Constitutional Musings

I recently partially addressed responses in a discussion of Sandy Levinson's Wrestling with Diversity. I actually checked my copy and it looks a bit more boring than I recall it being. 

Anyway, he had a general response to the discussion. One thing he was particularly interested in was a discussion by someone from a Muslim perspective. I read and wrote about a few books by an author discussing Islam and Shariah in particular.  I also am generally somewhat familiar about it from other readings.  This is just a statement of fact. It does not mean I claim to be some "expert" on these matters.  I do know a bit more than the average person, at least, the average non-Muslim.

One thing he flagged was the diversity of jurisprudence, including a principle that recognizes there is no "one" answer to questions.  The author I read noted something similar, even if some "Muslim" countries and groups does not respect such religious diversity, humility, and ultimately freedom.  This is just one thing that "other" religions can teach us, even those we just write off as backward.  

Prof. Levinson has shades of the stream of consciousness approach that I am familiar with when he allowed comments.  The response has various bits that I would push back upon.  One philosophy of mine is that a good discussion can be good if it is good as a whole.  The areas of disagreement can be important or at least interesting.  I am one who will stop when I get to these parts to some degree. After all, I read footnotes and endnotes and always staid to the very end of the movie credits.  

[I do not do this while watching movies on television and anyway have not been to a movie theater for quite some time.]

This part bothered me, for instance:

The Amish are a paradigm example of a group that desires basically to be “let alone”; they do not wish to control the making of policy for the polity as a whole. To be sure, there are extraordinarily important questions raised as to the allocation of authority over children’s education, an issue much under-played at the time, save in Justice Douglas’s opinion[.]

This is the important if something idiosyncratic at this point Wisconsin v. Yoder opinion, which involves Amish parents not wanting to send their children to high school.  The opinion as a constitutional matter is unclear today after Oregon v. Smith altered the rights of people to have religious exemptions to criminal laws.  The principles still will help apply religious liberty provisions like RFRA.  Also, since it involves parental choices over education, it is treated as a special case. 

[There was some ridicule, including by Justice Souter, about the opinion trying to fit in certain cases by use of so called "hybrid" rights. Nonetheless, there is something to treating religious education -- basic inculcating of belief -- differently than some run of the mill act deemed necessary for religious exercise.  This is just one reason Yoder is really something of a limited case to determine free exercise values.]

Anyway, what is special about Justice Douglas' opinion here?  There are actually four (in a case with only seven justices involved) opinions in this case.  Justice Stewart (with Brennan) concurred to note that the issue of possible conflict between children's wishes and the parents was not at issue in this case.  Justice White (with Brennan) concurred to emphasize the importance of education, but noting the limited interests of the state  involve in this case counsels to hold for the Amish.  

The majority also talks about the "allocation of authority over children’s education." So what exactly is SL talking about here? It seems to me that multiple justices were concerned about the sensitive nature of the issues.  Stewart said Douglas' concern of Amish who might disagree with their parents was "interesting and important issue," but simply not at issue on the facts at hand.  I find in many of the discussions cited on blogs that the specifics often can provide important and interesting insights.

[One case cited in a footnote involves a lower court case concerning a mother in hospital who refused a blood transfusion because of her Jehovah Witness beliefs.  Interesting discussion; the judge found a way justify requiring the transfusion. One bit -- both the woman and her husband said that if a court decided it, they would go along with the transfusion as a judgment binding on them.  It is unclear if the judge made the right decision, but the opinion suggests the complexities that arise.]

A final word on the case.  It seems like something that sets forth a basic rule on constitutional law (free exercise applies even to action to some extent) while possibly avoidable. The Supreme Court in the 1920s protected the constitutional right to send children to private and parochial schools.  Why could the state and the Amish (or their lawyers) not find a middle ground, setting up some sort of Amish school for children after eighth grade?  

I get the idea a basic problem here could have been that Amish are particularly strictly principled -- there was a comment at oral argument that having representation in this very case was somewhat done under duress -- that this could not be done.  The argument was that the Amish feel puberty basically is an important dividing line.  

All the same, for some, that will happen before or after eighth grade.  It's a rather arbitrary line, especially since for much of their history, mandatory school following modern day educational guidelines would simply not even be an issue.  And, think about what actually is taught.  The concern seems to be the social interaction.  You can have single sex Amish schools, if necessary.  The actual subjects -- think about biology, geometry and others useful even for Amish life -- are not different from eighth grade.

There should have been a way to agree to have Amish to have students have a couple more years of school, which they could have provided themselves, with some encouragement (for parents that accepted it) for Amish students to be somehow involved in certain public school activities.  

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I recently re-read Daniel Farber's book on the Ninth Amendment.  I also wrote a book summary for the book review website.  It might eventually be posted there.  This leads me to toss in a few words about a largely forgotten case, Richmond Newspapers, Inc. v. Virginia, which involves the right of the media (and more generally, the public) to view trials.  

The basic right was upheld 7-1, with Justice Powell not participating and Rehnquist dissenting, but the justices split various ways on the specifics. The case is shows that there are some issues which leads to basic agreement, but difference of opinion on reasoning.

The case raises a range of issues.  A basic issue is the media's right to access to be able to report the news.  The question might arise about if the media has row greater than the general public.  One justice notes the media often acts as an agent of the people here.  The Supreme Court never as a whole firmly recognized a special right of the media here.  It left in place, however, many practices that treat the media with extra respect. Their own practices give the media more access than the general public.

The specific value of the press -- again though sometimes you see references that suggest freedom of the press is a reference to a printing press as compared to some institution or more vaguely some wider press function -- is also at times cited by the Supreme Court.  As one justice frames it, "securing and fostering our republican system of self-government."  So, again, a special First Amendment interest.

Justice Blackmun specifically was concerned with the right to public trials. The state argued that this is a right in place for the defendant and the defendant did not challenge keeping the press out.  Basically, Blackmun argue that a public trial is necessary for liberty as a whole, including to protect the general sanctity of the trial.  This interest can not be waived.  Noting the other opinions, he also noted anyway there are not rights at issue, including the First Amendment. 

I think the plurality opinion was right to see the case as one that touched upon a variety of rights. Trying to focus on one is unnecessary and does not really fully address what is at stake.  As one opinion usefully notes though at times the Supreme Court seems to ignore:

The Constitution was not framed as a work of carpentry, in which all joints must fit snugly without overlapping. Of necessity, a document that designs a form of government will address central political concerns from a variety of perspectives.

Okay, maybe you forgot where I began, but the plurality is specifically useful (and it would have been useful for Brennan/Marshall to make it the opinion of the Court partially for this reason) because it actually cites the Ninth Amendment (as does Planned Parenthood v. Casey).  The right to access to trials can be deduced from First Amendment and perhaps others.  But, even if it was not, it would be one of those fundamental rights, understood historically as essential, honored by the Ninth.  

Madison's comments in Congress also reveal the perceived need for some sort of constitutional "saving clause," which, among other things, would serve to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined.

(And, examples such as association, privacy, travel, and the beyond a reasonable doubt standard  / presumption of innocence -- perhaps like this case also deduced from an explicit command, due process, but perhaps not, are supplied. Again, maybe Brennan might have seen the value of joining the opinion, even if it did not go as far as he might have liked.)  

A final word.  The Ninth Amendment is a tricky concept since it can cover a lot of ground.  The usage here is limited since not only does it involve working off enumerated rights, it involves matters of judicial procedure that are particularly something judges can be more comfortable handling.  Eric Segall flags this for judicial review in general in his two books.  

Rights are not just for courts. That is one thing to remember as legislatures and more are deciding abortion after the Dobbs ruling.  The two cases here also show that when courts decide things that they should look at everything involved.  When doing so, the case often can be decided on more narrower grounds and/or on more firmer ground.  This is also something that can be applied to thinking about things in general.