Departmentalism, Revisited

I somewhat cavalierly dismiss departmentalism in "No Way Out?" (05 Dec 2004), where I address alternative ways to stop "The Erosion of the Constitutional Contract" (23 Mar 2004). William J. Watkins Jr. explains departmentalism by way of example:

Departmentalist theory is perhaps best examined in the context of President Jefferson's approach to the Sedition Act. Upon entering office, Jefferson ordered the cessation of all federal sedition prosecutions and he pardoned those who had been convicted. In 1804, Jefferson received a letter from Abigail Adams criticizing his handling of the Sedition Act controversy. Mrs. Adams argued that because the judges had upheld the Sedition Act, President Jefferson had overstepped his constitutional bounds when terminating prosecutions and pardoning offenders.

In a polite response, Jefferson reminded Mrs. Adams that "nothing in the constitution has given [the judges] the right to decide for the executive, more than the Executive to decide for them." Both branches, continued Jefferson, "are equally independent in the sphere assigned to them." Jefferson recognized that the judges, "believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution." However, this did not bind him when performing his duties as chief executive. Because he believed the Sedition Act was unconstitutional, he "was bound to remit the execution of it."

Departmentalism may be alive and well, at least with respect to John McCain's status as a "natural born Citizen" under Article II, Section 1, of the Constitution of the United States. As Matthew J. Franck argues, it is not up to the Supreme Court to decide McCain's citizenship status (as some would have it), it is up to the Electoral College and Congress. And that will be that.

Almost Too Absurd for Words

From SCOTUSblog:

Lawyers for Virginia death-row inmate Christopher Scott Emmett told the Supreme Court on Monday that the state follows a “unique and uniquely dangerous” method of execution by lethal injection.

A synonym of "dangerous" is "life-threatening." An execution is meant to be life-threatening. In fact, a successful execution is life-taking.

Thats the real issue, isn't it? Mustn't threaten a condemned convict with execution. (Tsk, tsk.) It might kill him.

Related posts:
"Does Capital Punishment Deter Homicide?" (04 Oct 2004)
"Libertarian Twaddle about the Death Penalty" (13 Oct 2004)
"Crime and Punishment" (23 Mar 2005)
"Abortion and Crime" (15 May 2005)
"Saving the Innocent?" (23 Jul 2005)
"Saving the Innocent?: Part II" (27 Jul 2005)
"More on Abortion and Crime" (28 Nov 2005)
"More Punishment Means Less Crime" (03 Jan 2006)
"More about Crime and Punishment" (06 Jan 2006)
"More Punishment Means Less Crime: A Footnote" (17 Jan 2006)
"Clear Thinking about the Death Penalty" (23 Jan 2006)
"Let the Punishment Fit the Crime" (14 Apr 2006)
"Another Argument for the Death Penalty" (07 Jun 2006)
"Less Punishment Means More Crime" (25 Aug 2007)
"Crime, Explained" (09 Nov 2007)

The "Good Old Days" of the Fourth Amendment?

Orin Kerr tries to identify the "good old days" of the Fourth Amendment, which reads:

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.

According to Kerr:

If you had to identify a "high point" of Fourth Amendment protection, I suppose you might pick the window from December 1967 to May 1968, or maybe the six years from December 1967 until some of the pro-law enforcement decisions of the Court in 1973. But if that's right, it seems to me that the "good old days" of the Fourth Amendment were actually a pretty narrow window of time: anywhere from a few months to five or six years, around forty years ago, out of a 217-year history of the Fourth Amendment.

Kerr's high point should be called a low point. The six years from 1967 to 1973 were "good old days" when law enforcement was hamstrung in its efforts to protect us from predators. One result was to reinforce the upward trend in the rate of violent and property crimes.

In any event, the Fourth Amendment has been distorted out of all recognition, as I explained in writing about the U.S. Supreme Court's decision in Hudson v. Michigan:

[T]he majority ... believed that the case did not involve a "knock-and-announce" violation. But the majority could not change the fact of Michigan's concession that there was such a violation. So the majority did the next best thing; it prevented Hudson from getting off scot-free, in spite of the supposed violation. How? The majority found the "exclusionary rule" inapplicable and allowed the evidence found in Booker Hudson's home to be used against him.

By its action the majority also forestalled claims similar to Hudson's. The second-guessing by prosecutors and judges of reasonable judgments made by the police in the execution of their duties -- especially in the execution of lawful warrants -- is not a defense of liberty. Rather, it undermines liberty by making it easier for predators like Booker Hudson to elude justice, on the questionable theory that "it is better that ten guilty persons escape than that one innocent suffer."

I contend, further, that a proper reading of the Constitution would require either "knock-and-announce" or a warrant, not both. At the time of the framing, when "knock-and-announce" was accepted law, warrants were not accepted law. As William J. Stuntz writes in The Heritage Guide to the Constitution (pp. 326-9):

. . . When the Fourth Amendment was written, the sole remedy for an illegal search or seizure was a lawsuit for money damages. Government officials used warrants as a defense against such lawsuits. Today a warrant seems the police officer's foe -- one more hoop to jump through -- but at the time of the Founding it was the constable's friend, a legal defense against any subsequent claim. Thus it was perfectly reasonable to specify limits on warrants (probable cause, particular description of the places to be search and the things to be seized) but never to require their use.

Hudson served justice, while remaining true to the original meaning of the Constitution.

Hudson may not have been the high point of Fourth Amendment jurisprudence, but it was among the higher points.

Originalism vs. the "Thin" Constitution

See this and this.

A Case for the Second Amendment

The Second Amendment protects an individual right to bear arms, as the U.S. Supreme Court will decide (I think). That right is predicated on, among other things, the need for private citizens to protect themselves against an overbearing state. The overbearing state, in this instance, is the State of New Mexico -- its Human Rights Commission to be precise. Praise the Second Amendment and pass the ammunition.

P.S. Here's another relevant case, also involving New Mexico. (It occurs to me that the adjective "New" is window-dressing. Mexico is Mexico, even when it's dressed up as "New.")

Bail-Outs

For my views about the present effort to bail out home buyers who borrowed money foolishly and lenders who lent money foolishly, see this and this. Just change the subject from bankruptcy to default.

An Honest Woman Speaks Out

The "My Turn" feature in the April 14 issue of Newsweek offers "I Am Not the Enemy," by Felicia J. Nu'Man. She writes so compellingly and wisely that I am tempted to reproduce her every word. But I won't. Here's a sample:

I battle crime every day, and I defend myself every day, too. I'm a [__] prosecutor in Louisville, Ky. I have presented cases before juries, but from my first day on the job I have felt that I have been on trial in the court of public opinion. Even my maternal grandmother once asked if I was a Republican (I'm not), while others just asked the ultimate question: how can you put our [__] men in jail?

Depending on my mood, the answer can be a three-part speech on the decay of moral values, educational-attainment levels and teenage motherhood. Other times I simply tell them the defendants put themselves in the penitentiary and I facilitated their exodus from the community. Or better yet, my favorite answer: I didn't put the crack in their pocket and a gun in the other....

My job is not that of a social worker or a social scientist. I was hired to enforce the laws as drafted. I have a duty to the citizens of the Commonwealth of Kentucky, including all the [__] victims of the drug culture. These victims are not just the dead rival drug dealers but the addicted mothers who neglect their children, the neglected children themselves and the overburdened extended families who care for these addicts and their children.

...Race does not enter the equation for me. My question to these [__] people who believe me to be a traitor is, when will you connect the dots? Please realize, the police and the prosecutors are not the problem; it is the criminals in these depressed neighborhoods who are.

...Of course, [__] people are treated unfairly. Of course, the inner cities have a decaying infrastructure. But there is absolutely no reason to break a reasonable, appropriate law. None. The alternative is chaos.

If you hadn't guessed, my underscoring replaces the word "black." And Nu'Man is a brave and wise woman who happens to be black:

James Chance / Rapport for Newsweek

The "Thin" Constitution

Not long ago I came across Louis Michael Seidman's "Can Constitutionalism Be Leftist?" The paper is an encomium, of sorts, to Seidman's mentor, Mark Tushnet, who seems to be something oxymoronic, namely, a constitutionalist-socialist. How one could claim to be both things with a straight face is beyond me. It is true, however, that lawyers, politicians, and deluded citizens have conspired (often unwittingly, always in the name of "good," and seldom admitting their socialism) to replace the Constitution with a socialist manifesto (e.g., see this and this).

In any event, Seidman remarks (on page 5) that

Most of the great goals of the Constitution's preamble that form the center of Tushnet's thin constitution -- to "establish Justice ... promote the general Welfare, and secure the Blessings of Liberty...."

Which is to admit that Tushnet does not honor the Constitution. For the Constitution is not its preamble, it is the text that follows. That text specifies, in some detail, how justice, the general welfare, and the blessings of liberty are to be realized under law.

Tushnet's "thin" Constitution, then, is no Constitution at all. It is a do-it-yourself approach to law, in which the majority may steal the minority's property, and vice versa, as long as it is done in the name of "social justice." (See also this.)

The Fed: Unconstitutional and Worse than Useless

Here and here.

Panhandling as Speech?

That's right, panhandling is a form of speech, according to a Travis County, Texas, judge:

A city [of Austin] ordinance designed to keep people from begging for money or jobs on the side of some Austin roads has been declared unconstitutional for the second time in less than three years.

In an opinion that criticizes the ordinance as overly broad and questions the city's argument that it is necessary to ensure traffic safety, Travis County Court-at-Law Judge J. David Phillips upheld a 2005 Municipal Court decision that overturned the city's sidewalk solicitation rules.

"This ordinance reaches conduct that has little or nothing to do with traffic safety and very much to do with constitutionally protected speech," Phillips said in an opinion issued Thursday.

Travis County, of course, is dominated by Austin. It is, in other words, a Blue enclave in a Red State.

I would bet that Judge Phillips, as a defender of panhandlers' "free speech" right to distract drivers (and worse), also subscribes to the Orwellian idea that freedom of speech is served by the McCain-Feingold Act.

That's the way it is in the People's Republic of Austin.

You might wonder why the true-Blue denizens of Austin are so "heartless" as to restrict panhandling (via their Leftist city council). It's a white-liberal-yuppie kind of thing. (And Austin is chockablock with white-liberal-yuppie persons.) One "feels for" the homeless, etc., but one don't want them to get too close to one's shiny $60k SUV.

Texas Wins, the Constitution Stands

Jonathan Adler, writing at The Volokh Conspiracy, summarizes the win by Texas:

The Supreme Court handed down its decision in Medellin v. Texas today. Chief Justice Roberts wrote the majority opinion, which held that neither a judgment of the International court of Justice nor the President's executive order directing state courts to follow the ICJ's judgment constituted federal law that pre-empts a state's pre-existing bar on the litigation of subsequent habeas petitions....

This appears to be quite a significant win for Texas (and states) that wil lhave significant ramifications for both separation of powers and the application of international law in U.S. courts.

(See also these three posts at Bench Memos.)

Among other things, the Court's holding in Medellin supports what I have written (in the context of war): "a treaty ... may neither violate nor change the meaning of the Constitution." Therefore, no treaty -- and no presidential act (purportedly) pursuant to a treaty -- may trump the Constitution or a constitutional law, either State or federal.

Obama vs. the Second Amendment

Barack Obama's speech about racism in America vied for blogospheric attention with today's oral argument in District of Columbia v. Heller (the U.S. Supreme Court's first Second Amendment case since 1939).

Here are some key passages from Obama's speech:

The profound mistake of Reverend Wright’s sermons is not that he spoke about racism in our society. It’s that he spoke as if our society was static; as if no progress has been made; as if this country – a country that has made it possible for one of his own members to run for the highest office in the land and build a coalition of white and black; Latino and Asian, rich and poor, young and old -- is still irrevocably bound to a tragic past. But what we know -- what we have seen – is that America can change. That is true genius of this nation. What we have already achieved gives us hope – the audacity to hope – for what we can and must achieve tomorrow.

In the white community, the path to a more perfect union means acknowledging that what ails the African-American community does not just exist in the minds of black people; that the legacy of discrimination - and current incidents of discrimination, while less overt than in the past - are real and must be addressed. Not just with words, but with deeds – by investing in our schools and our communities; by enforcing our civil rights laws and ensuring fairness in our criminal justice system; by providing this generation with ladders of opportunity that were unavailable for previous generations. It requires all Americans to realize that your dreams do not have to come at the expense of my dreams; that investing in the health, welfare, and education of black and brown and white children will ultimately help all of America prosper....

This time we want to talk about the crumbling schools that are stealing the future of black children and white children and Asian children and Hispanic children and Native American children. This time we want to reject the cynicism that tells us that these kids can’t learn; that those kids who don’t look like us are somebody else’s problem. The children of America are not those kids, they are our kids, and we will not let them fall behind in a 21st century economy. Not this time.

This time we want to talk about how the lines in the Emergency Room are filled with whites and blacks and Hispanics who do not have health care; who don’t have the power on their own to overcome the special interests in Washington, but who can take them on if we do it together.

This time we want to talk about the shuttered mills that once provided a decent life for men and women of every race, and the homes for sale that once belonged to Americans from every religion, every region, every walk of life. This time we want to talk about the fact that the real problem is not that someone who doesn’t look like you might take your job; it’s that the corporation you work for will ship it overseas for nothing more than a profit.

It's the politics of victimhood. It's the politics of socialism. It's the politics of class warfare. It's the politics of economic ignorance. Not a word about cultural influences or dependency on the state. Not a word about the growth of real income at all levels (not just at the top). Not a word about upward economic mobility, which is the norm in America. Not a word about the fact that economic progress depends upon that "dirty" profit motive.

Obama's speech may be "eloquent," in some sense. But it fully reveals him for the dangerous demagogue that he is: a latter-day FDR.

As for the Second Amendment, I predict a 5-4 decision in D.C. v. Heller that upholds an individual right to own a handgun for the purpose of self-defense, subject to "reasonable" regulation in the interest of safety. Some of the dissenters will maintain, illogically, that handguns should be prohibited in jurisdictions with high rates of crime (e.g., D.C.). As if criminals honor bans on handgun ownership. And so it goes, in the upside-down world of liberalism.

9/11 Plotters and the Death Penalty

Should the U.S. execute the 9/11 plotters being held at Guantanomo? AG Mukasey says "no," and Stephen Bainbridge circles the issue several times before agreeing with the AG:

Let KSM and his pals sit in Guantanamo for the rest of their lives, contemplating their sins.

Doug Mataconis seems to agree with Prof. Bainbridge:

The visceral reaction is to say that these men should die a slow, painful death. But I’ve got to wonder what that’s going to accomplish at this point.

I stand by what I said three years ago:

Justice serves civilization and social solidarity.... [I]t meets the deep, common need for catharsis through vengeance, while protecting the innocent (and all of us) by replacing mob rule with due process of law.

Justice -- to serve its purposes -- must be swift, sure, and hard. That is, it must work and be seen to work, by the just and unjust alike.

"Swift" and "sure" seldom apply to the death penalty anymore, but "hard" certainly does. The need for social catharsis through judicial vengeance was never greater than in the case of 9/11. Fry 'em.

In Search of Consistency

I have written:

Think of the fine mess we'd be in if the courts were to rule against the teaching of intelligent design not because it amounts to an establishment of religion but because it's unscientific. That would open the door to all sorts of judicial mischief. The precedent could -- and would -- be pulled out of context and used in limitless ways to justify government interference in matters where government has no right to interfere.

It's bad enough that government is in the business of funding science -- though I can accept such funding where it actually aids our defense effort. But, aside from that, government has no business deciding for the rest of us what's scientific or unscientific.

The context for those observations was the legal controversy (Kitzmiller v. Dover Area School District) about the decision of the Dover, Pennsylvania, School Board to mandate that students in public school biology classes be taught the theory of intelligent design (ID) as an alternative to evolution.

Timothy Sandefur seems sympathetic to my general point, when he writes about

the public policy problem of the courts determining what sets of unprovable beliefs are and are not objectively irrational. On one hand, courts have even gone so far as to take judicial notice of the irrationality of certain beliefs. See, e.g., United States v. Downing, 753 F.2d 1224, 1238 n. 18 (3d Cir. 1985) (courts may take judicial notice of the invalidity of phrenology or astrology). But on the other hand, taking a step in this direction threatens important Establishment Clause and Free Exercise rights. That’s why in United States v. Ballard, 322 U.S. 78 (1944), the Court found that it could not inquire into the scientific validity (or lack thereof) of faith healing, in a case involving a mail fraud prosecution. If courts can determine that certain beliefs with regard to ghosts are objectively irrational and untrue, then what about religious beliefs (which are, in fact [according to Sandefur: LC], objectively irrational and untrue)?

And, yet, Sandefur has been a vocal defender of the Kitzmiller decision, in which Judge John E. Jones III held that

the facts of this case make[] it abundantly clear that the Board’s ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not... (emphasis added).

Perhaps Sandefur will tell us how he has reconciled his apparently conflicting views. He does not tell us in his paper, "A Response to the Creationists' "Neutrality" Argument." The argument of that paper boils down to this:

• Schools exist for the purpose of teaching facts and sound thinking.

• Therefore, schools should not teach things like ID, which Sandefur calls "objectively irrational and untrue), even though there is no scientific basis for accepting or rejecting ID. (See, for example, this post and the posts linked therein.)

• Public schools are governmental institutions.
  

• Government cannot be in the business of establishing religion.

• Therefore, as governmental institutions, schools should not teach ID (a cover story for creationism) as an alternative to evolutionary theory.

In sum, Sandefur parlays an unprovable allegation about ID into a first-amendment case on the strength of the fact that public schools are governmental institutions. That's true enough. But public schools are not government. That is, unlike legislatures, executives, and judges, they do not control the machinery of the state. Public schools are governmental institutions in the same way that my city-owned electric company is a governmental institution. In both cases, government simply has seized control of what could just as easily be a private institution (and a better one for it). Public schools become "government" only to the extent that government dictates what is taught (or not taught) in public schools, as it does in Kitzmiller.

Sandefur, in essence, argues that government ought to control schools (an anti-libertarian idea) so that it can control the content of what is taught in schools. And that content should advance his "objectively" correct atheistic agenda. Sandefur (like Marx) evinces a naïve faith in what he calls science:

Science’s focus on empirical evidence and demonstrable theories is part of an Enlightenment legacy that made possible a peaceful and free society among diverse equals. Teaching that habit of mind is of the essence for keeping our civilization alive. To reject the existence of objective truth is to reject the the possibility of common ground, to undermine the very purpose of scholarly, intellectual discourse, and to strike at the root of all that makes our values valuable and our society worthwhile.... At a time when Americans are threatened by an enemy that rejects science and reason, and demands respect for dogmas entailing violence, persecution, and tyranny, nothing more deserves our attention than nourishing respect for reason.

In fact, Americans -- and liberty -- are threatened by many things, not the least of which is dogmatism of the kind Sandefur evinces. As I say here, "Liberty ... to the 'libertarian' Left, is the 'right' to believe as they do."

Liberty demands, first and foremost, mutual respect. Science is not a breeding ground for mutual respect, as the controversy about global warming (among other issues) should remind us. Ironically (for Sandefur), mutual respect arises mainly from a concept that is widely associated with religion, namely, the "Golden Rule."

Why Legal Ethics Is an Oxymoron (II)

In an earlier post I merely linked (without comment) to a post by Eugene Volokh (The Volokh Conspiracy). There, Volokh defends a technically ethical (but blatantly wrong) act on the part of two lawyers. The act? Volokh quotes a report by CBS:

Alton Logan doesn't understand why two lawyers with proof he didn't commit murder were legally prevented from helping him. They had their reasons: To save Logan, they would have had to break the cardinal rule of attorney-client privilege to reveal their own client had committed the crime. But Logan had 26 years in prison to try to understand why he was convicted for a crime he didn't commit....

Lawyers Jamie Kunz and Dale Coventry were public defenders when their client, Andrew Wilson, admitted to them he had shot-gunned a security guard to death in a 1982 robbery. When a tip led to Logan's arrest and he went to trial for the crime, the two lawyers were in a bind. They wanted to help Logan but legally couldn't....

The lawyers did get permission from Wilson, to reveal upon his death his confession to the murder Logan was convicted for. Wilson died late last year and Coventry and Kunz came forward. Next Monday, a judge will hear evidence in a motion to grant Logan a new trial.

This is Volokh's initial defense of Kunz and Coventry's failure to prevent the injustice to Logan:

[M]y understanding is that there is indeed no exception from attorney-client confidentiality in such cases. (If a client tells you that he intends to commit a crime in the future, you may be able to turn him in, but not when he admits that he has committed a crime in the past.)

Why should lawyer-client confidentiality trump justice? One line of thought (suggested by various commenters at Volokh) is that a breach of lawyer-client confidentiality might deter some clients from seeking legal counsel. Well, yes, it might deter guilty clients from seeking legal counsel. But how often is a guilty client candid about his guilt, anyway? Lawyers often defend guilty clients who haven't been candid about their guilt. Suspecting that a client is guilty and knowing that he is guilty are two different things. A lawyer who doesn't know that his client is guilty is probably better prepared, psychologically, to defend the client.

What about the excuse that professional ethics prevent lawyers from breaching attorney-client privilege? That excuse merely begs the question, in that codes of ethics are written and approved by lawyers.

Volokh has since penned a second post on the subject:

Some reactions to my "a classical ethical bind for lawyers" post suggested that the ethical question was easy:

The lawyers whose client had said he committed a murder should have revealed that information in order to free the person who was wrongly imprisoned for that murder, even assuming that would have meant disbarment or long-term suspension for violating lawyer-client confidentiality. If they didn't do this, they'd be acting unethically.

But even assuming that the underlying confidentiality rule is unsound, surely it's not so clear that people have an ethical duty to save another's life at such great expense. My guess is that if you spent $10,000, you could likely save the life of some sick child in Africa; if you spent $50,000, I imagine this would be even likelier (and perhaps the number is actually a lot less). If you donated a kidney — which will expose you to a roughly 0.03% risk of death, and a slightly larger but still very small risk of complications — you could dramatically reduce a roughly 20% or more risk of death for someone on the kidney waiting list (since that's how risky it is for him to be on long-term dialysis while he's waiting for a new kidney). If you find someone who's near the tail of the waiting list, you might reduce a still greater risk. Yet most of us wouldn't say, I think, that it's really your ethical obligation to run such a risk, or bear such a cost, to save a stranger's life.

Likewise, I don't think that it's really your ethical obligation to lose what is likely hundreds of thousands of dollars in future income, by giving up a profession that you spent over a hundred thousand dollars to train for. You might deserve credit for making such a choice (assuming we conclude that the ethical rule you're violating is indeed unsound). But that's different from saying that you have an ethical duty to make that choice.

So, the bottom line (for Volokh) seems to be the "bottom line." But this still begs the question. Lawyers could change their code of ethics to allow for cases similar to that of Alton Logan. Having thusly changed the code, a breach of attorney-client privilege (where warranted) would not result in disbarment and might not cause a loss of income. (Even where it might cause a loss of income, there is no argument in equity for Volokh's position, as I explain below.)

Moreover, a change in the legal code of ethics to allow exculpatory breaches of confidentiality would instill greater confidence, not less, in the legal system. The public, on the whole, would be more inclined to believe that lawyers (especially criminal defense lawyers) serve justice. The case of Alton Logan reinforces the contrary perception, namely, that law is not justice.

I would go one step further in the interest of justice. I would make it a crime for a lawyer to withhold information that might exculpate a non-client for the sake of protecting a client. The law would then serve justice.

What about Volokh's argument that lawyers (among others) do not have "an ethical duty to save another's life at ... great expense"? Suppose, for example, that lawyers who breach confidentiality in a circumstance allowed by their profession's (revised) code of ethics and mandated by (revised) statutory law would nevertheless lose all of their remaining clients. Given that, Volokh argues (in effect), it would be equitable to force the rich to save the lives of starving African children, and to force anyone who has two healthy kidneys to donate one of them to a person who is on a kidney waiting-list.

Here's my answer: A lawyer who withholds exculpatory information commits a harm; that is, he causes someone to be punished wrongly for a crime. That is not the case with a person who doesn't give money to starving African children or who doesn't donate a kidney to a person in need of one. The harm (starvation or kidney failure) isn't caused by the person who withholds the money or kidney.

In sum, Volokh's defense of Kunz, Coventry, and their ilk is fatally flawed. It begs the question and poses false analogies. One might say that Volokh is being lawyerly.

Why Legal Ethics Is an Oxymoron

Read this post, at The Volokh Conspiracy.

Religious Discrimination or Free Exercise?

Eugene Volokh is exercised about a ruling by the Supreme Court of Michigan in a child-custody case, which he characterizes as unconstitutional:

Michigan parents know that, to maximize their chances of keeping custody of their children, they need to go to church more often. A solid violation of the Establishment Clause, I think, plus of the Michigan Constitution's religious freedom provision:

Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend ... any place of religious worship .... The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.

Volokh's real beef is with the Michigan statute (Child Custody Act of 1970), which spells out the "best interest" factors to be considered in child-custody cases. He specifically objects to the italicized portion of section 3(b):

The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any (emphasis added).

I cannot grasp the basis of Volokh's objection. Neither the statute nor (in what I have read) any court's interpretation of it seems to violate the relevant portion of the First Amendment:

Congress [and by incorporation through the Fourteenth Amendment, the States] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....

The Michigan statute wisely gives proper recognition to the importance of religion (among several other factors) in the upbringing of a child. That's all it does.

The clause at issue is not an establishment of religion. It does not force anyone to practice a religion. It simply gives due credit to a parent who continues to raise his or her child in the religion in which the child already was being raised, if any.

The clause at issue does not bar the free exercise of religion. Contrary to what Volokh seems to think, it is not a child's place to dictate his or her religious upbringing. Would Volokh think it good to allow a child to decide (against parental command) to drop out of school at the age of, say, ten? I don't think so. What makes religion different than education? Nothing, except that Volokh finds it objectionable that Michigan's legislature and courts recognize the value of religion in the upbringing of a child.

Volokh, like so many other determined secularists, cannot countenance any governmental act that seems to approve of religion. But, contrary to Thomas Jefferson, there is no "wall of separation" between church and state, as Justice Antonin Scalia reminds us:

The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate.... The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “ a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God.”... President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789 on behalf of the American people “ ‘to the service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be,’ ”... thus beginning a tradition of offering gratitude to God that continues today.... The same Congress also reenacted the Northwest Territory Ordinance of 1787,... Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”... And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection.

These actions of our First President and Congress ... were not idiosyncratic; they reflected the beliefs of the period. Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality.

And they were right.

The Real Constitution: I

This is the first installment of an effort to contrast the present, judicial interpretation of the Constitution with its original meaning, section by section and clause by clause. I draw heavily on The Heritage Guide to the Constitution (hereafter Heritage Guide). All quoted passages of the Constitution (including the Bill of Rights and other amendments) are from the version published by the National Records and Archives Administration.

PREAMBLE

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Preamble has no substantive legal meaning, but it is significant because it specifies the Constitution's purposes. The most commonly misunderstood term in the Preamble is "general Welfare," a term which recurs in the Spending Clause of Article I, Section 8. I will deal with the Spending Clause in its turn. As for the Preamble:

The word "Welfare" is crucial: in the eighteenth century the definition of welfare included well-being., but it also and equally encompassed happiness.

The Preamble as a whole, then, declares that the Constitution is designed to secure precisely the rights proclaimed in the Declaration [of Independence]. The Constitution was therefore not the negation of the Revolution; it was the Revolution's fulfillment.

Forrest McDonald, Heritage Guide, p. 46

LEGISLATIVE VESTING CLAUSE

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

(Article I, Section 1)

Much of what Americans and American businesses are permitted to do, under the regime that controls our lives and livelihoods, is determined not by legislation but by regulation. Congress has divested much of its legislative authority to the executive branch, where regulators do the work of legislators:

In 1928, the [U.S. Supreme] Court upheld a statute delegating the the President the power to adjust tariffs to any rate, within a wide range, he found necesary to "equalize the ... differences in costs of production in the United States and the principal competing country." J.W. Hampton, Jr. & Co. v. United States. In that case the Court for the first time set out what remains the governing standard: a "legislative action is not a forbidden delegation of legislative power" if the "Congress shall lay down by legislative act an intelligible principle to which the person or body [to whom power is delegated] is directed to conform."...

[Thus t]he Court found in Whitman v. American Trucking Associations, Inc. an intelligible principle in Congress's directive to the Environnmental Protection Agency to promulgate air quality standards "requisite to protect the public health" with "an adequate margin of safety." Because no standard could eliminate all significant adverse effects to health, the statute effectively delegated to an unelected and unaccountable agency the decision how far our society should go and how many billions of dollars should be spent to reduce the adverse health effects of industrial pollution, a decision that seems quintessentially legislative, but undoubtedly one for which legislators would prefer to avoid responsibility.

Douglas Ginsburg, Heritage Guide, pp. 47-8

See "The Constitution: Myths and Realities".

Lochner, Where Are You When We Need You?

SCOTUSBLOG reports:

Supreme Court Justice Anthony M. Kennedy refused on Thursday afternoon to forbid the city and county of San Francisco to continue enforcing a local ordinance that sets minimum levels of spending by employers for their workers’ health care.

Back when the U.S. Supreme Court upheld the Constitution, the City of San Francisco would have thought long and hard before interfering in employment relationships. (See Lochner v. New York.) But that was before the New Deal Court began to find constitutionality in government-imposed conditions of employment, from mandatory unionization to Social Security to affirmative action.

Well, if the Circuit Court and the U.S. Supreme Court uphold San Francisco in this case, that "fair" city will be waving bye-bye to a lot of companies and a lot of jobs.

Related posts:
"The Cost of Affirmative Action" (01 Jun 2004)
"A Very Politically Incorrect Labor Day Post" (06 Sep 2004)
"Freedom of Contract and the Rise of Judicial Tyranny" (07 Sep 2004)
"Social Security Is Unconstitutional" (31 Oct 2004)
"Race, Intelligence, and Affirmative Action" (05 Dec 2004)
"An Agenda for the Supreme Court" (29 Jun 2005)
"Substantive Due Process, Liberty of Contract, and States' 'Police Power'" (28 Nov 2005)
"Positive Rights and Cosmic Justice: Part IV" (06 Aug 2007)

The Heritage Guide to the Constitution

I worked my way slowly through The Heritage Guide to the Constitution after receiving my copy more than two years ago. I finished the Guide two days ago. The exercise confirmed what I already knew, namely, that the original meaning of the Constitution (including its amendments) has been twisted badly.

I am now embarked on an effort to contrast the present, judicial interpretation of the Constitution with its original meaning, section by section and clause by clause.