Category: Jurisprudence

8

Defining Original Understanding

I want to talk about an issue that has come up in my adopted home state of Indiana.  The legislature is debating whether to put a state constitutional amendment banning same-sex marriage before the voters. In Indiana, a constitutional amendment must be passed by two successive legislatures and approved in a referendum.  The same-sex marriage ban was passed by the previous legislature, so if it passed by this one it will go before the voters this Fall.

To win votes from legislators who are concerned about the effect that this amendment might have on domestic partnerships, a bill has been introduced that purports to define the amendment to say that it does not ban domestic partnership benefits.  Let’s assume for the sake of argument that this law passes.  What impact, if any, should it have on a court that interprets the amendment (assuming that it is ratified)?

You cannot say, of course, that the statute is part of the amendment’s text.  Nor can you say that it represents the understanding of the amendment by the previous legislature.  Nevertheless, one could say that this law represents the views of this legislature and would form part of the public understanding that voters would have when they vote on the amendment.  What is the solution to this interpretive puzzle?

0

The Dialectics of the State: Recent Work in Hegel’s Political and Legal Philosophy

Lydia Moland, Hegel on Political Identity. Evanston, IL: Northwestern University Press, 2011.

Thom Brooks, Hegel’s Political Philosophy. Edinburg: Edinburg University Press, 2013.

Thom Brooks (ed.) Hegel’s Philosophy of Right, Oxford: Blackwell, 2012.

 

One of the hallmarks of the reception of Hegel in the last 30 years is that Hegel’s work  have inevitably been understood in the context of his great predecessor Kant. Of the books under review here it is particular the collection of essays on Hegel’s Philosophy of Right that takes this reception strategy to heart. The two books under review, rather than seeking to draw an explicit contrast between the two, rather seek to position Kant and Hegel as fighting for the same sort of embodied ideal of freedom. Freedom, of course, is said in many ways and so many of the issues that emerge in these new and interesting works concern the particular social institutions that express freedom. The thesis of this review, if reviews could have a thesis, is to show that the works in question, particularly the works by Moland and Brooks, make an important contribution to overcoming the specious divide between Kant and Hegel so that Kant and Hegel might be revealed as what they intended themselves to be doing: diagnosing the ills and promises of modernity in a way that will help us to become free.

For ease of use, and because this review covers quite a bit of ground, I have separated this review into five sections and readers might skip forward to these depending on their interest in the topics. According, section (1), System, deals with some of the larger questions raised by Hegel’s response not only to Kant but also to metaphysics itself as detailed by Brooks. Section (2), Morality discusses Hegel’s famous Kantkritik according to which Kant’s categorical imperative is an empty formalism. Section (3), Legal Philosophy concerns Brooks’s interpretation of Hegel’s legal philosophy as an ‘internalist natural law theory’, where this means essentially that Hegel is an anti-positivist who nonetheless believes that legal norms must emerge immanently from society rather than as revealed by god. Section (4) examines Hegel’s view of Government, as detailed in Brooks’. Section (5) on World History deals with Moland’s interesting proposal that Hegel’s with regard to the international political order should be characterized as an ethical cosmopolitanism in the sense that each nation state will necessarily move beyond itself toward recognition of others in as what she calls ethical cosmopolitanism rather than as a Kantian style world government.

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0

The Perils of Textualism

I am enjoying Garrett Epps’ new book on Reading the Constitution, and he makes an excellent observation that I am going to use to illustrate the limits of textualism.

A basic proposition of American constitutional law is that there are three branches of government.  The Constitution, though, does not say this.  In fact, the text uses the word “branch” to mean something else.  In Article One, Section Two, eligibility of voting for the House of Representatives is restricted to those who can vote for “the most numerous Branch of the State Legislature.”  Likewise, the Seventeenth Amendment refers to eligibility for voting in the Senate to “the most numerous branch of the State legislatures.”  These are the only uses of “branch.”

Just reading the text, then, the answer might be that we have two branches in the federal government.  The Senate and the House of Representatives.  Or that we have no branches, because only state governments have them.  Beware literal readings of a document.

6

The Privy Council

68px-Royal_Arms_of_the_United_Kingdom_(Privy_Council).svgIn spite of my love of all quirky legal things English, until recently I had not focused on the Privy Council.  This ancient body advised the Crown before the modern Cabinet system began, but for lawyers its most interesting role was as the highest court for (some) appeals from British courts and for the colonies of the Empire.  Couple of oddities worth pointing out:

1.  For a time the Privy Council was the highest court for Canada and other former colonies.  The notion of having a foreign body as a Supreme Court raises fascinating jurisprudential questions.

2.  The Privy Council is still the highest court (at least for some cases) from New Zealand.

3.  Privy Council opinions never have dissents (the opposite of the seriatim approach that long prevailed in other royal courts).

13

The Meaning of Settled Law

In my advanced con law class this semester, one question that we are going to discuss goes like this:  “Is Obamacare settled law?”  The practical answer to that question is no.  That fact, though, runs against a more orthodox or formalist view of the problem.

The Supreme Court upheld the Affordable Care Act in 2012.  Why did that not settle the question?  The answer is the Republican Party takes the position is that the statute should be repealed.  As long as that is true, then you cannot say that the law is settled.  (It may be settled constitutional law, but it is not settled law.)  You can say something similar about contested Supreme Court cases.  Roe v. Wade is not settled law because one of the two parties takes the view that it should be overturned.  It doesn’t matter that Roe is forty years old and has been endorsed by scores of judges and scholars.  Nowadays, law is only settled when both major political parties are on board.

The Republican presidential campaign in 2016 will go a long way towards determining the status of the Affordable Care Act.  One would expect that some of the candidates will call for the Act’s repeal, but some might say something along the lines of “It’s Time to Move On,” or “That’s a Fight We Cannot Win.”  If that latter view prevails, then (and only then) will the Act be settled.

12

Kozinski Unplugged

Alex_KozinskiWhat makes Alex Kozinski tick? That is the question that many have asked ever since the Romanian-born lad, who once considered himself a Communist, tasted the “forbidden luxuries” of bubble gum and bananas while in Vienna. It was at that pinpoint in time that he became “an instant capitalist.” Fast forward four decades or so and Kozinski, now the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, continues to baffle folks on all sides of the ideological divide. “I disagree with the liberals on the bench half of the time,” he chuckles, “and the conservatives the other half” is how he put it in a 2006 Reason magazine interview.

Ever the maverick, always the wit, and unvaryingly brainy, the trimmed jurist (he’s lost weight) is just as comfortable listening to a rough version of “Gloria” by Jim Morrison and the Doors as he is with taking in Beethoven’s Violin Concerto in D (recorded by Jascha Heifetz with the Boston Symphony Orchestra).

Make no mistake: Alex Kozinski is an acquired taste. Like anchovies, his flavor is bold – a true delight to uninhibited types, a true displeasure to staid types. Dating Game pick, Anthony Kennedy law clerk (while on the Ninth Circuit) and thereafter clerk to Warren Burger, assistant White House Counsel to President Reagan, Special Counsel of the Merit Systems Protection Board, chief judge on the Court of Federal Claims, and now circuit judge, he relishes a lively give-and-take during oral arguments and likewise welcomes the thrill of an exhilarating bungie jump. In other words, he likes to mix it up.

So who is this all-American with an accent who enjoys complex judicial work almost as much as a savory corned-beef sandwich at Attman’s Deli in Baltimore? Who is this man who flies his fanciful flag when others shy away into the quiet of the dark? Some answers to such questions can be found in a recent Reason magazine interview with the Chief Judge. Entitled “Judge Alex Kozinski: From Communist Romania to the 9th Circuit Court of Appeals,” the transcribed and video Las Vegas exchange with Matt Welch is quite revealing. At times serious, at times humorous, and at other times surprising, the interview exemplifies the kind of diverse brand of thinking and speaking that is quintessentially Kozinski.

With the kind permission of the folks at Reason, I am happy to share a few snippets of the recent interview with the Judge, who, by the way, is also my good-hearted friend . . . notwithstanding our sometimes different takes on life, law, and rock-n-roll. With that said, here’s Alex:

On tyranny:  “[O]ne time I [said] something that sounded somewhat critical of the government, and my father almost lost his job over it. . . . There was a newspaper called Free Romania, and I was seven years old. [People in my father’s office asked:] ‘Do you know how to read?’ And I said, ‘Oh, yes.’  And they said, ‘Can you read [the paper] here?’ And I said, ‘Well, why is it called Free Romania? All those people are in prison.”

On Communism: While Communism may seem good on paper, it is really “a prescription for oppression. It [is] a prescription to give people power over other people that are not subject to lawful control or lawful checks . . . . [I]t inevitably leads to corruption [and] it inevitably leads to oppression.”

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4

Slippery Slopes

With the . . . ahem . . . annual avalanche of Supreme Court opinions on the way, I thought I’d raise a question about how slippery slope arguments play out.  The reason advocates make this sort of argument is that they want to convince someone not to do something.  If A leads to B and B is seen as unacceptable, then people will be less likely to do A if they are convinced that there is no line between them.  The problem, of course, is that this tactic can backfire.  It might convince people that there is no distinction between A and B when they thought that there was, and thus make B more likely once A happens.

In practice, how often does the former scenario happen as opposed to the latter one?  I’m not sure that there is a good study on this question, though we can all come up with examples on either side.

4

Legal Fictions and Constitutional Change–Part Two

A second fiction that is used to manage constitutional change is the “right/remedy disjunction.”  Sure you have a constitutional right, the Court says.  You just don’t have a remedy.  This sounds better than having no right at all, but upon reflection it is not if there will be never be a remedy.

Some leading candidates in this category are Marbury, Worcester v. Georgia, Giles v. Harris, Perry v. United States, and Ex Parte McCardle (sort of).  All of these cases left the right at issue intact but found creative ways to say that there was no remedy.  I’ll go through some more techniques later this week.

0

Legal Fictions and Constitutional Change

Enough with the anti-partisan principle already!  I hear you.

I was asked a few months ago to write an essay on “constitutional change” for a book about the Constitution.  After scratching my head, I decided that the best way to approach this topic would be to describe various fictions that the Supreme Court uses to make (and conceal) dramatic constitutional change. The next batch of posts will about that subject.

Let’s start with a famous example.  In Brown v. Board of Education, the Supreme Court held that racial segregation of public schools was unconstitutional. Chief Justice Warren’s opinion emphasized the importance of education in the Court’s decision.  Over the next four years, other cases were filed challenging state segregation of facilities such as parks, golf courses, drinking fountains, etc.  The Court responded with per curium opinions that invalidated those segregation policies without any explanation except “see Brown.”   The fiction in Brown was that it was just about education.

This is what we might call a “dicta/holding” mismatch.  In other words, the Supreme Court makes the medicine go down easier by understating the breadth of the holding in the breakthrough case and then applying the real holding without explanation.  Step One is easy to understand.  Step Two is necessary to avoid inflaming or antagonizing public opinion (at least that’s the best justification).

More tomorrow.

 

4

Stating the Facts in Judicial Opinions

Modern judges are responsible for reciting the facts of cases in their opinions.  But before the 20th century, it was a frequent practice for the facts to be written by someone else, usually a court official (called an auditor or reporter) but sometimes by one of the advocates. [In contracts, see, e.g.,Lawrence v. Fox (NY 1859); Boothe v. Fitzpatrick (Vermont 1864); Cotnam v. Wisdom (Ark. 1907)].

The result sometimes created conflicts between what the judge appeared to assume the facts to be and the way they had been stated.   That may have been a factor that led to abandoning the old-fashioned practice and having judges write their own facts.  Would judges have preferred to avoid writing the facts or favor laying them out for themselves?

I wonder what was the reason for the old-fashioned approach.   What were the other reasons for its displacement by the modern approach?  Has it made a particularly important difference in many cases?   When one sees such ancient opinions in casebooks for first year classes, what should students be told to make of that old practice as a matter of legal method?  Informed insights are eagerly sought.