Obergefell--A Few Thoughts and Questions

1. What is Substantive Due Process?

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Does the Due Process Clause protect liberty by requiring procedural safeguards (by requiring process that is due before a state deprives someone of liberty), or does it protect certain liberties substantively?

If the latter, which liberties are protected? All liberties? Certain liberties? Which ones? Fundamental liberties? Which liberties are fundamental? And where does the Constitution provide a list of fundamental liberties?

Is Obergefell an example of Judicial Activism? Or is it an example of the Court faithfully applying the protections of the Written Constitution?

2. Chief Justice Roberts suggests that "those who believe in a government of laws, not of men" should be disheartened by the Majority's decision to redefine marriage in all 50 states. (p.2; 12;22).  What does he mean by this? What is the Rule of Law?

3. Roberts talks about "the precious right" to democratic self-government. And Bork quotes Chesterton:"What is the good of telling a community it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people." See also Scalia at p. 2: The Court's decision in Obergefell "robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

What do you think Roberts & Scalia meant by all this?

4. Does Obergefell advance any liberty interest? Or does it deprive Americans of liberties explicitly protected by the Constitution?

5. How secure is religious liberty in the wake of Obergefell? Is absolute sexual autonomy and recognition a more fundamental liberty than religious liberty?

Judicial Review: Questions To Discuss

1. Where does a judge applying an "evolving Constitution" look to determine what new species the written constitution has evolved into? DNA testing? Bob Bork says "the truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." Do you agree? Does Justice Brennan agree? Is the "living Constitution" theory a theory of evolution or a theory of intelligent design?

2. Judge Bork writes: "Every time a court creates a new constitutional right against government or expands, without warrant, an old one, the constitutional freedom of citizens to control their lives is diminished." What does he mean by this? What did Chesterton mean when he said: "What is the good of telling a community it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people."

3. Bork also says that when the Court discovers that a new constitutional species has somehow evolved, the Court's opinion should make clear (in the interest of full disclosure to the people) that the decision "does not come out of the written or historical Constitution. It is based upon a moral choice the judges made, and here is why it is a good choice, and here is why judges are entitled to make it for you." Should the Court be honest when creating new constitutional doctrine and applying that doctrine to strike down popular laws such as the Pledge of Allegiance?

4. Proponents of a "living, breathing, evolving Constitution" sometimes argue that the Constitution must evolve to keep pace with social progress, changes of social circumstances, and more enlightened modern understandings of liberty and justice. Do you agree with this argument? What might a proponent of originalism argue in response? How do we know that the Court's view of liberty and justice is more enlightened than that of the People? Does the Court speak for the People? If not, how do the People speak?

5. See Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006). Here is a summary of Waldron's thesis, written by Prof. Richard Garnett:

In his essay, [Waldron] suggested that "rights-based judicial review is inappropriate for reasonably democratic societies whose main problem is not that their legislative institutions are dysfunctional but that their members disagree about rights.'" This is because (to oversimplify) there is no reason to believe that courts...are more likely to better protect rights than are democratic legislatures....

And here is an excerpt from Waldron's article at 1353:

In this Essay, I shall argue that judicial review is vulnerable to attack on two fronts. It does not, as is often claimed, provide a way for a society to focus clearly on the real issues at stake when citizens disagree about rights; on the contrary, it distracts them with side-issues about precedent, texts, and interpretation. And it is politically illegitimate, so far as democratic values are concerned: By privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights.

6. Here is another quote from Bork that captures, I think, the core of the controversy:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Do you think judges should give in to this temptation? Why or why not?

7. Justice Brennan says his duty was to enforce the "constitutional vision of human dignity" and that "the demands of human dignity will never cease to evolve." Where is that clause contained in the Constitution? What is human dignity? Does respect for human dignity require that capital punishment be upheld to protect the human dignity of the murdered victim? Or struck down to protect the human dignity of the convicted murderer? Does it require that abortion laws be struck down to protect the human dignity of pregnant women facing unwanted pregnancies? Or must the states ban abortion to protect the human dignity of developing babies in the womb? Does it require government to provide free housing, food and health care to the poor? Or to reduce the burden of taxation to vindicate the dignity of persons to decide how to spend the money they earn by their own hard work?If the Constitution does not define human dignity (or even mention it), how do Justices know what the constitutional right means and which laws are inconsistent with it?

8. Consider again what Justice Brennan says about whose interpretation of the Constitution he seeks to enforce:


"When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought. Justices are not platonic guardians appointed to wield authority according to their personal moral predilections."

Which "community" supplies the interpretation Justice Brennan then adopts as law? He tells us more when discussing his view that capital punishment is "under all circumstances" unconstitutional:

"This is an interpretation to which a majority of my fellow Justices--not to mention, it would seem, a majority of my fellow countryman--does not subscribe...I mentioned earlier the judge's role in seeking out the community's interpretation of the Constitutional text. Yet, again in my judgment, when a Justice perceives an interpretation of the text to have departed so far from its essential meaning, that Justice is bound, by a larger constitutional duty to the community, to expose the departure and point toward a different path. On this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived."

9. When a Justice seeks to embody the values of a future, ideal community, whose values does he look to in defining what kind of future community is the ideal?

10. Here is the essence of the debate in my opinion. Most Americans love and accept the Constitution and have no problem being governed by it. But to be governed by the Constitution is one thing; to be governed by the policy preferences of an unelected body of lawyers is something else. The Court's legitimacy depends upon its ability to truthfully assure the People that its decisions are faithful interpretations of the written Constitution (as opposed to decrees imposing the policy choices of 5 members of the Court). Do you think the Court has succeeded in this regard?

Let's talk about these issues in class.

What is Original Understanding?

Consider Professor Paulsen’s “Enterprise of Constitutional Interpretation”(see 114 Yale L.J. at 2056-2057):

My un-grand but radical position (within the small world of academic constitutional theoreticians) is simply this: The enterprise of constitutional interpretation – of discerning the document’s meaning – consists of giving to the Constitution’s words and phrases the meaning they would have had, in context, to informed readers of the language at the time of their adoption as law, within the relevant political community. Contrary to Rubenfeld’s assumption, and that of many other academic theorists, this seems to be the interpretive method prescribed by the Constitution itself.  The straightforward internal textual argument for original-meaning textualism is that the Constitution is a written document; that it specifies “this Constitution” as the thing that is to be considered supreme law; that the default rule for textual interpretation was, at the time of the Constitution’s adoption, the natural and original linguistic meaning of the words of the text; and that any argument for anachronistic interpretations of the text – that is, for substituting a personally idiosyncratic, nonstandard, or time-changed meaning in preference to the one that would have been understood at the time, and in the context, in which the text was adopted – ends up substituting some other words for the words chosen in “this Constitution.”  In short, the Constitution is written law, and the meaning of a written legal instrument is the original meaning of its words, not a different meaning substituted by someone else.

The enterprise of constitutional adjudication consists of applying the original linguistic meaning of the document to lawsuits in which a question of constitutional meaning is properly presented.  This requires another step: discerning second-order rules about what to do when the Constitution supplies a rule of law that applies to the case at hand; what to do when it does not; and what to do when the answer is unclear.  But it is not too hard to come up with such rules.  Simply put: If the meaning of the words of the Constitution supplies a sufficiently determinate legal rule or standard applicable to the case at hand, that rule or standard must prevail over a contrary rule supplied by some other competing source of law (typically a state or federal statute, or an executive branch or agency action).  That is because of the supremacy of the Constitution over other law.  Thus, if the Constitution supplies a rule, that rule prevails.  But if the meaning of the Constitution’s language fails to provide such a rule or standard – if it is actually indeterminate (or under-determinate) as to the specific question at hand – then a court has no basis for displacing the rule supplied by some other relevant source of law applicable to the case (typically, a rule supplied by political decisions made by an imperfect representative democracy).  Folks legitimately might disagree as to when the original meaning produces a determinate answer, or what counts as sufficiently determinate to supply a constitutional rule appropriate for judges to apply to invalidate political decisions.  But that should be the core of the enterprise.

The Great Debate

The “Great Debate” in constitutional law, one that has raged for over 200 years[1] and most recently boiled in Obergefell v. Hodges[2] (the same-sex marriage case) is this: Should courts interpret the Written Constitution’s text as it would have been understood by ordinary citizens alive at the time the text was adopted? Or should they interpret the Constitution as a “living” organism, one meant to evolve to suit the changing needs and values of contemporary American society? Originalists believe that if the Constitution must evolve to keep pace with our constantly changing world, we should seek this change through the legitimate amendment process of Article V.[3] Simply put: amendments should come from the people, not the Supreme Court.

      However, proponents of a Living Constitution believe that the formal amendment process is too “cumbersome”[4] to keep the Constitution current—that it is too difficult to amend the Constitution under the process set forth in Article V – and that necessity therefore requires the Supreme Court to amend the Constitution from the Bench.[5] For example, if the duly ratified Constitution does not give Congress sufficient power to deal with a global economy and contemporary social issues such as same-sex marriage, then it is the duty of the Court to recognize that the Constitution has somehow evolved to meet our ever-changing political needs. After all, why should contemporary Americans be encumbered with the views and philosophies of long-dead white males who had no understanding of the needs and values of America in 2016?[6] And, as Justice Brennan liked to say, there are so many “majestic generalities and ennobling pronouncements”[7] in the Constitution –due process, equal protection, privileges and immunities—and these “luminous and obscure” terms make it so easy to interpret the Constitution to mean whatever the Court wants it to mean while still claiming faithfulness to the written text.[8]

---

[1] I am referring to the great debate between Justice Chase and Justice Iredell that took place in 1798 in Calder v. Bull. See Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).

[2] 576 U.S. (2015).

[3] U.S. Const. art. v.

[4] See Erwin Chemerinsky, Constitutional Law: Principles and Policies 24 (5^th ed. 2015)(stating that the “cumbersome amendment process” makes it too difficult for we the people to amend the Constitution and thus judicial amendments are “necessary if the Constitution is to meet the needs of a changing society”).

[5] Id. David Strauss also argues that we need a Living Constitution created by the Court because “the world has changed in incalculable ways” and “it is just not realistic to expect the cumbersome amendment process to keep up with these changes.” David A. Strauss, The Living Constitution 1-2 (2010).

[6] See Thomas E. Baker, Constitutional Theory in a Nutshell, 13 William & Mary Bill of Rights J. 57, 73 (2004) (explaining how nonoriginalists reject “being ruled by dead white men”). Of course, Supreme Court Justices do not live forever and yet their opinions under the Living Constitution “rule” us from the grave. For example, all of the Justices who decided Roe v. Wade are now dead. See Originalism: A Quarter-Century of Debate 310 (Steven G. Calabresi, ed. 2007) (noting that the holding of Roe v. Wade represents “the dead hand of the past for us now”).

[7] Justice William J. Brennan, Jr., Speech to the Text and Teaching Symposium, Georgetown University, Oct. 12, 1985, in Originalism: A Quarter-Century of Debate 56 (Steven G. Calabresi, ed. 2007).

[8] Id. In Justice Brennan’s mind, the ambiguity of these majestic generalities “calls forth interpretation, the interpretation of reader and text.” Id. And for himself, as a modern Justice reading the text of the Constitution, Brennan explained that “the ultimate question must be: What do the words of the text mean in our time?” Id. at 61.

Justice Kennedy and the Rule of Law

Here is a report of some remarks Justice Kennedy recently made at Harvard Law School:

Justice Kennedy told students that public officials who object to a law based on moral standing should resign from office rather than refuse to enforce it.

 The Supreme Court Justice also noted that it is mandated for government officials to "enforce a law that they believe is morally corrupt," even if they do face "difficult moral questions."

He continued, "The rule of law is that as a public official in performing your legal duties you are bound to enforce the law."

So what is the Rule of Law and how does it differ from The Rule of Men?

 Wikipedia defines Rule of Law:

The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials.^[2] The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase in his argument against the divine right of kings.^[3] The rule of law was further popularized in the 19th century by British jurist A. V. Dicey. The concept, if not the phrase, was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".^[4]
Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.

On the other hand, Judge Richard Posner defends the Living Constitution and decisions such as Obergefell by asserting that (link):

I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.

For Posner, the role of the judge in constitutional cases is as follows:

 If you look at the entire body of constitutional law, that body of law bears very little resemblance to the text of the Constitution in 1789, 1791, and 1868. David Strauss, University of Chicago, has argued that the Constitution is an authorization to the judiciary to create a body of common law, limiting powers of other government officials. That’s the reality. The only useful way to advocate with regard to constitutional law is to give a good contemporary argument for or against a particular interpretation.

I think we can forget about the 18th century, much of the text. We ask with respect to contemporary constitutional issues, ask what is a sensible response.

I’m a pragmatist. I see judges as trying to improve things within certain bounds. There are practical restrictions on the exercise of one’s moral views. There are specific laws that are deeply entrenched. Where the judges are free, their aim, my aim, is to try to improve things. My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense, sensical solution.

Is Posner's view of constitutional law consistent with The Rule of Law, or is it The Rule of Unelected Judges?

Federal Government: Limited Powers

The Tenth Amendment was designed to underscore the fact that the Federal Government was one of strictly limited powers--it had only those powers enumerated in the Constitution, and no others.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Does the fact that the Federal Government is one of only enumerated powers, as opposed to plenary power, protect liberty? If so, how so?

Now consider Madison on Federal Power in Federalist 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Is this how things worked out?

The Seven Stages of Liberal Legal Activism

Just watch for these stages (as described by a blogger) of Living Constitutionalism as we proceed through the course:

Most of you should be familiar by now with the Seven Stages of Liberal Legal Activism:

1. It's a free country, X should not be illegal.
2. The Constitution prohibits X from being made illegal.
3. If the Constitution protects a right to X, how can it be immoral? Anyone who disagrees is a bigot.
4. If X is a Constitutional right, how can we deny it to the poor? Taxpayer money must be given to people to get X.
5. The Constitution requires that taxpayer money be given to people to get X.
6. People who refuse to participate in X are criminals.
7. People who publicly disagree with X are criminals.

Summer 2016--Syllabus

"Studying the Constitution has some of the same intellectual delight as reading Aristotle: it opens the mind on a subject of first importance." --Prof. Michael McConnell

Richard F. Duncan: Room 220 Law,
email:rduncan2@unl.edu; phone:472-6044

General Information: This class will meet on Monday thru Thursday from 1:30 p.m. until 3:30 p.m..

Office Hours: I don't maintain specific office hours; I have an open door policy and I will be in the office regularly and welcome your visits or appointments.

Attendance Policy: Attendance is required.

Grading: Your grade for the course will be based 100% on your score on the Final Exam. The Final Exam will be a combination of  objective (multiple choice or true-false) questions as well as a number of short- or medium-length essay questions. The Final will be a closed book exam. Most of the essay questions will be ones you have encountered during the semester, whether in the blog, the assigned readings, or our class discussion.

Books: Varat, Amar and Cohen, Constitutional Law (14th Edition)(Foundation Press) and
Paulsen, The Constituion: An Introduction (2015)

You should read the Paulsen book in its entirety. Although we won't be discussing it in class as a general rule, it is an excellent introduction and overview of the entirety of constitutional law. The final exam will cover the Paulsen book. There will be a number of objective questions based upon the book, and I might also draft a short essay question based upon the book. You should try to read 30 to 40 pages a day. At this rate you can read through the book in about 2 weeks. Chapters 1-3 will be very helpful to your understanding of the issues we will be discussing in the first few weeks of the class.

Online Materials: Professor William Linder's Exploring Constitutional Law (Link)


For Summer 2016, students should be prepared for 1 full assignment for each class. I may make a few minor adjustments to these assignments as the course progresses to include cites to recent cases. Some classes will cover two assignments.

Be sure to check this blog every day for announcements, additional required and optional reading, and discussion of cases and issues raised in the reading. In fact, if you scroll down you will see that I have already posted a couple of items for our first class discussion.

                                       First Thoughts

Consider this observation from Prof. Thomas R. Dye:

All governments, even democratic governments, are dangerous. They wield coercive power over the whole of society. They tax, penalize, punish, limit, confine, order, direct, and regulate. They seize property, restrict freedom, and even take lives, all under the claim of legitimacy.

The primary  purpose of this course is to consider the many ways the Constitution establishes, limits and checks the power of government, and to appreciate the many ways the Constitution was designed to protect  liberty, both through structural safeguards, such as separation of powers and federalism, as well as through specific protections of individual liberty.

Assignments: Summer 2016 (stay one entire assignment ahead for each class)


Here is a link to the text of the Constitution of the United States



1 Casebook p. 1-43; Handout No. 1
2 Handout No.2; Obergefell (link:Obergefell v Hodges (2015)) .
3 Casebook p. 45-68
4 Casebook p. 68-85
5 Casebook p.85-127
6 Federalism and Equal Representation in the Senate and The Seventeenth Amendment: Read Suzanna Sherry, Our Unconstitutional Senate, 12 Constitutional Commentary 213-215 (1995) [available to print out at Hein Online]; Zwickie-Somin Debate on Repeal of the Seventeenth Amendment (link);Casebook p. 127-151; Wickard (link)
7 Casebook p. 151-189
8 Casebook p.189-206; South Dakota v. Dole (link); Rotunda, The Spending Clause (link)
9 Casebook p. 223-250
10 Casebook p. 407-426; p.924-929
11 Casebook p. 426-465[In class, we will focus on McDonald (p. 442-62]
12 Casebook p. 467-489: 533-541
13 Casebook p. 565-600; Handout no. 3; Whole Womens Health (link) (this is a very long opinion; just skim it); My recent article, Kermit Gosnell's Babies: Abortion, Infanticide and Looking Beyond the Masks of the Law, is available at Digital Commons
14 Casebook p.600-620; Obergefell (see link above assignment no. 2)
15 Casebook p. 635-673
16 Casebook p. 691-730
17 Casebook p. 730-742



  If Time Permits:
18. Casebook p. 752-813

Separate but Equal and Gender: Are Men's and Women's Prisons Equal

There is a horrible and common problem concerning rape and violence in men's prisons. Link.

Althought this problem also exists in women's prisons, the available data suggests that the problem is far less common than in men's prisons (primarily because men's prisons are populated with many more violent predators).

For example, suppose Martha and Martin are each convicted of the same crime, perhaps some drug offense, and each is sentenced to a 3-year term in prison. Martha is assigned to the state women's correctional facility and Martin is assigned to the state men's correctional facility. Who has the greater chance of being the victim of prison rape or a violent assault? Which prison would you rather serve your time in?

Suppose Martin sues under the EPC to enjoin being assigned to prison on the basis of his gender.

The Court in the VMI case seems to suggest that separate but equal facilities based upon gender satisfy the EPC. But what result if data supports what everyone knows to be true--that with respect to the risk of rape and violence, men's prisons are not equally safe.

Nobody cares about prisoners; we all know that prison rape exists (Leno jokes about it every time a male celebrity is convicted of a crime), but it is difficult (almost impossible) for an inmate who fears rape to get legal protection. But what about an equal protection suit brought on behalf of male inmates challenging the gender-based prison system? What are your thoughts? What would the remedy be if the lawsuit is successful?

Prof. Turley on Sexual Privacy

Prof. Turley explains his challenge to Utah's criminal prohibition of polygamy by citing Lawrence and stating:

"We can’t embrace privacy as a principle and pick and choose who can enjoy it."

He also says this:

In his dissent in Lawrence, Justice Antonin Scalia said the case would mean the legalization of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”
Justice Scalia is right in one respect, though not intentionally. Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. Otherwise he’s dead wrong. There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others.
Others have opposed polygamy on the grounds that, while the Browns believe in the right of women to divorce or leave such unions, some polygamous families involve the abuse or domination of women. Of course, the government should prosecute abuse wherever it is found. But there is nothing uniquely abusive about consenting polygamous relationships. It is no more fair to prosecute the Browns because of abuse in other polygamous families than it would be to hold a conventional family liable for the hundreds of thousands of domestic violence cases each year in monogamous families.
Ultimately, the question is whether polygamy is allowed under the privacy principles articulated in Lawrence. The court did not state exclusions for unpopular relationships. Writing for the majority, Justice Anthony M. Kennedy said the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter” but rather “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”
The Browns are quite similar. They want to be allowed to create a loving family according to the values of their faith.

Do you agree with Prof. Turley that all consensual private sexual relationships should be protected by SDP liberty?

Michael H and the Case of The Adulterous Natural Sire as Justice Scalia Likes to refer to Him

Is this a case in which the Court was asked to "deny or disparage" a true 9th Amendment right created by the state laws of California--the right of marital privacy created by California statutory law?

Michael H, the "adulterous natural sire" of Victoria, a child born into the marriage of Carole and Gerald, is asking the Court to protect his right as an adulterous biological parent from a California law designed to protect the marital privacy of Carole and Gerald.

What effect would this kind of litigation likely have on a marriage?

Assume Husband does not know of his wife's infidelity?

Assume he does know, has forgiven her, and they are trying to repair the damage done to their marriage by her adultery?

Michael H. v. Gerald D.

How does the Court know which "liberty" interests are fundamental, and which are not, for purposes of SDP?

Should this issue depend upon the subjective preferences of each Justice? Would this be consistent with the Court acting, not as a ruler making law, but as a Court applying law?

The Court has rejected a subjective "I like liberty X, but not liberty Y" test in favor of an historical test--whether a particular liberty is fundamental depends upon whether it is one that has been "traditionally protected by our society" or is so deeply "rooted in the traditions and conscience of our people as to be ranked as fundamental." 

So the Court rejects a purely subjective test in favor of an historical test that seeks to determine the historical pedigree of a particular liberty. Is my liberty to drive my car as fast as I please deeply rooted in the history and traditions of our Nation? Is my liberty to contract with my employees without governmental restrictions deeply rooted in history and tradition?

But here is the question--when sending the researchers off to read American history, how should we frame the question presented for their research?

Should we phrase it at a specific level of generality ("is the right to to drive a car 150 MPH in a school zone one that is deeply rooted in American history and tradition?")

Or should we phrase it at a higher level of generality, one that is broad enough to include the liberty "not to conform" ("is the right to travel one that is deeply rooted in American history and tradition?")

Remember, I am charged with speeding in a school zone and I am claiming that the speeding laws are unconstitutional under the 14th Amendment and SDP. Which of the two questions above would likely produce the most accurate historical answer? Which would give the Court the most room to subjectively protect my liberty to drive as I please?

Now back to Michael H.

Scalia says that in researching history and tradition we should use "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." Thus, for Scalia the question to research is the historical pedigree "regarding the rights of a natural father of a child adulterously conceived."  Have American history and tradition looked with favor upon the claims of adulterous natural sires to claim parental rights against the marital privacy interests of a wife and her husband?

Brennan says use a higher level of generality and ask "whether parenthood is an interest" that history and tradition have cherished.  He wants to protect the "freedom not to conform."  How would our historical research come out under Brennan's question presented?

Does it depend upon how well we do our job of researching history and tradition? If we ask whether American history and tradition have cherished a broad right of parenthood, broad enough to include the rights of biological fathers who impregnate married women, do we come out with a different answer than under Scalia's question presented?

Aren't there really two liberty interests at stake here--(1) Carole and Gerald's right to marital privacy, their right to conform if you will, and to be protected against those, like Michael, who wish to use litigation to break down the doors of their sacred marital home and invade their marital privacy; and (2) Michael's right not to conform, his right to invade C & G's marriage once through adultery and a second time via this litigation?

Why should we think the Constitution prefers Michael's right not to conform over C & G's right to conform?

Indeed, one way to look at this case is to recognize that the U.S. Constitution says nothing about either of these rights, and that the California Legislature has chosen to protect C & G's right to marital privacy against Michael's right to interfere with their family life. Indeed, the California statute is protecting a true 9th Amendment unenumerated right, if we view the 9th Amendment as a federalism amendment intended to make clear that the people retain rights created by state laws and under state constitutions!

Zablocki: A Few Comments and Questions

Notice that Zablocki is an Equal Protection case.

And notice that although classifications based upon marital status or non-custodial status are not suspect classifications that trigger strict scrutiny, classifications that touch upon a fundamental right do trigger strict scrutiny. Thus, since marriage is a fundamental right, a law that restricts the right of non-custodial parents to marry must be reviewed under strict scrutiny.

I know that many people don't have much sympathy for "deadbeat dads" whose children are on public assistance. But should restricting their right to marry be used to punish them or as a collection device?

What about "deadbeat moms" whose children are on public assistance?

Suppose a state prohibited custodial parents whose children receive public assistance from marrying? Many people who support laws such as that in Zablocki would be outraged by this second type of law, because it restricts the right of poor women to marry. But didn't the law in Zablocki restrict the right of poor men to marry?

Is this an issue for the Court to decide at the national level? Or for the states to decide at the local level?

Moore v. City of East Cleveland: A Few Comments and Questions

Justice Powell's plurality opinion is a wonderful example of a Justice struggling with the temptation to substitute his personal policy preferences for the rule of law under the Constitution. Take a look at his struggle on page 543:

"Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court."

So what does he decide to do? He says lets go with Substantive Due Process but limit the substantive liberties to those which are "deeply rooted in this Nation's history and tradition."

Would the Lochner Court have disagreed with Justice Powell's analysis of SDP? Or would it have simply argued that freedom of contract is a basic value that is deeply rooted in our Nation's history and traditions?

Indeed, the 5th vote in Moore was Justice Stevens who said the protected liberty was "appellant's right to use her own property as she sees fit." (p.545) Does he really mean this? Are all zoning laws and other laws regulating what property owners may do on their property unconstitutional?

Is the decision in Moore an example of "judicial activism?"

Con Law Seminar Blog

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Evolution or Creation?

Some commentators reject an originalist theory of interpreting the Constitution in favor of a theory that views the Constitution as a living, breathing, evolving organism. For example, Prof. Erwin Chemerinsky says that "nonoriginalists believe that the Constitution's meaning is not limited to what the framers intended; rather, the meaning and application of constitutional provisions should evolve by interpretation."

Is this a theory of evolution or a theory of creation? How does the Constitution "evolve" into a new species in so brief a time? Surely, the sudden appearance of new constitutional rules in the fossil record is best explained by a theory of intelligent design, of Creation if you please, by shifting Supreme Court majorities. Thus, when Prof. Chemerinsky says that constitutional provisions "evolve by interpretation" what he means is these new constitutional species are called into being by judicial decisions (intelligent design) written by a Creator consisting of no fewer than 5 unelected lawyers serving lifetime appointments on the Supreme Court.

Rumpole and the "Evolving" Constitution

As a follow up to the post about the "Evolving Constitution" as, in reality, a theory of intelligent design (i.e., the Constitution "evolves" only in the sense that new species of Constitutional rights are actually created by judicial decree--"let there be a right to abortion" sayeth the Court), consider a wonderful passage from John Mortimer's Rumpole of the Bailey. In a short story entitled "Rumpole and the Old, Old Story," notice Rumpole's response when Soapy Sam Ballard, Rumpole's "head of chambers," proposes to ban smoking in chambers. Rumpole, who chain smokes small cigars or cheroots, replies that it is illegal to ban smoking under British constitutional law and Magna Carta. Ballard asks Rumpole: "Could you just remind me which clause in Magna Carta deals with smoking?" To which Rumpole answers: "'No freeman shall be taken or imprisoned, or destrained on or exiled or denied the comfort of the occasional cheroot...unless by the lawful judgment of his peers.'" John Mortimer, The Second Rumpole Omnibus, at 491. Later on, Rumpole adds that smoking is also protected under the European Convention on Human Rights, and when asked by Ballard for the exact provision, Rumpole replies: "'No citizen shall be persecuted on the grounds of race, creed or colour or because he lights up occasionally." Id. at 510

Query--as you read Supreme Court decisions interpreting the US Constitution, do you get the impression that the Court is acting a little bit like Horace Rumpole?

Scalia's Legacy

  

When we talk about the passing of a great man we ask what was his legacy, what did he leave behind. In the smash Broadway hip hop musical Hamilton, about the life and death of Alexander Hamilton, after being mortally wounded in a duel with Aaron Burr, Hamilton raps about his legacy:

"Legacy. What is a legacy?

It’s planting seeds in a garden you never get to see.

I wrote some notes at the beginning of a song someone will sing for me.

America, you great unfinished symphony, you sent for me

You let me make a difference

A place where even orphan immigrants

Can leave their fingerprints and rise up"

So, as we think about the legacy of Justice Scalia, what would the song of his legacy, sung by someone else, sound like. Justice Scalia, of course, believed that the Written Constitution should be interpreted based upon the original understanding, the original public meaning, of the ratified text of the Constitution, rather than the living and evolving meaning based upon the moral preferences and reasoned judgment of the “nine unelected lawyers” who happen to serve on the Supreme Court, as he himself often put it.

The Constitution “says what it says, and it doesn’t say what it doesn’t say. ” And like it or not, it means what it says. So if that is Scalia’s song, let’s hear how it might be sung in his absence from this Earth.

 Here is an excerpt from Scalia Dissents, a book about the importance of Justice Scalia’s dissenting opinions, in which the author, Kevin Ring, describes the potential legacy of Justice Scalia by describing what “Scalia’s America” would look like. This is  Scalia’s Song as sung by Kevin Ring.

               [In Scalia’s America]:

All fundamental freedoms would be guaranteed by a vibrant federal government whose power was divided and balanced among three distinct branches. The judiciary would seek to interpret the law, not create it. Congress would make laws, but leave the executive free to enforce it. In following the structure set forth in the Constitution, power would be divided so that no future President, Congress, or Supreme Court could amass sufficient power to dominate the others, usurp another’s authority, and deprive cherished individual liberties.

Democracy also would prosper in Scalia’s America. If the Constitution is silent on an issue, that issue will be returned to the people to make democratic choices for themselves and their communities. Majority votes by citizens, rather than by nine Supreme Court justices, would determine most social policies.

The product of enhanced freedom and revitalized democracy would be greater diversity. In Scalia’s America, the diversity of the different regions of the nation would be evident as each enacted laws reflecting its values. Some states would ban homosexual marriage; others might enshrine the right to same-sex marriage in their state constitutions. Some states would impose capital punishment against all murderers; others might eliminate the death penalty altogether. The states would be free to choose, reflecting the desires of the people. This democratic policymaking and diversity of practice would stand in sharp contrast to today’s Supreme-Court-prescribed, one-size-fits-all standard of deciding issues.

In Scalia’s America, these expansions of freedom, democracy, and diversity would be ably protected by, among other institutions, courts that respect the rule of law. Judges charged with interpreting laws would give words their ordinary meaning. They would moor their solutions of constitutional disputes to the text of the charter and the meaning of its Framers. America would be reborn as a nation of laws and not of men.

Whether Scalia’s America will ever come into being is unknowable at this point. It likely will not occur during his lifetime. However, throughout the Supreme Court’s history, it sometimes happens that views—coherent, textually based, and well argued—once found in the minority, become the basis of future majority opinions. Ultimately, this result is not Scalia’s to achieve; he is not likely to have a role in nominating or confirming future justices to the Supreme Court. But if future Court majorities seek to re-establish a jurisprudence that hews closer to the proper meaning of the Constitution, they will have, in Justice Scalia’s opinions, an enormous intellectual foundation on which to build.

This book was written in 2004, and it is eerie how it foreshadows the precise moment at which we are standing here today. I hope my children and grandchildren get to live someday in Scalia’s America. I doubt if I will, but as long as I live, I will try to sing Scalia’s Song. Heck, maybe I will even rap it.