Strictly Interpreting the Constitution

An explanation in a nutshell:

George W. Bush: "I believe in strict constructionists. Those are the kind of judges I will appoint."

William Rehnquist: "a strict constructionist judge is one who favors criminal prosecutors over criminal defendants, and civil rights defendants over civil rights plaintiffs."

New York Times: "The Supreme Court today . . . appeared to make it easier for prosecutors to select jurors who are predisposed toward capital punishment in future cases."
And there you have it.

from Matthew Yglesias

He's Back

Dr. Jack Kerhorkian is out of jail after 8 years. He was sent to jail partly because the state does not recognize a constitutionally guaranteed right to die.

It is appropriate to ask: So what?

In 2301 we will be covering the Constitution and the conflict that led to the inclusion of the Bill of Rights (topics we will also hit in 2302 when we discuss the judiciary), which the Federalist thought made no sense since it restricted the national government from doing things that it was not allowed to do in the first place--the expressed powers of government--and that did not list all the potential freedoms people may claim as their own.

From the Nehemiah Institute:

"...it is impossible to name every right possessed by individual
human beings. James Wilson commented on this to a meeting
of Pennsylvania citizens. He said, "Enumerate all the rights
of men? I am sure that no gentleman in the late convention
would have attempted such a thing." The founders feared
that naming a few rights of man in a bill of rights would lead
people to believe those were his only rights, in exclusion of
ll others. Noah Webster sarcastically proposed this clause to
complete the list of unalienable rights, "'that Congress shall
never restrain any inhabitant of America from eating and
drinking, at seasonable times, or prevent his lying on his left
side, in a long winter's night, or even on his back, when he is
fatigued by lying on his right." In an attempt to prevent this
misunderstanding, Amendment 9 was inserted into the
Constitution. It says, "The enumeration in the Constitution
of certain rights shall not be construed to deny or disparage
others retained by the people."

Let's apply this to the conflict regarding the right to die. It's not clearly protected in the Constitution, but could it be properly considered to be one of the "certain rights . . . retained by the people?"

How would we know? Is it worth considering whether the right to die is the type of right that the founders might have thought was reasonable, or whether they considered future generations to be capable of determining for themselves whether or not it ought to be?

Is the right to die a right retained by the people? I want my 2301 students to be prepared to discuss this fully in class.

Riding the Circuits

Early Supreme Court members did it. Here's an argument that they should do it again.

A great point made by Timothy Sandefur:

" . . . one of the biggest reasons the Justices rode circuit was to explain the Constitution and its legal order to regular citizens. In fact, many of the great early Supreme Court pronouncements (like the wonderful Van Horne’s Lessee v. Dorrance are actually not decisions at all, but speeches made by the justices to juries, as part of this civic educational process.) True, the Justices today aren’t exactly John Marshalls or Joseph Storys. But they are the leaders of the legal profession in this country, and it is their duty to explain the constitution and the law to citizens."

Has the court system grown too detached from the citizenry?

Seismic Shift

That's what the mainstream news media calls the just released Supreme Court decision upholding a ban on the Partial Birth Abortion Act.

A few thoughts:

- For social conservatives, this justifies the Bush Presidency, no matter what else happens because it demonstrates the impact of the replacement of Sandra Day O'Connor with Samuel Alito.

- It shows that Anthony Kennedy is indeed the most powerful person in the U.S. and will be until there's another replacement on the court that alters its composition. Kennedy is the reason the EPA must regulate carbon dioxide as a pollutant and partial birth abortion has been outlawed. I'd expect him to be the 5th vote on more decisions.

- The line between the liberals and conservatives seems to be hardening.

- This may also be a consequence of the reduction of the number of women on the court--down to Ruth Bader Ginsburg.

- Social conservatives will see opportunities to pass further limits on the abortion procedures, but...

- will have to be careful not to awaken moderates who favor access to abortion, but are not strong supporters of it. Remembers that Roe v. Wade was a rallying cry for the conservative movement. This could rally the other side.

Stay tuned.

Judicial Activism

The Cato Institute is publishing a book that makes a case for it.

A restrained judiciary may allow the executive and legislative branches to step on civil liberties.

Read: A Cheer for Judicial Activism.

Mass v. EPA, Part 2

The fallout over Massachusetts v. EPA continues and as time progresses commentators are focusing more on the nuances of the case. Some of this we've covered in class, some (most) we haven't.

Here's a Sunday piece by Linda Greenhouse, the New York Times' Supreme Court corespondent. She focuses on Roberts' dissenting opinion and the limited concept of standing he outlines in it. As we discussed in class, that may be the central dispute between the majority and dissenting opinions. The majority sees the court as an appropriate venue for these issues to be heard, the minority does not.

This is a classic dispute between those who see the court's as an active participant in policy and those who do not. This has nothing to do with the seriouseness of the issue, just the forum where it can legitimately be addressed. When we discuss the shift of the courts to the right over the past three or four decades, this is the sort of issue we are talking about.

In a land with no 5th Amendment:

from 3quarks daily comes a story from Poland about the law of lustration, something I was not aware of until now. Lustration is a form of purification, in this case anyone affiliated with the communist regime, must confess it. Some risk losing their jobs if they did, all face it if they refuse to fess up.

The commentators trace this law to Catholicism, and it does have a wiff of the inquisition about it. Though the inquisition aquired a negative reputation for obvious reasons, the purpose of the process was to actually find the truth behind whatever case was brought forward. Our is an adversarial system where two sides of an argument compete to influence an impartial group of citizens.

At the heart of the adversarial system lies the notion that freedom includes the ability to not have to incriminate yourself. The inquisitorial system does not. You have to lay out what happened, or you can be held accountable.

My question is this, though we are conditioned to believe that our judicial system is better than those of other countries, do we secretly long for the truth promised by an inquisition? So much of our criticisms of the legal process focus on crafty lawyers, idiotic juries, and dishonest defendants pleading the 5th Amendment that I strongly believe that a majority of Americans could be persuaded to change it all if given the chance. Our commitment to individual rights is rather thin.

Am I off base?

The Supreme Court Rules that the EPA must Confront Global Warming

The Supreme Court gave the environmental movement a very narrow victory yesterday in Massachusetts v. EPA, which dealt specifically with whether a governmental agency (the EPA) was negligent in not carrying out its mission in the manner in which some felt it was required to. In brief, several states and cities brought suit against the EPA to force it to regulate carbon dioxide (specifcally tailpipe emissions) as a pollutant, or to not interfere with the ability of the states to regulate them. The EPA claimed that it lacked jurisdiction to regulate carbon dioxide.

The case is as much about the relationship between the bureaucracy and Congress, and the states and the federal government, as it is about the environment. Can the discretion a bureaucratic agency has in rulemaking negate the intent of the statute the agancy was required to implement? How do we define the jurisdiction of the agency?

The vote also reinforces the notion that the current Supreme Court is composed of two factions of four (the liberals and the conservatives), with the deciding vote resting with Anthony Kennedy.

Since my 2302's are covering the courts at the moment, and this case illustrates many of the points I'm trying to make, we ought to go over parts of it. I'll need more time to digest the case, but here are three contentious parst of the case:

Standing: A key dispute between the majority and the dissenters concerns whether this is a case that the courts have jurisdiction. The dissenters argue that there is no injury suffered by the inaction of the EPA, so the plaintiff's lack standing to sue. The majority points out that standing does not only refer to actual injury, but to imminent injury as well. The failure to act, leads to injuries suffered, or to be suffered, by the state.

The Court's jurisdiction: For the dissenters, the issue was less the power of government to go forward, than the effort of the states to force the federal government to go forward, by going to the courts, when it did not want to. The majority held that this was a legitimate concern.

Strict and loose interpretations of statutory and constitutional language: The statutory language at issue is the defintion of "pollutant." Carbon dioxide isn't normally a pollutant, plants live on it after all, so a narrow definition would not allow for governmental regulation, but its interaction with the atmosphere causes conditions that might require governmental action. If that interaction can be defined loosely as pollution, then government is permitted to go forward.

Given that this was a 5-4 decision, it is unwise to read too much into it. If Kennedy had decided to go the other way, the EPA would have won.

For background, click here for the wikipedia entry on the case.