This Day in Liberal Judicial Activism—August 17

by Ed Whelan

2006—In what one expert commentator aptly labels a “transparently political screed,” Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency’s Terrorist Surveillance Program is unconstitutional. Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor’s “careful, thoroughly grounded opinion.”

Alas for the paper’s poor editorialists, the following day the Times runs a front-page article—“Experts Fault Reasoning in Surveillance Decision”—that reports that “[e]ven legal experts who agreed with [Taylor’s] conclusion” say that her opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.” (How’s that for “careful” and “thoroughly grounded”?)

Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor’s critics for self-indulgent criticism, complains that her opinion “seems almost to have been written more to poke a finger in the President’s eye than to please the legal commentariat or even, alas, to impress an appellate panel.” But Tribe concludes that “her bottom line is very likely to survive appellate review.”

In July 2007, the Sixth Circuit overturns Taylor’s ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims. 

2009—Purporting to be carrying out its duty to defend the Defense of Marriage Act, the Obama administration’s Department of Justice instead sabotages that law. Abandoning strong arguments that had been successful in previous litigation, DOJ asserts in a brief that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.” As one supporter of same-sex marriage puts it (emphasis added):

“This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.”

This Day in Liberal Judicial Activism—August 16

by Ed Whelan

1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review. 

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.

This Day in Liberal Judicial Activism—August 15

by Ed Whelan

1938—Stephen Gerald Breyer is born in San Francisco. An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee. His reward: On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit. His nomination is promptly confirmed. In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court. (See This Day for July 29, 1994.) His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.”

This Day in Liberal Judicial Activism—August 13

by Ed Whelan

2015—In State v. Santiago, the Connecticut supreme court rules by a 4-3 vote that the death penalty “as currently applied” violates the state constitution. (Under some quirk of Connecticut procedure, the “official release” date of the ruling is August 25.)

The majority relies heavily on the fact that the Connecticut legislature prospectively repealed the death penalty in 2012. It thus effectively expands the legislature’s prospective-only repeal into a retroactive repeal of the death penalty for the twelve convicts who were sentenced to death for crimes committed before the 2012 enactment.

The court’s ruling ought to make it more difficult for other legislatures to repeal the death penalty prospectively. Any such purported prospective-only repeal will now be known to present a huge risk that a state court will determine that the death penalty cannot be applied at all. And the specific heinous criminals who will benefit from that abolition will be easy for legislators and their constituents to identify, as the last several pages of associate justice Carmen Espinosa’s powerful dissent make clear.

Randy Barnett’s Our Republican Constitution—Part 2

by Ed Whelan

I have some comments on, and questions about, the models of a “Democratic Constitution” and a “Republican Constitution” that Randy Barnett presents in Our Republican Constitution (and that I summarized in my Part 1 post):

1. I happily embrace the proposition that a constitution, like ours, that is founded on a political philosophy of natural rights differs in a fundamental sense from one that isn’t—and that that difference may well have implications for the judicial role in enforcing individual rights. Insofar as Barnett’s competing notions of “first come rights and then comes government” (Republican Constitution) and “first comes government and then come rights” (Democratic Constitution) are meant to contrast the philosophical logic (rather than the temporal sequence) of the two approaches, I’m on board.

2. But Barnett posits a more basic—and, to my mind, puzzling—divide between a Republican Constitution and a Democratic Constitution.

Put simply, I don’t think that I grasp his two competing notions of popular sovereignty—one (in the Democratic Constitution) that “starts with a collective vision of We the People” and one (in the Republican Constitution) that “views sovereignty as residing in the people as individuals” (emphases in original). My confusion isn’t helped by the fact that Barnett also refers to the Republican Constitution’s concept of We the People as “a collection of individuals” (p. 22 (emphasis added))—as though there were a fundamental distinction between collective and collection. I also don’t see how the concept of “joint” sovereignty of individuals is meaningfully different from collective sovereignty.

I’m no political philosopher, but I thought that a central proposition of Lockean social-contract theory is (as Barnett quotes Locke on p. 75) that “men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require.” If so, it would seem to follow that “people as individuals” do not retain the status as individual sovereigns that they possessed in the hypothetical state of nature.

3. Barnett (pp. 70-73) invokes the separate opinions of Justice Wilson and Chief Justice Jay in Chisholm v. Georgia (1793) in support of his concept of individual sovereignty. But I read those opinions very differently.

The legal issue in Chisholm was whether the state of Georgia enjoyed sovereign immunity from a lawsuit filed by a citizen of another state. In his very interesting opinion rejecting Georgia’s claim, Justice Wilson explained that states are not sovereigns under our Constitution. First invoking “principles of general jurisprudence,” Wilson argues that just as “a free man is bound by human laws [because] he binds himself,” so “an aggregate of free men, a collection of original sovereigns” (emphasis added) may unite to form and bind a state. In the part of his opinion in which he looks specifically to the Constitution, Wilson explains that “the people of the United States,” rather than the states, “form[ed] themselves into a nation for national purposes.” Far from insisting that individuals remained in their status of individual “original sovereigns,” Wilson points out that the Constitution, unlike the Article of Confederation, “has an operation on individual citizens.”

Similarly, when Chief Justice Jay states that sovereignty “rests with the people,” I understand him to be adopting a collective vision of We the People. As I read it, his language about citizens as “joint sovereigns” and as “joint tenants in the sovereignty” reflects this collective vision.

4. Barnett posits that the individual rights retained by the people after forming a Republican Constitution “closely resemble those enjoyed by sovereign monarchs.” But as I understand Lockean theory, the retained rights are determined by looking to the social contract (e.g., a constitution), as they are the obverse of the rights and powers that have been surrendered. In other words, the individual rights retained by the people can’t be defined in the abstract (without regard to a particular constitution), much less defined by comparison to the rights of absolute monarchs.

(To be sure, under Lockean theory, there are natural and unalienable rights, and it is the duty of a just government to protect such rights. Nothing I am saying, here or elsewhere, contests that proposition.)

5. Barnett objects that under a Democratic Constitution “the only individual rights that are legally enforceable are a product of majoritarian will,” including “the will of majorities who ratified the Constitution and its amendments and created constitutional rights.” That strikes me as a strange objection. How else, in practice, would Barnett like a constitution to be adopted?

Is Barnett contending that a Republican Constitution must be read to include all sorts of rights that have no basis in its text? If so, that proposition seems at war with his proposition that a Republican Constitution must be interpreted according to its original meaning. And if not, then aren’t the only individual constitutional rights that are legally enforceable under a Republican Constitution also the result of “the will of majorities who ratified the Constitution and its amendments and created constitutional rights?”

6. I also don’t understand the judicial roles that Barnett assigns under the Republican and Democratic Constitutions. Under a Republican Constitution, do judges look to the constitution to determine the “proper scope of [a legislature’s] just powers? Or do they rely instead on Barnett’s theory of individual sovereigns with rights that “closely resemble those enjoyed by sovereign monarchs”? If the latter, how again is that consistent with original-meaning interpretation? (One answer, I gather, is that a constitution would qualify as a Republican Constitution only if its original meaning confers on judges such a role.)

Barnett says both that a Democratic Constitution “is a ‘living Constitution’ whose meaning evolves to align with contemporary popular desires” and that judges under a Democratic Constitution “are told they should exercise their power of judicial review with ‘restraint.’” Insofar as “living Constitution” rhetoric is used to justify judicial invention of new rights, these two propositions strike me as incompatible. (For what it’s worth, if I were positing a model of a Democratic Constitution, it would have no rights provisions.)

7. Overall, what Barnett calls a Republican Constitution looks suspiciously like a fantasy libertarian constitution.

Randy Barnett’s Our Republican Constitution—Part 1

by Ed Whelan

I’ve agreed to write a review of law professor Randy Barnett’s new book Our Republican Constitution. In order to work my way through some of Barnett’s arguments, I’m going to write a series of posts on the book. I’ll emphasize at the outset that I don’t intend these posts to form a review on their own. In particular, there is a lot in the book that I really like but that I might not discuss here; I’m instead going to be focusing in this series on some of Barnett’s arguments that I’m having difficulty with.

Let’s start with Barnett’s models of a “Democratic Constitution” and a “Republican Constitution,” two competing approaches that he says reflect sharply different understandings of the conception of popular sovereignty reflected in the first three words of the Constitution, “We the People.” I’ll present those models in this post and discuss them in the next post or two.

1. By Barnett’s account, a Democratic Constitution

starts with a collective vision of We the People;

which leads to a conception of popular sovereignty based on the “will of the people” as a group;

which, in practice, can only be the will of the majority. [P. 20 (emphasis in original).]

Under a Democratic Constitution, Barnett argues (in all italics), “first comes government and then come rights”:

Under a Democratic Constitution, the only individual rights that are legally enforceable are a product of majoritarian will—whether the will of majorities in the legislature who create ordinary legal rights, or the will of majorities who ratified the Constitution and its amendments and created constitutional rights. [P. 21.]

Barnett maintains both that a Democratic Constitution “is a ‘living Constitution’ whose meaning evolves to align with contemporary popular desires” and that judges under a Democratic Constitution “are told they should exercise their power of judicial review with ‘restraint.’” [Pp. 21-22.]

2. By contrast, a Republican Constitution “views sovereignty as residing in the people as individuals.” (Emphasis in original.) The purpose of the Constitution is “not to reflect the people’s will or desire—which in practice means the will or desires of the majority—but to secure the pre-existing rights of We the People, each and every one of us.” Further:

A Republican Constitution views the natural and inalienable rights of these joint and equal sovereign individuals as preceding the formation of governments, so first come rights and then comes government. [P. 23 (emphasis in original).]

Under a Republican Constitution, Barnett writes (in all italics), “the meaning of the written Constitution must remain the same until it is properly changed” via amendment. Further, the Constitution “must be interpreted according to its original meaning until it is properly amended.” (P. 24.)

The “primary duty” of judges under a Republican Constitution “is to adhere to the law of the Constitution above any statute.” Judges must hold legislatures “within the proper scope of their just powers” in order to protect the individual rights retained by the people. (P. 24.)

What, under a Republican Constitution, are the individual rights retained by the people? Under Barnett’s theory of “individual popular sovereignty,” the rights retained by the people “closely resemble those enjoyed by sovereign monarchs.” In particular, “sovereign individual citizens have jurisdiction over their private property”; “no citizen may interfere with the person and property of any other”; “individual citizens [may] use force in defense of themselves and their possessions”; and “individual citizens [may] freely alter their legal relations with their ‘fellow citizens and joint sovereigns’ by entering into contracts with each other.” (Pp. 24-25.)

Further, any law that does not have as its purpose the “equal protection of the rights of each and every person” is “beyond the just powers of a republican legislature.” And “when the liberty of a fellow citizen and joint sovereign is restricted, judges as agents of these citizens have a judicial duty to critically assess whether the legislature has improperly exceeded its just powers to infringe upon the sovereignty of We the People.” (P. 25.)

This Day in Liberal Judicial Activism—August 12

by Ed Whelan

2010—In his final act of extraordinary malfeasance in Perry v. Schwarzenegger, Judge Vaughn Walker refuses to stay his judgment against California’s Proposition 8 while the appeal process unfolds. Days later, a Ninth Circuit panel will overturn Walker—the remarkable third major smackdown that Walker will have earned from a reviewing court (twice from the Ninth Circuit, once from the Supreme Court) in this case before his ruling on the merits is even reviewed on appeal.

Military Court Botches RFRA

by Ed Whelan

By a vote of 4-1 yesterday in United States v. Sterling, the U.S. Court of Appeals for the Armed Forces adopted a strangely narrow reading of the threshold provisions of the federal Religious Freedom Restoration Act. The court’s ruling diminishes the religious-liberty rights of all members of our armed forces.

Lance corporal Monifa Sterling printed three copies of the words “No weapon formed against me shall prosper” in 28-point font or smaller and taped the signs above three sides of her desk. When her superior ordered her to remove the signs, she refused. After the superior removed the signs herself, Sterling replaced them. And again for another round. Based on various conduct, including (but not limited to) this incident, Sterling was court-martialed and convicted of four counts of disobeying the lawful order of an officer and of other counts. She argued that she posted the signs for religious reasons—she drew the text from a biblical verse, and she explained that the triple posting invoked the Trinity—and she asserted her rights under RFRA.

In its opinion, the majority holds that Sterling failed even to establish a prima facie claim under RFRA—that she failed, that is, to establish that the military had substantially burdened her exercise of religion (such that the military would have to justify its burden under RFRA’s strict-scrutiny test). The majority acknowledges that RFRA “applies in the military context” and it also “assume[s] arguendo that her conduct was based on a sincerely held religious belief.” But it holds that she failed to establish that the military had imposed a “substantial” burden on her conduct.

How, you might wonder, could her supervisor’s prohibition of her conduct not amount to a substantial burden on that conduct? The majority’s reasoning, as best I can discern it, is that Sterling, in order to show a substantial burden, somehow had to “demonstrate ‘an honest belief that the practice is important to [her] free exercise of religion.’” (Slip op. at 16 (internal citation omitted.) But why doesn’t the majority’s arguendo assumption that Sterling was engaged in a sincere exercise of religion satisfy any such requirement? And how can Sterling be required to show that her conduct was “important” when RFRA, as the majority notes a few pages earlier, defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief”? 

The majority cites “two additional salient facts” that supposedly bear (in some indeterminate way) on its substantial-burden inquiry. First, it observes that Sterling never told her supervisor that the signs, which were not “not, like the wearing of a hijab, obviously religious, … even had a religious connotation, let alone that they were important to her religion.” “Requiring that minimal step,” it asserts, “is certainly not onerous or unreasonable in the military context where orders are presumed to be lawful, adherence to orders is integral to the military performing its mission, and the military force is made up of diverse individuals with diverse backgrounds—with no guarantee those charged with command have any special expertise in religion.” But the special demands of the “military context” will surely play out in how RFRA’s strict-scrutiny test is applied. What sense does it make to have them alter the substantial-burden inquiry?

Second, the majority observes that Sterling failed to avail herself of military regulations that would have permitted her to request an accommodation. The majority contends that the accommodation process “interposes a de minimis ministerial act, reducing any substantial burden otherwise threatened.” But this seems a sideways means of smuggling in the exhaustion requirement that the majority acknowledges that RFRA does not contain.

Judge Ohlson’s dissent is much stronger on all these points. Here’s his opening paragraph (citation omitted):

In my view, the Religious Freedom Restoration Act provides the men and women of our nation’s armed forces with the presumptive right to fully, openly, and spontaneously engage in religious exercise. This right extends to sincere religious conduct that is not specifically required by, or deemed by judges to be important to, the tenets of a servicemember’s faith. Further, servicemembers who are court-martialed for sincere religious conduct may invoke the protections afforded by RFRA even if they did not obtain the permission of the Government before engaging in that conduct, and even if they did not contemporaneously inform their chain-of-command that their actions were religious in nature.