Friday, September 09, 2005
Responses to Constitutional Law Comments
Okay, I think that maybe our little thread should become it own post, so I’ll respond to several of the comments that popped up while I was watching the Pats/Raiders last night...(as an aside, what were you all doing? Even I can refrain from Con Law for the opening game of the NFL season.)
(1) First, let me make clear that I didn't say that I personally endorsed the view that "activism" occurs every time a court invalidates a statute. What I said, or thought I said, was that it is one possible definition that can exist and for many people (Arlen Specter) that's what it means in part. Though let me just say this: There has been a lot of talk, here and on other blogs, namely, Southern Appeal, about whether the Court should be the final arbitrator of constitutionality. One could argue that when Congress passes a statute, like the Gun Free School Zones Act, and the President signs the statue into law, are they not implicitly (and sometime explicitly in Legislative History and Signing Statements) suggesting that they (Congress and the President) think the statute is constitutional? Sure, they can be, and many would say often are, wrong, but they do have the ability and the staff of lawyers, to make independent judgments about what they think the Constitution permits them to do and prevents them from doing. If one takes this position, and I’m not passing judgment on its merits, then it seems to me to logically follow that a Court that tells the other 2/3’s of the government that it is wrong can be considered a bit on the “activist” side.
(2) Lawrence and foreign law...this argument, especially from educated lawyers, really pisses me off...no offense, but I think you know better than to fall into this trap (no, make that I know that you know better because I was there when we were in law school and I saw you in class paying attention). Yes, there are cites to foreign laws in Kennedy's decision, however, they were not, and cannot be reasonably argued to be, in any way the foundation upon which he based his interpretation of the Constitution. Citing something as evidence of a proposition is not the same as relying on it when offering your opinion. We each could comb the U.S. Reports and find cites by both "liberal" and "conservative" judges that have done the same thing. This practice is commonly referred to as dicta, and all judges regardless of ideology or interpretive method engage in it.
(3) I'll repeat my self a bit via Lopez and Morrison. Lopez was an easy case turned into a pariah by "conservatives" to point out the follies of previous Court decisions. One of the many faults of Lopez is that, while it represents the first time that Court struck down a statute in almost 60 years, it didn't really change anything jurisprudentially. It cited as favorable precedent the host of bad decisions that one would have thought might have been reversed, namely Wickard v. Filburn. Besides, the statute in Lopez was easily correctable to remedy the constitutional violation. Moreover, Congress fixed it and it is currently the law. Of course, there is always Gonzalez v. Raich, which seemingly undoes to a large extent what Lopez arguably achieved.
(4) The 10th Amendment as a "truism" is an interesting concept that has merited some attention in the last 15 or so years. One could reasonably read New York v. United States and Printz v. United States as evidence that the 10th Amendment actually has some teeth, but even if you do, it seems that Congress has to invade pretty far into state prerogatives for the Court to step in and invalidate Congress’s actions. Going the other way, there is Reno v. Condon, which seems to suggest that there will is a sort of "market-participant" exception to the 10th Amendment that allows Congress some regulatory authority over things traditionally within the powers of the States in a manner similar to exception found in the dormant commerce clause line of cases. I think the true nature of the 10th Amendment is still a very open question, and that it will become the real federalism battle ground in future terms. This debate will supplant the 11th Amendment movement, which has been slowly loosing steam since Nevada v. Hibbs and Tennessee v. Lane have seemingly gone against what the Court’s so-called “federalism five” was driving towards starting with Seminole Tribe of Florida v. Florida in continuing in cases like Garrett v. Board of Regents and Kimel v. Florida Board of Regents. In my opinion, the 10th Amendment will be what many conservatives for economic purposes, and liberals for social purposes point to as the only way to reasonably expect the Court to reign in Congress's ever expanding domain over every aspect of people's lives.
(1) First, let me make clear that I didn't say that I personally endorsed the view that "activism" occurs every time a court invalidates a statute. What I said, or thought I said, was that it is one possible definition that can exist and for many people (Arlen Specter) that's what it means in part. Though let me just say this: There has been a lot of talk, here and on other blogs, namely, Southern Appeal, about whether the Court should be the final arbitrator of constitutionality. One could argue that when Congress passes a statute, like the Gun Free School Zones Act, and the President signs the statue into law, are they not implicitly (and sometime explicitly in Legislative History and Signing Statements) suggesting that they (Congress and the President) think the statute is constitutional? Sure, they can be, and many would say often are, wrong, but they do have the ability and the staff of lawyers, to make independent judgments about what they think the Constitution permits them to do and prevents them from doing. If one takes this position, and I’m not passing judgment on its merits, then it seems to me to logically follow that a Court that tells the other 2/3’s of the government that it is wrong can be considered a bit on the “activist” side.
(2) Lawrence and foreign law...this argument, especially from educated lawyers, really pisses me off...no offense, but I think you know better than to fall into this trap (no, make that I know that you know better because I was there when we were in law school and I saw you in class paying attention). Yes, there are cites to foreign laws in Kennedy's decision, however, they were not, and cannot be reasonably argued to be, in any way the foundation upon which he based his interpretation of the Constitution. Citing something as evidence of a proposition is not the same as relying on it when offering your opinion. We each could comb the U.S. Reports and find cites by both "liberal" and "conservative" judges that have done the same thing. This practice is commonly referred to as dicta, and all judges regardless of ideology or interpretive method engage in it.
(3) I'll repeat my self a bit via Lopez and Morrison. Lopez was an easy case turned into a pariah by "conservatives" to point out the follies of previous Court decisions. One of the many faults of Lopez is that, while it represents the first time that Court struck down a statute in almost 60 years, it didn't really change anything jurisprudentially. It cited as favorable precedent the host of bad decisions that one would have thought might have been reversed, namely Wickard v. Filburn. Besides, the statute in Lopez was easily correctable to remedy the constitutional violation. Moreover, Congress fixed it and it is currently the law. Of course, there is always Gonzalez v. Raich, which seemingly undoes to a large extent what Lopez arguably achieved.
(4) The 10th Amendment as a "truism" is an interesting concept that has merited some attention in the last 15 or so years. One could reasonably read New York v. United States and Printz v. United States as evidence that the 10th Amendment actually has some teeth, but even if you do, it seems that Congress has to invade pretty far into state prerogatives for the Court to step in and invalidate Congress’s actions. Going the other way, there is Reno v. Condon, which seems to suggest that there will is a sort of "market-participant" exception to the 10th Amendment that allows Congress some regulatory authority over things traditionally within the powers of the States in a manner similar to exception found in the dormant commerce clause line of cases. I think the true nature of the 10th Amendment is still a very open question, and that it will become the real federalism battle ground in future terms. This debate will supplant the 11th Amendment movement, which has been slowly loosing steam since Nevada v. Hibbs and Tennessee v. Lane have seemingly gone against what the Court’s so-called “federalism five” was driving towards starting with Seminole Tribe of Florida v. Florida in continuing in cases like Garrett v. Board of Regents and Kimel v. Florida Board of Regents. In my opinion, the 10th Amendment will be what many conservatives for economic purposes, and liberals for social purposes point to as the only way to reasonably expect the Court to reign in Congress's ever expanding domain over every aspect of people's lives.
# posted by mouldfan : 7:51 AM
