A Stitch in Haste

This is not the first time something judicially monumental has happened whilst I was on vacation. I hope you can find enough commentary on the decision to tide you over for a few days.

I won't lie to you: There is no way I am reading 172 pages of California constitutional interpretation here in my undisclosed location. It will have to wait until I get back.

I can, however, offer two hasty stitches:

1. Tim Sandefur asks what's in a name:

The Court begins by making clear that the question is not whether the state can bar homosexual couples from having the same substantive rights as heterosexual couples, but rather whether the state can establish an identical (or nearly identical) set of substantive rights for each, but only confer the name "marriage" on one and not the other. The entire dispute is about the word "marriage.'
...
The only difference is the word the state uses. Do you have a right to a word?

I think on this point, there is room for disagreement, but I would be skeptical. First, if the state were using a word for same-sex marriages that was derogatory or offensive, then there would be a stronger argument that the state was discriminating against them.
...
California simply denominates gay marriages "civil unions." Is that really a violation of the rights of gay couples? If so, is it discrimination to refer to people on AFDC or WIC as "welfare recipients"? Is it discrimination to refer to people in wheelchairs as "handicapped"? I find this an implausible ground for a finding of discrimination.

Sandefur is as fine a libertarian legal mind as you'll find, and no enemy of gays. (Again, he is critiquing the decision, not the concept of gay marriage generally.) So my observation is probably best filed away as a lawyer's quibble, but I think his analysis is utterly untenable for a reason that can be summed up in two "just words" — New Jersey.

A New Jersey straight "married" (just a word) couple can have their marriage (just a word) recognized and legally enforced in New York.

A Massachusetts or Canada "married" (just a word) gay couple can, now, have their marriage (just a word) recognized and legally enforced in New York.

A New Jersey gay "civil-unioned" (just a not-quite-word) gay couple cannot have their civil union (just words) recognized and legally recognized in New York. This despite the fact that the New Jersey Supreme Court insisted and demanded that "civil unions" be afforded all (just a word?) the rights and privileges of marriage.

New Jersey tried, and failed, to make marriage "just a word" —

We will not presume that a difference in name alone is of constitutional magnitude.

It was a Sisyphean nightmare then; it is a Sisyphean nightmare now. Marriage, for better or for worse, is not "just a word" in American jurisprudence. That is axiomatic in the exteme.

Note also that Sandefur's suggested qualifier "derogatory or offensive" has nothing to do with it. Full and equal either obtains or it does not; asking, "Is this derogatory or offensive?" is simply not a robust distinction in this context.

Like I said, this is a just a late-night* nitpick; Sandefur's post is really quite good. Do read it.

(*"Late-night"? Did I just give an inadvertent hint as to my undisclosed location?)

2. So while the heroes of Lambda Legal (aided as they often are by the ACLU) were busy actually doing something for gay equality, what was the Human Rights Campaign doing?

They were busy conflating gay marriage with socialized medicine:

In our national debate on health care — we need to remember that in America, health care is a right, not a privilege. Too often that's not true for gay, lesbian, bisexual and transgender Americans. The absence of federal protections, inadequate state laws and inconsistent hospital policies often result in discrimination and inadequate health care for GLBT patients and their families.

The question of fair and equal (not to mention sane and humane) recognition of gay relationships in the context of medical care has nothing, absolutely nothing, to do with the gobbledygook of a "right to health care." To equate gay marriage with socialized medicine is to make gay marriage as evil as socialized medicine. It also marginalizes, as unimportant collateral damage, all those gays who dare not to be radical liberal malcontents. It's worse than "win the battle, lose the war" — it's "win the battle, bomb your allies."

I'm not being entirely fair, of course: HRC did find the time and money to "sign on" (their term) to somebody else's (whom they couldn't bother to identify in their press release) amicus brief. How bold of them. And how much, I wonder, are they asking for in donations for "their" (just a word) "victory" (not just a word)?

If your charitable money is up for grabs, then give it to Lambda, not to HRC. (If you want to be utterly apolitical, then opt for the Point Foundation.)

---

The litigtion is In re Marriage Cases, No. S147999 (S. Ct. Cal., May 15, 2008) (PDF - 172 pages).

A busy week on the gay rights front --

ITEM: New York's highest court declined, though strictly on procedural grounds, to review lower court rulings holding that same-sex marriages validly entered into in other jurisdictions (e.g., Massachusetts, Canada) must be recognized even though the gay couples could not have married in New York itself. The high court may hear the case after further litigation of the case in the lower courts. Despite the seeming contradiction, this "valid there means valid here" practice is actually a long-standing policy in New York (and other states) that has been applied to first-cousin marriages, underage marriages, common law marriages and other circumstances. Nevertheless, it does give further incentive to both advocates and opponents of same-sex marriage, who share an eagerness to ask, "How can this be?" Most recent post here.

ITEM: A California appellate court, meanwhile

has ruled unanimously that a gay Orange County man who mistakenly thought his ex-partner had registered their domestic partnership is entitled to the same protections covering heterosexual spouses who discover that, for whatever reason, their marriage is not valid.

This was not a particularly inspirational case: one partner tried to exploit the other by claiming that the failure to mail in the domestic partnership form nullified the estate planning documents they had drafted at the beginning of their formalized relationship. Still, fair and equal treatment is fair and equal treatment, in dissolution of relationships as well as in their formation. (A reminder, meanwhile, that California faces both an imminent state supreme court ruling on same-sex marriage and a likely bigot amendment.)

ITEM: Every silver lining must have a cloud --

An amendment to the state constitution approved by voters in 2004 to define marriage as the union of one man and one woman also prohibits public employers from providing health care and other benefits to the same sex partners of employees, a divided Michigan Supreme Court ruled today.
...
Jessie Olson, an attorney involved in filing the challenge that was rejected by the court Wednesday, said the ruling leaves Michigan "at the bottom of the barrel. We are the worst of the worst of the worst when it comes to civil rights for same sex couples."

When bigots insist that their "no nothing never" amendments are "only" about "defending traditional marriage," they lie. Most recent post here.

---

MEANWHILE: Although not quite rising to "Larry Craig" status, one of the most rabidly anti-gay bigots in Congress, New York Republican Vito Fossella, has acknowledged that he had an extra-marital affair* that produced a daughter, now 3 years old.

Fossella, now widely expected not to seek re-election,** voted for the Federal Marriage Amendment in 2004, the (identical) Marriage Protection Amendment in 2006, the jurisdiction-stripping Marriage Protection Act of 2004, and a D.C. appropriations amendment that would have banned gays in the District from adopting.

He was certainly "defending traditional..." -- well, traditional something.

*The affair was, incidentally, with an air force lieutenant colonel. File that under "morale and unit cohesion."

**Not for the affair, mind you, but for a DUI arrest in Virginia that will likely result in jail time.

(Via Obsidian Wings.)

Fascinating case study in theocratic majoritarianism versus secular libertarianism:

In a 7-1 majority vote Monday night the Charles Town [West Virginia] City Council decided to institute a moment of silent prayer, thus abolishing the decades-long tradition of reciting the Christian-specific Lord's prayer before the beginning of each meeting.
...
Charles Town Mayor Peggy Smith, who did not vote on the issue, said she was disappointed in the council's decision but understood why it was made. "I understand why they did what they did after listening to legal advice. We cannot place the citizens in jeopardy with a lawsuit. So I do understand their vote but it doesn't make me happy about it," Smith said.
...
[Geraldine] Willingham, who cast the dissenting vote [and] described Charles Town as a "Christian town" at the council's last meeting, was not pleased by the council's decision to do away with the recitation of the Lord's prayer.

"I think it's a sad day for Charles Town where we cannot start our council meetings off with the Lord's prayer all because of one negative person. That's my comment," Willingham said after Monday's meeting.

Some hasty stitches:

--The "one negative person" was a Jew, not an atheist. Of course, to most hillbilly Christians like Willingham, there's little point in distinguishing between Jews, atheists, agnostics, whatever -- they're all equally un-American and all equally devoid of First Amendment protection (not to mention equally hellbound). Stated differently, there are still people -- elected leaders -- who actually believe, in the Twenty-First Century, that there can be such a thing as a "Christian town" in what was once known as the "land of the free."

--Based on the media account, it appears that the theocrats couldn't even be bothered to engage in the wink-wink of calling their new invocation a "moment of silence" rather than a "silent prayer." The simple, uncomplicated First Amendment notion that maybe, just maybe, a city council chamber ought not be used as a church is simply incomprehensible to these "dedicated public servants."

--Speaking of which, note that these theocrats did not stop their flagrantly unconstitutional* practice out of any moral epiphany. They stopped the practice because their lawyers told them to. That's better than nothing, I suppose, but it's hardly praiseworthy.

(Via Religion Clause.)

---

Elsewhere:

Conservative Christian leaders who believe the word "evangelical" has lost its religious meaning plan to release a starkly self-critical document saying the movement has become too political and has diminished the Gospel through its approach to the culture wars.

The statement, called "An Evangelical Manifesto," condemns Christians on the right and left for using faith to express political views without regard to the truth of the Bible, according to a draft of the document obtained Friday by The Associated Press.
...
Richard Land, head of the public policy arm for the Southern Baptist Convention, said through a spokeswoman that he has not seen the document and was not asked to sign it.

James Dobson, the influential founder of Focus on the Family, a Christian group in Colorado Springs, Colorado, did not sign the document, said Gary Schneeberger, a Dobson spokesman.

This is similar to the observation that too many secular Muslims in the U.S. and Europe and not doing enough to "take back Islam" from extremists who spawn terrorism and violent intolerance in the name of a supposed "Religion of Peace."

To the extent that these non-political Evangelical leaders make noise against the radical anti-Christians in their midst -- especially Dobson (who, recall, is not a credentialed cleric in any church) -- I can only say, "praise be unto them."

(Via Wall of Separation.)

---

*Marsh v. Chambers, 463 U.S. 783 (1983) (Inapplicability of First Amendment to opening a legislative session with a prayer presupposes that "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.") Note that I of course consider Marsh wrongly decided in that all legislative prayer sessions ought to be deemed facially unconstitutional, and not just those that are both openly and notoriously sectarian and unambiguously hostile to non-Christians -- as the Lord's Prayer unarguably is.)

Fascinating case study in theocratic majoritarianism versus secular libertarianism:

In a 7-1 majority vote Monday night the Charles Town [West Virginia] City Council decided to institute a moment of silent prayer, thus abolishing the decades-long tradition of reciting the Christian-specific Lord's prayer before the beginning of each meeting.
...
Charles Town Mayor Peggy Smith, who did not vote on the issue, said she was disappointed in the council's decision but understood why it was made. "I understand why they did what they did after listening to legal advice. We cannot place the citizens in jeopardy with a lawsuit. So I do understand their vote but it doesn't make me happy about it," Smith said.
...
[Geraldine] Willingham, who cast the dissenting vote [and] described Charles Town as a "Christian town" at the council's last meeting, was not pleased by the council's decision to do away with the recitation of the Lord's prayer.

"I think it's a sad day for Charles Town where we cannot start our council meetings off with the Lord's prayer all because of one negative person. That's my comment," Willingham said after Monday's meeting.

Some hasty stitches:

--The "one negative person" was a Jew, not an atheist. Of course, to most hillbilly Christians like Willingham, there's little point in distinguishing between Jews, atheists, agnostics, whatever -- they're all equally un-American and all equally devoid of First Amendment protection (not to mention equally hellbound). Stated differently, there are still people -- elected leaders -- who actually believe, in the Twenty-First Century, that there can be such a thing as a "Christian town" in what was once known as the "land of the free."

--Based on the media account, it appears that the theocrats couldn't even be bothered to engage in the wink-wink of calling their new invocation a "moment of silence" rather than a "silent prayer." The simple, uncomplicated First Amendment notion that maybe, just maybe, a city council chamber ought not be used as a church is simply incomprehensible to these "dedicated public servants."

--Speaking of which, note that these theocrats did not stop their flagrantly unconstitutional* practice out of any moral epiphany. They stopped the practice because their lawyers told them to. That's better than nothing, I suppose, but it's hardly praiseworthy.

(Via Religion Clause.)

---

Elsewhere:

Conservative Christian leaders who believe the word "evangelical" has lost its religious meaning plan to release a starkly self-critical document saying the movement has become too political and has diminished the Gospel through its approach to the culture wars.

The statement, called "An Evangelical Manifesto," condemns Christians on the right and left for using faith to express political views without regard to the truth of the Bible, according to a draft of the document obtained Friday by The Associated Press.
...
Richard Land, head of the public policy arm for the Southern Baptist Convention, said through a spokeswoman that he has not seen the document and was not asked to sign it.

James Dobson, the influential founder of Focus on the Family, a Christian group in Colorado Springs, Colorado, did not sign the document, said Gary Schneeberger, a Dobson spokesman.

This is similar to the observation that too many secular Muslims in the U.S. and Europe and not doing enough to "take back Islam" from extremists who spawn terrorism and violent intolerance in the name of a supposed "Religion of Peace."

To the extent that these non-political Evangelical leaders make noise against the radical anti-Christians in their midst -- especially Dobson (who, recall, is not a credentialed cleric in any church) -- I can only say, "praise be unto them."

(Via Wall of Separation.)

---

*Marsh v. Chambers, 463 U.S. 783 (1983) (Inapplicability of First Amendment to opening a legislative session with a prayer presupposes that "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.") Note that I of course consider Marsh wrongly decided in that all legislative prayer sessions ought to be deemed facially unconstitutional, and not just those that are both openly and notoriously sectarian and unambiguously hostile to non-Christians -- as the Lord's Prayer unarguably is.)

I hate it when the last thing I read at night is something mind-bogglingly stupid:

A suspected pipe bomb exploded at the federal courthouse in downtown San Diego early this morning, shattering a glass entryway and damaging the lobby, authorities said. No injuries were reported.
...
"It's too early to tell if it's terrorism-related," [FBI spokesman Darrell] Foxworth said. "It does not appear to be right now."

Huh? How can "bomb + courthouse" not equal "terrorism"?

News flash for the FBI: Anyone with a bomb and a target is a terrorist. End of discussion.

Good night.

...sightseeing tour?

[T]wo recent college graduates are rattling the genteel world of Washington tour guides.

Ben Hindman and Brody Davis are giving tours for free.
...
Not entertained are the city's professional guides, who "really don't like us," says Hindman, 24, a Bostonian who found the inspiration for DC By Foot in Berlin, where he took a tour from a tips-only guide.
...
Actually, says Tom Whitley, who handles marketing for the Guild of Professional Tour Guides of Washington, D.C., "it would be foolhardy for highly skilled guides to get into some kind of a fight with people trying to pick up tours out on the street. Let's just say that it's much more likely that a person who wants a qualified guide will go out and get a professional guide."

I took one of those Berlin tips-only tours back in January — and the guide (an Aussie expat) was fine if a bit too unaesthetically punk in his appearance. In any case, the Berlin company is a large, full-fledged enterprise that interviews and trains the guides and advertises the service on their behalf (I believe the guides pay the company a per-diem fee in exchange for access to the tourists from whom they earn the tips). It's an entirely reasonable business model that seems to work well (especially for the better guides) — there were, for example, over a hundred tourists waiting when I went (on a bitterly cold January day, incidentally — my guide said that 100 people was dismally low turnout for that time of year).

More interesting to me is the fact that there even is such a thing as a "Guild [sic] of Professional [sic] Tour Guides of Washington, D.C." First, "tour guide" is not a profession, but merely an occupation — just as "journalist" is not a "profession" but merely an occupation. Second, I'm not sure that tour guides need a "guild" — which used to mean a limited-entry oligopoly structure sanctioned by the government.

Surely this "guild" isn't that kind of guild. No one would dare suggest that it is a proper function of government to establish a "tour guide guild" with legally enforced barriers to enrtry, right? No one would dare suggest that public health or safety are so threatened by dangerous tour guides that the government should start regulating the industry, with licensure and registrations fees and bans on tips-only business models, right?

Right?

...sightseeing tour?

[T]wo recent college graduates are rattling the genteel world of Washington tour guides.

Ben Hindman and Brody Davis are giving tours for free.
...
Not entertained are the city's professional guides, who "really don't like us," says Hindman, 24, a Bostonian who found the inspiration for DC By Foot in Berlin, where he took a tour from a tips-only guide.
...
Actually, says Tom Whitley, who handles marketing for the Guild of Professional Tour Guides of Washington, D.C., "it would be foolhardy for highly skilled guides to get into some kind of a fight with people trying to pick up tours out on the street. Let's just say that it's much more likely that a person who wants a qualified guide will go out and get a professional guide."

I took one of those Berlin tips-only tours back in January — and the guide (an Aussie expat) was fine if a bit too unaesthetically punk in his appearance. In any case, the Berlin company is a large, full-fledged enterprise that interviews and trains the guides and advertises the service on their behalf (I believe the guides pay the company a per-diem fee in exchange for access to the tourists from whom they earn the tips). It's an entirely reasonable business model that seems to work well (especially for the better guides) — there were, for example, over a hundred tourists waiting when I went (on a bitterly cold January day, incidentally — my guide said that 100 people was dismally low turnout for that time of year).

More interesting to me is the fact that there even is such a thing as a "Guild [sic] of Professional [sic] Tour Guides of Washington, D.C." First, "tour guide" is not a profession, but merely an occupation — just as "journalist" is not a "profession" but merely an occupation. Second, I'm not sure that tour guides need a "guild" — which used to mean a limited-entry oligopoly structure sanctioned by the government.

Surely this "guild" isn't that kind of guild. No one would dare suggest that it is a proper function of government to establish a "tour guide guild" with legally enforced barriers to enrtry, right? No one would dare suggest that public health or safety are so threatened by dangerous tour guides that the government should start regulating the industry, with licensure and registrations fees and bans on tips-only business models, right?

Right?

The Perfect Substitute asks a modest question:

If you could institute one law (presumably in an attempt to fix the shortcomings of the current system), what would that one law be?

Of course, such a question enters the twilight zone between righteously indignant libertarian activism and Kip's Law. But since this is strictly a thought experiment (not to mention May Day), I'll chime in with four suggestions, in increasing order of personal desire:

4. Abolish all direct democracy. The federal Constitution makes no provision for it, and arguably forbids it at the state level as well. End our irrational, counterproductive fetish for majority oppression over the minority — disingenuously disguised as "the will of the people." Laws should come from lawmakers, not mobs.

3. Mandate inviolate fiscal federalism. Stay true to the principle that federal taxes pay only for federal public goods, state taxes pay only for state public goods and local taxes pay only for local goods. (We can quibble over what constitutes a legitimate "public good" some other time.) This would manifest most notably in the elimination of all block grants, pork projects and earmarks. It would foster more tax competition among states (as well as among subdivisions within a state) and would establish a beachhead for reiterating the notion that not everything is a proper function of government-writ-large in the first place.

2. Mandate strict scrutiny for all rights-infringing laws. Abolish the monstrosity of rational basis review and restore the presumption of liberty reflected in the Bill of Rights (especially the Ninth Amendment) and the Fourteenth Amendment. Restore their proper role as daunting obstacles to activist legislators. Note: If I could only have a subset of this concept, it would of course be to restore economic substance due process (i.e., freedom of contract).

And my number one suggestion for a single new law or doctrine:

1. Mandate sunset provisions on all government actions. If a legislature had to constantly re-enact its activist legislation every few years, then it would soon spend all its time doing just that, rather than finding new ways to control its people. Bad laws would not have to be repealed; they could just be allowed to expire. The need to re-enact laws would keep debate on the rationales underlying them constantly alive and vibrant (see, e.g., the assault weapons ban or the Bush tax cuts).

Since it was TPS' idea, fairness and equity would suggest leaving your suggestions there rather than here.

"A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time."
--Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1933) (Sutherland, J., dissenting)

If this doesn't violate the Contracts Clause, then nothing ever does:

Warning that America is experiencing a "housing emergency," six Boston city councilors want to force lenders who foreclose on Hub properties to rent seized houses and apartments back to occupants.
...
The proposal would order lenders to lease foreclosed properties back to ex-owners or tenants at market rates until either third parties buy the homes or the measure expires in 2014. Violators would face fines of at least $10,000.
...
Ross said the measure aims to primarily help tenants who've paid rent on time but face eviction anyway because their landlords fell into foreclosure. However, the measure would also cover individual homeowners who fell behind on their own mortgages.

That was a trick observation, incidentally: It doesn't violate the Contracts Clause because, under current Supreme Court precedent, nothing ever does.

---

There are two distinct issues here that need to be disentangled.

As a common law principle (individual jurisdictions may of course have their own nuances), renters are already insulated from any and all changes in title to the property they rent (with one huge exception — eminent domain). If I own a house and rent it to you, then (absent mutually agreed-to provisions to the contrary) your lease is binding on any future owners of the land during the period of the tenancy. Even if I sell the house, gift it, die — or default on my mortgage — the lease is the lease and you are protected by it while it remains in effect.

These activist legislators are, therefore, offering you a protection that you already have. Don't you feel "indebted" to them?

---

I as the owner facing foreclosure, on the other hand, am screwed. As I should be, given that I'm a defaulter who failed to meet my voluntarily-entered-into obligations. Maybe I was the victim of circumstance, maybe I was reckless in my finances, maybe I was a predatory borrower. It doesn't really matter which. I defaulted on a debt, I breached a contract, my counterparty has both a legal and equitable remedy.

And, under the Constitution, there ought not be a damned thing either I or these hack politicians could do about it:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The Contracts Clause (Article I, Section 10, Clause 1) is one of the least appreciated libertarian aspects of the Constitution. The fact that it applies only to states and not the federal government is, one could plausibly argue, the single worst flaw in the original 1787 document.

But it is still there and still wholly applicable to this fact pattern. A mortgage is unarguably a "contract," the requirement to surrender to a valid foreclosure is unarguably an "obligation" and requiring lenders to lease to defaulters is unarguably an "impairment." Q.E.D.

Or not: Essentially the exact same law was enacted in Minnesota in 1933 and the same five Supreme Court Justices who would later finish off the last traces of economic liberty in America* also killed off economic substantive due process — and an entire clause of the Constitution as collateral damage — in the nightmarish case, Home Building & Loan Assn. v. Blaisdell.

The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile — a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court.

In other words, a state's "police power" (a grant of power that appears only implicitly in the Tenth Amendment) can summarily trump the Contracts Clause (a limitation of power that appears explicitly in Article I), whenever "the peace and good order of society" require it (i.e., whenever activist legislators feel like it).

I'm surprised the Bush Administration never cited to Blaisdell in the War on Terror. The decision's twisted "police powers" reasoning makes John Yoo's memos seem like ACLU briefs.**

It is sad to have to repeat such a axiomatic statement, but it is precisely during emergencies that we need constitutional limitations on government power the most. It is precisely during emergencies that the more vague elements of constitutional law (e.g., "police power" or "executive authority") must yield to the less vague (e.g., "no impairment of contracts" or "no suspension of habeas corpus"). It is precisely when the government wants to act the most that it needs to be constrained the most.

(Incidentally, who but the most opportunistic malcontents would dare suggest that the current housing "crisis" rises to the level of the Great Depression — or the War on Terror? Note that the hack politicians in Boston were quite careful to label their proposal a "housing emergency" measure and to give it a specific expiration date — precisely as the Blaisdell court suggested was necessary to survive a Contracts Clause challenge. Someone on their staff certainly did their homework.)

If I were to expand my list of the Ten Worst Supreme Court Cases to twenty or even fifteen, Blaisdell would definitely make the cut.

More thoughts from Cato.

---

*Via Nebbia v. New York, 291 U.S. 502 (1934), impliedly overturning Lochner v. New York, 198 U.S. 45 (1905).

**But, cf., this oft-quoted passage from Blaisdell:

Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system.

How the Blaisdell majority gymnastically went from that to actually upholding the "no foreclosures" law remains one of the great embarrassments of Supreme Court jurisprudence.

"A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time."
--Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1933) (Sutherland, J., dissenting)

If this doesn't violate the Contracts Clause, then nothing ever does:

Warning that America is experiencing a "housing emergency," six Boston city councilors want to force lenders who foreclose on Hub properties to rent seized houses and apartments back to occupants.
...
The proposal would order lenders to lease foreclosed properties back to ex-owners or tenants at market rates until either third parties buy the homes or the measure expires in 2014. Violators would face fines of at least $10,000.
...
Ross said the measure aims to primarily help tenants who've paid rent on time but face eviction anyway because their landlords fell into foreclosure. However, the measure would also cover individual homeowners who fell behind on their own mortgages.

That was a trick observation, incidentally: It doesn't violate the Contracts Clause because, under current Supreme Court precedent, nothing ever does.

---

There are two distinct issues here that need to be disentangled.

As a common law principle (individual jurisdictions may of course have their own nuances), renters are already insulated from any and all changes in title to the property they rent (with one huge exception — eminent domain). If I own a house and rent it to you, then (absent mutually agreed-to provisions to the contrary) your lease is binding on any future owners of the land during the period of the tenancy. Even if I sell the house, gift it, die — or default on my mortgage — the lease is the lease and you are protected by it while it remains in effect.

These activist legislators are, therefore, offering you a protection that you already have. Don't you feel "indebted" to them?

---

I as the owner facing foreclosure, on the other hand, am screwed. As I should be, given that I'm a defaulter who failed to meet my voluntarily-entered-into obligations. Maybe I was the victim of circumstance, maybe I was reckless in my finances, maybe I was a predatory borrower. It doesn't really matter which. I defaulted on a debt, I breached a contract, my counterparty has both a legal and equitable remedy.

And, under the Constitution, there ought not be a damned thing either I or these hack politicians could do about it:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The Contracts Clause (Article I, Section 10, Clause 1) is one of the least appreciated libertarian aspects of the Constitution. The fact that it applies only to states and not the federal government is, one could plausibly argue, the single worst flaw in the original 1787 document.

But it is still there and still wholly applicable to this fact pattern. A mortgage is unarguably a "contract," the requirement to surrender to a valid foreclosure is unarguably an "obligation" and requiring lenders to lease to defaulters is unarguably an "impairment." Q.E.D.

Or not: Essentially the exact same law was enacted in Minnesota in 1933 and the same five Supreme Court Justices who would later finish off the last traces of economic liberty in America* also killed off economic substantive due process — and an entire clause of the Constitution as collateral damage — in the nightmarish case, Home Building & Loan Assn. v. Blaisdell.

The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile — a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court.

In other words, a state's "police power" (a grant of power that appears only implicitly in the Tenth Amendment) can summarily trump the Contracts Clause (a limitation of power that appears explicitly in Article I), whenever "the peace and good order of society" require it (i.e., whenever activist legislators feel like it).

I'm surprised the Bush Administration never cited to Blaisdell in the War on Terror. The decision's twisted "police powers" reasoning makes John Yoo's memos seem like ACLU briefs.**

It is sad to have to repeat such a axiomatic statement, but it is precisely during emergencies that we need constitutional limitations on government power the most. It is precisely during emergencies that the more vague elements of constitutional law (e.g., "police power" or "executive authority") must yield to the less vague (e.g., "no impairment of contracts" or "no suspension of habeas corpus"). It is precisely when the government wants to act the most that it needs to be constrained the most.

(Incidentally, who but the most opportunistic malcontents would dare suggest that the current housing "crisis" rises to the level of the Great Depression — or the War on Terror? Note that the hack politicians in Boston were quite careful to label their proposal a "housing emergency" measure and to give it a specific expiration date — precisely as the Blaisdell court suggested was necessary to survive a Contracts Clause challenge. Someone on their staff certainly did their homework.)

If I were to expand my list of the Ten Worst Supreme Court Cases to twenty or even fifteen, Blaisdell would definitely make the cut.

More thoughts from Cato.

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*Via Nebbia v. New York, 291 U.S. 502 (1934), impliedly overturning Lochner v. New York, 198 U.S. 45 (1905).

**But, cf., this oft-quoted passage from Blaisdell:

Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system.

How the Blaisdell majority gymnastically went from that to actually upholding the "no foreclosures" law remains one of the great embarrassments of Supreme Court jurisprudence.

A quick addendum to my last post on Judge Posner's bizarre, sad -- and wrong -- opinion today in the "Be Happy, Not Gay" t-shirt case, Nuxoll v. Indian Prairie School District #204:

The plaintiff calls Justice Alito's concurrence the "controlling" opinion in Morse* because Justices Alito and Kennedy were part of a five-Justice majority, so that their votes were crucial to the decision. But they joined the majority opinion, not just the decision, and by doing so they made it a majority opinion and not merely, as the plaintiff believes (as does the Fifth Circuit), a plurality opinion.

Lawyers' quibbles. As I explained in the first Stitch in Haste Podcast, it doesn't really matter whether one calls Chief Justice Roberts' ruling in Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus" case) a "majority opinion" or a "plurality opinion." What matters is that Justice Alito made it unambiguously clear in his concurrence that Morse was not to be extended to any fact pattern other than purely apolitical speech advocating illegal drug use. Any extension of Morse to such fact patterns -- including "Be Happy, Not Gay" t-shirts -- is plain error.

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*Morse v. Frederick, 127 S. Ct. 2618 (2007)

A quick addendum to my last post on Judge Posner's bizarre, sad -- and wrong -- opinion today in the "Be Happy, Not Gay" t-shirt case, Nuxoll v. Indian Prairie School District #204:

The plaintiff calls Justice Alito's concurrence the "controlling" opinion in Morse* because Justices Alito and Kennedy were part of a five-Justice majority, so that their votes were crucial to the decision. But they joined the majority opinion, not just the decision, and by doing so they made it a majority opinion and not merely, as the plaintiff believes (as does the Fifth Circuit), a plurality opinion.

Lawyers' quibbles. As I explained in the first Stitch in Haste Podcast, it doesn't really matter whether one calls Chief Justice Roberts' ruling in Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus" case) a "majority opinion" or a "plurality opinion." What matters is that Justice Alito made it unambiguously clear in his concurrence that Morse was not to be extended to any fact pattern other than purely apolitical speech advocating illegal drug use. Any extension of Morse to such fact patterns -- including "Be Happy, Not Gay" t-shirts -- is plain error.

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*Morse v. Frederick, 127 S. Ct. 2618 (2007)