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.


Derek said...

That's hilarious. I think he must have meant that when judges invent liberties like the right to abortion, they thereby restrict the liberty of states ("our liberties") to decide whether to grant or withhold that right. But that's bad because such decisions should be left up to individual state legislatures which, incidentally, might decide the issue in different ways. Yay federalism. QED

Anil Kalhan said...

Great post, Mike. My all-time favorite bit of Giulianisprudence -- not his own words this time, but a judicial opinion in reaction to his administration's policies -- remains the following snippet from the U.S. Court of Appeals for the Second Circuit:

We would be ostriches if we failed to take judicial notice of the heavy stream of First Amendment litigation generated by New York City in recent years. Notable cases in which this court or a district court has preliminarily enjoined or found unconstitutional on First Amendment grounds some action or policy of the City include Latino Officers Ass'n v. City of New York, 196 F.3d 458 (2d Cir. 1999) (affirming a preliminary injunction that enjoined the City from prohibiting plaintiffs from participating, in their uniforms and behind their organizational banner, in various parades held in 1999); Million Youth March, Inc. v. Safir, 155 F.3d 124 (2d Cir. 1998) (affirming and modifying a preliminary injunction requiring the City to issue a parade permit to an organization seeking to hold a public event in 1998); Harman v. City of New York, 140 F.3d 111 (2d Cir. 1998) (finding unconstitutional the City's policy of requiring City employees to obtain permission before speaking to the media); New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123 (2d Cir.) (finding unconstitutional the municipality's refusal to display advertisements arguably critical of the mayor), cert. denied, _U.S._, 119 S. Ct. 68 (1998); Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996) (finding unconstitutional the City's limitation on licenses for sidewalk artists), cert. denied, 520 U.S. 1251 (1997); Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402 (S.D.N.Y. 1999) (issuing a preliminary injunction requiring the City to re- rank plaintiff, a non-profit agency, on a priority list for federal funding based on a clear and substantial likelihood that the City had downgraded plaintiff on the list in retaliation for its protected speech, including, inter alia, criticism of the mayor's administration and various successful First Amendment lawsuits against the City), appeal dismissed as moot, _F.3d_, 2000 WL 150811 (2d Cir. Feb. 10, 2000); East Timor Action Network v. City of New York, 71 F. Supp. 2d 334 (S.D.N.Y. 1999) (issuing a declaratory judgment that the City's denial of plaintiff's application to erect temporary street signs violated the First Amendment); Brooklyn Inst. of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999) (preliminarily enjoining the City from withholding funding from and filing suit for ejectment against the Brooklyn Museum based on the content of a temporary exhibit at the museum); Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381 (S.D.N.Y. 1999) (issuing a preliminary injunction requiring the City to grant a parade permit to an organization seeking to hold a public event in 1999); Gasparo v. City of New York, 16 F. Supp. 2d 198 (E.D.N.Y. 1998) (preliminarily enjoining the City's concession scheme for newsstands in light of the likelihood that the City's unlimited authority to terminate concessions would chill protected speech); Latino Officers Ass'n v. City of New York, 966 F. Supp. 238 (S.D.N.Y. 1997) (preliminarily enjoining the City from prohibiting plaintiffs from participating, in their uniforms and behind their organizational banner, in parades held in June 1997); Time Warner Cable v. City of New York, 943 F. Supp. 1357 (S.D.N.Y. 1997) (preliminarily enjoining as unconstitutional the City's decision to place commercial television programs on cable channels reserved for educational or governmental purposes), aff'd on other grounds sub nom. Time Warner Cable v. Bloomberg L.P., 118 F.3d 917 (2d Cir. 1997); Housing Works, Inc. v. Safir, 1998 WL 823614 (S.D.N.Y. Nov. 25, 1998) (preliminarily enjoining the City from prohibiting non-profit AIDS organization from conducting a press conference in front of City Hall in view of the likelihood that the City policy was content-based), stay granted in part, 1998 WL 824534 (2d Cir. Nov. 30, 1998) (order issuing partial stay later withdrawn); Housing Works, Inc. v. Safir, 1998 WL 409701 (S.D.N.Y. July 21, 1998) (preliminarily enjoining City from enforcing its policy of limiting press conferences in front of City Hall to groups of 25 or fewer); United Yellow Cab Drivers Ass'n v. Safir, 1998 WL 274295 (S.D.N.Y. May 27, 1998) (finding unconstitutional the City's refusal to permit more than 20 taxi drivers to participate in a protest against proposed rules for pick-up and drop-off), aff'd as modified, No. 98-7737 (2d Cir. May 27, 1998) (unpublished disposition); Latino Officers Ass'n v. City of New York, 1997 WL 473972 (S.D.N.Y. Aug. 19, 1997) (enjoining the City from prohibiting plaintiffs from participating, in their uniforms and behind their organizational banner, in parades held in the late summer and fall of 1997), appeal dismissed as moot, 152 F.3d 919 (2d Cir. 1998) (unpublished disposition); cf. MacDonald v. Safir, No. 99-7010, _F.3d_, 2000 WL 263697 (2d Cir. Mar. 10, 2000) (vacating and remanding the district court's grant of summary judgment for the City on plaintiff's claim that the City ordinance governing the issuance of parade permits violates the First Amendment).[FN16] Some of the parties' names reappear on this list. This is apparently the result of the City engaging in acts similar to those previously enjoined by the federal courts.

As a result of this relentless onslaught of First Amendment litigation, the federal courts have, to a considerable extent, been drafted into the role of local licensors for the City of New York.

FN16 This list excludes individual employment, retaliation, or malicious prosecution cases involving First Amendment rights.

Tunick v. Safir, 209 F.3d 67, 85-86 (2d Cir. 2000). How's that for a mouthful? I guess "snippet" probably isn't the right word.

Adam P. said...

I actually think Giuliani has something in common legally woith many of the Dorf on Law posters in that he's a pragmatist- in ways that seem less than authentic.

But one way this continues to haunt civil rights and other plaintiffs attorneys in New York is via the creation of the "Special Federal Litigation" unit of the NYC Law Dept in 98. The short story behind its creation was that Giuliani- never particularly a friend of the plaintiffs bar- had grown incensed over the number of civil rights cases brought against the city, and particularly how many just ended in settlement.
Perhaps out of pragmatic economic concerns, perhaps out of disdain
for plaintiffs, but probably not out of disdain for civil rights, Giuliani had this unit created, hiring basically the sharpest attack dog civil defense attorneys he could find. Having already as a student been involved in litigation against this division, I can confirm- it ain't pretty. Although no longer in Giuliani's hands, his fight to the death/never settle approach continues on.

I think a lot of the cases Anil's cite refers to would likely have settled/never made it to the 2d circuit without this hostile litigation strategy.

(Note: "Special Federal Litigation" is indeed a euphemism here, since the unit only does civil rights defense work. Any affirmative civil rights work is done by the affirmative lit division.)

egarber said...

Obviously, RG has to neutralize the abortion issue to have much chance in the primaries.

What he *could* say is that while he favors abortion rights, the decision should be left to the states, not judges. It's all about the judiciary for the Christian Right anyway, so I think he could make that work.

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