Tag: Constitutional Law

The Libertarian Podcast, with Richard Epstein: How to Choose a Federal Judge


shutterstock_159118949As a matter of probability, the next president is likely going to get several cracks at Supreme Court appointments. As a matter of certainty, he or she is going to have scores of appointments to make to lower federal courts. All of which raises a question: how exactly do you pick the right person?

In this episode of The Libertarian podcast, Professor Epstein identifies the hallmarks of good and bad judges, considers whether the confirmation process in Washington has become too political, and lays out the structural reforms that he believes could help the federal judiciary. You can take this podcast on the go by subscribing to The Libertarian via iTunes or you can listen in via the embed after the jump.

Obergefell and the Limits of Judicial Supremacy


shutterstock_162764102In Obergefell v. Hodges, the Supreme Court used its power of judicial review to legalize gay marriage throughout the nation. In one fell stroke, five Justices short-circuited the democratic process, which was gradually removing barriers to gays, and swept aside the Constitution’s reservation of family-law matters to the states. Even while they may disagree on gay marriage, most Americans believe they must obey Obergefell because the separation of powers gives the Supreme Court the ultimate authority to interpret the Constitution.

Prominent defenders of traditional marriage, however, have gone beyond the usual criticism of a mistaken judicial decision to attack the Supreme Court as an institution. “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” said Mike Huckabee, former governor of Arkansas and GOP presidential candidate. “We must resist and reject judicial tyranny, not retreat.” Fellow candidate and Republican senator Ted Cruz has proposed constitutional amendments not only to overturn Obergefell, which other candidates support, but to subject Supreme Court justices to periodic elections.

While these politicians, I believe, have overreacted, they hit upon an important truth about our Constitution. Contrary to popular belief, Obergefell does not settle the question of gay marriage, because the Supreme Court cannot finally determine any fundamental constitutional dispute. Claims of judicial supremacy have appeared before, ranging from the odious (Dred Scott’s defense of slavery) to the courageous (Brown v. Board of Education’s condemnation of segregation). But these views mistake the Court’s right to decide cases or controversies under the Constitution for supremacy in its interpretation.

The Supreme Court’s Incomplete Raisin Decision


shutterstock_155693495Many opponents of the government’s persistent meddling in agricultural markets hailed the recent Supreme Court decision in Horne v. Department of Agriculture — which found that a government scheme in which raisins are confiscated from growers in order to prop up crop prices constituted a taking that required just compensation — as a victory for limited government. As I note in my new column for Defining Ideas, however, the Court’s approach to this topic was woefully incomplete:

The most amazing part of this saga is not that the Hornes won, but that no one involved in the litigation used the word “cartel.” The Hornes had to avoid the term, which would undermine their claim. A cartel arrangement is not just a naked taking. Its offset turns out to be the higher prices that the Hornes and other cartel members can fetch for their remaining stock of raisins in the open market, which should count as a form of in-kind compensation under the Takings Clause. Under traditional antitrust lingo, they are cheaters who work under the cartel umbrella. All power to them!

Nonetheless, the government did not wish to make an open admission that the Marketing Act fortifies cartels, lest they undermine the stabilization myth that helps shield these cartels from public disapproval. And the Supreme Court, which has already blessed these grotesque arrangements, could ill-afford to undermine the legitimacy of its own earlier rulings, including Wickard, which props up the modern welfare state, including Obamacare.

Slate’s Rising Intolerance on Gay Rights


In my recent Defining Ideas column, “Hard Questions on Same-Sex Marriage,” I sought to explore some of the intellectual cross-currents and difficulties in the Supreme Court’s opinion in Obergefell v. Hodges. There were two basic points in the article.  First, I sought to explain the difficulties in finding a constitutional right to gay marriage, even though most of the standard arguments against same-sex-marriage tend to fall flat as a matter of social and political theory. The article was in no sense an effort to rally religious conservatives to stop the powerful political juggernaut that has resulted in a surge in public approval for same-sex-marriage.

The second point was my deep uneasiness that the same-sex-marriage movement is moving sharply from its defense of gay unions towards a massive intolerance of those individuals who, for religious reasons, oppose the practice and wish to conduct their own personal lives and business activities in accordance with their own beliefs — beliefs that I hasten to add are not my own. The recent hysterical screed against my column by Slate’s Mark Joseph Stern, laden as it is with abusive epithets, shows just how rapidly that form of intolerance is taking over the gay rights movement more generally.

The Libertarian Podcast: The Supreme Court and Gay Marriage


Still hungry for more razor-sharp constitutional analysis after yesterday’s Law TalkYou’re in luck. We’ve got a double-shot this week, as Professor Epstein also weighs in on the Supreme Court’s gay marriage decision in Obergefell v. Hodges in the new episode of The Libertarian. And the conversation here is a little different — for instance, Richard discusses whether Chief Justice Roberts has any discernible judicial philosophy and whether Rand Paul’s suggestion that we get government out of marriage altogether is practical. It’s all available by listening in below or by subscribing to The Libertarian via iTunes or your favorite podcasting app.

The Hidden Message of Same-Sex Marriage


shutterstock_219219871The four dissenters in Obergefell v. Hodges lucidly expressed the profound offense against constitutional law and representative democracy the ruling represents. In short, five lawyers, accountable to no one, chose to legislate on a profoundly consequential matter that the people were just beginning to address through democratic means. As Chief Justice Roberts wrote: “Who do we think we are?” If justices cannot resist the urge to legislate, let’s drop the pretense that constitutional law is guided by neutral principles and at least give the people the option to vote justices in (and out).

That the court has struck a blow for gay rights is true enough (and treating homosexuals with respect is long overdue). Unfortunately, the claim that this ruling also strengthens marriage is almost certainly false. To understand why is also to answer the question so often pressed as a taunt by gay marriage supporters: How can extending marriage to gays possibly affect your marriage? The answer lies in the hidden message.

The road to gay marriage began with feminism. Feminists argued that there were no important differences between the sexes. Thus, mothering and fathering were interchangeable. The word ‘parent’ became a verb. If mothers and fathers bring nothing unique or complementary to their roles, then it logically follows that two mothers or two fathers should be just as good. Talk of three or more parents misses the mark. The relevant number is one. If fathers are no different from mothers, then single women needn’t pause before embarking on “parenthood” solo – and they aren’t.

Obergefell’s Threat to Religious Liberty


As a libertarian, I support same-sex marriage. As a libertarian, I also fear the totalitarian overtones sounding from the next round of gay rights initiatives. The nature of the Supreme Court’s recent ruling on same-sex marriage in Obergeffel v. Hodges has only compounded the danger. As I note in my newest column for Defining Ideas from the Hoover Institution:

…[I]n the wake of Obergefell, we have to ask what the next step in the struggle over same-sex marriage will be. By insisting that same-sex marriage is a fundamental right, Kennedy has consciously introduced an equivalence between race and sexual orientation. How far is he prepared to go? In the 1983 case of Bob Jones University v. United States, the Supreme Court upheld an IRS decision to deny tax-exempt status to schools engaging in racial discrimination. The Court acknowledged that it could not outlaw the Church’s practices, which were protected as a free exercise of religion. But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

The Court’s Assault on Democracy and States’ Rights


One of the ironies of the Supreme Court’s decision in Obergefell v. Hodges is that it is being touted as a victory for civil rights. Surely it’s an unusual civil rights victory that disenfranchises the people of all 50 states on a critical issue. After a mere decade of political debate on the topic of same-sex marriage, the voters have been told that our opinions are no longer needed. Justice Kennedy will tell us what we think.

The violence to democracy is bad enough, but it is greatly compounded by the damage to American federalism.  The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity” or “autonomy” or any of the other vacuous phrases contained in Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).

Why We Lost; What We Lost


ConstitutionYesterday’s ruling in Obergefell v. Hodges represents the culmination of a perfectly executed public relations campaign.

In a purely pragmatic sense, it’s difficult not to be impressed by what this activist-driven effort accomplished—I mean in real terms, not the unserious victory slogans of the campaign itself.

In no particular order, it:

The “SCOTUScare” Travesty


shutterstock_270314624I hope to get to the SSM decision in a later post, but for now let me recap the result in yesterday’s decision in King v. Burwell: Obama 1, Rule of Law 0. I have a slightly longer analysis over at City Journal, but here’s the gist.

By a margin of 6-to-3, the Court upheld an IRS rule that supposedly implements the Affordable Care Act — Obamacare — by extending health insurance tax credits to taxpayers in states that have no health insurance exchange of their own, but rather rely on the federal healthcare.gov exchange. The problem with this rule, as the plaintiffs in King pointed out, is that it flatly contradicts the ACA. The statute clearly limits tax credits to taxpayers who use state insurance exchanges, not the federal one. A majority of the Court, therefore, simply rewrote the ACA.

This should have been an easy case. Obamacare provides two different mechanisms for establishing a health insurance exchange. A state can establish an exchange under Section 1311 of the Act. And in states that “fail” to establish an exchange, the secretary of Health and Human Services must establish an exchange under Section 1321. When discussing eligibility for those all-important tax credits, the ACA says that they are available only to taxpayers who enroll in a qualified health plan “through an Exchange established by the State.”

Book Review: Constitution 101


shutterstock_219829600If you want to learn about constitutional law without going to law school, the first thing you should do, of course, is listen to the Law Talk Podcast. But after that, you should check out The Constitution: An Introduction, the new book by law professor Michael Stokes Paulsen and his son, Luke. My review of the book is now available at City Journalbut here’s a summary.

The book’s first half provides an overview of the Constitution’s key provisions and an introduction to the major schools of constitutional interpretation, including the authors’ own originalist perspective. The second half offers a condensed history of American constitutional law. With sidebars on many of the personalities who shaped constitutional doctrine—not just judges, but politicians and litigants too—the book does an excellent job of placing legal controversies in historical context.

Some of you will already know Professor Paulsen, particularly for his vociferous criticisms of Roe v. Wade, the source of our modern American “right” to abortion on demand, including the essay that Troy commented on here in 2013. The Paulsens do not discuss Roe until late in the book, but in some ways that 1973 decision shapes the entire narrative. Every bad trend in American jurisprudence — from Dred Scott on — is seen as a prelude to the kind of judicial activism that produced Roe.

No Good Options in Supreme Court’s Israel Ruling


shutterstock_95619496The Supreme Court’s recent decision in Zivotofsky v. Kerry — holding that Congress could not force the president to recognize Jerusalem as part of Israel on American passports — has occasioned much argument on behalf of both those who believe in expansive executive power on foreign affairs and those who want the legislative branch to have a greater say. As I note in my new column for Defining Ideas, however, what’s largely been overlooked is how weak the constitutional support for either side’s position is. From the piece:

Unfortunately, any fair-minded reading of the available constitutional texts quickly reveals that neither Congress nor the President has any clear textual warrant to discharge a function, issuing passports, that one of them of necessity must control for the government to function. In Zivotofsky, Justice Kennedy accepted Secretary of State Kerry’s position that the President’s power to “receive ambassadors” necessarily carried with it the power to decide which nations could send them, and thus grants the President control over the entire process of recognizing foreign nations. That textual argument is a large stretch. In his short but pithy dissent, Chief Justice Roberts quotes Alexander Hamilton, who noted that the relevant clause imposes a duty on the President that “is more a matter of dignity than of authority.”

Indeed, presumably receiving ambassadors could be subject to some bilateral treaty under which Article II, Section 2, of the Constitution does not give the President sole control over the matter. Quite the opposite, it provides: “The President . . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

The Libertarian Podcast: Epstein on the Supreme Court’s Jerusalem Decision


This week on The Libertarian podcast, Professor Epstein leads us through the intricacies of the Supreme Court’s ruling in Zivotofsky v. Kerry, a case nominally about which branch of the federal government gets to determine what’s printed inside your passport — but one that may have profound implications for the separation of powers when it comes to foreign affairs. It’s a typically comprehensive Epsteinian survey that touches on everything from the weaknesses of Justice Kennedy’s interpretive style to the propriety of signing statements. Listen in below or subscribe to The Libertarian via iTunes or your favorite podcast app.

On Constitutional Law and the Storage Costs of Paper Mache Effigies


What do you do when you have an interview with your former boss’s wife?! Answer tough questions with deep imponderables.  For example, I ask: how much rent do protesters pay to store my giant paper-mache effigy? I talk with the Daily Caller’s Ginni Lamp Thomas (wife of Supreme Court Justice Clarence Thomas) about what it’s like for a conservative to live in Berkeley, President Obama’s attack on the separation of powers, and the rising dangers to our national security.

The Libertarian Podcast: Understanding the Dormant Commerce Clause


In the latest installment of the Libertarian podcast, Professor Epstein is giving listeners a tutorial on the Dormant Commerce Clause — the controversial legal doctrine that was at stake in the Supreme Court’s recent ruling in Comptroller of the Treasury of Maryland v. Wynne. What is it? Why was it able to so dramatically scramble judicial alliances in the Comptroller case (where the majority consisted of Alito, Roberts, Kennedy, Breyer, and Sotomayor)? And why does Justice Scalia regard it as a “judicial fraud”? Find the answers by listening in below or subscribing to the Libertarian podcast via iTunes or your favorite podcast app.

Amend, Don’t Bend


shutterstock_174496676Earlier this week, Instapundit Glenn Reynolds made some waves by arguing that a Congressional bill that would ban abortion after 20 weeks is unconstitutional:

The problem is that Congress is supposed to exercise only the powers enumerated in the Constitution, and those powers don’t include regulating state medical procedures. (The federal government lacks even the power to criminalize murder as such: All federal “murder” statutes punish murdering someone in the course of violating some other federal law because unlike states, the federal government has no general “police power.”)… If you scroll through the powers enumerated to Congress in Article I, Section 8 of the Constitution, you’ll find such things as establishing uniform rules of bankruptcy, raising and supporting armies and navies, and establishing post offices and post roads. What you won’t find is anything that supports congressional power to impose a time limit on abortion.

Both NR’s Ramesh Ponnuru and The Federalist’s Ben Domenech counter, arguing that the ban correctly cites the Equal Protection Clause of the 14th Amendment as the main source of its authorization. In part, Ponnuru argues:

The Libertarian Podcast: Epstein on the NSA Ruling


On this week’s installment of The Libertarian podcast, we’re diving into the Second Circuit’s recent ruling on NSA Metadata collection. Was the court right to hold that the program exceeds the authority given by the Patriot Act? Should Americans be concerned about an intrusive intelligence apparatus? Is Edward Snowden a hero? And what does Richard think of Rand Paul’s views on the tradeoff between security and liberty? Listen in below (or by subscribing through iTunes or your favorite podcast player) to find out.

The Supreme Court is Wrong: Get Race Out of Redistricting


Last week, the Supreme Court, in the case of Alabama Black Caucus v. Alabama, overturned a redistricting plan for Alabama’s State Legislature, with the Court’s majority (the four liberals and Justice Kennedy) arguing that the new district lines didn’t do enough to preserve the influence of black voters. As I write in my new column for Defining Ideasit’s a mistake to accept the redistricting status quo in which the majority party (Republicans, in Alabama) constructs relatively safe districts for itself and then gives the minority party a handful of even safer seats as compensation. As I write:

In a sensible world, the best counter to these dangerous tendencies uses explicit formal requirements to remove this unpleasant form of tit-for-tat politics. Two constraints, taken together, could achieve this result in a relatively simple fashion. The first is to stick with a requirement of rough numerical equality across districts. The second is to require relatively compact districts, which look more like simple squares than some grotesque 28-sided monster that white citizens (outnumbered by 4 to 1) consciously created in Tuskegee, Alabama in 1957 to block the possibility that newly enfranchised black residents would soon take over local politics. Six years after Brown v. Board of Education, the Supreme Court in Gomillion v. Lightfoot struck down this ploy under the Fifteenth Amendment, which provides that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

The Libertarian Podcast: The Cotton Controversy


We’ve been having a lively discussion here on the site about the propriety of the open letter to Iran sent by Tom Cotton and 46 other Republican senators. In the newest installment of The Libertarian podcast from the Hoover Institution, I ask Professor Epstein to weigh in: was the Cotton letter a breach of protocol…or law? Is President Obama right to pursue an executive agreement rather than a treaty with Iran? And what does it all mean for American national security? Find out by listening below or by subscribing to The Libertarian through iTunes or your favorite podcast service.