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The Most Radical Decision Ever?

The Most Radical Decision Ever?

041410 Rob Natelson-2

This article first appeared in The American Thinker.

A complete commentary on the same sex marriage case would take far more than a single short article. Accordingly, I offer only some discrete thoughts:

* A big expansion of federal power. Many libertarians believe the courts should use the Fourteenth Amendment to protect rights unenumerated in the Constitution, and some urged the Court to declare that civil marriage was among those rights. They need to be careful what they ask for. What they have just “won” is a major expansion of federal power.

The case removes limitations on Substantive Due Process, the principal way judges create “rights” unmentioned by the Constitution. Removal of those limits augments the authority of the federal courts. But it also widens the power of Congress. Whenever the courts create a new right under the Fourteenth Amendment, Section 5 of that amendment operates to give Congress “power to enforce [it], by appropriate legislation.” As a result of this case, Congress now enjoys substantial authority over civil marriage, a realm previously considered to be almost wholly reserved to the states.

* The Court’s principal flaw in logic. This is my summary of the essence of the holding:

We recognize marriage as a fundamental constitutional right because it is so important to personal fulfillment, so long-honored, and creates such good social results. Hence, we now require states to loosen the prerequisites for marriage.

The flaw in this assertion is assuming that the “marriage” that has been such as successful institution is the same thing as “marriage” under the Court’s re-definition. An institution whose essence is a relationship between people of the opposite sex is not the same thing as an institution without that characteristic. We do not know what the long-term results of the latter might be.

* The radical result. I could be persuaded to the contrary, but the case has me thinking it may be the most radical in Supreme Court history. An obvious reason is the result: The Court constitutionalized a pop-definition that didn’t exist 20 years ago. Speaking jurisprudentially (although not morally), this was a much greater departure than such widely-criticized Substantive Due Process cases as Dred Scott, Lochner v. New York, or Roe v. Wade.

* The radical methodology. (1) The Court did not, as is customary, rest its holding on the most narrow grounds supporting the result, but on the widest possible grounds—i.e., Substantive Due Process rather than Equal Protection or Full Faith and Credit. (2) The Court announced explicitly that even the prior flaccid limits on Substantive Due Process no longer applied. (3) The Court’s own precedents required that after a judge finds a right “legitimate” or “important” or (as here) “fundamental,” the judge next must consider the weight of the government’s justification for limiting the right. But the Court didn’t even purport to do the latter. In other words, the Court granted same sex marriage a status above enumerated fundamental rights (such as free speech) and other unenumerated rights (such as privacy or abortion).

* Yet, constitutionally speaking, civil marriage is not a “right” at all, much less a fundamental one. As Justice Thomas pointed out in dissent, civil marriage is what the Founders called a “privilege”—a government-created entitlement. Same sex couples have the right to cohabit without being molested by the state, to contract with each other, and to take religious vows. Neither they nor anyone else has the “right” to the government-created entitlement called civil marriage.

Civil marriage does not create the right to cohabit. It is principally a vehicle for distribution of certain special benefits. The first-named plaintiff could have married his long-term partner any time after Massachusetts recognized same-sex marriage in 2003, but he did so only after his partner was critically ill and inheritance became an issue. The Court’s description of the facts strongly suggests that as to that plaintiff at least, the case was as much about entitlement as about love.

* Are you religious? Be afraid. The Court’s opinion shows the justices know their holding has grave implications for the free exercise of religion, but the paragraph in the opinion that purports to reassure does not. Pointedly, it mentions only the freedom to dissent and debate on matters of religion and morality, not the freedom to act on one views. In the wake of this decision, family businesses, non-profits and perhaps even religious congregations will be sued under state and federal civil rights laws. This opinion implies the Court will do nothing to relieve them.

* Hypocrisy. Some of same voices that urged “restraint” in considering Obamacare because it was (just barely) adopted pursuant to the democratic process, urged the Court to sweep away scores of democratically-adopted laws that reflect long popular understanding. Consider the disparate approaches by editors of Time Magazine, for example—for restraint in the Obamacare case, but against restraint in this one.

* Constitutional corruption. As Justice Alito pointed out in dissent, this holding exemplifies how corrupted constitutional interpretation has become. Justice Alito did not mention, but probably would agree, that the nation’s law schools are largely to blame. Lawmakers and alumni: Take note next time universities with law schools ask for money.

* “Same ole same ole” won’t cure the problem. Justice Alito also noted the futility of past efforts to address this corruption. That’s one reason we need a convention to propose amendments under Article V of the Constitution. Those who have been arguing that traditional methods of response are sufficient have been thumpingly proven wrong.

Must the Federal Government Honor an "Equal Protection" Rule?

Must the Federal Government Honor an "Equal Protection" Rule?

2013-0414 RGN Does the Constitution require the federal government to afford “equal protection of the laws?”

At first glance at the Constitution’s text, it would appear not. There is no general Equal Protection Clause in the Constitution applying to the federal government—although there are a lot of clauses requiring equal treatment in specific situations. The Equal Protection Clause in the Fourteenth Amendment is general in nature, but it applies explicitly only to state governments.

The Supreme Court nevertheless has held that the federal government must follow a general equal protection principle. In 1954, in Brown v. Board of Education, the Court ruled that maintaining segregated schools in the states violated the Equal Protection Clause of the Fourteenth Amendment. At the same time, in Bolling v. Sharpe, it further ruled that segregated schools in the District of Columbia violated the Fifth Amendment’s requirement that the federal government not deprive persons of “due process of law.”

In the Bolling case, the Court opined—with little explanation—that the Fifth Amendment Due Process Clause contained what some call a substantive “equal protection component.” The problem is that, as a matter of accurate legal history, the claim that the Fifth Amendment Due Process Clause contains a substantive “equal protection component” is jurisprudential nonsense.

Still, forcing students to attend racially segregated schools is grossly and obviously unjust—so much so that, despite the weakness of the Bolling “reasoning,” the Court has not seriously questioned the case for over 50 years now. In fact, “living constitution” advocates sometimes employ Bolling to attack those who believe in applying the Constitution’s original meaning. “If originalism would result in re-segregating D.C. schools,” they say, “then originalism just can’t be right.” (Interestingly enough, after decades of liberal policies, D.C. schools are still largely de facto segregated.)

Of course, in this attack the “living constitution” people are being unfair. Every honest method of interpretation sometimes results in outcomes we don’t like. No honest method of interpretation yields fair results every single time. If we required every method of interpretation to always reach the result we preferred, we’d never be able to adopt any method at all.

And yet now it turns out that the result (although not the reasons) in Bolling v. Sharpe may be correct as a matter of original meaning!

A new article by Gary Lawson, Guy Seidman, and me is entitled The Fiduciary Foundations of Federal Equal Protection. Professor Lawson, Professor Seidman, and I were three of the four co-authors of a book on the Necessary and Proper Clause. We differ in politics, but we are united in our interest in the background and meaning of the Constitution.

Anyway, the article explores the question of whether an “equal protection” principle pervades the original Constitution.  Here are the essentials:

*    The Constitution was designed to be a fiduciary document, interpreted according to fiduciary principles, like an agency agreement or a trust instrument. (A fiduciary is one who manages affairs for others, and the law subjects him to very high standards of conduct.)

*    In interpreting any fiduciary document, the Courts are supposed to apply certain background rules, unless the document says differently.

*    Among the standard background rules—existing both at the Founding and today—is that fiduciaries (in this case, federal officials) have duty of impartiality. This means they have an obligation not to treat people differently without reasonable cause.

*    In the area of education, mere skin color is not reasonable cause.

Speaking for myself, I’d like to add the following:

*    The original Constitution implicitly acknowledged that race might be a “reasonable cause,” because it recognized the existence of slavery. But the Thirteenth through Fifteenth Amendments changed the Constitution’s basic orientation in that regard.

*    Even if (without conceding) that there was “reasonable cause” for segregation laws when they were first widely enacted after the Civil War, the ensuing history wiped out that justification. That ensuing history showed that, in practice, segregation was merely part of a racial caste system used to insure that African Americans were oppressed and would remain oppressed. Segregation proved inherently inconsistent with federal officials’ obligation of impartiality.

I’m aware that there is a problem in applying fiduciary theory to the Constitution—just as there are problems in all methods of interpretation. The difficulty here is that imposing fiduciary duties on federal officials can invite judicial activism. But my primary goal in studying the Founding is to determine what the Constitution really is, not to pontificate on what it should be.

Justices Make It Tougher for State Universities to Discriminate, But Not Tough Enough

Justices Make It Tougher for State Universities to Discriminate, But Not Tough Enough

42 Trevi Fountain RGN(This is the third of several short commentaries on recent Supreme Court decisions.)

The Supreme Court’s recent decision in Fisher v. University of Texas has made it tougher for state universities to run their ethnic spoils systems. But not tough enough.

First, the background:

The Fourteenth Amendment requires states to extend “equal protection of the laws” to their citizens. The primary goal of the Equal Protection Clause was to stop states from discriminating against racial and ethnic groups. But the actual wording of the Clause covers more than just racial and ethnic discrimination.

As the proponents of the Fourteenth Amendment acknowledged, however, not all discrimination is bad. For example, it is good policy for the state to treat criminals differently from law-abiding persons. In many situations it is good policy to take account of physical differences between men and women. A municipal theater putting on Shakespeare’s Othello might reasonably prefer a black man over a white woman (or over a white man) for the lead role.

But because the central purpose of the Equal Protection Clause was to limit state discrimination based on race and ethnicity, the Supreme Court tells us that it is particularly skeptical of that kind of discrimination. And usually it is.

The Court says that when a state law or regulation discriminates based on race, the law or regulation is void unless it passes “strict scrutiny.” This means that to be valid, a law or regulation must satisfy both of two criteria: (1) The purpose can’t be merely a garden-variety government purpose like, say, fiscal restraint. Rather, the justices must think it is “compelling” purpose, like national defense or preventing official corruption. (2) The state must prove that the law or regulation is “narrowly tailored” (or “necessary”) to accomplish the purpose. In other words, the state must prove that discrimination is the only way to accomplish the compelling goal.

In the landmark 1954 case of Brown v. Board of Education, the Court applied the Equal Protection Clause to ban state-run segregated schools. The Court held that segregated systems were inherently discriminatory. It rejected the argument that, given then-prevailing social conditions, segregation was necessary to assist the education of both whites and blacks.

But history tends to rhyme. Just as it was once fashionable to discriminate against blacks, a few decades later, it became fashionable among political liberals to discriminate in favor of blacks—and in favor of certain other key voting groups in the coalition of the National Democratic Party.  So “progressive” university administrators began favoring those groups when hiring faculty and admitting students. For example, the University of Michigan law school granted preferences to applicants who were Hispanics, American Indians, or African Americans. If you were someone like, say, a Japanese-American, or a white Jew, or an Irish Catholic (all groups historically suffering from discrimination) then it was harder to get in.

People who play the modern preference game don’t admit to discriminating, of course. They employ euphemisms like “diversity” and “affirmative action.” They also argue that ethnically-diverse classrooms help education. They elide past the respectable studies—including one by the liberal Brookings Institution and those cited by Justice Thomas—suggesting that student heterogeneity actually can make education harder. They also fail to explain why the demographic groups given favorable treatment all tend to lean in their voting toward the left side of the political spectrum—a fact that would seem to reduce diversity of thought in our liberal universities.

In Grutter v. Bollinger (2003) the University of Michigan’s “diversity” program was challenged as violating the Equal Protection Clause. Given the history and jurisprudence of the Clause, the program’s unconstitutionality would seem to be a slam-dunk. But Supreme Court justices are human. They are part of the legal elite, and they live in Washington, D.C. Most tend to be sympathetic to fashionable social attitudes.

So although the Court struck down the “diversity” program in a companion case, in Grutter the Court upheld the Michigan law school scheme. The Court purported to apply strict scrutiny. It held that the educational benefits of a diverse classroom in a state law school were not just desirable goals but “compelling” ones. Thus, the purported benefits to state law schools were ranked up there with national defense. (A pretty silly conclusion given that some states do not think it necessary to even have a state law school.)

Nor did the Grutter court require the university administrators to prove that discrimination was necessary to achieve the purported benefits. Rather, the justices granted significant power to university officials to discriminate at discretion. Thus, the Court watered down the strict scrutiny test.

Since the 1960s, the Supreme Court has a  pattern of reaching liberal decisions on social issues. Even when those decisions prove unwise in practice, the Court seldom, if ever, overrules them. The most the Court does is chip away at them.

That’s what happened in Fisher:

The University of Texas was discriminating on racial and ethnic grounds in its student admissions. Fisher was an white, female applicant who had been excluded from admission. She did not attack the Grutter ruling that the “educational benefits from diversity” constituted a compelling purpose. But she did urge the Court to tighten the second prong so the test looked more like genuine strict scrutiny. In other words, she asked the court to narrow the amount of discretion granted to administrators. Fisher argued that state university officials, like other state officials, should be required to prove that racial and ethnic discrimination was the only way to obtain a diverse student body.

In a 7-1 decision, the Court agreed.

Two justices—Scalia and Thomas—said they favored ditching the notion that “diversity” is a compelling governmental purpose. In a particularly brilliant opinion, Justice Thomas demonstrated, by example after example, that the diversifiers’ “better education” argument was just a warmed over version of the “better education” argument once used to justify segregation.