This morning the supreme court released it’s opinion in Heller. Additional commentary from SCOTUSblog can be found here, here, and here and the Volokh conspiracy has some good commentary as well but some technical issues on their end temporarily prevent me from linking directly to their posts on the subject. The upshot of all of this is that the court decided by 5-4 to affirm the judgment of the appeals court and invalidate the DC handgun ban.

I find the Heller opinion and associated dissents disappointing for several reasons. On a pragmatic level I would have preferred a larger majority for either side rather than the narrow 5-4 opinion that virtually guarantees this issue will continue to be fought at ballot boxes and courtrooms for years before we have a firm precedent for second amendment interpretation. On a more theoretical level I find neither the majority or the dissent offer a very compelling case for their interpretation.

Steven’s dissenting opinion pulls out the old canard that the second amendment merely protects the right to own a gun as part of some official organized militia, i.e., the feds can’t stop the states from designating individuals as militia members and allowing them to keep weapons. Scalia’s majority opinion decisively repudiates this view by pointing out that the militia was understood at that time to be the preexisting body of armed citizens. Moreover, it seems clear to me that one of the motivations behind the second amendment was to create an armed citizenry capable of resisting tyranny as they did in the American revolution. In other words the choice to give this right to the people rather than the states was deliberate and reflects the clear belief on the part of the founders that individual citizens had the right to keep the sort of arms necessary to be effective members of a citizen army. Ultimately it simply doesn’t make sense to grant this right to the people at large if it was really a right of the states to designate people who could bear arms.

But the second amendment simply makes no mention of individual self-defense and no amount of Scalia’s fancy footwork can change that. The best argument Scalia can make is citing sources from shortly after the 2nd amendment was passed who choose to take it as guaranteeing an individual right to self-defense. If the justices wanted to find the right to own arms for self-defense was one of the unenumerated rights or part of the penumbra then I would consider the argument but it simply isn’t part of the second amendment. Given the understanding of the federal government at the time of ratification it would actually be somewhat puzzling for the framers to write in protection of an individual’s right to self-defense from the federal government. Unlike today the worry wasn’t over regulation by the federal government but outright tyranny: laws against protest/criticism, eliminating resistance by disarming parts of the population. Moreover, Breyer makes a compelling argument against an absolute right to individual self-defense by pointing out a ratification era law barring the storage of loaded weapons inside buildings for the safety of firefighters.

However, even if you accept that the second amendment preserves an individual right to self-defense Scalia’s opinion offers no convincing response to the argument by Washington DC that long guns (shotguns, rifles, assault rifles?) are sufficient for this purpose. Indeed according to SCOTUSblog the district court had reviewed articles suggesting that long guns were more effective for home defense. All Scalia does is observe that hand guns are the most popular choice of weapon for self-defense but this tells us nothing. Maybe people buy handguns for self-defense because it looks like the guns on TV but surely the 2nd amendment doesn’t guarantee the right to own a ‘badass’ self-defense weapon. More generally this leaves us with no idea what sort of weapons the government can restrict. Can the government regulate tazers? What about mace? Frankly the idea that the second amendment would guarantee a right to a tazer if they were sufficiently popular strikes me a ludicrous. Moreover, Scalia’s view shows nearly no deference to the court’s deciscion in United States v. Miller which held that only weapons that were reasonably related to the preservation or efficiency of a well regulated militia received 2nd amendment protection.

In my view the right interpretation of the second amendment protects an individual right to own the sort of weapons that generic members of the infantry would use. Thus the government should not be able to bar the possession of M16s, AK-47s or rifles but handguns would be fair game. Not only is this more true to the constitutional text and the original intent it is consistent with Miller. Unfortunately it’s also maximally politically unpalatable. It simultaneously pisses off the pro-gun lobby by allowing handgun bans while scaring the anti-gun lobby by eliminating bans on assault weapons. Of course the assault weapons ban is based purely on emotion (assault weapons scare people) not on a rational comparison of the joy peaceful users get with the harms a ban could avert. But when has that mattered? Note that my understanding of the second amendment would also allow laws banning the storage of loaded weapons in the house or other measures designed to avert accidental deaths.

This having been said I’m open to arguments for a national gun ban, or very heavy regulation. I’m skeptical that local regulations could be that effective in deterring gun deaths given the difficulty in preventing interstate transport of weapons but I would be more hopeful about a national regulatory regime. I just think any such law should be preceded by an amendment to the constitution. However, we must guard against the temptation to regulate guns just because they seem scary and are often used in crimes. While I have some guesses about what would and wouldn’t be reasonable laws I would be unwilling to encourage any specific law until I’d seen and understood the statistical arguments by both sides and I hope that other people will do the same.

Alright I’m getting really fucking tired of the way the left treats Clarence Thomas. The level of vitriol but even as liberals spew hate at him they demand to know why he can’t “let it go” even as op-eds in major media criticizes him for being angry even while re-attacking him over the whole Anita Hill controversy and liberal blogs demand he be impeached for being so angry. Now maybe I’m going out on a limb here but if Justice Thomas’s views make you angry maybe he fells something similar and being personally attacked as a result is a further catalyst.

As far as Hill goes there is nothing unusual to explain. It would be surprising to find a sexual harassment case where both sides weren’t angry about it. Whatever the truth each person always (mis)remembers events from their own point of view. That’s in the past and whether or not he was a cruel or socially clueless guy back then really isn’t relevant to his legal scholarship. However, what really bugs me about the Thomas issue is the constant suggestion that he is somehow a hypocrite for benefiting for affirmative action and then opposing it. The logical fallacy here is clear. No one would believe that opposing nationalized health care meant you shouldn’t use it if it is created so why would you think this about affirmative action. In fact being able to oppose something that has benefited you is an important virtue (not claiming this is at play here) not a flaw. The new attack is to call him a hypocrite for not believing he was getting an affirmative action appointment to the supreme court¹ but is it really that hard to believe that someone convinced themselves they were being rewarded for their merit? It isn’t like most people don’t convince themselves religion is true because they want to believe.

Now I happen to think that Thomas’s views on constitutional interpretation are harmful and would much prefer a justice who believes in a more evolutionary approach to jurisprudence but this doesn’t mean I can’t recognize that Thomas has a respectable intellectually plausible approach that he follows with at least as much consistency as other supreme court justices. Even if you disagree with his view on the harms of affirmative action it is a plausible theory seriously tendered and your obligation is to cite evidence refuting it not personally attack it’s proponents. For the love of god Thomas is just a guy, he may believe some gloriously wrong things but his beliefs are far more coherent and thoughtful than most liberals (or conservatives) I’ve met. He just happens to be wrong.

The furor and emotion surrounding Clarence Thomas is perhaps the best example of the true nature of politics. People aren’t really concerned about ideas and argument they care about group loyalty and emotional signaling. It doesn’t seem to matter to people that Thomas may have a reasonable argument for his position (they don’t even bother to refute it) they are angry because instead of showing gratitude to his ‘team’ even after benefiting from their gifts he switched sides and criticized those programs. No doubt this was a great way to approach things when you were trying to gain advantage in your tribe but it isn’t a good way to approach serious intellectual issues.

I take it as a given that the constitution ought to be interpreted in much the same way as we interpret any kind of instructions. If you are house sitting for your professor saying that you thought it was a silly rule isn’t a valid excuse for ignoring his command, “Don’t let anyone else into the house.” On the other hand if his dog gets violently ill it is perfectly reasonable to allow the vet into the house since the situation is radically different from those the professor had in mind and he obviously doesn’t expect or want you to follow it in this case. However, this does not give you leave to supplant the professor’s judgment even if you believe it will better serve the aims he had in mind. Even if you know his intent in forbidding guests is to avoid scaring his dog it still wouldn’t be acceptable to invite over your friend who is really good with animals. After all if he had wanted you to use your judgment about who to invite he would have told you so.

So what does this framework say about the second amendment? In short: everyone is wrong. The collective rights theorists are blatantly substituting their judgment for those of the framers¹ while the individual rights theorists clearly misconstrue the framers intent. Let’s start by explaining why the collective right theory is totally absurd since this is likely to be the most controversial.

As wikipedia notes the collective rights camp can be divided into two groups, those that merely hold that the right to bear arms is simply one “the people” have collectively and those who take the view that it is a right reserved only to “members of a well-regulated militia.” The first view is absurd on it’s face. What would it mean for the people as a body to lack the right to keep and bear arms? That we weren’t allowed to form an army? Who would take this right away? Is it just saying that we can always repreal our gun laws if we so desired? Presumably so long as the constitution is in force we can always vote to repeal any laws banning gun possession.

But perhaps I’m being unfair. Maybe the second amendment should be understood as guaranteeing states’ rights in a very narrow specific way. Namely the national government can regulate individual gun ownership as it likes but can’t prevent from maintaining an armed force. But that would be extremely odd. The Bill of Rights is almost exclusively concerned with the rights of individuals (with the tenth amendment split half and half) so it doesn’t seem plausible that the authors of this amendment thought it would be clearly understood as guaranteeing a right to the states. Moreover, even the sources that support a collective interpretation of the people understand that term to be referring to a national community. So while in some sense the second amendment obviously protects states rights it is implausible to think that it does so by granting states the right to keep an official armed force without ever mentioning the word state.

The militia interpretation makes little more sense than a the purely collective interpretation. After all if you understand the amendment to guarantee people the right to bear arms when the government lets them join an official militia then it guarantees them no right at all. Of course the government can choose to let people bear arms and join a militia if it so desires. Slightly more plausible is the theory that the second amendment guarantees people the right to be defended by an armed militia so that in the absence of a sufficient official militia people would have the right to arm themselves for the collective defense. This, however, simply isn’t historically plausible.

It is quite well documented that the second amendment was viewed as a protection against government tyranny when it was adopted. In particular the militia was to serve as an armed defense against government soldiers, e.g., a situation like the colonies had faced in the revolutionary war. Yet surely if citizens only reserve the right to arm themselves in the absence of an official army this provision would provide no protection against such an army. In fact any interpretation of the second amendment that allows the government to narrow gun ownership to a small proportion of the population or otherwise keep most of the personal weapons under it’s control would clearly be incompatible with this purpose. If only a few national guard troops, more a part of the army than a state force, get to carry guns the people could not possibly rise up against the army. You might disagree with the founding father’s judgment that an armed populance is a good idea or even a good protection against tyranny but as I outlined at the start this isn’t justification for ignoring the rule.

On the other hand the second amendment clearly doesn’t say that people have the right to carry arms for personal protection or sport shooting or whatever. One might try to argue that these are part of the ninth amendment’s unenumerated rights but they simply aren’t part of what the second amendment says. Thus while the second amendment might guarantee that most private citizens can keep and bare arms it doesn’t seem inconsistent for these arms to be regulated. So long as those laws didn’t substantially interfere with the ability of the people to mount an ad hoc common defense it seems that anything could go.

For instance a state could outlaw all handguns, and perhaps even hunting rifles so long as it allowed its citizens to keep assault rifles in their basements. One might require that all transport of weapons occur under lock and key or even have the state pass out the only legal weapons to citizens who participate in weekly militia drills. Heck, you could probably even limit participation to married homeowners over 25 without getting into trouble with the second amendment.

In short it seems pretty obvious to me that both sides in this debate are twisting the second amendment to suit their preferences. The second amendment is about arming the people for the purpose of the common defense against both tyranny and foreign aggressors. Pretty clearly this is an outdated notion and it should be repealed but it shouldn’t be left on the books and misinterpreted.

Just as I feared the “BONG HiTS 4 JESUS” case is eroding our first amendment rights in other areas. I’m stunned to see the effect so quickly but I’m not surprised, only horrified, by the ruling in Wisniewski v. Board of Education of the Weedsport Central School District. Follow the link for a very nice description from Decision of the Day but I’ll give a quick summary for the lazy.

Aaron Wisniewski, an eigth grade student, made a crude drawing of a teacher at his school getting shot and used it as his AOL IM icon for three weeks. Eventually another classmate snitched on him and the school suspended Aaron. The police and a school psychologist then talked with Aaron and concluded the drawing had been meant as a joke and he didn’t pose any threat. Despite this conclusion a superintendent’s hearing concluded the drawing should not have been regarded as a joke and proposed a long term suspension for Aaron which was approved. Aaron’s parents then sued claiming that “the school board acted in a retaliatory manner in violation of Aaron’s free speech rights.” (from the deciscion) It is important to note that all of the communication took place outside of school but that the superintendent’s hearing choose to punish Aaron anyway because his speech violated school rules and required time and attention from the school.

Disturbingly the district court apparently made it’s own determination that Aaron’s speech was reasonably understood as a constitutionally unprotected true threat, an obviously absurd conclusion¹. Now the appeals court avoided the issue of whether Aaron’s speech truly rose to this level but it seems to imply that it does not. In either case we can assume, arguendo, that it does not as we consider the central holding of the appeals court:

Even if Aaron’s transmission of an icon depicting and calling for the killing of his teacher could be viewed as an expression of opinion within the meaning of Tinker, we conclude that it crosses the boundary of protected speech and constitutes student conduct that poses a reasonably foreseeable risk that the icon would come to the attention of school authorities and that it would “materially and substantially disrupt the work and discipline of the school.”

Just by itself this decision is greatly troubling in several ways:

1. Like Morse the decision seems to ignore the distinction between harm or disruption that results from the form of the expression (acting out during class) and that which results from the content expressed. A notion of free speech that allows the government to punish your speech if it makes people so mad they create a disruption or provokes them to a harmful response isn’t free speech at all. To modify a frequent example from the Volokh Conspiracy if a majority of the population wanted to ban pro-gay speech in schools all they would need to do is protest such speech so vehemently that it constituted a disruption of the school environment.². Importantly the deciscion doesn’t even seem to require that the school prove that the disruption was a based on a reasonable prediction³ of Aaron’s future violence.

2. Imposing this punishment accomplishes nothing particularly relevant to student discipline. Certainly the school has an interest in avoiding the trouble and expense of dealing with situations people (irrationally) think are threatening⁴ but they have the same interest whether Aaron was a student or a member of the general public. If the government’s interest in avoiding this sort of bother is enough to justify detering it in Aaron’s case why isn’t it enough to justify fining a student’s father, or brother, or friend who creates a similar drawing knowing it may get back to the school and cause similar effects.

3. The decision permits punishment of speech that took place outside of school and was never intended to make it back to the school. The court was divided on whether it was necessary that it was “reasonably foreseeable that Aaron’s IM icon would reach the school property” or “the undisputed fact that it did reach the school” is enough. In either case it apparently doesn’t matter how the speech will reach the school. This means that so long as those who find the speech distasteful are sufficiently fastidious about bringing any student statements back onto the school campus the student can be denied any means to publicly express the idea without fear of government retaliation.

However, bad appellate decisions are troubling but nothing new. What is even more worrisome is the way this deciscion shows that, as I feared, the reasoning in Morse v. Fredrick is being extended beyond student advocacy of illegal drug use. The simple timing of this opinion suggests that the appeals court may have been waiting for Morse to be decided to get a sense of which way the supreme court was leaning. Additionally the decision troublingly cites Morse v. Fredrick several times, both as an authority to limit the holding in Tinker and to justify the incoherent distinction between this sort of speech and “conduct that was merely ‘offensive,’ … or merely in conflict with some view of the school’s ‘educational mission.’”

Just as I feared you can’t undermine free speech rights just for the topic or situation you find particularly objectionable and hope that it won’t erode free speech more generally.

So over on language log Bill Poser recently wrote a post criticizing the BONG HiTS 4 JESUS decision. Poser argues that Robert’s and Alito’s opinion presupposes that the banner must mean something incorrectly ruling out the obviously correct interpretation of the banner as pure nonsense. In particular Poser responds to Robert’s opinion:

The dissent mentions Frederick’s “credible and uncontradicted explanation for the message – he just wanted to get on television”… But that is a description of Frederick’s motive for displaying the banner; it is not an interpretation of what the banner says.

This begs the point. No “interpretation of what the banner says” could be offered by Frederick insofar as it has no meaning. By dismissing any explanation for what was written on the banner that does not provide an interpretation, the Court assumes that it must mean something. Nowhere in the opinion is any justification offered for this assumption.

While I’ve already expressed my strong disagreement to the decision in Morse v. Fredrick’s I don’t find Poser’s critique compelling. For starters distinguishing between Fredrick’s motive for displaying the banner and it’s meaning surely doesn’t “beg the question” about the meaningfulness of the banner. Surely Fredrick’s motive for displaying the banner could have been just be to get on TV whether the banner said, “Take Illegal Drugs,” or, “Colorless Green Ideas Sleep Furiously.” I certainly didn’t see anything in Robert’s opinion that convinced me he refused to consider the possibility that the sign was meaningless, only that he concluded it advocated illegal drug usage.

Now I don’t doubt that Fredrick was not seriously advocating illegal drug use but what argument does Poser offer that the phrase, “BONG HiTS 4 JESUS,” isn’t advocacy of illegal drug use?

The kind of meaning that the Court purports to find is propositional. It claims, in effect, that the interpretation of the banner is something like “It is good to smoke marijuana even though it is illegal.” or “Go ahead and smoke marijuana.”. However, the banner does not, on any plausible analysis, contain the kind of syntactic structure that serves to express propositions, namely a sentence, not even a sentence part of which is not overt. Nor is this an example of a construction with an implicit verb, such as “Freedom for Tibet”, which means something like “Freedom for Tibet would be good” or “We support freedom for Tibet”. (The Court does not argue that the banner means “It would be good for Jesus to smoke marijuana.”)

But this is just patently false. Consider this salon.com piece “Rushing for Jesus”, or this “March for Jesus” page. The phrasing, “X for Jesus,” is generally understood to mean something like, “Do X for Jesus,” or “X honors Jesus.” Given the well established conversational norm that one should try to interpret utterances in a way which makes them meaningful this suggests that “BONG HiTS 4 JESUS” should be interpreted as saying, “Take bong hits 4 Jesus,” or “Bong hits honor Jesus.” While these sentiments were clearly not being expressed seriously by Fredrick they could reasonably be regarded as advocating illegal drug use. The clinching evidence that the banner is not mere nonsense similar to “Colorless green ideas sleep furiously” is this sort of response by protesters to the court’s opinion. Obviously I’m not the only one who immediately understood, “BONG HiTS 4 JESUS,” to be advocating taking bong hits in honor of Jesus.

Ultimately it was the fact that the court took Fredrick’s banner to be meaningful and then justified denying his free speech rights based on that meaning that made the decision so bad. The court essentially decided that some opinions (you should do illegal drugs) are so unreasonable as to not deserve 1st amendment protection. In effect the court has put itself into the position of deciding what sorts of ideas are worthy of protection, the very situation that the first amendment was designed to protect us against.

Most criticisms of Supreme Court rulings are based on nothing more than an antipathy for the result and insufficient understanding of the legal precedents. Such a case can certainly be made for the school busing and the campaign finance cases. However, the opinion in Morse v. Fredrick is just the opposite. The outcome can be reasonably defended but the decision is the worst in recent memories.

Briefly the background of the case is this: When the Olympic torch relay passed by Juneau-Douglas High School principal Morse let the students outside during school hours, still under supervision, to watch the procession. At the event Fredrick, along with others, displayed a banner proclaiming “Bong Hits 4 Jesus.” Principal Morse disciplined them for this behavior and Fredrick sued claiming his free speech rights were violated.

Now the result in this case can quite reasonably be defended. If you think that watching the relay was similar to a school field trip the school could reasonably ban students from display unofficial banners. Even if the school would allow general political speech at the relay, e.g., as they would during a nomination for student government, one could reasonably hold that the “Bong Hits 4 Jesus” banner wasn’t serious expression but mere disruptive humor or acting out similar to calling a teacher “a hairy moron” or the sexually suggestive speech in Bethel School District v. Fraser. However, the court (implausibly in my opinion) instead interpreted the banner to be a serious advocacy of illegal drug use and held that it wasn’t protected because it advocated illegal drug use. Indeed the official summary (accurately) describes the opinion as holding:

Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.

In other words the court found a special ‘promoting illegal drug use’ exception somewhere in the first amendment. Importantly the court admits that this situation would not fall into the general first amendment exception for inviting imminent lawless action. It really is just a special exception to the first amendment for advocating drugs use. Alito did author a second opinion, joined by Kennedy which states:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

But it’s not clear if this is comforting or disturbing. For starters the fact that Roberts and Scalia didn’t join this opinion (Thomas would have just done away with free speech rights for students in general) is distressing. Worse as this post¹ by Eugene Volokh nicely lays out it just doesn’t seem coherent to support the holding of the opinion while claiming not to support any restriction on free speech “that can plausibly by interpreted as commenting on any political or social issue.” To give my own spin on what Professor Volokh is saying: unless Alito is saying that mere advocacy of illegal drug use is ipso facto not commenting on a political or social issue it seems that telling people to smoke more marijuana is necessarily a commentary on social issue, whether people should smoke marijuana.

Now no matter what you think about the drug war an exception to the first amendment based on the idea being expressed should be deeply disturbing. Deterring youth drug use might be an important government aim² but so too is/was defeating communism, preserving our democracy and helping the poor. If it is acceptable to ban advocacy of illegal drugs because the idea it expresses is harmful what prevents us from banning advocacy of communism, an unelected presidency or even cuts to welfare? If what counts as commentary on a political or social issue and hence what deserves free speech protection effectively turns on someone’s judgement that it is a reasonably viewpoint (apparently unlike thinking people should do drugs) then we don’t have any free speech protection at all.

Certainly it is better that this ruling was restricted to the case of student speech but the reasoning behind a supreme court decision often has as much impact as the ruling itself. I think I might have been more comfortable with a ruling (like Thomas favored) which denied students free speech entirely than one which legitimated a viewpoint based standard for free speech protection. I could go on for days about what a bad decision this was but I’ll stop here and let Steven’s dissent³ convey my feelings about the matter (emphasis mine):

The Court’s test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner that Frederick has disavowed. … [T]he Court’s holding in this case strikes at “the heart of the First Amendment” because it upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s viewpoint. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson

So as we speak Feinstein is questioning General Hayden about his views on the 4th amendment. Hayden, correctly stated that the fourth amendment requires reasonableness. Feinstein asks him to clarify and he says that in general the requirement is reasonable but the standard for warrants is probable cause. Then Feinstein accuses him of inserting his own standard and alleges that reasonableness isn’t part of the constitution.

Shall we look at the constitution?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Now maybe Feinstein is just fumbling her words and meant to say that Hayden is substituting his judgment of what is reasonable for what the courts have said is reasonable. If so this was totally out of conversational context (no lead up just a random comment that was inserted into the flow of conversation as if it belonged). However, given all the people who have criticized Hayden for talking about reasonableness I think there is a good chance she just doesn’t know her constitution.

Maybe I’m being harsh but the more I hear Feinstein in hearings the more I dislike her. She seems to be all about vague emotional appeals and fuzzy unanalyzed direction. On the other hand the more I hear from Feingold the more I like him.

In my last post I argued that the decisions by Thomas and Scalia in Gonzales v. Oregon are perfectly consistent with their judicial philosophy. I argued this assuming the controversial issue was whether assuming the decision in Raich the attorney general could prohibit doctor assisted suicide. The feedback (thanks Jason from lj and Bill from INDC) I have received makes it clear that I missed the mark. The heart of the disagreement was actually whether or not supreme court justices are acting consistently and in good faith when they abide by precedents they find disagreeable even when neither party challenges the precedent. I will argue that it is a good and appropriate tradition for supreme court justices not to revisit precedents accepted by both parties (the decision in Raich) when deciding questions of statutory interpretation (the intent of the CSA in Gonzales v. Oregon).

First of all I should point out that it is quite standard for the court to avoid addressing an issue when it is not ripe or only indirectly implicate in a case, e.g., the case focuses on a matter of statutory interpretation instead of a constitutional issue as it does here. In doing so the court frequently makes implicit use of precedent it thinks is bad or ought to be overturned. For instance the court has reshaped criminal law over the last couple years with its decisions in Blakely and Booker holding that a jury, not a judge, must decide any factual questions which could increase the defendants sentence, e.g., amount of drug possessed. Yet despite this decision the court is not overturning convictions which had been settled prior to these decisions. Also surely the court heard many trivial criminal appeals by defendants convicted under these unconstitutional sentencing rules between the time between the justices had personally come to the conclusion that the rules were unconstitutional and actually issuing the opinions in Blakely and Booker. It is a common practice by both liberal and conservative judges to decide cases on the issues argued before them even when they think some of the underlying issues creating these issues are badly decided. Just this month O’Connor convinced the supreme court to reach a unanimous decision in Ayotte by refusing to revisit the underlying precedents about health exceptions for abortion and merely clarifying how these precedents should be applied. If you think it is unprincipled to assume the results of precedents you disagree with when deciding cases which indirectly involve them your problem is with the court and its traditions not a few justices.

In fact, while occasionally justices rightly reach out and decide issues not argued in the case before them there are very good reasons to avoid continually revisiting bad precedents. As a purely theoretical matter the constitution restricts the court to cases or controversies and precedents both parties accept are arguably not cases or controversies. While I’m inclined to think this reading of the case or controversy requirement is a bit too narrow it is a position a conservative justice might very well hold. Even if one doesn’t think there is an actual constitutional requirement at play in these circumstances the idea that judges should (usually) restrict their decisions to issues that are actually being contested is a good one.

The essential rational for our adversarial system of justice is that an issue can be best decided only after considering the best arguments from the opposing sides. By waiting till an issue is actually under dispute before deciding on it the court is less likely to overlook or misunderstand important arguments, i.e., two parties who both really agree on the issue can’t purposefully weaken the argument for one side. Before anyone jumps up and says this consideration doesn’t apply when the justice has already ruled on the issue (the Raich case) let me point out that deciding the original case and deciding to reverse past precedent are different questions and even if some justices have already seen the issue argued others (Roberts) have not. Additionally in an adversarial system of justice it is an important consideration of fairness not to change the issues and arguments after the parties have made their cases. For instance one might imagine that the government would have argued or presented evidence that the other party lacked standing to challenge the constitutionality of some action or was somehow estopped from making it but choose not to do so since only an issue of statutory interpretation was raised. Since the government may have relied on the fact that the other party was not challenging some particular constitutional point it would (usually) be unfair to decide the case on those grounds. While I don’t think Oregon’s acceptance of Raich should invoke judicial estoppel these considerations certainly make it reasonable to refuse to revisit the non-litigated prior precedent.

Perhaps more compelling than these abstract considerations is the legal chaos that would result if justices injected their minority constitutional opinions into later statutory decisions. Suppose (hypothetically) that the four most conservative justices on the court take a very restrictive (1920s era) view of the commerce clause. Now if these justices are obligated to always vote against any law passed requiring an expansive interpretation of the commerce clause even if the parties are not disputing this facet then only laws liberals didn’t find objectionable would benefit from the increased federal power. Say a case comes up challenging some federal program of school vouchers on first amendment grounds. If all four conservative justices have to vote against the law because of their opposition to the underlying commerce clause cases then only one of the other justices must vote to strike down the law to deem it constitutional. While such an outcome doesn’t seem that bad to me their are alternative areas where I would object to the results. Conservatives, for instance, usually grant the government much more power to combat crime (loitering laws, police power to disperse). If the four most liberal justices had to vote against all of these exercises of police power because they disagree with the precedents establishing this power then we would end up with a situation where use of police power against anti-war protesters or poor people is likely to be upheld but, since only one vote from the more conservative justices is needed, the use of such power against anti-abortion protesters would probably end up getting struck down.

The situation facing the supreme court is a classic example of the failure of simplistic voting procedures to provide a coherent justification. We want a coherent articulation of what the constitution says from the court not a bunch of special cases which exist because four justices think the law is beyond federal power and one thinks it is in violation of the first amendment. We might try and imagine complicated voting systems which look to the underlying logical structure of the question to determine a result but a simpler system is to have justices vote on the narrow issue before them assuming past precedent even when they disagree with it. Justices can and do indicate what their decisions likely would be if the precedent comes up for review, as Thomas did in Gonzales v. Oregon, and if observers think the court is willing to overturn the precedent a case on point will quickly be brought. However, when the case is not directly on point there are good reasons for justices to assume past precedent, even precedent they think is wrong. Thus it simply isn’t warranted to critique Thomas, Scalia and Roberts for assuming the results of Raich as they did in this case. Of course Scalia is responsible for the decision in Raich in the first place but that is another discussion.

UPDATE: Let me clarify that I am not arguing that justices should not consider their own or alternative arguments for the issues under consideration. This is often the point of amicus briefs and justices deciscions often use differing analysis that that presented to them. What I am saying is that they should only consider arguments about a contested issue in front of them. So for instance if the two sides are arguing about whether the CSA should be interpreted to allow the AG to ban assisted suicide a justice should consider arguments on this issue not presented to him. However, I’m saying that in most cases the justice should avoid deciding an issue which is not disputed in this case. This is a vague distinction of course but usually it is clear.

Recently the supreme court issued an opinion in Gonzales v. Oregon. In this case Oregon was challenging Ashcroft’s decision deeming assisted suicide not to be a “legitimate medical purpose” and thereby threatening doctors with loss of their ability to prescribe controlled drugs and potentially even criminal penalties. The supreme court decided 6-3 in favor of Oregon, holding that the controlled substances act (CSA) does not give the attorney general the power to prohibit doctors from prescribing drugs for assisted suicide. Roberts joined Scalia in a dissent and Thomas filled his own separate dissent.

I’m inclined to think that the result (allowing doctor assisted suicide in Oregon) is positive. While their are some coherent concerns about the effect on medical practice and doctor-patient relationships of allowing doctors to end life as well as preserve it I actually think the effects would be positive. Indeed, the very perception that just because a life is ended instead of saved assisted suicide is in tension with the a doctors role as a healer or the hippocratic injunction to “do no harm” is reason to believe that medicine suffers from overly simplistic notions of harm/healing and could do with a reminder that the ultimate aim of medicine is to alleviate suffering and improve the human condition. As an aside the common argument that doctors should repudiate assisted suicide in order to comply with the hippocratic oath is just absurd. Not only is this a brute appeal to the minority viewpoint of a small ancient sect but the original oath is obviously inapplicable to modern medical practice (abortion is proscribed, nepotism demanded). As a consequence there is no one hippocratic oath sworn by modern doctors, instead each medical school chooses each own version many of which avoid the controversial prohibitions. However, a full discussion of the consequences of physician assisted suicide will have to wait for another post. Here I want to focus on the legal question.

My motivation in writing about this decision is to correct some common misconceptions on the left (though this link is just the best argument I found on point not someone on the left) about the hypocrisy of Scalia and Thomas in voting to uphold such an obvious federal invasion of state’s rights and illustrate the danger of evaluating the justices and courts with only casual knowledge. I myself fell into this trap when I first heard about the decision in this case. Aware of Scalia’s strong record on state’s rights surpassed only by Thomas’s I was convinced that Scalia’s intellectual integrity had become a victim of his catholicism and that Thomas had also been unduly influenced by personal values. Having found my first impressions radically in error before, and generally (but not always) impressed with Scalia’s arguments (though not his assumptions) I actually went and read the opinion and dissents. Having seen the arguments and issues I find my opinion has changed radically. I now think that Thomas’s dissent was right on target and Scalia’s dissent was required by his judicial philosophy. Lest this seem like too much of a Scalia love fest I want to point out that I have serious doubts about his ability to consistently justify his concurrence (scroll down) in Raich and I am beginning to suspect that Scalia’s focus on the text of statute inadvertently encourages personal bias to sneak in through the choice of definition.

The real problem behind all of this is the decision in Raich. As Thomas points out in his dissent there just isn’t any principled way to distinguish this case and Raich (he is basically saying I told you Raich was a bad decision see what it entails). Despite all the distracting issues the real issue underlying Raich is whether or not the federal government has the power to deem a type of treatment supported by respectable medical organizations and states doesn’t count as a valid medical treatment. The reason there was a conflict between state law and federal law in Raich was not because the federal government deemed marijuana so dangerous that even legitimate medical purposes could not be tolerated. The CSA does not permit that sort of prohibition. The conflict existed only because the government deemed marijuana to both, have no currently accepted medical use in treatment in the US and lack accepted safety for use under medical supervision. While the exact wording may be different this is essentially the same issue at play in Gonzales v. Oregon: does the CSA give the federal government the power to override state judgments about the legitimate use of controlled substances?

Any attempt to argue that it would be unconstitutional to ban assisted suicide also runs directly into Raich (hence the reason this wasn’t really argued). Sure one could argue that congress is seeking to regulate the interstate commerce in marijuana and banning the intrastate use of marijuana is sufficiently related to this end to qualify but this would be mere sophistry. It is plainly obvious that the congress wanted to prevent the use of drugs and the interstate market in drugs was merely a vehicle which let them achieve that end. If one wants to interpret the commerce clause so broadly that the mere connection of the activity to interstate congress is enough to warrant regulation that is fine but the same argument now applies here. The intent of the CSA was to limit the interstate market in controlled substances to those going to legitimate medical purposes and to accomplish this interstate regulation it is necessary to ban the entirely intrastate activity of assisted suicide. Quite simply the court choose to give congress essentially unfettered power to regulate items which are sold on an interstate market and controlled drugs are such an item. I believe the court should distinguish genuine

Basically I think there is more than enough blame to go around on these cases about drug law. The conservative justices should be striking down federal drug laws on federalism grounds and liberal justices should be obligated to uphold a right to drug use for the same reasons they supposedly favor Roe (privacy, right to control your body). However, before one blames anyone remember that the supreme court is in a political bind. It just isn’t politically feasible for a court to dismantle federal drug prohibitions but as their primary intent is to combat an entierly intrastate activity (drug use) not regulate commerce in drugs even a moderate approach to federalism that sought to restrict congress’s intrastate power to just that which is necessery to genuienly regulate commerce or interstate transport would be forced to strike them down.

Ultimately though I think all the opinions in this case are defensible. The majority is right that congress probably did intend the CSA only to infringe on state roles only in regulating drug ‘abuse’ where abuse is not just any misuse but the thing that heroin addicts, steroid users etc.. all have in common. I’m unsure if this is a valid distinction for the court to make as ‘abuse’ in this sense is a moral judgement but it is certainly a reasonable position. However, this is not a deciscion that someone like Scalia with his focus on the text of the statute could consistantly support.

Below I will go into the actual arguments in the decision and explain why the situation is alot more complicated than a quick look would suggest.

UPDATE: Clarified that link is just to someone making the argument that Scalia and Thomas are betraying their federalist principles in this case not someone on the left themselves. The better criticisms usually come from your own side, at least that is what I want to believe given all the liberal arguments I try to repudiate here. (more…)

Senator Schumer from New York just asked the question I’ve been waiting to hear the whole time: Why did you make the government’s argument for them in the Smith case but didn’t do this in other cases?

Alito seems to have a good answer. According to him congress explicitly said that the issue of exhaustion of state relief must be considered in habeus corpus cases whether or not the argument is raised.

There are some other examples (Alito’s dissent in the Dillenger case). For this case Alito didn’t remember the details.

At this point I’m just out of my depth. I don’t know if Alito’s position was defensible and the other justices were swayed by intuitive considerations of fairness or sympathy or if Alito was the one swayed. I need advice from someone who is an expert but I don’t know who to trust or ask here. So few people seem to be able to analyze even easy issues (the Vangaurd case) in a fair manner when partisan politics come into play. If anyone has any good links on the subject I would appreciate them.