Before we begin just consider the fact that creating a second senate consisting of hundreds of senators from each state with the power to repeal legislation with a 2/3 majority of the states would be essentially equivalent to this proposal. If you don’t think that a second senate with this limited power would be beneficial what could possibly be beneficial about this proposal? Now let’s consider the particulars.

First the purely practical aspect: what does it mean to repeal a piece of legislation? Does this mean that the states can repeal any passage/clause/section in federal legislation or does it only grant them an all or nothing choice to repeal an entire bill. I presume the suggestion is the later (so a repeal acts like a late presidential veto) since otherwise the state legislatures would effectively be a second congress, e.g., if congress strikes a balance between some kind of invasive search and judicial protections the states would be essentially writing their own legislation if they could simply strike out half that balance. Since this is the reasonable interpretation and the one closest to the proposed text I’ll assume that only entire bills or regulations could be repealed.

But this now creates massive problems. What if congress passes a law that changes the classification of Marijuana and psychedelics from schedule I to schedule II allowing it to be used medicinally then later congress decides that since it’s only `hard’ drugs in schedule I to increase the penalties for trafficking in a schedule I substance. If the states later repeal the bill reclassifying the psychedelics does trafficking these substances now come with a greater criminal penalty than congress (or a majority of the states) ever intended? This is just the tip of the iceberg.

What if congress decides to change the nomenclature in the same bill in which they legalize the medical use of Marijuana so instead of schedules I-V it’s now class A-E. Shortly afterward congress passes another bill revamping all the criminal penalties and whose text indicates that it repeals all previous criminal penalties for trafficking in drugs in favor of a new system of penalties phrased in terms of classes A-E. If the states repeal the bill legalizing medical use of Marijuana does this mean that all criminal penalties for drug trafficking are eliminated? After all the only non-repealed trafficking laws reference class A-E substances which no longer exist since the law creating them was repealed. As nice as result as that might be in this case the problems are starting to mount.

These issues were bad enough when we imagined the conflicts occurred by accident but what happens when congress wants to prevent the states from repealing their bills? They could simply pass popular bills right after the legislation at risk of repeal in such a way that should the states repeal the controversial bill the popular legislation would be rendered inoperative. As a silly example one might pass an agriculture funding bill which reads “No monies shall be distributed in excess of the number of words in section Y of the law multiplied by 10 million dollars,” where section Y was introduced by the controversial bill. Thus were the controversial bill to be repealed farm subsidies would be immediately halted. Should they wish to be less obviously contrived congress could simply package up the various bills they plan to pass in such a way that 2/3 of the states wouldn’t be able to agree on exactly what to repeal.

Finally, since the house and senate set their own rules it’s quite possible that “deem and pass” is perfectly constitutional. If so congress could break up the laws into an arbitrary collection of bills to undermine any potential state coalition. Alternatively congress could simply rewrite the rules preventing them from packing absolutely everything into one giant bill to evade the veto in that manner.

Now that we hit upon some of the practical problems let’s move on to the theoretical failures. The first and most puzzling of which is why would such a legislative veto be desirable now that we have direct election of senators? For a bill to pass congress it must have already received support from a majority of the elected senators so why should we let state legislatures which are often ignored by voters override the choices of the senators they elected? Despite the implications by Barnett that somehow state legislatures have more wisdom for the most part state legislators are much less likely to be knowledgeable about policy than our federal representatives. Indeed, it should strike one as weird that 2/3 of state legislators might vote to repeal what a majority of senators supported when they represent the same constituents.

This consideration exposes the true effect of such a measure and the motivation for considering it now. State legislators have national party affiliations and feel obligations to support that parties national views. Thus even though you may have voted for your republican state assemblyman because he has reasonable moderate views on taxes, school funding and etc.. he will likely feel pressure to vote for repeal of moderate democratic initiatives at the national level. In conservative states the democratic candidates for state legislature tend to be fairly conservative and vice versa but would still feel pressure from the national party to tow the national party line. In short letting state legislatures repeal federal laws would force voters to compromise between the candidates who have the best local policies and those that are most likely to be loyal to the voter’s favored national policies yielding less optimal results. It’s only because currently states are more heavily republican than the federal government that this suggestion is gaining any traction but if the states started repealing laws then the parties elected at a state level would start to follow the federal trends.

Lastly allowing states to repeal regulations as well as legislation totally undermines the benefits of regulation. The advantage of regulation, and the reason we don’t do everything by legislation, is that regulations can be issued by appointees under less direct political pressure. For instance regulations about safe levels of chemicals in drinking water can be issued by regulators who are some distance removed from lobbyists. Allowing state legislatures to repeal regulations puts this advantage at risk.

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.

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.

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.

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.

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.

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

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.

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.

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. In order to understand the opinion in this case it is necessary to understand that the case was primarily about interpretation of statute not the constitutionality of the statute and all the justices reached their conclusions on these grounds. As the respondents (Oregon) did not dispute the ruling in Raich the substantive constitutional issues weren’t really on the table. Rather the dispute centered mostly on whether assisted suicide constituted legitimate medical purpose and the technical issue of whether the attorney general’s interpretation of this term was entitled to the deference a agency’s interpretation normally receives when interpreting its own regulations or establishing statutes.

Pseudo-Constitutional issues do sneak into the case. The majorities most compelling argument (in my opinion) is that congress does not “hide mountains in mole hills,” e.g., congress does not usurp traditional state roles or implicate constitutional issues in subtle or ambiguous ways. In fact in this case the law in question (CSA) specifically says it does not preempt state regulation unless their is a positive conflict. Initially these were the considerations which I found convincing but it seems totally reasonable to say that the CSA was quite explicitly regulating the appropriate use of controlled substances and this is merely a quibble about how the government is regulating that use. In other words this situation is similar to a hypothetical case where the government has passed laws granting special protection from discrimination to blacks, usurping traditional state regulation of employment, and the EEC issues an interpretation declaring people who are half black still fall under the regulation. The mere fact that the EEC’s interpretation enlarges the class of situations where a traditionally state function is usurped surely is not sufficient to reject the interpretation because there was no clear statement by congress. In fact the court’s own words in Raich suggest that the restriction of prescriptions to legitimate medical purposes is a core part of the CSA.

[The CSA was] enacted with the main objectives of combating drug use and controlling the legitimate and illegitimate traffic in controlled substances, the CSA creates a comprehensive, closed regulatory regime criminalizing the unauthorized manufacture, distribution, dispensing, and possession of substances classified in any of the act’s five categories.

Indeed the court has previously deemed it to be within the government’s power to prohibit doctors from prescribing drugs to maintain an addict by deeming it not a legitimate medical purpose. Since this sort of medical usage is supported by many doctors (and indeed is done at methadone clinics) it is clear that the federal government has some authority to decide what constitutes a legitimate medical purpose. The majority tries to distinguish the current case from that of maintaining an addict by suggesting the CSA is focused on combatting addiction and recreational abuse. However, Scalia shrewdly points out that such an interpretation could not support the restrictions on steroids.

As I said above I’m inclined to agree with the majority that congress did not intend to be usurping state power in situations like assisted suicide. However, I think it obviously did intend the CSA to be broad enough to include things like steroid use. The problem is that the class of things which congress probably intended to include seems to be defined by nothing but a moral reaction, e.g., impermissible enjoyment/benefit. Most people, even those who violently oppose assisted suicide, don’t seem to think it is ‘abuse’ in the same sense as using heroin, steroids or trying acid is abuse. I’m uncertain if this kind of intent is a valid subject of analysis by the court. On the one hand we do expect courts to interpret essentially moral words like “cruel” but on the other we would not approve if they started carving out statutory exceptions because congress only intended to punish ‘bad’ behavior of a certain type. Moreover, analysis of this kind can’t provide any bright line distinctions and seems inevitable to draw the justices personal moral beliefs into the deciscion, e.g., is smoking weed because it alleviates your impression ‘abuse’ or not? I think it would be my general inclination to ignore congressional intent which can only be cached out in terms of moral judgement unless it is specifically mentioned in the text but it does seem somewhat perverse to apply that principle so a federal statute restricts more freedoms than intended. In any case it is a complicated unclear area where both sides of the argument are reasonable. Certainly Scalia with his aversion to legislative intent couldn’t be expected to make this distinction so, at least in this case, I think it is wrong to critisize his consistancy. Raich, on the other hand, is another matter.

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.

Unfortunately rather than focusing on issues of serious concern many of the democrats on the committee have insisted on making stupid political accusations. I’ve previouslyexpressed concern over Alito’s choice to supplement a prosecutor’s arguments with his own research in order to procedurally bar a defendant from relief but despite listening to well over half the confirmation hearings and skimming scotusblog’s live summary I didn’t hear or see this case mentioned once. Instead many (though not all) of the democrats on the committee kept banging away on stupid issues like Alito’s membership in CAP or the Vanguard case. Senator Kennedy in particular didn’t seem interested in doing anything but hearing himself rhetorically imply Alito was a racist/sexist for being a member of CAP and unethical for not recusing himself in Vanguard.

I’ve already argued that Alito’s statement to the Senate in his prior confirmation hearings saying he would recuse himself in Vanguard was not a promise. I think he was just saying (truthfully) what he intended to do in the future but even if we take it to be a promise the entire issue is absurd. Obviously Alito just overlooked or forgot the issue when deciding to hear the Vanguard case as it would clearly have been in his political and personal interest to recuse himself. Once he realized that their might be the appearance of a conflict of interest he recused himself and ordered the case retried.

I just don’t see how any reasonable unbiased person could think the Vanguard issue is a big deal. Any friend of mine who forgot one promise out of many you made him swear for a minute and then corrected his actions which would have violated the promise would deserve praise not condemnation. All the ethics experts, including the ones the democrats have previously cited, universally agree that Alito did nothing wrong in this case. Obviously Ted Kennedy and to a lesser degree other democrats are just trying to give partisans an excuse to dislike Alito and make good sound-bytes for the evening news.

While not ridiculous like the Vanguard issue there just isn’t any real substance to the CAP criticism. Sure in 1985 Alito included membership in a group which, among other things, advocated racist and sexist policies at princeton, on his application for a justice department job. However, Alito has explicitly disavowed holding any of these views and a search of records showed he was not an active member. Even the democrats don’t seem to think it is plausible that Alito shared the goals of a group which likely would have denied him admission if it had its way. Various democrats have acted like it is completely baffling how Alito might be a member of this organization innocently but I think we all know that lots of people join random organizations just to put them on resumes or even just to get rid of the damn person bugging us to join. Sure Alito won’t say he put it on his resume to get a job with the Reagan administration but that question is deeply unfair. Putting membership in a conservative organization on a job application for a conservative administration is perfectly within normal ethical practice but if he says that might be the explanation democratic senators and media will jump on him and accuse him of tolerating racism to get a job.

Not all the democrats are behaving badly. Feingold for one has some very good questions. Some of Alito’s answers to these questions are troubling and I’m still quite worried about his nomination. However, the focus by many democrats on these silly no content issues overshadows all the real issues. Whether or not there are real problems with Alito the focus on sound-byte issues by Kennedy and others guarantees he will be confirmed. I can only guess they feel confirmation is inevitable and are attempting to score points with democrats who are too partisan or ignorant to realize how shallow these issues really are.

That title is a bit misleading. As a policy issue there is no problem except how to overcome bigotry and puritanical values and allow for gay marriage. Even better we could eliminate the legal institution of marriage entirely and allow people to enter into contracts assigning the benefits and responsibilities traditionally associated with marriage to whomever they see fit (later post). However, as the legal problem of justifiably protecting gay rightsis much thornier. Justice calls out for fair treatment of gays and unsurprisingly many conclude that the courts ought to rule gay marriage is a constitutional right. Like other emotionally charged legal issues where belief in the ‘right’ result precedes acceptance of any particular argument or even knowledge of the relevant laws and constitutional clauses I am generally skeptical. Of course in some states their constitution probably does demand this outcome but in this post I am going to consider the situation in New York and the recent appellate decision reversing the Hernandez v. Robles decision declaring a right to gay marriage in the state. Since the equal protection clause (sec. 11) of the New York constitution is pretty much the same as the one in the US constitution the arguments are the same both for the federal situation and the New York situation. In fact while I will use the Robles decision as a jumping off point most of this discussion is about the federal situation.

My original conclusion, just having read the constitutional clauses and the arguments at issue, was that the appeals court was correct. Unfair and unjust as it may be there seemed to be no valid constitutional ground, even on an extremely broad reading, to support the contention that homosexuals have a constitutional right to marry. The constitution doesn’t prevent legislatures from treating distinct classes of people differently, otherwise child tax credits, sin taxes, regulations protecting journalists from revealing their sources and virtually every act of congress would all be unconstitutional. So long as there is some legitimate government interest served by the law and the differing treatment is not based on a suspect class (race, religion, and kinda gender but not sexual orientation). While outlawing gay sodomy serves no legitimate state interest as the supreme court opinedopined there is a valid interest (though not a very strong one) in denying gays the legal advantages of marriage. Marriage benefits cost money and there is a greater need to discourage straight couples from having unplanned children without parental commitment because homosexuals don’t accidently get pregnant (before you get angry and accuse me of missing something read the rest of the post).

However, I do not think this position (despite its justification on first principles) can be maintained in the face of the many court decisions declaring legal marriage to be a “fundamental right”. Moreover the court has maintained the status of marriage as a constitutional right even inside prisons where issues of procreation or sexual relations are not relevant. While I think this decision, while perhaps justified in a past time, is in error (now legal marriage is just an eclectic collection of financial and minor legal benefits) it is blatantly incompatible with denying gays the right to marry.

While recognizing the right to marry as fundamental has great outcomes in the situation with gays applying this principle in the same unbiased manner which guarantees gays the rights to marry would protect bigamy and incestuous marriages . Additionally it would imperil laws banning underage marriage or stringently regulating marriages we intuitively regard as exploitative, e.g., marriages where one partner is severely retarded. This is for the simple reason that in order to restrict a fundamental right the government must show a compelling governmental interest and if that requirement is to have any substance it must require more than mere intuition or assertion. If conservatives bald assertions that gay marriage causes social deterioration are to be disregarded unless they can provide evidence so too must widespread assumptions about incest or bigamy.

Ultimately, though I don’t think this is such a bad standard (in terms of results). I expect age minimums for marriage will be able to be supported with evidence and married cousins or group marriage probably ought to be legally allowed. Some harmful but rare practices will probably slip through but by definition they don’t happen often. So even though I think it is a bad standard , maintaining marriage as a fundamental right has fairly good results. Whatever you feel about this point it is abominable for the court to treat marriage as a fundamental right for straight people but not for gays.

If any of my arguments didn’t convince you they are laid out in full detail below.

Homosexuals and Equal Protection

The plaintiffs in this New York case argue that a ban on gay marriage is discriminatory and hence violates equal protection this argument just doesn’t fly. Certainly miscegenation laws (barring interracial marriage) violate equal protection, however race is a suspect class (laws impacting race get strict scrutiny) and the New York constitution specifically bans discrimination “because of race, color, creed or religion.” The designation of race as a suspect class is not the arbitrary whim of the court but a recognition of the underlying intent of the amendment¹.

While I think sexual orientation should be treated as a suspect class like race, and indeed it is unfair not to, this does not make it a valid constitutional principle. It is a principle which should be enshrined in legislation or even a new constitutional amendment. However, If our constitution is to provide any real protections the court must in some sense feel obligated to interpret the constitution instead of substituting its own judgment. Moreover, we can’t just cede to the court the decision of which classes require strict scrutiny under equal protection and retain any real restriction on judicial power.

Nearly any issue can be transformed into a question of equal treatment if this is understood to include disparate impact ². Whether prostitution is protected could be phrased as a question of the equal treatment of men and women. So too could child labor (minors and adults), funding for mass transit (drivers and non-drivers), rape-shield laws (men and women again), sin taxes (smokers and non smokers) or virtually any other issue. This is born out by the proliferation of equal protection arguments in briefs. If the court can decide what groups it is okay to treat differently based merely on its moral compass we have effectively given up any idea that the court must apply the principles ratified by the people and our freedoms are imperiled³. Moreover it would be short sighted to grant the court this sort of power without considering what a future, more conservative, court might use this interpretive latitude for. I certainly don’t want a future court to decide that equal treatment of the rich and the poor mandates a flat income tax.

Of course people who favor suspect class designation for sexual orientation aren’t suggesting the court use nothing but its moral judgement to make this determination. The point to the Supreme Court’s somewhat vague principle granting suspect class status to discrete and insular minorities who are somehow denied access to the political process. On the face of things one might be inclined to think gays clearly qualify but the rub is in how these terms are interpreted and indeed must be interpreted for the criteria to generate workable results. In particular insular is understood to require immutable characteristics which make membership in the class obvious. The canonical example being blacks in the 50s whose status as blacks was immediately recognizable and were denied access to equal political participation.

Unfortunately it isn’t clear whether homosexuality meets either of these criteria. The insular requirement is done a great blow by the fact that unlike any other even quasi-suspect class they can easily pass for straight. In fact the number of secretly gay members of congress casts great doubt on any claim of political powerlessness. It isn’t right to make gays pass as straight to get elected but having to do something you don’t like isn’t grounds for inclusion as a suspect class, I bet a lot of weed smokers don’t like having to pretend they aren’t smokers to get elected but this doesn’t make them a suspect class. Sure homosexuals might be losing in the political process but they are not denied access in anything like the way blacks were denied or even the way women had restricted access (gender is a quasi suspect class). Additionally it is far from clear that a immutable characteristic is being used to discriminate against people. Although inclination to homosexuality is probably immutable in the relevant sense mere inclination does not make one the target of any of these laws, it is the choice to engage in gay sex or relationships. I know this makes no pragmatic difference to gays but it does make every legal difference. Discreteness is also in question. It seems genuinely up in the air whether being straight or homosexual is a sharp distinction or admits many gradations in between with only social pressures forcing the apparent sharp distinction. Even if only women turn out to come in varying degrees of homo/hetero preference it would seem to destroy the status of homosexuals as a discrete class.

I know these abstract arguments are unlikely to convince but consider kleptomaniacs or drug users. There is medical evidence that these diseases have genetic predisposition so are immutable in exactly the same way as homosexuality. Just as with homosexuality members of these classes can pass as normal but if they publicly indulge in the behavior they are inclined towards they won’t be elected and in fact are likely to be arrested and denied the right to vote in the future. Certainly with drug users, just as with homosexuals, there is a distinctive culture and self-identification most notably with pot smokers and there is a criminal culture as well. Sure their are people who use drugs then stop or don’t then start but the same can be said with gay sex. Of course gay sex is not morally equivalent to stealing things (it may be morally equivalent to drug use though it is probably less dangerous than anything but pot) but that is exactly the point. The difference between being inclined to steal and being inclined to have homosexual sex is that the first is wrong and the second isn’t but this is exactly the sort of judgement the court shouldn’t be making.

This isn’t to say that there are no valid equal protection claims resting on differing treatment of straight and gay. For instance Romero v. Evans rightly held that Colorado’s constitutional amendment preventing any legislative protections for homosexuals, and thus denying them access to the political process is one example and O’Connor’s concurrence in Lawrence v. Texas makes it clear that prohibitions on homosexual sodomy would have been unconstitutional under the equal protection clause even if they had not been an unconstitutional infringement of liberty. However, these decisions rested either restrictions on political participation triggering a more intense level of scrutiny (Romero) or were decided on the grounds that the government had no rational basis for the law (Lawrence). Unfortunately the government does have a rational basis for only offering marital benefits for straights. Not because straight marriage is somehow better, just the opposite in fact. Straight people in relationships who don’t face legal obstacles to break up and leave someone with a child they are unprepared to raise giving the government a reason to incentives them to become legally hitched.

Rational Basis and Gay Marriage

Marriage costs the government money and interferes with prosecutions (you don’t have to testify against your spouse) but not all of the social goods the government is buying with that money are achieved in gay marriages. However, because gay parents must actively choose to have children the government has less of an incentive to encourage gays having unprotected sex to be tied together in matrimony than it does with straight couples. Ironically, it is the fact that gays are less likely to have an oops and create an unplanned for child that seems to allow the government to screw them over. Of course you might point out that marriage is still offered to the infertile and elderly, but the government doesn’t need to pry into private medical details to deny marriage licensees to couples of the same gender and the elderly will likely use the benefits of marriage for less time and will be less likely to use the protection from spousal testimony to avoid prosecution than the average gay couple.

Obviously these silly little differences aren’t the political motivation for denying marriage to gays and they clearly aren’t enough to justify the suffering they cause but they do provide a rational basis for giving greater benefits to straight marriage. Even if the primary political motivation for denying gays the right to marry is bias it is undeniable that one of the motivations for legal marriage is to encourage stable relationships to for raising children, i.e., prevent the father from running away. Unless we want the supreme court to start overturning laws like NAFTA because the public support of the bill is not based on valid arguments or interviewing all the voters in the legislature to determine what factors affected their decision there isn’t really anything more we can ask for in terms of a rational basis.

In short denying gays the opportunity to marry is obviously unfair and motivated primarily by bigotry and hate. However, the equal protection clause of the constitution simply doesn’t prohibit anything that is unfair or bad and there is nothing to legally set gay marriage apart from other bad or unfair laws (like not correcting the huge disparity between funding of poor and rich schools). Of course if it turns out that marriage is some kind of constitutionally protected right (like voting, life or liberty) everything changes as this might trigger strict scrutiny on its own. This point will be addressed in the next section.

Due Process and the ‘Right’ to Marry

Additionally the plaintiffs allege that denying same sex marriage violates their due process. Unfortunately this claim fares no better than the equal protection claim. Incentivizing certain types of behavior is a perfectly valid governmental function and does not infringe due process. The government is perfectly within its power to give people with children tax breaks and not those without children or create special rights of inheritance and pension benefits for siblings but not cousins or even create an exception to rules requiring testimony for spouses but not parents. In general simply giving one group benefits that another group doesn’t get doesn’t violate due process. Generally due process is violated if some fundamental right or liberty is denied without a compelling government interest.

This naturally brings up the question of whether legal marriage is a fundamental right. Certainly I’m inclined to agree that the choice of life partner and ability to enter into religious or spiritual commitment ceremonies has that status but I see little reason to say the same about state marriage. Perhaps at some time in the past when in social forces in effect prevented cohabitation or public acknowledgment of a relationship without a legal marriage a compelling case could have been made. However, if we are going to let societal changes affect our judgement of what is cruel and unusual punishment or otherwise add new constitutional protections consistency requires we also let certain protections devolve from constitutional status when the original justification no longer holds water.

Don’t get me wrong I don’t doubt that being told you can’t marry is extremely distressing and even the ‘minor’ social disapproval that one feels for not being married is quite unpleasant. However, the real issue here is the unfair treatment of gays not marriage itself and in order to show that the unfair treatment is unconstitutional we must first have demonstrated that marriage is a fundamental right. Yet surely it would be perfectly constitutional to eliminate legal state marriage entirely! If we really had a fundamental right to marriage the state shouldn’t be able to eliminate this right without violating the constitution.

Additionally it is completely unclear what this fundamental right really consists of. Surely the right is not to have a certain word applied by the government to your relationship⁴! Suppose the government decided to give more tax breaks to couples who have stayed together longer (say to discourage parents from splitting up). Would it be unconstitutional for them to junk the term marriage and instead use the terms ‘short binding’, ‘medium binding’ and ‘long binding’ depending on how long the couple has been together? Surely not, yet if this is the case there can be no right to the name marriage even when different sorts of relationships are called different things.

In short marriage is a hodgepodge of various rights, benefits and protections none of which themselves are fundamental rights plus a certain linguistic designation. In the past the social status of legal marriage may have elevated this collection of benefits over and above the sum of its constituents to the status of a fundamental right. At that time one may really have been pragmatically blocked from picking a life partner one could not marry. Now, however, it is at worst regarded as mildly shameful to be ‘living in sin’ and absent the implication of some protected class that just isn’t enough to rise to a level requiring constitutional protection.

Precedent to the Contrary

Having argued that legal marriage should not be a fundamental constitutional right I should point out that the Supreme Court has repeatedly disagreed with me. In Loving v. Virginia, Zablocki v. Wisconsin and most relevantly Turner v. Safely the Supreme Court has held legal marriage is a fundamental right. If so this immediately requires strict scrutiny be applied to any laws restricting this right no matter what groups they affect. Given that there is obviously no compelling governmental interest in keeping gays from marrying the unconstitutionality of these laws would be immediate.

Of course the response to this line of reasoning is going to be that it is only heterosexual marriage which is a fundamental constitutional right. Indeed the appeals court in Robles attempted to analyze the constitutionally recognized fundamental right to marry in terms of procreation and family. However, this flies directly in the face of the Supreme Court’s decision in Turner v. Safley where they stipulate.

First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals. Taken together, we conclude that these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context.

In this passage the Supreme Court specifically rejects the notion that the right to marry is solely derived from some procreative or sexual aspect. They maintain that the governmental benefits, emotional and spiritual aspects (of a legal marriage) are enough to warrant its protection as a fundamental constitutional right even in those situations when sex or even physical contact is impossible. Obviously these considerations apply just as much if not more to a homosexual relationship as they do to a prison inmate. Moreover, while this case makes the point that the constitutional right to marry is not somehow really about child-rearing most forcefully it is not the only decision to support this position. In Zablocki v. Redhail the supreme court held that a law barring marriage unless previous child support obligations had been satisfied was unconstitutional because it infringed the right to marry. Yet if the right to marry was somehow about forming a family or supporting children such a law would seem perfectly consistent with this notion. Moreover, there is no indication that the court’s recognition of the right to marry only extends to couples able to bear children or even those able to have sex.

Of course the New York appeals court was aware of these cases but they dismiss them as only affirming the right to heterosexual marriage. In the language of the decision:

It is beyond cavil that the Supreme Court has recognized a substantive due process right [*14]to marry. See Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). But the right recognized in these decisions concerned opposite-sex and not same-sex couples. See Loving, 388 U.S. at 2, Zablocki, 434 U.S. at 379, Turner, 482 U.S. at 97-98.

While it is true that the language in Turner v. Safley assumes heterosexual marriage the reasoning applies equally well to homosexual marriage. The position taken by the NY appeals court would have us believe that the constitutional right to marriage is wholly arbitrary and does not stem from any justification or the role it plays in people’s lives. The decision not granting gays the right to marry in the face of the Turner precedent essentially amounts to saying that the supreme court arbitrarily choose to give straights the right to marry and all the discussion of tangible and intangible benefits in O’Connor’s opinion was just excess verbiage. That might be acceptable if the Supreme Court was a legislative body able to make policy on a whim or if marriage had been specifically mentioned in the constitution but neither is the case. Quite simply either the Supreme Court’s decision in Turner was completely arbitrary, baseless and deserves to be overturned or the reasoning in the decision is valid and gay marriage too deserves constitutional protection.

Conclusion

In summary I think it is a mistake to regard marriage as a basic constitutional right. As a policy matter I think we should avoid institutionalizing our societal organization into our constitution and as a legal matter I think the argument is weak. However, the Supreme Court has repeatedly chosen to regard marriage as a fundamentally protected constitutional right and precedent suggests we should allow this determination to stand. Regardless of whether you think the constitutional right to marriage ought to be overturned so long as it stands this right must apply to everyone. There simply isn’t any good legal grounds for denying this right to gays and giving it to gays. What the court of appeals did in trying to construe the right to marry as only applying to straight marriage was an egregious twisting of legal reasoning.

Of course there are serious policy concerns with declaring gay marriage to be constitutionally protected. Not least of which the danger of legislatures revoking the court’s jurisdiction. However, the legal situation at least is clear.

The upshot of this is that focusing on Alito’s position on abortion is both a theoretical and pragmatic mistake. Demanding Alito support Roe despite it’s obvious lack of justification on any conservative judicial philosophy further undermines the idea that the supreme court should apply principled legal interpretations not make policy decisions. Demanding Bush nominate someone with a liberal judicial philosophy who could coherently support Roe is a political mistake. Moreover, I think that this focus on Roe is somewhat selfish. Even if Roe is overturned it is quite unlikely that abortions will become illegal again though they will become significantly more difficult to receive. While I don’t want to trivialize the emotional and social consequences of waiting periods for abortions or a narrowed window or abortion it isn’t as significant as being jailed or even executed unfairly. Being raped in prison or otherwise severely mistreated should surely be of greater concern than having to carry a baby to term (just ask yourself which you would choose) and allowing police to terrorize minority and poor communities using drug laws is a serious concern as well. These are all issues on which the supreme court has significant influence but gain little attention compared to Roe. Likely because abortion is an issue relevant to non-minority middle class voters who realize that they or someone they know might need an abortion but are unlikely to be touched by the criminal justice system.

Unfortunately news stories have been circulating for some time suggesting Alito has a very narrow conception of defendant’s rights (though I agree with Alito that the fact the girl was 10 is not of legal importance). While the stories suggest he does strongly support free speech (though I’m not so sure) they also show he thinks almost none of these rights extend inside the prison. Most troubling was the apparent pattern of rarely ruling in favor of a “criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses.” Still in and of themselves these decisions were not enough to make me oppose Alito. It made me suspect that he was allowing a pro law and order view to influence his legal analysis but it was possible he had some principled legal interpretation which mandated these results.

What finally convinced me Alito was doing more than consistently applying a philosophy which happened to construe the rights of defendants narrowly was this report from a clerk who served in the Third Circuit with Alito. Apparently in addition to merely ruling in favor of the prosecutor in this case Alito actually went out and did research to manufacture a new argument for the prosecutor. Whether or not judges should ever take such an active role (I think they should when the defendant has inadequate representation) Alito’s action is troubling as there is no evidence of him going to similar efforts for defendants, something I expect would have been trumpeted by his defenders to counter accusations Alito is pro-government. Additionally the argument Alito manufactured for the prosecution was a procedural argument, he pointed out the defendant hadn’t exhausted his options in state court, making it highly unlikely his additional effort was motivated by some concern over overlooked evidence or other substantive issues. So unless you believe Alito feels so strongly about procedural bars to appeal that he goes far out of his way to make sure they are enforced it is hard to avoid the conclusion that he was motivated by a desire not to see the defendant overturn his death sentence. Since it is far more plausible that someone went to great effort to prevent a murder from escaping justice than to enforce a rule designed to avoid overburdening the federal court system I can’t avoid thinking Alito is indulging in outcome oriented judging, a thought which is quite disturbing given his apparent pro-government leanings.

Admittedly this is not proof that Alito is particularly willing to inject his personal prejudices but it makes it far too probable for comfort. The prospect of a conservative supreme court justice who searches for legal justifications of his preferences instead of trying to interpret the constitution in good faith is too disturbing to risk. Moreover, if Alito is willing to cloak the real motivations for a decision in apparently objective legal reasoning might he not be willing to cloak his real legal beliefs in order to get on the supreme court? Overall the risk that Alito will use the supreme court to further his own policy preferences seems too great and there are other conservative justices who will apply their legal philosophies in good faith.

For those who don’t know what I’m talking about the liberal blogs have been going nuts over the revelation that Alito did not recuse himself from a case involving Vanguard corp. despite submitting a sworn statement (page 43) to the Senate that he would do just that during his confirmation hearings. To my knowledge no credible source has yet claimed hearing the case in and of itself was an ethical violation. The complaint is just that he violated his sworn ‘promise’.

The primary problem with this complaint is that there is no such thing as a sworn promise. Yes Alito submitted a sworn statement to the Senate saying he would recuse himself in such cases but what he is swearing to is the truth of his statements not some future commitments (go read the end of the questionnaire if you don’t belief me). Given that 15 years elapsed between his statement and the case in question there is every reason to believe he really did intend to step aside in such cases when he submitted the statement. Not only does his statement not legally obligate him not to change his mind it would be wrong of him to let an ancient ‘promise’ force him into making a decision on the bench he thought was unjust. Of course recusing himself is hardly a big deal but the principle is the same.

If you are still unconvinced that this is just a liberal witch-hunt let’s consider the question on page 46 of the same questionnaire. This question asks how Alito feels about judicial activism. Suppose (falsely) that Alito had said he would decide constitutional issues in accordance with philosophy of strict constructionism. If on the bench Alito realized that this philosophy was flawed and a much broader interpretation of the constitution was warranted should he still abide by his ‘promise’? Unless you feel it would be wrong of Alito to vote to uphold Roe v. Wade after making such a statement it just isn’t consistent to call him out for changing his mind on this issue. You just can’t have it both ways, either these ‘promises’ are binding or judges have the right to change their mind.

Ultimately I find the idea that judges are morally, even if not legally, obligated to respect such promises very troubling. Such an attitude would gravely imperil the independence of the judiciary. If judges faced a strong societal censure for revising opinions they shared with the Senate they would not have the chance to grow and evolve as justices. Yet it is equally important that the Senate have enough information to evaluate the nominee and be able to ask what philosophy the nominee intends to apply.

This entire discussion makes me embarrassed to be a liberal. I mean jesus christ people is this really the reason you are opposed to Alito? If you had found out your favorite supreme court nominee had done the same thing would you really change your mind about them? I very much doubt it so lets keep the discussion focused on the real issues.