Eugene Volokh's Blog, page 2731
August 12, 2011
Jack Balkin's Response to My Article on Resolution VI
I am glad to report that Jack Balkin has posted an extended response to my new article on Resolution VI. His doing so allows me to both clarify my arguments and our points of disagreement. Jack's scholarship on constitutional theory and history is deep and profound, and Jack himself is a warm and gregarious colleague. Both of these points are obvious to anyone familiar with Jack and his work, but given the criticisms in my article, I should acknowledge both facts up front. My claim in this article is nothing more than, on this particular point, Jack and others have erred in regard to their claims about Resolution VI.
It is important to clarify these claims because Jack seems to misapprehend my arguments. They are directed solely at historical claims made by proponents of a Resolution VI-based reading of Article I, Section 8. These are claims of original intent and historical fact. The relevance of any historical evidence depends on one's theory of interpretation. This article has no quarrel with Jack's or anyone else's particular theory of interpretation and construction. My quarrel, if you want to think of it that way, is with the factual claims relied upon by Jack and others in building their case. For those first joining the discussion, my general argument is presented here, here, here, and here.
Our Respective Claims
First, Balkin claims that I have mischaracterized his position about Resolution VI. Balkin does in fact have a creative theory of constitutional meaning and construction, one that I do not address in my article or in my posts. It may well be (though I am not convinced) that the evidence presented in my article makes no difference to his particular theory of Article I, Section 8. However, in the course of presenting his theory, Balkin makes specific historical claims which he then relies upon in building his case, and which others have relied upon in building their case about the meaning and scope of Article I, Section 8. It is important, therefore, to determine whether these historical claims are supportable.
As much as Balkin takes considerable time presenting his theory of constitutional meaning, for my purposes it is important to note how all of this "cashes out" in terms of the purported relationship between Resolution VI and the meaning of Article I, Section 8. First, according to Balkin, "the purpose of enumeration was not to displace the principle [of Resolution VI] but to enact it." This leads to the following bottom line in terms of the Commerce Clause:
"In the words of Resolution VI, commerce is 'among the several states' when states are 'severally incompetent' to deal with a particular issue, 'or [when] the Harmony of the United States may be interrupted by the exercise of individual legislation.'" (emphasis added)
To me, this is fairly characterized as an assertion that Article I, Section 8 means the principles of Resolution VI. This is, literally, what Balkin says in the above quoted passage. I appreciate Jack's attempt to put his theory in a broader context, but I do not believe I have misrepresented his bottom line.
On the other hand, it is clear that Balkin has misunderstood the nature of my claims, so let me restate them up front:
1. There is no historical evidence that the framers of Article I, Section 8 intended or understood that article to effectuate the general principles of Resolution VI. Instead, the only time the framers spoke to the issue, the expressly denied such intent and understanding.
2. Although Jack Balkin and others claim that James Wilson expressly linked Article I, Section 8 to Resolution VI in a speech in the Penn. Ratifying Convention, there is no evidence supporting such a claim. The reference which Jack and others have focused on says nothing about Resolution VI and is instead a reference to a different principle which Wilson had originally supported in the framing debates, and which the convention itself rejected.
3. The version of Wilson's speech which contains language that Jack Balkin and others have specifically relied upon in constructing their theory of federal power was not in the version of Wilson's speech distributed and published immediately after he gave his speech. The version Balkin and others rely upon was published months later and does not seem to have been reprinted in any newspaper. This undercuts any effort to make original public meaning claims regarding Wilson's view. Moreover the existence of two version means we can no longer be sure about the words Wilson actually used.
Nothing in Balkin's response undermines any of these claims.
The Work of Jack Rakove
Just to get something out of the way immediately, Jack accuses me of leaving out a passage in Jack Rakove's work "that seriously undermines Lash's argument." This is simply false. I quoted this passage in the first posted version of my article, and I continue to quote it in the current draft. It is unfortunate that Jack would claim otherwise. Nor does this passage undermine my argument in any way. Here is how my article presents the thoughts of Jack Rakove:
"This ambiguity in the meaning of Resolution VI is best described by historian Jack Rakove:
'This open-ended language [of Resolution VI] may be interpreted in two ways. On the one hand, it may be viewed as an authentic formula for a national government whose legislative power would extend as its own discretion saw fit. On the other, it can also be read as a textual placeholder to be used so long as the great issue of representation remained unresolved, but then to be modified or even replaced by a list of particular powers.'
Rakove concludes, "the process that unfolded during its [the Committee of Detail] ten days of labor is better explained as an effort to identify particular areas of governance where there were "general interests of the Union," where the states were "separately incompetent," or where state legislation could disrupt the national "Harmony." Although it is true that no one in the convention objected to Article I, Section 8 as conflicting with Resolution VI, the convention's lack of objection could simply reflect that framers consensus belief "that the scope of national lawmaking would remain modest." As Rakove writes, even with the addition of the Necessary and Proper Clause, "[t]here is no reason to think that the framers believed [that Clause] would covertly restore the broad discretionary conception of legislative power in the Virginia Plan." In other words, simply because no one objected to Article I, Section 8 does not mean that the text should be construed to fit a broad conception of Resolution VI. If anything, the abandonment of Resolution VI and the ultimate adoption of a text of enumerated powers suggests that one ought not look to the Resolution VI as declaring an overarching principle of constitutional construction."
Jack Balkin, on the other hand, does omit Rakove's conclusion that, even with the addition of the Necessary and Proper Clause, "[t]here is no reason to think that the framers believed [that Clause] would covertly restore the broad discretionary conception of legislative power in the Virginia Plan." In the end, though, I do not "base[ my] arguments against Resolution VI on Rakove's work" and neither does Balkin. Both of us simply have found aspects of Rakove's work helpful in understanding the evidence. So let's consider Balkin's claims about my reading of the evidence.
The Speech of James Wilson
Regarding the speech of James Wilson; as far as I can tell, Jack concedes my factual claims about Wilson's speech, but argues, for various reasons, that even if true this makes little difference to his overall arguments. I presume this is true, but it will make a great deal of difference to those who relied on the accuracy of prior claims. Here is how I understand Jack's response: Yes, Wilson does not seem to have actually referred to Resolution VI. However, Wilson referred to something I believe is essentially the same, Roger Sherman's principle, so it makes no difference." Putting aside the scholars and litigants who accepted Balkin's prior particular claims about Wilson's reference, his argument has some serious problems.
The reason why Balkin relies on Wilson's speech in his "Commerce" article is to refute Randy Barnett's claim that the framers rejected Resolution VI when they adopted Article I, Section 8. According to Balkin, Wilson's speech proves Randy is wrong: Balkin claims this is evidence of an important framer in the ratification debates who expressly reads Article I, Section 8 as having been animated by Resolution VI. It is because Balkin understood Wilson as referring to Resolution VI that he felt justified in asserting that, not only did the framers not reject Resolution VI, "they enacted it."
But if Wilson was not referring to Resolution VI, this argument evaporates. Not only has Balkin failed to rebut Randy Barnett, he has relied upon a reference to Roger Sherman's principle which was expressly rejected by the convention. Jack may think the principles are essentially the same, but the convention disagreed. Most of all, Jack has jumped from the fat to the fire by relying on Wilson's invocation of Sherman's rejected principle.
The Two Versions of Wilson's Speech
As for the evidence of the two versions, this simply illustrates one final and insuperable problem with relying on Wilson's speech as reported in Elliot's debates. (1) We cannot be sure these were Wilson's words and (2) even if they were, they were not printed until much later and seem to have had little, if any, distribution in the public newspapers. This further undercuts what was already an implausible case that Resolution VI might have been part of the original public meaning of the Constitution. This last point does not matter to Jack Balkin, but it should matter a great deal to those who think that original meaning matters, or who may have thought (as did Cooter and Siegle, and Wydra) that Jack was making an argument about the original public meaning (as most scholars mean that term) of the Constitution.
The Framers' Colloquy on the Incorporation Power
For some, since the above undercuts the only purported evidence of original public meaning, this alone will be enough to call into question Resolution VI-based readings of Article I, Section 8. The only other evidence involves the internal convention debates and assertions about framers intent. For many, nothing here will have much relevance to the more important issue of public meaning of a text that said nothing about Resolution VI.
But the debate over charters of incorporation is important if only to show that the framers themselves expressly denied what Balkin and others claim they believed.
Balkin's response is the very counter-move I anticipated and have already responded to in my final post at the Volokh Conspiracy debate with Neil Siegel. It is worth restating here if only because Balkin's attempted hypothetical illustrates the problem that he faces overcoming the implications of this particular debate.
Just to pull back a bit and remember what we are trying to determine: The framers adopted Resolution VI and sent the same to the committee of detail. The committee put aside the language of Resolution VI and drafted a text of enumerated powers. Did this represent a rejection of Resolution VI (as some claim)? Or does this represent an enactment of Resolution VI (as some claim)? Or does this represent the result of some kind of internal debate that took place during the drafting of Article I Section 8 which represented a variety of compromises and concessions for which Resolution VI had little if any relevance?
To simply claim that Article I, Section 8 represents the enactment of Resolution VI is to beg the question we are trying to answer. It might help if a framer later claimed Article I Section 8 represented the enactment of Resolution VI, but we now know that no such claim was made.
Instead, the only time (that we know of) that the framers actually commented on the relationship between Article I, Section 8 and the principles of Resolution VI, they expressly denied that the general principles of Resolution VI had been enacted with the adoption of Article I, Section 8. Balkin tries to change the nature of my claim in order to make it harder to defend. But I do not claim this evidence "proves that Resolution VI was rejected." Instead, my claim is that (1) not only is there no evidence the framers understood Article I, Section 8 the way Balkin claims they did, but (2) the evidence we have directly contradicts Balkin's claims about the framers. If true, this places an enormous burden on proponents of Resolution VI to provide historical evidence to the contrary. To date, they have presented nothing at all other than their continued "once adopted, always adopted" claim about Resolution VI.
Balkin tries to avoid the evidence by way of a hypothetical. First, he point out that one can reject a particular application of a principle without rejecting the principle itself (which is true). He then uses the following hypothetical as an illustration of what he claims actually occurred during this colloquy:
Imagine that a group of ten people agree that government will uphold "equal protection of the laws." Two of them argue that now they should support same sex marriage, because this would secure equal protection of the laws. The other people in the room disagree, a vote is held, and the two supporters are outvoted. Does this vote mean that the group has rejected the basic principle of equal protection, or does it mean merely that they disagreed about how to apply the principle to concrete circumstances? The latter, surely, even if we agree with the losers on the merits. But according to Lash's argument, this vote would be clear evidence that the group has abandoned the principle of equal protection because the two proponents specifically invoked the principle in their arguments.
This is neither my argument nor an accurate representation of what occurred. Here, again, is the colloquy:
Here is the discussion as noted by James Madison:
Mr. Madison suggested an enlargement of the motion into a power "to grant charters of incorporation where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent". His primary object was however to secure an easy communication between the States which the free intercourse now to be opened, seemed to call for–The political obstacles being removed, a removal of the natural ones as far as possible ought to follow. Mr. Randolph 2ded. the proposition.
Mr King thought the power unnecessary.
Mr Wilson. It is necessary to prevent a State from obstructing the general welfare.
Mr King–The States will be prejudiced and divided into parties by it–In Philada. & New York, It will be referred to the establishment of a Bank, which has been a subject of contention in those Cities. In other places it will be referred to mercantile monopolies.
Mr. Wilson mentioned the importance of facilitating by canals, the communication with the Western Settlements–As to Banks he did not think with Mr. King that the power in that point of view would excite the prejudices & parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.
Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.
The motion being so modified as to admit a distinct question specifying & limited to the case of canals.
N– H– no– Mas. no. Ct. no– N– J– no– Pa ay. Del. no– Md. no. Va. ay. N– C– no– S– C. no– Geo. ay. [Ayes–3; noes–8.]
In this short but important conversation, we learn a number of things. First and most importantly, no one in this discussion believed that, by adopting Article I, Section 8, the Convention had granted Congress power to regulate matters in the national interest, even when required in cases where the states were "separately incompetent." If they had, they would have either supported Madison's proposal as being consistent with Resolution VI or they would have pointed out that Congress already had the power to act in cases "where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent." Instead, not only did Madison and Wilson deny Congress had any such power (though they believed it should), the convention voted down the proposition to grant Congress such power.
Balkin argues that this was no more than a rejection of a particular application of a previously adopted principle. However, the manner in which Madison framed his motion, however, and the manner in which Wilson supported it, directly cut against such a counter-argument. Madison did not just propose power to grant charters of incorporation, he proposed allowing such charters "where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent." There is no escaping the fact that, if advocates are right and Article I, Section 8 must be read as effectuating the principles of Resolution VI, then the power that Madison proposed to add to the Constitution had, in fact, already been added. To believe this particular power did not currently exist was to believe the principle had not been adopted.
Once again, consider how Balkin frames his hypothetical:
"Imagine that a group of ten people agree that government will uphold "equal protection of the laws." Two of them argue that now they should support same sex marriage, because this would secure equal protection of the laws."
This, of course, is not analogous to what Madison actually proposed or how it was received. The correct analogy would look like this:
"Imagine that a group of ten people agree that government will uphold "equal protection of the laws." Two of them argue that now they should support same sex marriage in cases where the denial would violate the government's duty to uphold "equal protection of the laws."
The adoption of the principle that government shall uphold equal protection of the laws literally applies in cases where the government fails to uphold equal protection of the laws. For anyone to claim that the government was not already committed to upholding equal protection of the laws (in the case of same sex marriage or any other situation) would be to claim that they did not believe they had committed the government to the general principle. To deny the application in such a case is to deny the principle.
Unlike the assertion in Jack's hypothetical, we cannot claim apriori that the framers have adopted a particular principle. We are looking for evidence to see whether they have adopted that principle. In this case, Madison and Wilson expressly deny that the powers granted should be read as having adopted the general principle. Therefore, Balkin's hypothetical is inapt. It reflects neither my argument nor the actual discussion that took place.
One might argue that Madison actually believed such power already existed and he was making the proposal only "for greater caution." Neither he nor anyone else said this, of course. And the idea that Madison held an unstated belief that Article I, Section 8 harbored power to grant charters of incorporation becomes all the more unlikely when one remembers that Madison argued all his life that Article I, Section 8 properly construed did not include the power to grant charters of incorporation (his ultimate signature on the second bank bill reflected acquiescence to precedent; Madison continued to argue against the interpretation that allowed for charters of incorporation). Madison's life-long position on the matter supports a conclusion that the most obvious reading of his proposal is, in fact, the correct one: Madison sought to add the power because he did not think the power had been added.
Some might dismiss Madison's later claims regarding the powers of incorporation as no more than an after-the-fact change of mind. Even if true (for which, again, there is no evidence), this cannot explain the remarks of James Wilson. Wilson supported Madison's proposal, not for "greater caution," but because it was "necessary to prevent a State from obstructing the general welfare." The most obviously reading of this declaration is that Wilson did not think the principles of Resolution VI were currently operative (otherwise, the power to prevent the "interruption of national harmony" would have covered Wilson's concern). But even if there is some other reasonable way to understand Wilson's use of the word "necessary," Wilson then further clarified that Madison's proposed power was unlike the power to grant mercantile monopolies because that power had already been "included in the power to regulate trade." It is inescapable that Wilson viewed Madison as suggesting the addition of a power not already granted in Article I, Section 8.
Once again, remember, we are not just talking about the power to grant charters of incorporation. Madison proposed adding such power in cases "where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent." If Article I, Section 8 must be read to effectuate the principles of Resolution VI, then this power by definition already existed. Wilson believed it did not exist. And it is hard to find a more ardent nationalist than Wilson.
Conclusion
Balkin concludes "Lash thinks that the minutiae of public representations in the ratification debates, and the subtle differences in rival renderings of James Wilson's speech in November of 1787 is crucial to determining how to be faithful to our Constitution today." I believe Balkin intends the word "minutiae" to mean "trifling." If, on the other hand, he means "precise details," then, yes, I do believe they are important. Particularly when global claims of national power are based on inaccurate or erroneous details. And while Balkin is right that one must be careful not to lose the forest for the trees, if there are no trees there is no forest.
Interpreting the Constitution According to "Its Plain, Present, Public Meaning"
My friend Prof. Tom Bell (Agoraphilia) has an interesting post that partly responds to my post on Words That Have Different Meaning in Different Parts of the Constitution but largely builds on his Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, 61 Case Western L. Rev. 17 (2010). Here's Tom's summary of his main thesis:
Eugene's observations do nothing to save originalism or living constitutionalism from the charge that they offend the rule of law, however. The rule of law does not suffer if we read words in their constitutional context because ordinary speakers of ordinary English can figure out that "it" means "House" in one place and "Writ of Habeas Corpus" in another. But originalism and living constitutionalism raise a different problem, given that they base constitutional meaning on historical usage (in the first instance) or Supreme Court precedents (in the second). Only specialists in constitutional law—and not even all of them—have the expertise to engage in that sort of decoding process. Did you know, for instance, that "Property" includes government entitlements in the Fourteenth Amendment but not in the Fifth? If so, I doubt you figured it out from reading the Constitution, alone.
How do we fix this problem with both originalism and living constitutionalism? By rejecting those theories for one that gives the Constitution's text its plain, present, public meaning....
Ratification may be necessary to make a Constitutional term effective in the first place, but it is not sufficient to make an original meaning binding on subsequent generations. People today, using ordinary English, almost certainly regard public flogging as unconstitutionally cruel and unusual punishment. In contrast, Justice Scalia has argued that an originalist (such as himself) should (and does) regard public flogging not as unconstitutional but simply, "stupid." That he can offer so tepid a criticism of something almost any citizen would regard as beyond the pale demonstrates the salient gap between an originalist approach and a consent-based one. (Living constitutionalism's abuse of ordinary English makes it susceptible to a similar critique.)
I appreciate the insight at the heart of Tom's argument, but I'm just not sure what exactly it's supposed to mean in practice, given the number of terms that either don't have a "plain, present, public meaning" apart from either their originalist or precedential meaning, or that have such a "plain" meaning that makes little sense in context. Thus, for instance,
1. What is the "plain, present, public meaning" of "Congress shall make no law respecting an establishment of religion" coupled with "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" (the text that might or might not make the Establishment Clause applicable to the states under a "plain, present, public meaning" approach)?
"Establishment of religion" doesn't have a very clear modern meaning. I suspect it would be very hard to get a consensus among modern Americans about what it really means. Many won't have thought much about what that phrase means (as opposed to what they think the government should or shouldn't be allowed to do in the Constitution as they'd like it to be). Others might have thought about it, but in a way that has been heavily influenced by claims about original meaning or by claims about precedent (though most likely have only a sketchy sense of the relevant original meaning sources and the relevant precedents, and go mostly based on what they've heard from people on their ideological side).
Now for some phrases one might say that there is a plain meaning independent of original meaning and precedent — for instance, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed" has such a plain English meaning, at least as to its core principles, even if it's one that diverges from precedent and likely from original meaning. (The Court has held that the right to trial by jury doesn't apply to "petty offenses," which is to say ones that carry no jail term or a jail term of six months or less.) But "establishment of religion" is not, I think, such a phrase, except perhaps insofar as it refers to the established church in England and similar countries; but that doesn't tell us much about what else might constitute "establishment of religion," and in any event my sense is that only a small fraction of Americans actually know of that meaning, and that the phrase thus doesn't have such a meaning to all but a small graction of Americans.
2. Likewise, what is the "plain, present, public meaning" of "Congress shall make no law ... abridging the freedom of speech, or of the press," coupled with "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"? To some English speakers, it might be that Congress can't restrict speech or press at all, even to the extent of (say) banning death threats against the President, or punishing perjury in federal court, and that states likewise can't abridge this "privilege[] or immunit[y]" by imposing libel liability and the like.
Other English speakers, though, might note that "the freedom of speech, or of the press" might refer to something less than full protection for speech or press, but rather some legal regime that we see as "the freedom of speech, or of the press" (much like "the right to marry" means something less than the right to marry anyone one pleases, regardless of whether one is already married, whether the other person is one's close relative, whether the other person is very young, and so on). But if that's so, how can we figure out the meaning of that phrase without returning either to original meaning or to precedent, depending on the constitutional theory of the English speaker seeking to determine the "plain, present, public meaning" of the phrase (to the extent that the English speaker has a constitutional theory, a subject that I suspect most English speakers in America have not seriously considered)?
3. Similarly, consider "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." "Suits at common law" could mean many things — among other things, it could mean "suits under judge-made rules rather than statutory rules," "suits under rules that were originally judge-made, even if they are now codified, rather than statutory rules," "suits applying Anglo-American legal rules rather than European 'civil law' rules" (and American courts sometimes do apply civil law rules, for instance when enforcing contracts that specifically call for the application of French law or Mexican law), and "suits that call for remedies that were traditionally administered by common-law courts rather than by courts of equity." How are we to determine the "plain, present, public meaning" of this provision, given that the words are ambiguous, and most English speakers in America likely don't have a fixed view on the subject?
4. Shifting the objection slightly, how about "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"? The plain, present, public meaning of the words — not the meaning ascribed by judges — would limit this to cases in which the defendant faces the death penalty or dismemberment. To be sure, quite a few laypeople might know that the Bill of Rights bars certain kinds of retrials in criminal cases generally. But to the extent they ascribe that meaning to the provision, that's only because they know what the law is today, which is to say that they're relying on precedent and not on the "plain, present, public meaning" of the text (except insofar as that meaning is constructed by precedent).
Now I suppose we could say that indeed the double jeopardy guarantee does not today apply to typical felony cases. But is that sort of approach, which interprets a legal document's legalese phrases solely according to the meaning of their constituent words — without regard to the possibility that, as with other English phrases, they may have specialized idiomatic meaning, even if one that isn't known to many nonlawyers — really sensible?
In any case, those are my quick thoughts about Tom's intriguing post.
Advice to (Extra-)Young Would-Be Law Students?
A comment to an earlier post reminded me of this issue: What advice would you give to students who had skipped grades, and are now considering law school not at age 21 or older — the norm — but rather at 19, 18, or even younger?
Should one take some time off to better understand the world — especially its business aspects — or even just to enjoy yourself, and start college at 21? For students who have skipped grades, going to college early is hard to avoid, since they may find little else they can productively do instead. But someone who graduates from college at 18 or even 17 might be able to find an at least moderately interesting and rewarding job, or an interesting academic program, though the academic program won't offer much education in the business world.
Or should one just keep going through, and get the law degree early as well? Naturally, everyone's situation and preferences will be different — but what matters (professional, social, and educational) should one keep in mind in making this decision?
I've seen several people go through law school early, and it seems to me their experience has varied. One did spectacularly well, and seemed to enjoy himself. Others did quite well, and now seem to be happily practicing lawyers. At least two probably would have been better off getting some seasoning before going to law school; one might well have gotten into a good deal of social and professional trouble because of poor judgment that might have been exacerbated by his lack of social experience, though that's of course very hard to tell. (I personally don't have such experience; my brother and I went to college some years earlier than the norm, but we both went to law school at a normal age, Sasha at 25 and I at 21.)
Any thoughts, from your experience, from the experience of your friends or classmates, or from your experience observing friends and classmates?
The Mandate and the "Mainstream"
Some prominent academics have argued that the individual mandate is a clearly constitutional exercise of the federal government's taxing power. Some of these same academics have argued that opponents of the individual mandate's constitutionality are well outside the legal mainstream. Yet as of today, there has not been a single federal court — indeed, perhaps not even a single federal judge — who has accepted the taxing power argument. Not a one. And yet a half-dozen federal judges have found the mandate to be unconstitutional. So which arguments are outside of the mainstream again? Cf. Rumsfeld v. FAIR
11th Circuit Strikes Down Individual Mandate
The 11th Circuit Court of Appeals has just issued a 2–1 ruling striking down the individual mandate in a suit brought by 26 state governments, the National Federation of Independent Business, and others. This is the first court of appeals decision striking down the mandate, and creates a circuit split with the recent Sixth Circuit decision going the other way. The opinion is available here. It's easily the most important victory for the anti-mandate side so far.
Significantly, Judge Frank Hull, a Clinton appointee has now become the first Democratic-appointed judge to vote to strike down the mandate, balancing Republican Sixth Circuit Judge Jeffrey Sutton who voted to uphold it. The decision further undermines claims that the individual mandate suit is a sure loser that goes against a supposed expert consensus that the mandate is clearly constitutional.
It is now extremely likely that the Supreme Court will end up hearing the case, as the Court cannot allow a situation where the mandate is valid in some parts of the country but not in others. I recently opined on the case's prospects in the Supreme Court here.
I will try to post additional commentary on the decision as soon as possible. Unfortunately, this is a very busy day, and it may take a while to fully study the 300 pages of the majority and dissenting opinions.
City of Renton Drops Attempt to Prosecute Its Critic (and to Use a Search Warrant to Uncover His Identity)
I blogged about this case earlier under the headings "Is It a Crime to Publish Parody Videos That Use "Lewd ... Language" Meant to "Embarrass and Emotionally Torment" Police Officers?" and "." The news, reported last night by the Seattle Times, is that "The city of Renton won't pursue cyberstalking charges against the digital cartoonist" and "the city withdrew the [search] warrant" aimed at uncovering the critic's name. "Instead, officials said Thursday, they will conduct an internal investigation because they believe the cartoonist is a current police officer." (The government's power to discipline or even fire its employees based on their speech is considerably greater than its power to prosecute people based on their speech.)
"'There has been no relevant information that we have uncovered to date on the cyberstalking case to further a criminal investigation,' Chief Administrative Officer Jay Covington said in a statement." Sounds quite right, for reasons I discussed in the original post. Thanks to Shane Lidman for the pointer.
BREAKING — Eleventh Circuit Declares Individual Mandate Unconstitutional
The Reuters story is here. Opinion should be available soon on the Eleventh Circuit's website.
UPDATE: The very lengthy opinion is here. The court split 2–1. Judges Hull and Dubina jointly issued the opinion of the court. Judge Marcus dissented. The court concludes the mandate cannot be justified under either the taxing power or commerce power, but that the mandate is severable from the rest of the health care reform law. The court also rejects the argument that the law's expansion of Medicaid is unconstitutionally coercive to the states. Of note, the court did not split completely along partisan lines. Judge Dubina was nominated by President George H.W. Bush. Judges Hall and Marcus were nominated by President Bill Clinton.
UPDATE: The opinion concludes:
We first conclude that the Act's Medicaid expansion is constitutional. Existing Supreme Court precedent does not establish that Congress's inducements are unconstitutionally coercive, especially when the federal government will bear nearly all the costs of the program's amplified enrollments.
Next, the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress's power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.
Further, the individual mandate exceeds Congress's enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. "Uniqueness" is not a constitutional principle in any antecedent Supreme Court decision. The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce.
The individual mandate, however, can be severed from the remainder of the Act's myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act's other provisions remain legally operative after the mandate's excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.
Accordingly, we affirm in part and reverse in part the judgment of the district court.
SECOND UPDATE: Judge Marcus' dissent begins:
Today this Court strikes down as unconstitutional a central piece of a comprehensive economic regulatory scheme enacted by Congress. The majority concludes that Congress does not have the commerce power to require uninsured Americans to obtain health insurance or otherwise pay a financial penalty. The majority does so even though the individual mandate was designed and intended to regulate quintessentially economic conduct in order to ameliorate two large, national problems: first, the substantial cost shifting that occurs when uninsured individuals consume health care services — as virtually all of them will, and many do each year — for which they cannot pay; and, second, the unavailability of health insurance for those who need it most — those with pre-existing conditions and lengthy medical histories.
In the process of striking down the mandate, the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court. It has ignored the broad power of Congress, in the words of Chief Justice Marshall, "to prescribe the rule by which commerce is to be governed." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824). It has ignored the undeniable fact that Congress' commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy. It has ignored the Supreme Court's expansive reading of the Commerce Clause that has provided the very foundation on which Congress already extensively regulates both health insurance and health care services. And it has ignored the long-accepted instruction that we review the constitutionality of an exercise of commerce power not through the lens of formal, categorical distinctions, but rather through a pragmatic one, recognizing, as Justice Holmes put it over one hundred years ago, that "commerce among the states is not a technical legal conception, but a practical one, drawn from the course of
business." Swift & Co. v. United States, 196 U.S. 375, 398 (1905).The approach taken by the majority has also disregarded the powerful admonitions that acts of Congress are to be examined with a heavy presumption of constitutionality, that the task at hand must be approached with caution, restraint, and great humility, and that we may not lightly conclude that an act of Congress exceeds its enumerated powers. The circumspection this task requires is underscored by recognizing, in the words of Justice Kennedy, the long and difficult "history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era." United States v. Lopez, 514 U.S. 549, 568 (1995) (Kennedy, J., concurring).
The plaintiffs and, indeed, the majority have conceded, as they must, that Congress has the commerce power to impose precisely the same mandate compelling the same class of uninsured individuals to obtain the same kind of insurance, or otherwise pay a penalty, as a necessary condition to receiving health care services, at the time the uninsured seek these services. Nevertheless, the plaintiffs argue that Congress cannot do now what it plainly can do later. In other words, Congress must wait until each component transaction underlying the costshifting problem occurs, causing huge increases in costs both for those who have health care insurance and for health care providers, before it may constitutionally act. I can find nothing in logic or law that so circumscribes Congress' commerce power and yields so anomalous a result.
Although it is surely true that there is no Supreme Court decision squarely on point dictating the result that the individual mandate is within the commerce power of Congress, the rationale embodied in the Court's Commerce Clause decisions over more than 75 years makes clear that this legislation falls within Congress' interstate commerce power. These decisions instruct us to ask whether the target of the regulation is economic in nature and whether Congress had a rational basis to conclude that the regulated conduct has a substantial effect on interstate commerce.
It cannot be denied that Congress has promulgated a rule by which to comprehensively regulate the timing and means of payment for the virtually inevitable consumption of health care services. Nor can it be denied that the consumption of health care services by the uninsured has a very substantial impact on interstate commerce — the shifting of substantial costs from those who do not pay to those who do and to the providers who offer care. I therefore respectfully dissent from the majority's opinion insofar as it strikes down the individual mandate.
Congratulations to Prof. Glenn Reynolds (InstaPundit) on His 10th Blog Anniversary!
Glenn's blog is what led me to read blogs, and not long after to create this blog. My sense is that many other people got into blog reading and blogging the same way; his blog has been immensely influential. Congratulations to him on his 10th anniversary of publishing.
August 11, 2011
You'd Think Anti-Establishment Filmmakers Would Have a Bit More Interest in Preserving a Strong First Amendment
From Michael Moore:
Pres Obama, show some guts & arrest the CEO of Standard & Poors. These criminals brought down the economy in 2008& now they will do it again
When Standard & Poor's gives a bond rating, it's expressing an opinion about how likely it is that the bond is sound. The First Amendment protects such expression of opinions, whether about bonds, stocks, companies or countries more generally, politicians, or filmmakers. I've argued that the protection is indeed quite robust, but even if I'm mistaken and some negligence-based civil liability may be allowed when people rely to their detriment on negligently produced evaluations, it's pretty clear that arrests based on such speech are unconstitutional. Even given the normal latitude for hyperbole and imprecision in such a context, it seems to me that Michael Moore's recommendation calls for (and reflects) more ignorance of the Constitution — or willful disregard for the Constitution — than "guts."
One other thing to remember: Bond ratings are useful only if one is confident that the rating agency wasn't forced into giving the rating it gave. If agency managers have to fear criminal prosecution for ratings that governments dislike, they surely will give ratings that the governments like — and then no-one sensible will take those ratings into account. (To be sure, ratings could become less valuable if there are other pressures that make them unreliable. But fear of being arrested for offending the government is a very big pressure indeed.)
Thanks to my father Vladimir for the pointer. UPDATE: I originally planned to include the preceding paragraph, but forgot, so I just added it.
The Government's Brief in United States v. Jones and the Four Models of Fourth Amendment Protection
Thanks to Lyle Denniston, I learned today that the Justice Department has just filed its brief in United States v. Jones, the pending Supreme Court case on whether installing and using a GPS device to detect the location of a suspect's car without a warrant violates the Fourth Amendment. The DOJ brief is an interesting example of how Fourth Amendment arguments are constructed, so I wanted to blog a bit about it. I'll start with a bit of context from a recent law review article, and then break down the government's arguments accordingly. I'll then make some quick predictions about arguments the Respondent's brief might make.
I. The Four Models of Fourth Amendment Protection
A few years ago, I wrote a law review article on the "reasonable expectation of privacy" test in Fourth Amendment law: Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007). My argument was that the "reasonable expectation of privacy" test was really four different tests — that there were four different kinds of arguments that the Supreme Court made about when the government violates a reasonable expectation of privacy and therefore is a Fourth Amendment "search." Here are the four models I identified:
(1) the probabilistic model, by which an expectation of privacy is reasonable or not based on how common or expected the government's conduct appears to be.
(2) the private facts model, by which an expectation of privacy is reasonable or not based on the nature of the information disclosed regardless of how it is obtained,
(3) the positive law model, by which an expectation of privacy is reasonable or not based on whether the government's conduct violated some source of law outside the Fourth Amendment, and
(4) the policy model, by which an expectation of privacy is reasonable or not based whether it is desirable to have that outcome as a matter of policy.
Just to be clear, the models generally are not named. Rather, these are arguments that the courts use.
My article argues that the Supreme Court uses all four models instead of just one model because no one model accurately distinguishes less intrusive from more intrusive law enforcement steps, which is what the reasonable expectation of privacy test needs to do. Briefs and opinions therefore tend to mix and match the models, making arguments using the model or models that support the argued-for result in that particular context.
The result is rather messy, and gives all sorts of room to the Justices to justify different results. But it also enables a workable regulatory system that gives substantial guidance to the lower courts. The law ends up relying on some models in some contexts and other models in other contexts, ideally in ways that pick models based on what models best track the invasiveness of the government's conduct in that factual setting.
II. The Government's Merits Brief in United States v. Jones
In United States v. Jones, the police attached a GPS tracking device to the suspect's vehicle and tracked the vehicle's location on public streets over time. The first question raised by the case is whether the use of the GPS device violated the suspect's "reasonable expectation of privacy." DOJ's brief is a nice case study of how arguments based on the four models tend to work.
Here's how the arguments break down. The government's main argument is based on the private facts model. In prior precedents, the brief explains, the Court has said that location information about a car on public streets is not protected. In other words, the fact that a car is in a particular place on a public street at a particular time is simply not a private fact. The same approach should govern here, the brief contends. What matters is the information obtained, and here the information obtained was not private for Fourth Amendment purposes. See pages 17–22.
The government's brief next argues that the Supreme Court should reject the probabilistic model. The most relevant cases have rejected the probabilistic model, the brief explains (citing Knotts and Smith), while the cases that embraced the probabilistic model (such as Greenwood and Bond) are very different on their facts. The Court should therefore ignore what the DOJ brief calls "the likelihood approach" to the Fourth Amendment in this case. See pages 22–27.
After a foray into why the mosaic theory won't work, see pages 27–33, the DOJ brief then argues using the policy model. There has been no evidence of abuses of GPS surveillance, the brief argues. The legislature is ready to regulate this area in the absence of Fourth Amendment protection. As a result, the brief argues, there's no need to subject GPS surveillance to a warrant requirement as a matter of policy. See pages 33–37.
In a long footnote, the DOJ brief then argues against using the positive law model here. Although some state laws make it unlawful to install a tracking device without a warrant, such laws should not influence whether an expectation of privacy is reasonable. See pages 36–37 n.4.
The brief then concludes this part of the argument by returning to the private facts model. The "type of information" that the GPS device revealed was not private, and therefore there was no violation of a reasonable expectation of privacy. See pages 37–39.
III. Guessing the Arguments of the Respondent's Brief
If you want to predict what the Respondent's merits brief will look like, the Four Models make it possible to offer some educated guesses.
First, the Respondent's brief probably will push the models that the DOJ brief rejected. The Respondent presumably will press the probabilistic model and argue that reasonable people don't expect this sort of surveillance. Second, the brief likely will press the positive law model: It will detail the laws requiring warrants for tracking devices and explain how such an interference with property is a traditional trespass. For both reasons, the brief will argue, the use of a GPS device violates a reasonable expectation of privacy.
The Respondent's brief will then explain how the private facts and policy models cut in its favor, not the government's. The brief will take a macro view of the information obtained in order to use the private facts model. That is, the brief will look at the information obtainable in the aggregate and argue that the aggregate facts are private under a private facts approach. Finally, the Respondent's brief will almost certainly use the policy model to offer a very different picture of the policy implications of allowing GPS to go unregulated.
In short, the two sides will end up offering dueling sets of models. Each side will press some of the models and de-emphasize or reject others, leaving it for the Justices to figure out which models should govern and how they should apply in this particular case.
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