Sunday, February 11, 2007

Rudy Giulianisprudence

A front-page story in yesterday's NY Times explains that in preparing to run for the Republican nomination for President, former NYC Mayor Rudy Giuliani has been tacking to the right on abortion. He has declared that he would nominate "strict constructionists" to the federal bench. My FindLaw column this week will explore the nuances of Giuliani's abortion position. (He was for it before he was against it, but his current position nonetheless coheres.) Here I'll just note that Giuliani still needs to rehearse his explanation a bit. Here's what he said in justification of his strict constructionism:

"On the federal judiciary I would want judges who are strict constructionists because I am. I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret, not invent, the Constitution. Otherwise you end up, when judges invent the Constitution, with your liberties being hurt. Because legislatures get to make those decisions and the Legislature in South Carolina might make that decision one way and the Legislature in California a different one."

How might our liberties be hurt by courts broadly construing the Constitution to find rights not expressly enumerated there? One possibility---a favorite point of Justice Scalia---is that if judges are free to add constitutional rights they are also free to subtract constitutional rights. Living constitutionalism, Scalia warns, risks disentrenching just those expressly enumerated rights that a constitution is meant to entrench. So suppose a loosey goosey Supreme Court reads an important right---habeas corpus, say---out of the Constitution. Then maybe you could be held in executive detention without judicial recourse in South Carolina but not in California.

Scalia's key examples of an evolutionary Court contracting textually enumerated liberties involve protection for property rights and the Sixth Amendment's Confrontation Clause. Scalia treats the latter literally: To con-front a witness means to go against the face of the witness, so he once wrote an opinion for the Court invalidating a conviction obtained based on a child's testimony against her attacker from behind a protective screen. But even if we grant that there are some cases in which evolutionism produces fewer rights than textualism---the term Scalia much prefers to strict constructionism---it hardly follows that textualism is in general likely to protect rights better than evolutionism. After all, the Supreme Court Justices who like to "invent" rights also tend to be the ones who give relatively expansive interpretations to the expressly enumerated rights. Consider that it is Justice Scalia, not the Court's liberals, who contends that the Suspension Clause confers no substantive right to habeas corpus.

Whatever you think of Scalia's argument, Giuliani's version of it is bizarre at best. It seems to have the following steps: 1) When the Justices invent rights, they also constrict rights; 2) If they constrict rights, they expand the domain of legislative freedom; 3) Different legislatures will then adopt different policies; 4) That's bad; 5) So Justices shouldn't have the freedom to invent rights either; even though 6) That means that legislatures will adopt different policies on issues like abortion; 7) But somehow, notwithstanding 4), that's not bad. In fact it's good. QED.

Maybe there's a more plausible way to parse Giuliani's statement, or maybe in giving a spontaneous answer, he simply misspoke. It will be interesting to see whether his answers become more polished as the campaign proceeds.