Tuesday, October 02, 2007

Fred Thompson v. Louis Brandeis

With a small number of important exceptions to which I'll return in a moment, ever since Erie RR v. Tompkins, federal law, including federal constitutional law, has been indifferent to the source of state law. Erie held that the common law as announced by state high courts is state law to be applied by federal courts in diversity (and in what are now called supplemental jurisdiction) cases. Indeed, even prior to Erie, federal courts accepted as authoritative state court constructions of state statutes.

The exceptions fall into two principal categories: 1) Where state law questions are intertwined with federal questions, federal courts need not accept state court determinations of state law that defeat federal rights; and 2) Particular federal constitutional provisions in Article II and the Twelfth Amendment limit the deference to which state courts are otherwise entitled in interpreting state law. Three of the Justices in the majority in Bush v. Gore (Rehnquist, Scalia and Thomas) relied on point 2) in rejecting the Florida Supreme Court's interpretation of its election law as unreasonable.

Now comes Fred Thompson proposing a constitutional amendment that would draw the sharpest distinction ever between state judge-made law and state law embodied in official text. Thompson's proposal (described in a wire story here) would invalidate state court judicial decisions recognizing a right to same-sex marriage but would permit states to recognize same-sex marriage by legislation (and presumably by referendum or by a popularly ratified state constitutional amendment).

To be sure, the fact that federal law generally draws no distinction between state judge-made law and state legislation is not a reason why the federal Constitution cannot be made, via amendment, to draw the distinction with respect to same-sex marriage. But there are at least two reasons to question Thompson's proposed distinction (apart from the sound moral reasons to oppose amending the Constitution to endorse second-class treatment of gay and lesbian Americans): First, in many states judges are elected, and the state constitution is easily amended, so that if people worry about state court judges acting contrary to the wishes of state electorates with respect to same-sex marriage, there are ample means to respond, without amending the federal Constitution. Second, one can imagine nice questions arising in the event that a state court holds that state legislation or constitutional provisions in fact do provide for same-sex marriage. Would that satisfy Thompson's amendment? How clear would the state legislation or other text need to be before it would count as an enactment rather than a judicial interpretation?

28 comments:

Sobek said...

"...apart from the sound moral reasons to oppose amending the Constitution to endorse second-class treatment of gay and lesbian Americans..."

It doesn't seem that the amendment has anything to do with first- or second-class citizenship -- only with acceptable mechanisms for creating a gay marriage regime. In other words, because the proposed amendment would clearly have no effect in a state where the legislature unequivocally provides for gay marriage, it neither endorses nor condemns gay marriage per se -- it limits the jurisdiction of state court judges.

Second, you bring up a very good point about a judicial decision that an ambiguous constitutional clause requires gay marriage. Such a decision violates the spirit of what Thompson is trying to accomplish but manifestly conforms with the terms of the amendment. As a result, I believe the amendment is unworkable.

Michael C. Dorf said...

On Sobek's first point, I would agree if the proposal for a rule that said something like "Any fundamental social changes taken in the name of state constitutions must be accomplished by popular referendum or the state legislature." That would be an amendment fundamentally about judge-made versus legislated legal change, and it would have something to be said for it. However, by singling out same-sex marriage for the special procedure, the point of the amendment seems pretty clearly to be to make it harder for courts to protect same-sex marriage (while, for example, not making it harder for state courts to strike down affirmative action programs on the basis of state constitutional language). So there is, in my view, an unmistakable hostility to same-sex marriage in this proposal. One could say that such hostility is compatible with first-class citizenship for gay and lesbian Americans, but that would be a different argument, albeit one that I think would also be wrong. See
http://writ.news.findlaw.com/dorf/20040218.html

David C. said...

Is there any indication that Thompson's proposal is motivated by a desire to seem as if he is respecting state's choices? If so, I wonder if his proposal, while seemingly respectful, is actually a bigger threat to states than a simple ban on gay marriage. It's one thing to take certain substantive choices away from state regulation---this happens all the time with ordinary federal statutes that preempt states from regulating certain areas of law in certain ways. But to tell a state *how* it can go about making its substantive choices seems to be more unusual and more "tyrannical" on the part of federal law.

As far as I know (off the top of my head), the only current constitutional limit on how states organize themselves is that they must maintain a republican form of government. Of course, the federal government forces states to behave in certain ways in order to receive federal funding, but I have never heard of any conditions the likes of, for example: "In order to receive Medicaid funds, the state must have a Governor elected by 2/3rds of the vote." Here, telling a state it can only recognize same-sex marriage by fundamentally altering the role of its common-law courts seems to be a somewhat novel development in federal-state relations,** in which the states are the losers. The irony here is that it comes from Thompson, the purported Ronald Reagan of 2008.

**Of course, people will now generate dozens of examples of similar laws that I did not think of or know of . . . .

Sobek said...

"So there is, in my view, an unmistakable hostility to same-sex marriage in this proposal."

I'm not saying the amendment doesn't single out the same-sex marriage issue -- obviously it does. But hostility is not the same thing as determining the outcome (i.e. imposing second-class status). It leaves open the option that activists can persuade people (rather than just a handful of judges).

Personally, I don't care one way or another about same sex marriage, but I do care about judicial tyranny. I think Thompson is on the right track, but his amendment is fundamentally flawed for the reason you pointed out, and I don't know that it can be saved.

I also would not support the hypothetical alternative you typed, about "[a]ny fundamental social changes..." It's far too vague. I prefer a legislative override (by supermajority) of a judicial determination that a law is unconstitutional.

egarber said...

Personally, I don't care one way or another about same sex marriage, but I do care about judicial tyranny.

And what about tyrannical federal behavior that does severe damage to state sovereignty? Further, wouldn't it end up in court anyway (federal in this case), since there would have to be some sort of vehicle for determining whether a state court actually interpreted laws without making them?

This to me sounds like nothing more than a bone for the anti-gay marriage crowd -- but it's so shortsighted that it obliterates another supposed "conservative" value (states' rights).

egarber said...

Personally, I don't care one way or another about same sex marriage, but I do care about judicial tyranny.

If I live in Georgia, why should I care about a "judicial tyranny" problem in say, Hawaii? Why should I want to amend the federal constitution to deal with it, when the people of that state can change their own constitution to address any separation of powers concerns that might arise?

Sobek said...

"This to me sounds like nothing more than a bone for the anti-gay marriage crowd -- but it's so shortsighted that it obliterates another supposed 'conservative' value (states' rights)."

I agree. My opposition to gay marriage through judicial fiat doesn't mean I support every misguided attempt at a cure.

"If I live in Georgia, why should I care about a 'judicial tyranny' problem in say, Hawaii?"

If I live in America, why should I care about genocide in Darfur? Or economic collapse in Zimbabwe? Or brutal repression in Cuba?* Maybe because my liberal grade-school teachers programmed me to think that injustice anywhere is a threat to justice everywhere, or some such pap.

* For the record, no, I'm not saying that judicial tyranny vis a vis gay marriage is as bad as Castro's Cuba -- but tyranny is tyranny, yes?

egarber said...

If I live in America, why should I care about genocide in Darfur?

I understand. But caring about Darfur doesn't implicate and damage something we should already value, like our system of federalism.Put another way, you're certainly allowed to *care* about judicial tyranny (leaving aside that I would likely disagree about that characterization), but the question is: how do you support action in the most constructive way? Seems to me the better approach would be to support local efforts to change state constitutions, rather than calling for a federal constitutional amendment.

Paul said...

"but tyranny is tyranny, yes?"

clearly not, or at least my definition of tyranny is nothing like yours. The way I see it, the only branch of government even capable of tyranny is the executive. The other two branches at best can support tyranny, not create it.

In your rather expansive definition, however, I can't help but notice you left out completely tyranny of the majority. I may be reading too much into your words, but it appears to me you define tyranny almost exclusively by it's counter-majoritarian properties.

From my perspective, the most essential role a judiciary plays, however, is it's check on the majority. Calling it "tryanical" when it does so seems to me odd.

Sobek said...

"...rather than calling for a federal constitutional amendment."

Which I've never done.

"The other two branches at best can support tyranny, not create it."

The federalists would disagree, and your reference to "tyranny of the majority" suggests you already know that. (I'm actually surprised it took anyone so long to mention it).

Let's start with your fist argument, that the judiciary cannot be tyrannical. Dictionary.com has "arbitrary or unrestrained exercise of power; despotic abuse of authority." Tell me: would you not consider the Dred Scott decision an unrestrained exercise of power? Was there any realistic check on the Supreme Court's power in that case? And can the decision be fairly described as anything other than an abuse of authority? American Heritage Dictionary gives another good one: "Absolute power, especially when exercised unjustly or cruelly." Considering that virtually every action by Congress or the President is subject to judicial review, how is the Supreme Court's power anything less than absolute?

I suspect you will change your ideas of judicial tyranny as the Roberts Court hands down more decisions. Probably more so if another conservative President replaces Stevens and Ginsburg.

When I speak of judicial tyranny, it is the arrogant assumption of the power of five out of nine people to declare that the American people are unfit to govern themselves. Abortion decisions (for example) are offensive to me, not only because I value the sanctitiy of unborn life, but because the Supreme Court decided Americans are simply unqualified to make their own rules and laws.

Now it is true that the Constitution does not permit Americans to make any law they choose. But that is because Americans themselves, at the Constitutional Convention, voluntarily abdicated certain of their powers -- they were not taken away by judicial fiat. As Justice Breyer claims in his book, Active Liberty (and then refutes through his actions on the bench), judicial decisions should be fairly traceable to the actual will of the people. Judicial tyrants say "screw the will of the people, I want to fashion society as I please."

It is true that a majority may be as tyrannical as a minority. The solution to this problem, however, is not to foster tyranny of one kind as a check upon the other, especially when the minority tyrants are unreviewable judges with lifetime tenure. That you seem to prefer one species of tyranny does not absolve you from the sin of actively supporting tyranny.

egarber said...

Sobek, I think you're overstating the argument about "judicial tyranny."

As far as what the framers thought, it's pretty evident (via the federalist papers at least) that folks like Alexander Hamilton thought the judiciary would be by far the weakest branch.

The other dynamic that I think is missing from your analysis has to do with the type of power involved. In the modern-day individual rights examples you allude to, the MOST a court can do is NEGATE assertive government power over an individual. In other words, in the worst case, the system errs on the side of individual liberty. Tyranny emanating from the other branches involves ENFORCING positive power over others.

Of course, D Scott was indeed, well, dreadful. But in response, the constitution was amended. So that check by the "people" was certainly in force.

egarber said...

just to get it out there, here's a chunk of federalist 78, where Hamilton is defending Judicial independence and life tenure, among other things:

"This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security."

Sobek said...

"As far as what the framers thought, it's pretty evident (via the federalist papers at least) that folks like Alexander Hamilton thought the judiciary would be by far the weakest branch."

I agree, which is why there is essentially no check on judicial power in the Constitution. Making that branch far more susceptible to abuse of power.

"In other words, in the worst case, the system errs on the side of individual liberty."

I disagree, because virtually any exercise of one person's right intrudes upon a right, large or small, of another. As an obvious example, your right to protest on a sidewalk necessarily interferes with my right to enjoy the sidewalk without listening to protestors. We can both agree that your right to protest trumps my right to quiet enjoyment of a public place, but when the Court enforces your right, it interferes with my liberty.

My right to own a gun conflicts with your right to live in a gun-free neighborhood (unless we're in D.C -- maybe). My right to the peace and security of a crime-free neighborhood is curtailed by my neighbor's right not to be thrown in jail without probable cause, just because he might in the future commit a crime. An employee's right not to be subjected to discrimination interferes with an employer's right to dispose of company assets as he sees fit.

And getting back to the subject of this thread, if we posit an individual right to gay marriage through judicial fiat, then we must also accept an erosion of my right to participate in government. As I've been saying all along, this is essentially, fundamentally tyrannical, because of the way it excludes me from government, in a way that none of my other examples do.

"But in response, the constitution was amended."

Well, first we had a bit of a spat over northern aggression and whatnot. I think that exception helps prove the rule.

Finally, in response to your Hamilton quote, I don't oppose judicial independence -- on the contrary, I think it's critical (provided we aren't defining "independence" as synonymous with "virtually unlimited and unreviewable power"). In fact, one of the worst things about Nevada (where I live) is that we elect judges, which fundamentally undermines judicial independence. That's a tragedy, and I would vote to change it in a heartbeat.

egarber said...

Sobek, thanks for the reply.

I disagree, because virtually any exercise of one person's right intrudes upon a right, large or small, of another.

clip

We can both agree that your right to protest trumps my right to quiet enjoyment of a public place, but when the Court enforces your right, it interferes with my liberty.


I think another way to make my point is to think of court action in "power constraint" terms -- meaning it's not that the court is choosing among competing private rights; in truth it's limiting government power and discretion to its "island" / sphere.

Sobek said...

"in truth it's limiting government power and discretion to its 'island' / sphere."

Sure, and that is the proper role of the courts. But what is that "island"? In the case of you protesting on the sidewalk, the answer is extremely clear -- the First Amendment limits government power. In the case of me owning a gun, the answer is not as clear, but at least we have a textual basis for our arguments. And in both cases, undeniably, the sphere of government action stems directly from a choice by the people (at the ratifying conventions) rather than a judge or five simply inventing the sphere out of whole cloth.

egarber said...

rather than a judge or five simply inventing the sphere out of whole cloth.

In truth, the Ninth Amendment, while not laying out details, signals to us that those "rights" are not limited merely to those specifically listed. That tells me the framers anticipated tough questions -- and they trusted courts to use their independent judgment to identify the contours of that "island". That's at least partly

Hey, we're blog hogs, it appears :)

Sobek said...

"In truth, the Ninth Amendment, while not laying out details, signals to us that those 'rights' are not limited merely to those specifically listed."

I have two problems with this argument. First, it suggests that virtually anything that can be asserted as a right must be a right.

Second, the purpose of the Bill of Rights (and the Constitution in general, with very few exceptions)was to restrain the federal government. The Ninth Amendment left open to the people the right to govern themselves in their individual states. Judicial reliance on the Ninth Amendment (which, in fact, is far more theoretical than real, anyway) essentially puts the question of rights back with the federal judiciary.

"Hey, we're blog hogs, it appears :)"

Not for the first time. And not for the last, if Prof. Dorf doesn't kick me out.

egarber said...

Second, the purpose of the Bill of Rights (and the Constitution in general, with very few exceptions)was to restrain the federal government.

This is certainly arguable pre-14th amendment. But if one is willing to say that the ninth in some way qualifies or even broadens other amendments (like the 4th or 5th)**, then it seems rational that it should become incorporated along with the other amendments. That's why I think it's perfectly applicable when we talk about state laws as well.

**(Prof Dorf wrote something recently -- I think -- about how the Ninth can inform in this way).


First, it suggests that virtually anything that can be asserted as a right must be a right.

Potentially, and this is the biggest challenge. But just because it's hard to find the right line, that doesn't mean the amendment wasn't intended to tell future generations to do just that.

If you ignore it, your bringing into realization the original fear the framers had in putting together a BOR to begin with -- i.e., that a BOR would be read as exhaustive, leaving the rest of our lives subject to majoritarian over-reach (tyranny, by another term).

Not for the first time. And not for the last, if Prof. Dorf doesn't kick me out..

Your safe -- no worries there. Hell, I'm just a journalism grad, not even a lawyer. My days are likely numbered :)

egarber said...

I butchered the language twice in my last post. "Your" should be "you're.".

Consider this my correction :)

Sobek said...

"This is certainly arguable pre-14th amendment."

The 14th Amendment changed the relationship of the Constitution to the states. I think a lot of conservative commenters overlook or minimize that fact. But I think your interpretation of how the federal/state dynamic changed goes too far.

That is, one of the rights protected under the Ninth Amendment was the right of participation in state government -- this is a necessary implication of the Ninth Amendment because the whole purpose of the amendment (and the Constitution) was to restrain federal power. There is no way to apply that principle to the states, because the states never exercised federal power (by definition).

"If you ignore it, you're bringing into realization the original fear the framers had in putting together a BOR to begin with..."

But again, that fear only extended to the exercise of federal power. And I'm not suggesting that we ignore the Ninth Amendment, or that courts aren't allowed to read it (rest easy, John Marshall), I'm suggesting that it is no good basis for interfering with individual rights vis a vis self-government on the state level.

"...no worries there..."

No, I'm not worried. Prof. Dorf has known I'm a conservative for some time now, and hasn't reached for the ban hammer yet. I doubt our interesting discussion will change that.

egarber said...

Prof Dorf ain't no censor, that's for sure.

The good thing about this blog (imo) is that we can disagree without the high flying generalized rhetoric and name calling that defines other web outlets.

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