[This essay includes a discussion on how language can be used to try to influence judgments, such as "health care" or "persons" in the abortion context. Similarly, I oppose the use of "Obamacare" for various reasons, but regardless, it is simply not a neutral term that does not influence the arguments made. The term is specifically chosen for that purpose.]
I started to read the Cato Supreme Court Review, including a fairly straightforward discussion of the violent video game case, which disputed the attempt by Justice Thomas to simplify the original understanding of the question.
On the other hand, the annual lecture series brought forth a discussion of "opportunists and obligationists" -- of the many ways to interpret the Constitution, William Van Alstyne determined there were really only two -- colloquially, those who respect original understanding (you know, like Thomas) and those who make shit up. They "find" things that they want to keep the Constitution a "living" one. The latter group don't really want to respect the amendment process, keeping the Constitution up to date by interpretation, particularly if enough people, for long enough (ala Bruce Ackerman's "constitutional moments"), go along. You know, like James Madison:
Aside from the New Deal, of course, an example was given respecting the ERA. This was the proper way to amend the Constitution to protect the equal rights of women. Instead, largely because people feared the amendment would be abused like this, the Constitution was opportunistically "interpreted" to protect gender equality. Which isn't in there. After all, Section 2 of the Fourteenth Amendment allows states to deny women the vote without application of a penalty by Congress that reduces their House delegation. This must mean sex equality isn't found in the Constitution. Me, myself, I think the ERA didn't pass because a sizable minority of the country opposed the substantive reach of the amendment, thinking men and women were in fact not equal, including beleving women should have certain protections that men would not have. This plus a reasonable fear where an honest application of the text would lead would explain things. I am an "opportunist" though.
But, still, he can't be right. The provision does cover blacks, but the right to vote was dealt with in another amendment. Why? At least two reasons. (1) At the time, many believed "equal protection" was a matter of civil rights, not political rights like voting. Or, social rights for that matter, which explains why miscegenation laws and segregation was allowed. (Even Justice Harlan was apparently not opposed to segregation in education in respect to minors.*) Voting rights cases, including before the New Deal, later blurried the lines. (2) The provision is a mild (it was later deemed not self-executable and was never applied) means to address one type of inequality. So, other than the fact that the equal protection provision has no apparent limit that doesn't apply it to women (women had SOME rights in the 1870s that put them in equal stance with men, such as the right to criminal justice protections; the ERA was about expanding its reach), that section doesn't tell you much. The error, even by a law professor, is forgivable, though the tone makes it harder to do so.
I don't think the amendment process is obsolete though except for certain major moments, it has never been actually the primary driver of constitutional change. A constitutional amendment didn't end segregation. Was this wrong? There are various provisions, such as be President while not being a natural born citizen, that clearly require an amendment. Others put forth a clear line where there might be some debate, such as the income tax amendment revoking a controversial 5-4 ruling. In fact, many thought the Bill of Rights itself could be deemed redundant, at least some of them merely declaratory of basic principles (such as the 10th Amendment), there for added force. The ERA seems to me to fit such latter categories, while the actual path taken, drawing things out over time, was the more ideal approach.
Constitutional interpretation is hard and always has been and will be open to debate. The attempt to make a reasonable attempt, which by the way is correct, illegitimate as well as wrong continues to annoy me. I like this series since it provides interesting perspectives and (as recent discussions suggest) leads me to support points of view that might at first blush seem not to match my overall philosophy. The correct path has a liberal, libertarian and conservative mixture (probably other stuff), so it's good to read some of each. I don't do in equal measure, but do try.
And, each at times should show a tad more humility about things.
---
* A 1908 case involving a law that required a corporate charter used for a college to apply in a way that segregates the races upheld the law 7-2. Justice Harlan dissented, but tossed in this interesting bit: "Of course what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense." Given his Plessy dissent, this is a bit curious. On the other hand, he went along with a law that gave higher penalties to interracial fornication, underlining his views are not 100% modern on the subject. The fact that seven justices upheld the law that "progressives" in this day in age would deem blatantly unconstitutional is a telling point on how the New Deal was not some evil line in the sand where the Constitution went to die.
The case has other interesting lessons. The ruling upheld a special restriction on corporations, contra to Citizens United, though the current majority noted that result would harm the interests of individuals. But, Harlan in dissent suggested the same -- "private" colleges were harmed here since their discretion to teach as they saw fit, to allow people to associate as they saw fit, were harmed. The majority:
The case also touched upon a familiar principle:
This sounds like the "independent state grounds" doctrine where a state court deciding a question on local law should be respected, the federal question not addressed unnecessarily. That is, if the case concerns a search and it reasonably (how this is determined is a separate question) can be held to violate the state constitution, the Fourth Amendment issue should not be decided. This would avoid a ruling that would apply to all states, since it would be in effect an advisory opinion. It would also promote federalism by respecting local courts.
I started to read the Cato Supreme Court Review, including a fairly straightforward discussion of the violent video game case, which disputed the attempt by Justice Thomas to simplify the original understanding of the question.
On the other hand, the annual lecture series brought forth a discussion of "opportunists and obligationists" -- of the many ways to interpret the Constitution, William Van Alstyne determined there were really only two -- colloquially, those who respect original understanding (you know, like Thomas) and those who make shit up. They "find" things that they want to keep the Constitution a "living" one. The latter group don't really want to respect the amendment process, keeping the Constitution up to date by interpretation, particularly if enough people, for long enough (ala Bruce Ackerman's "constitutional moments"), go along. You know, like James Madison:
Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation.
Aside from the New Deal, of course, an example was given respecting the ERA. This was the proper way to amend the Constitution to protect the equal rights of women. Instead, largely because people feared the amendment would be abused like this, the Constitution was opportunistically "interpreted" to protect gender equality. Which isn't in there. After all, Section 2 of the Fourteenth Amendment allows states to deny women the vote without application of a penalty by Congress that reduces their House delegation. This must mean sex equality isn't found in the Constitution. Me, myself, I think the ERA didn't pass because a sizable minority of the country opposed the substantive reach of the amendment, thinking men and women were in fact not equal, including beleving women should have certain protections that men would not have. This plus a reasonable fear where an honest application of the text would lead would explain things. I am an "opportunist" though.
But, still, he can't be right. The provision does cover blacks, but the right to vote was dealt with in another amendment. Why? At least two reasons. (1) At the time, many believed "equal protection" was a matter of civil rights, not political rights like voting. Or, social rights for that matter, which explains why miscegenation laws and segregation was allowed. (Even Justice Harlan was apparently not opposed to segregation in education in respect to minors.*) Voting rights cases, including before the New Deal, later blurried the lines. (2) The provision is a mild (it was later deemed not self-executable and was never applied) means to address one type of inequality. So, other than the fact that the equal protection provision has no apparent limit that doesn't apply it to women (women had SOME rights in the 1870s that put them in equal stance with men, such as the right to criminal justice protections; the ERA was about expanding its reach), that section doesn't tell you much. The error, even by a law professor, is forgivable, though the tone makes it harder to do so.
I don't think the amendment process is obsolete though except for certain major moments, it has never been actually the primary driver of constitutional change. A constitutional amendment didn't end segregation. Was this wrong? There are various provisions, such as be President while not being a natural born citizen, that clearly require an amendment. Others put forth a clear line where there might be some debate, such as the income tax amendment revoking a controversial 5-4 ruling. In fact, many thought the Bill of Rights itself could be deemed redundant, at least some of them merely declaratory of basic principles (such as the 10th Amendment), there for added force. The ERA seems to me to fit such latter categories, while the actual path taken, drawing things out over time, was the more ideal approach.
Constitutional interpretation is hard and always has been and will be open to debate. The attempt to make a reasonable attempt, which by the way is correct, illegitimate as well as wrong continues to annoy me. I like this series since it provides interesting perspectives and (as recent discussions suggest) leads me to support points of view that might at first blush seem not to match my overall philosophy. The correct path has a liberal, libertarian and conservative mixture (probably other stuff), so it's good to read some of each. I don't do in equal measure, but do try.
And, each at times should show a tad more humility about things.
---
* A 1908 case involving a law that required a corporate charter used for a college to apply in a way that segregates the races upheld the law 7-2. Justice Harlan dissented, but tossed in this interesting bit: "Of course what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense." Given his Plessy dissent, this is a bit curious. On the other hand, he went along with a law that gave higher penalties to interracial fornication, underlining his views are not 100% modern on the subject. The fact that seven justices upheld the law that "progressives" in this day in age would deem blatantly unconstitutional is a telling point on how the New Deal was not some evil line in the sand where the Constitution went to die.
The case has other interesting lessons. The ruling upheld a special restriction on corporations, contra to Citizens United, though the current majority noted that result would harm the interests of individuals. But, Harlan in dissent suggested the same -- "private" colleges were harmed here since their discretion to teach as they saw fit, to allow people to associate as they saw fit, were harmed. The majority:
In creating a corporation, a state may withhold powers which may be exercised by and cannot be denied to an individual. It is under no obligation to treat both alike. In granting corporate powers, the legislature may deem that the best interests of the state would be subserved by some restriction, and the corporation may not plead that, in spite of the restriction, it has more or greater powers because the citizen has.I have spoken about how an infamous 1886 ruling didn't just give corporations all the rights of persons, as the story goes, and this underlines the point. Here, however, we have a case where privileges for a corporation advance individual rights and the government is misusing its powers, even if the target aren't natural persons. So, there would at least have to be a middle ground there, corporations (like the NAACP) sometimes having some rights. Corporate personhood was created for benefit of society and it benefits them if corporate persons have some rights.
The case also touched upon a familiar principle:
Upon this we remark that, when a state court decides a case upon two grounds, one federal and the other nonfederal, this Court will not disturb the judgment if the nonfederal ground, fairly construed, sustains the decision.
This sounds like the "independent state grounds" doctrine where a state court deciding a question on local law should be respected, the federal question not addressed unnecessarily. That is, if the case concerns a search and it reasonably (how this is determined is a separate question) can be held to violate the state constitution, the Fourth Amendment issue should not be decided. This would avoid a ruling that would apply to all states, since it would be in effect an advisory opinion. It would also promote federalism by respecting local courts.