NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Monday, March 29, 2010 ::
Daily Telegraph (London): Senior bishops call for end to persecution of Christians in Britain.
One case in particular is highlighted (though many are cited) in the Anglican Bishops' letter: that of Nurse Shirley Chaplin, who has been told to stop wearing her cross-necklace at her job at the NHS, after wearing for 38 years. She is taking her case to an employment tribunal, arguing inter alia that Muslim employees at the NHS are allowed to wear headscarves.
According to the Telegraph:While the trust refused to grant her an exemption, it makes concessions for other faiths, including allowing Muslim nurses to wear headscarves on duty....
The bishops said that it was “deeply disturbing” that the NHS trust’s uniform policy permits exemptions for religious clothing, but appears to regard the cross as “just an item of jewellery.”
They also expressed surprise that the court has asked for evidence to be submitted to verify that Christians wear crosses visibly around their neck.
What the court is going after is pretty obvious, I'd say: it is seeking grounds for distinguishing the Muslim's headscarf from Nurse Chaplin's cross, on the grounds that the headscarf is required by the Muslim woman's religion, while the cross is not required by that of Ms. Chaplin. Many Muslim authorities would say women must wear (at least) a headscarf; few if any Christian authorities would say that wearing a cross is required.
Now it's problematic enough if the court is going to rule against Nurse Chaplin on a required/optional distinction: in the U.S., anyway, we don't like secular courts ruling on what's required and what isn't by different religions. (As the recent Jewish day-school case shows, Britain, cradle of liberty, has apparently ceased to be averse to this at all.)
But if the required/optional distinction holds, there will be interesting consequences. As the Telegraph story indicates, among the complaints are those of Christian teachers who face being forced to teach sexual ethics they believe are radically wrong. A Christian may be able to put aside a cross-necklace without violating her conscience (though where the state gets the authority to tell her to is more than I can say); she cannot, without violating her conscience, tell kids that sex in middle school is just fine.
Most likely the required/optional distinction will be good for this date and train only, and when the time comes, some way will be found to hold that Christians exercising their religious liberty are thereby violating that of others, and so they have to stop, now....
:: David M. Wagner 4:12 PM [+] ::
...
:: Wednesday, March 24, 2010 ::
Overton, Overton, Overton Park
A snark can't judge, but a judge can snark
Have me adjudicate, I remark
Overton, Overton, Overton Park.
:: David M. Wagner 10:56 PM [+] ::
...
:: Monday, March 22, 2010 ::
From the Fed Soc, a bucket of documents on the Health Care Bill issue, including an analysis of the individual mandate issue, shaping up as the early leader among possible constitutional issues.
You might be amused to know that, in this year in which the Big Constitutional Issue besides health care is the 2nd Am., the only precedent being cited so far for a federal individual purchase mandate is the Militia Act of 1792, which required males of militia age to own a musket and ammo.
A bit meta, don't you think?
:: David M. Wagner 4:36 PM [+] ::
...
:: Saturday, March 13, 2010 ::
Sestakgate: Did the White House (comma, someone at) commit bribery in offering Rep. Joe Sestak (D-Pa.) a high-ranking federal job if he would pull out of his primary race against Sen. Arlen Specter? And if so, did Sestak commit "misprision of felony" in delaying the reporting of it, as Specter -- hardly a disintereted party -- now claims?
:: David M. Wagner 10:32 PM [+] ::
...
:: Friday, March 05, 2010 ::
A Yale Law Journal article makes the case for more, and more candid, political influence in administrative rule-making, linking this to the "democracy theory" of the Chevron doctrine, a theory I have always favored.
(In a nutshell: Chevron doctrine = judicial deference to an agency's interpretation of a statute it administers, where that interpretation is at least reasonable and not foreclosed by the plain terms of the statute.)
The people vote, a president is elected, he appoints agency heads (except for that embarrassing little anomoly called Humphrey's Executor that we'll get rid of some day, maybe even this term!), and boom -- agency policy shifts in the direction favored by the president the people elected. Duh. What's so hard about that? Why are so many scholars still so caught up in the late 19th century cult of expertise that they have a cow about this, instead of deferring to the "democratic" values that they claim to value in other contexts?
Give it up, please, for Prof. Kathryn A. Watts, University of Washington School of Law! (The sentiments in the third graf here are mine, not necessarily hers, but I applaud her for leading the way.)
:: David M. Wagner 1:41 PM [+] ::
...
:: Wednesday, March 03, 2010 ::
"Old McDonald had a Clause: p/i I Don't Know"
Some 2nd day reflections following oral argument in McDonald v. Chicago:
1. Many news sources (e.g. the WSJ's page one refer-hed) are announcing this morning that the Court is likely to hold that gun ownership is a "fundamental right." Well, it could do that; or it could simply hold that it is within the rights protected by one or another of the clauses of Section 1 of the 14th Am. (most likely Due Process, as I discussed in yesterday's post; see also infra in this post).
The problem with holding that any right is "fundamental" but at the same time wide open to regulation -- as the gun ownership right is, according to Heller, which also declared it to be constitutionally protected against federal intrusion -- is that it confuses what it means for a right to be "fundamental." Wouldn't you think, if your mind were not tainted by formal study of constitutional law, that a "fundamental right" is above regulation? What vocabulary do we have left to describe rights that are "really really no-kidding fundamental"?
In fact, do we have any such rights -- other than pure religious belief, divorced from any religious action whatsoever, which is a meaningless freebie for the system because, by definition, it has no costs or consequences?
This question is not my idea. I got it, of course, from Justice Scalia. Among the many stirring points he made in his Casey dissent is that the cost of the Court's refusal to recognize that abortion is a liberty interest and not a fundamental right, while at the same time allowing extensive regulation of it, is that genuine fundamental rights become open to extensive regulation -- a cost the Court in Casey was willing to pay rather than abandon Roe.
2. Prof. Randy Barnett has an interesting column in today's WSJ (subscr. req'd.). He too was puzzled by the colloquy on the 14th Am. Privileges or Immunities Clause that I discussed in yesterday's post. It's all very well to talk about "140 years of caselaw," but when the smoke clears (get it?), the P/I Clause is there in the text, just as the 2nd Am. is, whereas substantive due process, though better grounded in the caselaw, is not in the text. Yet Justice Scalia, who generally gives pride of place to text (constitutional or statutory), actively nudged attorney Gura away from p/i and toward s.d.p.
Yes, he also scorns things that are "darling[s] of the professoriat," as he labelled the movement to revivify the P/I Clause. Good move, generally speaking. But he has been willing to rely on scholars on occasion, e.g. his concurrence in City of Boerne, where he deployed Philip Hamburger's demonstration of the narrowness of the "reservation clauses" in colonial Free Exercise laws ("A Constl. Rt. of Relig. Exemption.: Hist. Persp.," 60 Geo Wash L.Rev. 915 [1992]) to counter Michael McConnell's equally thorough demonstration that general religious conduct exemptions were "within the contemplation" of the founding generation ("Origins & Hist. Underst. of the Fr. Ex. of Relig.," 103 Harv.L.Rev. 1409 [1990]).
More to the point, though, Justice Scalia need not rely on the commentariat to find principled limits for the P/I Clause (something that other Justices as well were concerned about). He can look to Justice Thomas's dissent in Saenz v. Roe, a case in which Thomas and CJ Rehnquist showed the same "can of worms" reservations about expanding the P/I Clause, but the majority -- joined by Scalia! -- did not. In that dissent, Thomas explained that p/i applies to common-law rights known to the framers of the 14th Am., and not to later-arising rights attributable to the welfare state. Saenz, though framed as a "right to travel" case, was really about equality of welfare benefits across state lines, and therefore belonged in the second of Thomas's categories. Gun rights would go in the first. Not only does the 2nd Am. testify to that, but see also Joyce Lee Malcolm's To Keep and Bear Arms for this history of gun rights in the last formative era of the Common Law.
Oral arguments do not always predict accurately how a decision will turn out. Sometimes Justices give the hardest time to the advocate whose views they plan to adopt, and that could apply here to Gura re p/i, not just to Gura re s.d.p. Maybe a majority will yet dust off Thomas's Saenz dissent and think it over.
EDITED TO ADD: At The Volokh Conspiracy, David Kopel argues that Heller allows, not for "reasonable regulation" (or "extensive regulation," as I perhaps unwisely put it in this post supra), but for categorical regulation based on types of weapons, said categories being based on relationship, vel non, to militia use. Bright lines and categories are always to be preferred to "reasonableness" rules, because they're law, not policymaking masquerading as law. (And yes -- sigh -- I believe in the distinction.)
:: David M. Wagner 8:58 AM [+] ::
...
:: Tuesday, March 02, 2010 ::
McDonald oral argument
Postpone the Privileges & Immunities revolution. Attorney Alan Gura led with it, but the Chief and Scalia weren't buying any, and both "sides" of the Court showed concern (or prurient interest?) in "what else" p/i might cover.
I expect Justice Thomas will say something about this in a separate opinion -- though you'd think that if there was ever a time for him to break his usual principled silence at oral argument, it would be in this case, since he broadly hinted at some day regrounding much of substantive due process in P/I in a footnote in his concurrence in Troxel v. Granville.
It's no news that the conservatism of Justice Scalia and of CJ Roberts is more respectful of precedent, and this showed itself when Gura made his argument. The Chief interrupted Gura with: "Of course, that arguments is contrary to the Slaughterhouse Cases, which have been the law for 140 years." 140 years of persistent dissents, controversy, adherence based on the naked power of precedent, nonsensical alternatives such as s.d. p., etc. -- but, there it is.
Gura answered the only way he could: precedents have less force when they are wrong. Soon Justice Ginsburg diverted the conversation into whether the personal firearms rights of the 2nd Am. and those of the 14th Am. P or I Clause are the same, and the Court stuck with that topic for the most part.
Except for an interesting exchange with Scalia on s.d.p. Our hero asked Gura: "Is it easier to do it [i.e. protect individual gun rights at the state level] under privileges and immunities than it is under substantive due process?" Well, of course Gura didn't want to say he had a weaker case under s.d.p. than under p/i, especially since the Court had just signalled him that his p/i argument was about to be kicked into the next century; so he said no, it comes out the same under either clause.
Then it went like this: SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law when you can reach your result subsantive due -- I mean, unless you're bucking for a place on some law-school faculty --
(Laughter)
GURA: No, no, I left law school some time ago and this is not an attempt to -- to return --
SCALIA: What you are arguing is the darling of the professoriate, for sure, but it's also contrary to140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which, as much as I think it's wrong, I have -- even I have acquieced in it?
(Laughter)
Now, if he hadn't added that part about thinking it's wrong, I'd have been mightily tempted to reply: "Because some authorities have opined -- with weighty arguments, I think, Justice Scalia -- that substantive due process is 'spinach.'"
You like that "spinach" thing as applied to s.d.p.? I got it from Scalia, at one his FedSoc CLE's. But he headed off any such response, perhaps referring to majority opinions he has joined that acknowledge s.d.p. without warmly embracing it; perhaps to the highly restrictive "thus far and no farther"-type of acceptance reflected in his dissent in Troxel (which also hinted that he would be willing to overrule key s.d.p. precedents if asked to); or perhaps (I can dream, can't I?) to his plurality opinion in Michael H., including footnote six, which together sketch a rationale for both accepting and limiting s.d.p.
Justice Ginsburg then engaged Gura in an interesting dialogue about how different societies that are all "free" nonetheless seem to maintain different lists of "fundamental rights." Gura accounted for these differences by arguing that he was not asking for the P/I Clause to be read as natural rights in the abstract, but natural rights as seen by the framers of the 14th Am.
At that point, Scalia offered his "tradition and conscience of the people" test, noting that it is not just his test but one that the Court uses in s.d.p. cases. (This is actually true: see Glucksberg. And no, Lawrence is not to the contrary, because it does not purport to be grounded in even so diaphanous a doctrine as s.d.p.)
Gura here gave a masterful response, showing how the argument from tradition had already figured in a recent Ninth Circuit decision on this very issue that also discussed the P/I Clause (I think he means this: see footnote five). But, as far as we know, the result was not to make Scalia say "Oh, so Judge O'Scannlain pointed out that the dissenters in Slaughterhouse reached results similar to what we've reached under s.d.p.? I'll have to take that on board." No, not today.
Look for an s.d.p.-based opinion, disallowing Chicago's regulations but allowing, as Heller does, for some regulation of the protected right. But I do wonder what Thomas will say.
:: David M. Wagner 4:56 PM [+] ::
...
One case in particular is highlighted (though many are cited) in the Anglican Bishops' letter: that of Nurse Shirley Chaplin, who has been told to stop wearing her cross-necklace at her job at the NHS, after wearing for 38 years. She is taking her case to an employment tribunal, arguing inter alia that Muslim employees at the NHS are allowed to wear headscarves.
According to the Telegraph:
While the trust refused to grant her an exemption, it makes concessions for other faiths, including allowing Muslim nurses to wear headscarves on duty....
The bishops said that it was “deeply disturbing” that the NHS trust’s uniform policy permits exemptions for religious clothing, but appears to regard the cross as “just an item of jewellery.”
They also expressed surprise that the court has asked for evidence to be submitted to verify that Christians wear crosses visibly around their neck.
What the court is going after is pretty obvious, I'd say: it is seeking grounds for distinguishing the Muslim's headscarf from Nurse Chaplin's cross, on the grounds that the headscarf is required by the Muslim woman's religion, while the cross is not required by that of Ms. Chaplin. Many Muslim authorities would say women must wear (at least) a headscarf; few if any Christian authorities would say that wearing a cross is required.
Now it's problematic enough if the court is going to rule against Nurse Chaplin on a required/optional distinction: in the U.S., anyway, we don't like secular courts ruling on what's required and what isn't by different religions. (As the recent Jewish day-school case shows, Britain, cradle of liberty, has apparently ceased to be averse to this at all.)
But if the required/optional distinction holds, there will be interesting consequences. As the Telegraph story indicates, among the complaints are those of Christian teachers who face being forced to teach sexual ethics they believe are radically wrong. A Christian may be able to put aside a cross-necklace without violating her conscience (though where the state gets the authority to tell her to is more than I can say); she cannot, without violating her conscience, tell kids that sex in middle school is just fine.
Most likely the required/optional distinction will be good for this date and train only, and when the time comes, some way will be found to hold that Christians exercising their religious liberty are thereby violating that of others, and so they have to stop, now....
:: David M. Wagner 4:12 PM [+] ::
...
A snark can't judge, but a judge can snark
Have me adjudicate, I remark
Overton, Overton, Overton Park.
:: David M. Wagner 10:56 PM [+] ::
...
You might be amused to know that, in this year in which the Big Constitutional Issue besides health care is the 2nd Am., the only precedent being cited so far for a federal individual purchase mandate is the Militia Act of 1792, which required males of militia age to own a musket and ammo.
A bit meta, don't you think?
:: David M. Wagner 4:36 PM [+] ::
...
:: David M. Wagner 10:32 PM [+] ::
...
(In a nutshell: Chevron doctrine = judicial deference to an agency's interpretation of a statute it administers, where that interpretation is at least reasonable and not foreclosed by the plain terms of the statute.)
The people vote, a president is elected, he appoints agency heads (except for that embarrassing little anomoly called Humphrey's Executor that we'll get rid of some day, maybe even this term!), and boom -- agency policy shifts in the direction favored by the president the people elected. Duh. What's so hard about that? Why are so many scholars still so caught up in the late 19th century cult of expertise that they have a cow about this, instead of deferring to the "democratic" values that they claim to value in other contexts?
Give it up, please, for Prof. Kathryn A. Watts, University of Washington School of Law! (The sentiments in the third graf here are mine, not necessarily hers, but I applaud her for leading the way.)
:: David M. Wagner 1:41 PM [+] ::
...
Some 2nd day reflections following oral argument in McDonald v. Chicago:
1. Many news sources (e.g. the WSJ's page one refer-hed) are announcing this morning that the Court is likely to hold that gun ownership is a "fundamental right." Well, it could do that; or it could simply hold that it is within the rights protected by one or another of the clauses of Section 1 of the 14th Am. (most likely Due Process, as I discussed in yesterday's post; see also infra in this post).
The problem with holding that any right is "fundamental" but at the same time wide open to regulation -- as the gun ownership right is, according to Heller, which also declared it to be constitutionally protected against federal intrusion -- is that it confuses what it means for a right to be "fundamental." Wouldn't you think, if your mind were not tainted by formal study of constitutional law, that a "fundamental right" is above regulation? What vocabulary do we have left to describe rights that are "really really no-kidding fundamental"?
In fact, do we have any such rights -- other than pure religious belief, divorced from any religious action whatsoever, which is a meaningless freebie for the system because, by definition, it has no costs or consequences?
This question is not my idea. I got it, of course, from Justice Scalia. Among the many stirring points he made in his Casey dissent is that the cost of the Court's refusal to recognize that abortion is a liberty interest and not a fundamental right, while at the same time allowing extensive regulation of it, is that genuine fundamental rights become open to extensive regulation -- a cost the Court in Casey was willing to pay rather than abandon Roe.
2. Prof. Randy Barnett has an interesting column in today's WSJ (subscr. req'd.). He too was puzzled by the colloquy on the 14th Am. Privileges or Immunities Clause that I discussed in yesterday's post. It's all very well to talk about "140 years of caselaw," but when the smoke clears (get it?), the P/I Clause is there in the text, just as the 2nd Am. is, whereas substantive due process, though better grounded in the caselaw, is not in the text. Yet Justice Scalia, who generally gives pride of place to text (constitutional or statutory), actively nudged attorney Gura away from p/i and toward s.d.p.
Yes, he also scorns things that are "darling[s] of the professoriat," as he labelled the movement to revivify the P/I Clause. Good move, generally speaking. But he has been willing to rely on scholars on occasion, e.g. his concurrence in City of Boerne, where he deployed Philip Hamburger's demonstration of the narrowness of the "reservation clauses" in colonial Free Exercise laws ("A Constl. Rt. of Relig. Exemption.: Hist. Persp.," 60 Geo Wash L.Rev. 915 [1992]) to counter Michael McConnell's equally thorough demonstration that general religious conduct exemptions were "within the contemplation" of the founding generation ("Origins & Hist. Underst. of the Fr. Ex. of Relig.," 103 Harv.L.Rev. 1409 [1990]).
More to the point, though, Justice Scalia need not rely on the commentariat to find principled limits for the P/I Clause (something that other Justices as well were concerned about). He can look to Justice Thomas's dissent in Saenz v. Roe, a case in which Thomas and CJ Rehnquist showed the same "can of worms" reservations about expanding the P/I Clause, but the majority -- joined by Scalia! -- did not. In that dissent, Thomas explained that p/i applies to common-law rights known to the framers of the 14th Am., and not to later-arising rights attributable to the welfare state. Saenz, though framed as a "right to travel" case, was really about equality of welfare benefits across state lines, and therefore belonged in the second of Thomas's categories. Gun rights would go in the first. Not only does the 2nd Am. testify to that, but see also Joyce Lee Malcolm's To Keep and Bear Arms for this history of gun rights in the last formative era of the Common Law.
Oral arguments do not always predict accurately how a decision will turn out. Sometimes Justices give the hardest time to the advocate whose views they plan to adopt, and that could apply here to Gura re p/i, not just to Gura re s.d.p. Maybe a majority will yet dust off Thomas's Saenz dissent and think it over.
EDITED TO ADD: At The Volokh Conspiracy, David Kopel argues that Heller allows, not for "reasonable regulation" (or "extensive regulation," as I perhaps unwisely put it in this post supra), but for categorical regulation based on types of weapons, said categories being based on relationship, vel non, to militia use. Bright lines and categories are always to be preferred to "reasonableness" rules, because they're law, not policymaking masquerading as law. (And yes -- sigh -- I believe in the distinction.)
:: David M. Wagner 8:58 AM [+] ::
...
Postpone the Privileges & Immunities revolution. Attorney Alan Gura led with it, but the Chief and Scalia weren't buying any, and both "sides" of the Court showed concern (or prurient interest?) in "what else" p/i might cover.
I expect Justice Thomas will say something about this in a separate opinion -- though you'd think that if there was ever a time for him to break his usual principled silence at oral argument, it would be in this case, since he broadly hinted at some day regrounding much of substantive due process in P/I in a footnote in his concurrence in Troxel v. Granville.
It's no news that the conservatism of Justice Scalia and of CJ Roberts is more respectful of precedent, and this showed itself when Gura made his argument. The Chief interrupted Gura with: "Of course, that arguments is contrary to the Slaughterhouse Cases, which have been the law for 140 years." 140 years of persistent dissents, controversy, adherence based on the naked power of precedent, nonsensical alternatives such as s.d. p., etc. -- but, there it is.
Gura answered the only way he could: precedents have less force when they are wrong. Soon Justice Ginsburg diverted the conversation into whether the personal firearms rights of the 2nd Am. and those of the 14th Am. P or I Clause are the same, and the Court stuck with that topic for the most part.
Except for an interesting exchange with Scalia on s.d.p. Our hero asked Gura: "Is it easier to do it [i.e. protect individual gun rights at the state level] under privileges and immunities than it is under substantive due process?" Well, of course Gura didn't want to say he had a weaker case under s.d.p. than under p/i, especially since the Court had just signalled him that his p/i argument was about to be kicked into the next century; so he said no, it comes out the same under either clause.
Then it went like this:
SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law when you can reach your result subsantive due -- I mean, unless you're bucking for a place on some law-school faculty --Now, if he hadn't added that part about thinking it's wrong, I'd have been mightily tempted to reply: "Because some authorities have opined -- with weighty arguments, I think, Justice Scalia -- that substantive due process is 'spinach.'"
(Laughter)
GURA: No, no, I left law school some time ago and this is not an attempt to -- to return --
SCALIA: What you are arguing is the darling of the professoriate, for sure, but it's also contrary to140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which, as much as I think it's wrong, I have -- even I have acquieced in it?
(Laughter)
You like that "spinach" thing as applied to s.d.p.? I got it from Scalia, at one his FedSoc CLE's. But he headed off any such response, perhaps referring to majority opinions he has joined that acknowledge s.d.p. without warmly embracing it; perhaps to the highly restrictive "thus far and no farther"-type of acceptance reflected in his dissent in Troxel (which also hinted that he would be willing to overrule key s.d.p. precedents if asked to); or perhaps (I can dream, can't I?) to his plurality opinion in Michael H., including footnote six, which together sketch a rationale for both accepting and limiting s.d.p.
Justice Ginsburg then engaged Gura in an interesting dialogue about how different societies that are all "free" nonetheless seem to maintain different lists of "fundamental rights." Gura accounted for these differences by arguing that he was not asking for the P/I Clause to be read as natural rights in the abstract, but natural rights as seen by the framers of the 14th Am.
At that point, Scalia offered his "tradition and conscience of the people" test, noting that it is not just his test but one that the Court uses in s.d.p. cases. (This is actually true: see Glucksberg. And no, Lawrence is not to the contrary, because it does not purport to be grounded in even so diaphanous a doctrine as s.d.p.)
Gura here gave a masterful response, showing how the argument from tradition had already figured in a recent Ninth Circuit decision on this very issue that also discussed the P/I Clause (I think he means this: see footnote five). But, as far as we know, the result was not to make Scalia say "Oh, so Judge O'Scannlain pointed out that the dissenters in Slaughterhouse reached results similar to what we've reached under s.d.p.? I'll have to take that on board." No, not today.
Look for an s.d.p.-based opinion, disallowing Chicago's regulations but allowing, as Heller does, for some regulation of the protected right. But I do wonder what Thomas will say.
:: David M. Wagner 4:56 PM [+] ::
...
