States Constitution for themselves.
Nonsense to argue that the states get to decide what is a United States Constitutionally protected right.
And, if it is such a protected right, nonsense to argue that the states get to decide whether to honor or violate it.
Unless, of course, we are to do away with the Supreme Court's power of judicial review.

And unless we do that....

No, whether something is a United States Constitutional right--and thus must be honored--is not up to the states.
Whether it's gun rights or campaign spending that conservatives and Republicans generally favor.
Or the right to choose or rights of the criminally accused that liberals and Democrats generally support.
Whether those rights must be recognized and protected under the United States Constitution is a matter for the United States Supreme Court, not the states.

Now, with all the foregoing in mind, consider this:
A case at the United States Supreme Court to interpret the United States Constitution and to decide whether something is a United States Constitutional right and whether such a right has been violated.
An argument is made that the matter should be left to the states.
Left to the states--not the United States Supreme Court--to interpret the United States Constitution?
Left to the states--not the United States Supreme Court--to decide whether or not something is right protected by the United States Constitution?
Left to the states--not the United States Supreme Court--to decide whether to honor or violate a United States Constitutional right?

Yes, there is a certain appeal to the "leave it to the states" argument in our federal system of government in which the states do retain sovereignty over many matters.
But not about the meaning of the United States Constitution, and not about honoring or violating a United States Constitutional right.

So leave it to the states?
(Yes, I'm now repeating myself for emphasis about this utterly nonsensical argument that's repeated ad nauseam.)
That begs the entire issue of whether a United States Constitutional right is involved.
That must be answered first.
If the question is answered in the affirmative, then the states certainly don't have a choice.
Only if it's answered in the negative--only if there is no right protected under the United States Constitution--may it be left to the states to decide whether or not to recognize such a right themselves under their own laws.

Then there's the closely related argument:
Leave this matter to the "people"--i.e., to the voters

As before, not if a United States Constitutional right is involved.
Whatever was said above about the "leave it to the states" argument applies here as well.
Just as nonsensical.

No, whether something is a United States Constitutional right is not subject to a vote by the people.
And no, if something is a United States Constitutional right, it's not subject to a vote by the people to honor or violate it.
Again, unless we are to do away with the United States Supreme Court's power of judicial review.

And yet, we hear these arguments repeatedly. By those who don't know any better and, worse, by those who do or should.


Next Supremely Awful Argument: It's not mentioned in the Constitution.
We'll deal with that in the next post.