Palate Cleanser

The Subjects of the Constitution

I just wanted to highlight a new law review article that is getting a lot of pub across the blogoshpere. It is by Nicholas Rosenkranz, professor at Georgetown. The abstract:

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

As judicial review is practiced today, courts skip over this bedrock question to get to the more familiar question: how was the Constitution violated? But it makes no sense to ask how, until there is an answer to who. Indeed, in countless muddled lines of doctrine, puzzlement about the predicates of constitutional violation follows directly from more fundamental confusion about the subjects.

Confusion about the who (and, relatedly, the when) of constitutional violation has been the root cause of many of the deepest puzzles of federal jurisdiction - puzzles of ripeness, of standing, of severability, of “facial” and “as-applied” challenges. Simply by focusing attention on this crucial constitutional feature, the subjects of the Constitution, these puzzles may be solved once and for all. And as they are solved, it becomes clear that this approach constitutes a new model of judicial review.

But the implications of this new paradigm are not limited to federal jurisdiction. It turns out that confusion over the deep puzzles of federal jurisdiction has had subtle but profound feedback effects on substantive constitutional doctrine as well. Once these jurisdictional puzzles are solved, the scope of constitutional rights and powers comes into new focus as well. These implications ripple through the most important and controversial doctrines of constitutional law, from the scope of the Commerce Clause to the reach of the First Amendment, from the meaning of equal protection to the content of privileges and immunities, from the nature of due process to the shape of abortion rights.

And all of it derives from nothing more complicated than asking the right first question: who has violated the Constitution?

Senator Sessions challenges Kagan

As Senator Sessions points out, Kagan chose to punish the military for a policy decided by President Clinton and Congress when she blocked military recruiters from Harvard campus: "What were you thinking when you punished our men and women in uniform because you didn’t like what Congress and your president, President Clinton, did with regard to their policies on gays in the military?"

No Time to See Kagan's Paper Trail

As Byron York pointed out last week, Elena Kagan has a long paper trail from her two years in the Clinton White House Counsel's Office. In 2005, minority Democrats were able to see the papers that Roberts had written while serving in the Reagan White House in the 1980s. But the Democrats have set a hearing date too soon for the Senate to see Kagan's. A Clinton library official says it would be very difficult to meet the deadline. (hat tip Ed Whelan)

Primary Results & Kagan’s Judicial Activism

Last night’s primary election results contain some bad news for Supreme Court nominee Elena Kagan. The biggest news of the night was the defeat of Sen. Arlen Specter’s (D – Penn.), Kagan’s harshest critic when her nomination for Solicitor General was before the U.S. Senate last year. Specter hammered Kagan for her failure to be forthcoming during her confirmation hearing and in answers to written questions. Specter’s take: “I use the word ‘replies’ carefully because I didn’t get too many answers as to where she stood on some critical issues.”

With Specter no longer facing the constraints of seeking reelection, the former prosecutor is free to go out in a blaze of glory by sticking to principle and demanding that Kagan fill in the many holes in her notoriously thin record. Along with senators like Blanche Lincoln and Ben Nelson, Specter joins the ranks of Democrats most likely to vote against Kagan’s confirmation to the Supreme Court.

The other piece of bad news for Elena Kagan last night was the overwhelming victory by libertarian Senate candidate Rand Paul of Kentucky. It dramatically demonstrated that the American people’s increasing concern about unrestrained federal power has moved from the living room to the voting booth. That will make it harder for red and purple state Democratic senators to vote for a Supreme Court nominee whose activist view of judging would make the Court an institution of essentially limitless power.

On that note, more evidence of Kagan’s enthusiastic belief in judicial activism was revealed yesterday when her 1983 Oxford University thesis became available. In it, she writes that

“[J]udges will have opinions, prejudices, values. Perhaps most important, judges will have goals. And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid.” (emphasis added)

Kagan adds that “no court should make or justify its decisions solely by reference to the demands of social justice” (emphasis added). But she is clearly describing an outcome-oriented vision of the judicial process in which judges “justify a ruling in terms of legal principle” – for largely utilitarian reasons – only after looking to their personal values, goals, and notions of social justice in determining the outcome of the case. This is the hallmark of judicial activism.

Even Kagan’s statement in her thesis that “Concern for ethical values … has an important role to play in the judicial process” betrays a profound rejection of the Founding Fathers’ view of democratic government. They intended that disagreements about ethical values – whether concerning crime and punishment, gay rights, or abortion – be decided by the democratic branches of government rather than by, in Justice Scalia’s words, unelected judges enforcing "the views and values of the lawyer class from which the Court's Members are drawn." (dissent in Romer v. Evans, 1996)

This is not the first Kagan thesis to raise eyebrows. Her Princeton undergraduate thesis, “To the Final Conflict: Socialism in New York City, 1900-1933,” expresses sadness at both “socialism's decline” and the lack of recognition for “socialism's greatness,” while advising “American radicals” to unite. Though thirty years old, Kagan’s Princeton thesis will be an issue in this summer’s confirmation fight, both because of her belief that social justice should play a role in judging and because of widespread concern – fair or not – that the nation is creeping towards socialism.

The judicial philosophy Kagan endorses in her Oxford thesis is consistent with earlier revelations from both a speech about Justice Thurgood Marshall and memos she wrote while clerking for the U.S. Supreme Court. In one memo, Kagan worries that the Court will recognize only the Constitution’s explicit liberties – freedom of speech and due process, for example – rather than its hypothesized “positive liberties,” essentially welfare rights to governmental aid.

In her speech about Justice Marshall, Kagan describes his decidedly activist view of the judiciary’s mission – to “show a special solicitude for the despised and disadvantaged” and “to safeguard the interests of people who had no other champion” in her words – as “a thing of glory.” This Kagan / Marshall judicial philosophy was rejected by even the very liberal Sonia Sotomayor in her testimony last summer.

While it’s possible that Elena Kagan has recently changed her mind about the proper role of a judge, Kagan’s thin record and troubling statements about judicial philosophy put the burden of proof on her to demonstrate that the American people have no reason to fear she will be an activist Justice who views the Supreme Court’s power as essentially limitless. It is, therefore, crucial that Kagan engage in an open and honest debate with senators about her judicial philosophy and other controversial views, and that she and the White House press the Clinton Library to quickly release the more than 160,000 pages of documents from her tenure as President Clinton’s associate counsel and domestic policy advisor.

Does Kagan Support ‘Public Safety’ Exception to Miranda?

Jonathan Adler:

Federal agents were able to interrogate would-be Times Square bomber Faisal Shahzad about other potential attacks before giving him Miranda warnings under the “public safety” exception recognized by the Supreme Court in New York v. Quarles. As Tom Grant and John Ullyot note in today’s WSJ, both the justice for whom Elena Kagan clerked (Thurgood Marshall) and the justice she would replace (John Paul Stevens) dissented in that decision. This prompts them to wonder whether SG Kagan feels the same way.

Stevens, Kagan, and Property Rights

James Ely takes a look at Steven's record on property rights and the upcoming confirmation process of Elena Kagan.

In seeking a replacement for retiring Supreme Court Justice John Paul Stevens, President Obama indicated that he wanted to name someone in the Stevens mold. Among the qualities of Justice Stevens that Mr. Obama hoped to find in a successor, the president noted "a keen understanding of how the law affects the daily lives of the American people."

However, in at least one important area of constitutional law - the rights of property owners - Justice Stevens' record fell woefully short of protecting the interests of average citizens. In fact, Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives of individuals.

Consider Justice Stevens' thinking with respect to the regulatory "taking" doctrine. It has long been held that regulations might so severely restrict the use of property as to amount to a taking of such property, for which payment of just compensation is required. Yet the Supreme Court has found it difficult to articulate a formula to govern regulatory claims. Under Chief Justice William H. Rehnquist, the court moved incrementally to enlarge the protection afforded property owners faced with onerous regulations.

Even those modest steps, however, were too much for Justice Stevens, who regularly dissented in regulatory taking cases. Justice Stevens was seemingly oblivious to the plight of individuals who were singled out to bear a burden more appropriately shared by society as a whole.

Article via Ilya Somin, who adds

As I have argued previously, there is a potential for fruitful left-right alliances in this area. Many left-wing organizations and activists, including the NAACP, Rep. Maxine Waters, and Ralph Nader, vehemently opposed the Kelo decision because they correctly recognized that giving government unconstrained power to condemn property and transfer it to private parties would tend to victimize the poor, minorities, and the politically weak. ...

In the federal Supreme Court, property rights issues have split the justices along left-right lines over the last thirty years. But as the left-wing reaction to Kelo demonstrates, such a division is not inevitable. In some state judiciaries, liberal judges have voted to enforce tight state constitutional restrictions on eminent domain and exclusionary zoning, a point I discussed in the last part of this article.

If he is so inclined, it is not too late for President Obama to start appointing relatively pro-property rights liberals to the federal courts. Breaking the ideological logjam that has hobbled federal judicial protection of constitutional property rights would be an admirable example of change we can believe in.

Greg Craig Proves Why Kagan Should Share Her Views on the Constitution

On ABC's This Week, Glenn Greenwald asked some pointed questions to former White House Counsel and Kagan defender, Greg Craig. While I may disagree with Greenwald about many things, I am in complete agreement with him about the necessity of Kagan announcing her views on the Constitution. Craig's stumbling answer to Greenwald's simple questions provides all the evidence one should need to agree.

New Constitutional Challenge to Obamacare

The U.S. Citizens Association filed a new challenge to Obamacare in Ohio. In addition to the Commerce Clause and Taxing Power arguments, the group has alleged several other constitutional violations. From the press release:

The U.S. Citizens Association believes that the first ammendment guarantees their members a right to "not associate" with anybody they choose not to, including health insurers and their agents.

The U.S. Citizens Association believes that under several amendments of the Constitution their members have a right to privacy that will be lost when they are forced to divulge confidential medical information, possibly including data derived from blood, urine and DNA samples, physical examinations, listing past or current illnesses, diseases and daily medications as applicants for mandated health insurance coverage.

Kagan Round-Up

How Appealing has a pretty exhaustive round-up of today's Kagan related articles.

If You Can't Beat 'Em...

... steal their stuff.

Thieves have stolen a cross in the Mojave Desert that was built to honor Americans who died in war, less than two weeks after the U.S. Supreme Court allowed the religious symbol to remain on federal land.

The 7-foot-high cross was stolen late Sunday or early Monday by thieves who cut the metal bolts that attached the symbol to a rock in the sprawling desert preserve, National Park Service spokeswoman Linda Slater said.

Authorities had no immediate motive for the theft but Slater said possible suspects range from scrap metal scavengers to people "with an interest in the case," Slater said.

The Walk Back Begins

"Elena Kagan no longer thinks Supreme Court nominees should have to answer direct questions" That is the headline at The Daily Caller. The article includes quotes from Biden advisor Ron Klain.

Klain pointed to Kagan’s testimony during confirmation hearings for her current job as solicitor general, the government’s top lawyer.

“She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.

“You will see before the committee that she walks that line in a very appropriate way. She will be forthcoming with the committee. It will be a robust and engaging conversation about the law, but she will obviously also respect the conventions about how far a nominee should or shouldn’t go in answering about specific legal questions,” Klain said.

Left/Right Consensus on Kagan?

Right: Ed Whelan

Kagan has argued that the Senate should carefully explore a nominee's views on judicial philosophy generally and on hotly contested constitutional issues in particular. Her argument has special force for someone who has been so guarded about her own views.

Left: Glenn Greenwald

The most important point to note about Kagan now is the one highlighted this weekend by Talk Left's Armando, as first reported by The Los Angeles Times: in 1995, Kagan condemned the Supreme Court confirmation process as "a vapid and hollow charade" and an "embarrassment," arguing that Senators should "insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues." Kagan should absolutely be held to her own position in that regard. Her argument that nominees should be compelled to answer such questions was absolutely right, and that's especially applicable to Kagan in light of her own glaring lack of a real record on virtually everything. She ought to be held to her own position and "reveal what kind of Justice she would make" and "disclose her views on important legal issues."

It will be interesting to see what tactic she takes to wiggle out of her prior remarks and whether any Senators will hold her feet to the fire.

UPDATE: Et tu New York Times?

The White House undoubtedly hopes the ellipses in Ms. Kagan’s record will help her avoid a rocky confirmation hearing. That expedient approach, unfortunately, reflects the widespread sentiment that the right holds the upper hand in judicial debates, forcing the left to duck and cower. But in one of Ms. Kagan’s few forcefully stated positions, she wrote in 1995 that she detests “polite and restrained” confirmation hearings, calling them a “vapid and hollow charade” and urging senators to fully explore a court nominee’s substantive views. We hope the Senate follows her advice and gets Ms. Kagan to open up a little.

Kagan Pick Disrespects Military

CFJ Executive Director Curt Levey on the nomination of Elena Kagan:

Realizing that the retirement of Justice Stevens threatened to leave the Supreme Court without a military veteran, the Committee for Justice and others urged President Obama to replace Stevens with someone who has “the military experience necessary to understand and evaluate the government’s national security arguments.” Most importantly, Justice Stevens himself talked recently about the importance of having “at least one person on the Court who had military experience.” It was disappointing enough when the President showed no interest in this important concern. But in selecting Elena Kagan, Obama has chosen to replace the Court’s last veteran with a nominee who essentially spit in the eye of America’s armed forces. Kagan banished military recruiters from the Harvard Law School campus during a time of war, after pronouncing our armed forces guilty of “a moral injustice of the first order” for carrying out the Clinton Administration’s “don’t ask, don’t tell” policy.

Millions of Americans will be outraged when they learn that Obama has picked a Supreme Court nominee with a demonstrated hostility to the very armed forces that make our freedom and constitutional rights possible. But that’s just one reason why President Obama is in for a more difficult confirmation fight than he bargained for when he chose Kagan.

Kagan starts out with more than thirty votes against her confirmation to the High Court. Only seven Republican senators voted to confirm her as Solicitor General 14 months ago. Now she faces the less deferential standard applied to lifetime Supreme Court appointments, an emboldened Republican Party, nervous red state Democratic senators, and a public concerned about the nation’s leftward drift.

Added to that mix will be scrutiny of Kagan’s out-of-the-mainstream views on gay rights, which are sure to generate controversy and vigorous opposition. Kagan’s argument that “don’t ask, don’t tell” justifies kicking the military off campus was unanimously rejected by the Supreme Court in 2006, placing her to the left of even the Court’s most liberal Justices on the issue of gay rights and the First Amendment. Moreover, Kagan allowed her obviously strong feelings about gay rights to interfere with her duties as Solicitor General. At least twice during the last year, in cases involving challenges to the Defense of Marriage Act and the “don’t ask, don’t tell policy,” Kagan failed to vigorously defend federal law despite her institutional obligation and promise to senators to do so.

At a time when the number one goal of the purveyors of judicial activism is the discovery of a right to gay marriage in the U.S. Constitution, the American people should be worried about this nominee’s views on gay rights. However, in light of speculation and White House denials concerning Kagan’s sexual orientation, let me be clear that it is Kagan’s constitutional orientation and not her sexual orientation that is a legitimate cause for concern.

President Obama’s selection of Kagan is particularly disappointing given that the potential nominees he considered included at least two highly respected judges with a proven track record of moderation – Merrick Garland and Leah Ward Sears. Conservatives made it clear that they would have a hard time opposing either nominee. While no nominee would silence all the President’s critics, Garland or Sears would have been widely seen as a bipartisan, non-ideological choice and either would likely have been confirmed by an overwhelming margin in the Senate. Instead, the President chose to pick a fight with Republicans.

Perhaps picking a fight is part of the President’s reported strategy of using the confirmation debate to portray Democrats and the judges they chose as protectors of the “little guy.” If so, Elena Kagan is a strange choice because her background is far more elitist than humble. In addition to heading Harvard Law School, one of the most elite schools in the world, and serving as a Clinton Administration politico, Kagan was a paid member of a Goldman Sachs board during the height of Wall Street’s excesses.

It’s not clear how the White House can portray Elena Kagan as a woman of the people, but it is apparent that the Administration plans to portray Kagan as a moderate by calling the press’s attention to the concerns of some on the Left that she is not a genuine liberal. It is hard to know if concerns expressed on the Left are borne of disingenuousness or just a propensity to worry. However, the bottom line is that it’s downright silly to imagine that a fervent supporter of gay rights who thrived on the Harvard Law School faculty and in the Clinton Administration and embraces Justice Thurgood Marshall’s approach to judging will turn out to be a closet conservative once on the High Court.

Specifically, Kagan described Justice Marshall’s view of the judiciary – that its primary mission is to “show a special solicitude for the despised and disadvantaged” and “to safeguard the interests of people who had no other champion” (Kagan’s words) – as “a thing of glory.” The Kagan / Marshall judicial philosophy sounds an awful lot like President Obama’s promise to appoint judges with “the empathy to recognize what it's like to be a young teenage mom [or] poor, or African-American, or gay, or disabled, or old,” a view of judging that even the very liberal Sonia Sotomayor rejected last summer.

Particularly because the American people are concerned like never before about unrestrained federal power, Elena Kagan’s view of a judge’s role is a real threat to her confirmation, as Judiciary Committee Ranking member Jeff Sessions has noted. After all, a Supreme Court that is free to ignore the law in order to “show a special solicitude” for the interests of certain groups or to discover new rights in the Constitution – such as a right to gay marriage – is an insitution whose power is essentially limitless.

For example, when the constitutionality of ObamaCare comes before the Supreme Court, as is inevitable, will a Justice Kagan decide that “special solicitude” for the disadvantaged is served by okaying Obama’s federalization of health care or, instead, by protecting the rights of those who do not want to be coerced into purchasing health insurance? In other words, it is hard to see how the Kagan / Marshall standard puts any limits on a Justice’s indulgence of their personal policy preferences.

Kagan’s troubling statements about judicial philosophy will take on added significance given her thin record, which includes a puzzling dearth of academic scholarship after more than a decade in academia. Her thin record also makes it vital that the White House release, in a timely manner, the documents Kagan produced while serving as President Clinton’s associate counsel and domestic policy advisor.

Finally, given her thin record, Kagan owes it to the American people to engage in an open and honest debate with senators about her judicial philosophy and other controversial views. One hopes that Kagan agrees, given her assertion that “when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.”

Americans Prefer a Nominee Who Would Tilt the Court More Conservative

That is one result from a newly released Gallup poll. Despite the media's best effort, Americans do not believe the court is too conservative. Another finding that runs counter to media narrative/obsession: Gender, Race, and Ethnicity Not Important Factors.

NYT: No Due Process for Second Amendment Rights

The New York Times has an editorial arguing that the people's Second Amendment rights should be able to be taken away without the protection of due process.

Congress, for example, is cowering before the gun lobby insistence that even terrorist suspects who are placed on the “no-fly list” must not be denied the right to buy and bear arms.

What the Times leaves unmentioned is there is no due process afforded those placed on the no fly list. This has even led to the detention of 5 year olds by the TSA. The editorial goes on to note that "[s]uspects on that list purchased more than 1,100 weapons in the last six years." These people committed no crimes and they are not suspected of doing so. Moreover, the statistic shows that the government is aware of gun purchases made by those on the no fly list. This is made even more troubling by the number of names on the no fly list: a million plus. Does the New York Times really crave a society in which the federal government can restrict the constitutional rights of citizens who have committed no crimes?

The 'Original Intent' Straw Man Returns

A favorite trick of the left is to take 'judicial activism' and/or 'originalism' and use them in a different way than the right actually uses the terms. They then either take down the straw man or cry hypocrisy. You see it every time the Supreme Court strikes down a beloved statue of the left, i.e. Citizens United. The latest to use this tactic is Mount Holyoke College professor Joseph Ellis. From his WaPo op-ed:

Yet the constitutional doctrine of original intent has always struck most historians of the founding era as rather bizarre.

I can't speak for "most historians", but it strikes me as a bit odd as well because originalists aren't concerned with original intent. They are concerned with original public meaning. That is because the Constitution is a legal document and, as such, it means what it did at the time of its ratification until it is properly changed. Ellis' straw man is now firmly in place. Ellis goes on:

The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the "miracle at Philadelphia" was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.

I have never heard any originalist claim that the Constitution is "uniquely omniscient." The Reconstruction Amendments, and originalists feelings toward them, aptly make the case against omniscience and should have shown Ellis that his point was stupid. He concludes:

If we were to put the doctrine of original intent on trial, the most eloquent witness for the prosecution would be Thomas Jefferson. Here is what he wrote to a friend in 1816:

"Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did beyond amendment. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable of taking care of itself, and of ordering its own affairs . . . Each generation is as independent of the one preceding, as that was of all which had gone before."

He was telling us, in his own lyrical way, that we are on our own. Jefferson would vote against any nominee who claimed merely to be an umpire calling balls and strikes in a strike zone already determined by the Founders.

I will leave it to others to put Jefferson's quote in context. Jefferson's quote fits just fine into originalism, although not Ellis' straw man. Originalists do not believe that the Constitution cannot be changed, just that it should be properly changed through the amendment process.

Report: Obama to Name Kagan on Monday

Politico has the story.