A Stitch in Haste

The "activist judge" crowd, perhaps sensing the decline and fall of that silly concept in the wake of Terri Schiavo and the filibuster conundrum, are regrouping and trying to salvage what little usefulness remains from it (i.e., pander to those who are still ignorant enough to buy into it).

Today we have a quite remarkable "last gasp" piece in the form of an op-ed (WSJ - $, or see OpinionJournal) by Professor Lino Graglia on "Death by Due Process" --

The Constitution is a very short document, easily printed on a dozen pages. The Framers wisely meant to preclude very few policy choices that legislators, at least as committed to American principles of government as judges, would have occasion to make.

The essential irrelevance of the Constitution to contemporary constitutional law should be clear enough from the fact that the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law; and nearly all of them purport to be based on a single constitutional provision, the 14th Amendment — in fact, on only four words in one sentence of the Amendment, "due process" and "equal protection." The 14th Amendment has to a large extent become a second constitution, replacing the original.

Um, no. I think Graglia's printer may have had a paper jam when he printed out those "dozen pages." Most "contemporary constitutional law" comes from (often successful) assaults on the Bill of Rights (three words which, incidentally, appear nowhere in Graglia's piece).

Graglia shows his contempt for individual rights quite brazenly:

The basic principles of the Constitution are representative democracy, federalism and the separation of powers, which places all lawmaking power in an elected legislature with the judiciary merely applying the law to individual cases. Undemocratic and centralized lawmaking by the judiciary is the antithesis of the constitutional system.

Gee, I thought the most "basic principles of the Constitution" were the notions of limited government, enumerated powers and individual rights. Oh, and judicial review. Silly me (Graglia has, in other works, rejected outright the entire concept of judicial review).

The fact that any serious legal scholar (or any layman with an ounce of common sense) accepts as a given that (most of) the Bill of Rights now applies to the states via the Fourteenth Amendment does not make cases involving state violations of the Bill of Rights "Fourteenth Amendment" cases — they're still First Amendment cases, or Fourth, Fifth, Sixth or Eighth Amendment cases.

By the same token, it seems to me that very little "contemporary constitutional law" comes from the three (still living) branches of the Fourteenth Amendment (i.e., procedural due process, substantive due process and equal protection). You cover (civil) procedural due process in about one Con Law class in law school, while equal protection has pretty much been played out (complete with no heightened scrutiny for anti-gay discrimination). And as for substantive due process (e.g., contraceptive and abortion rights, right-to-die, etc.), I don't think Professor Graglia's problem is that "most cases" involve substantive due process, but rather that "most cases he disagrees with" involve it. (Or, stated differently, it is not that most cases come from Fourteenth Amendment jurisprudence, but rather that most headlines come from those cases).

A subtle difference, perhaps, but one that completely vitiates his entire thesis. Just because I don't like current Commerce Clause jurisprudence doesn't mean I get to falsely misrepresent the volume of Commerce Clause cases actually being decided.

One more thought, often repeated on this blog: It's the height of jurisprudential hypocrisy to lament, as Graglia does, judges reading law into the Constitution while having no compunction at all reading text out of the Constitution — Graglia is part of the same cabal (Robert Bork is the editor of a book featuring Graglia's work) that arrogantly refers to the Ninth Amendment and to Fourteenth Amendment Privileges & Immunities as "inkblots." It was jurists like Bork, Scalia and Graglia who shut the door on individual rights — who are they to complain when other judges start opening windows?

Call such jurists conservatives, call them originalists, but do not dare call them "strict constructionists." They are nothing of the kind. And do not dare let them whine about what is and is not in the Constitution — they have no standing to do so.

As a gay blogger/blawger who must endlessly endure hearing how mob rule the democratic process (as opposed to, um, the plain language of the Constitution) is the source of all government power, my heart goes out to all those who would have benefited from medical marijuana but who now can't because, yet again, an (undeniably) activist Congress has decided that some basic rights should be subject to a majority vote while the (allegedly) "activist" Supreme Court decides that the Constitution only means what it's convenient to mean and engorges itself on the Jurisprudence of Sorta Kinda.

SCOTUSblog has background and links to the decision.

Libertarians have lost Raich. They have lost Lingle and Johanns. They have lost Caballes and every other Fourth Amendment case in recent memory. They will lose Rumsfeld v. FAIR and they will probably be completely trounced in Kelo. And still the mob wants even less judicial independence and more laws, more laws, more laws.

It's dusk in America.

Noteworthy thoughts at Pejmanesque, Hit & Run (times two), Crime & Federalism, Dispatches, Half Sigma, Coyote Blog, Modulator and Where the Dolphins Play.

UPDATE: One of the lead plaintiffs has publicly declared her intent to defy the law. I salute her, but let's hope we don't have any "Elian" moments if the feds decide to go after her.

Sometimes we blawgers and blawg readers tend to lose ourselves in the "higher thinking" of the blawgosphere when major decisions such as Gonzales v. Raich (medical marijuana), Granholm v. Heald (Internet wine sales) or CEP v. Bruning (Nebraska same-sex marriage ban) are handed down.

Which is unfortunate, because while those of us "in the know" debate the finer points of these cases and analyze who voted for what and who wrote what and how does this case relate to that case and what will change when Rehnquist or Stevens or O'Connor leaves the Court, we forget that most people aren't "in the know."

And while we blawgers all dance on the head a constitutional pin over important but esoteric questions of "what are the bounds of federalism" or "which part of the Constitution trumps which other part" or "what does rational basis review really mean," far more basic concepts get lost in the shuffle, especially for the laity.

Consider this example — an AP piece discussing how the "Rehnquist legacy" will play out:

The chief justice has been the leader of the "federalist five," the five conservatives who generally support states' rights and advocate limited federal government interference.

Not exactly. Words have meaning. There is no such thing as "states' rights;" there are only individual rights. The issue is better described as one of states' powers (and in the context of Raich, federal powers and the limitations — or lack thereof — on those powers).

Libertarians should always feel a shudder down their spines when they hear the term "states' rights." It's a bottom-up term that invites abuse. It implies that "government" can do anything and everything it pleases, with the only question being "federal or state (or both)?" The proper analysis of any policy should be top-down: Does the government have the authority to control this aspect of our lives? If and only if so, then and only then should the next question arise (i.e., Should the control come at the federal or state level?).

More:

Those five ... have voted together to strike down federal laws intended to protect female victims of violent crime and keep guns away from schools. Their reasoning is that those issues are better dealt with at the local level.

Um, no. This is not only wrong, it's dangerously wrong. The so-called "federalist five" do not argue that the "federal versus state" question is answered by which government can best "control" an issue. They instead argue that we live in a constitutional republic of enumerated powers (and unenumerated rights) and that government, or at least Congress itself, cannot pass any and every law it likes — it must have some constitutional basis to do so. The failure of current jurisprudence is to see "constitutional basis" behind every nook and cranny of the Constitution, whether in the Commerce Clause or the Necessary and Proper Clause or whenever else happens to be convenient. Limitations on government, meanwhile, such as the Ninth Amendment and the Fourteenth Amendment Privileges & Immunities Clause, are cloaked behind "inkblots."

It's not enough for blawgers to keep politicians and judges honest. It's not enough to keep partisan commentators and activists honest. It's not enough to keep ourselves honest. When it comes to the key constitutional questions of our time, it's vital that we keep the lay media honest, even if they don't mean to be dishonest.

If we don't, then we'll just be reinventing the same wheel forever.

When it comes to lay commentators, some conservatives are more equal than others.

George Will:

With the parties warring over the composition of the federal judiciary, and with a Supreme Court vacancy perhaps impending, Americans should use the court's end-of-term decisions as whetstones on which to sharpen their sense of the ambiguities in the categories — "liberal," "conservative," "activist," "practitioner of judicial restraint" — used when judges are discussed.
...
In Monday's decision, which of the justices were liberal, which were conservative? Which exemplified judicial activism, which exemplified restraint? Such judgments are not as easy as many suppose.

Indeed. This echoes my repeated insistance that it is preposterous to call jurists such as Robert Bork, Antonin Scalia and Lino Graglia "strict constructionists." A strict constructionist doesn't lament reading things into the Constitution (e.g., the right to an abortion or the right to marry the competent consenting adult of one's choice) while at the same time showing no compunction whatsoever about reading text out of the Constitution. As I blogged previously:

Call such jurists conservatives, call them originalists, but do not dare call them "strict constructionists." They are nothing of the kind. And do not dare let them whine about what is and is not in the Constitution — they have no standing to do so.

Justice Scalia's sell-out, or flip-flop, or whatever you wish to call it, in Raich is hardly the "anomaly" some people think it is.

William F. Buckley, Jr.:

The Supreme Court did what conservative court-watchers should welcome. It looked the California situation in the face and said: If Congress doesn't like the law, let Congress change it, but don't look to the Supreme Court to improvise on the drug laws.
...
Federal prosecutors are free, after this clarification from the Supreme Court, to proceed to arrest users, on the grounds that the law is the law.

The law is the law, and the Constitution is only a suggestion I suppose. And of course no one was asking the Court to "improvise on the drug laws;" they were asking the Court to keep Congress honest and reinvigorate the "original intent" (which I thought conservatives respected if not worshipped) of the Commerce Clause and Article I of the Constitution generally, namely that we are not an unfettered, runaway democracy but rather a constitutional republic of enumerated powers that are not to be exceeded merely to placate the whims and passions of the majority.

But to "activist" conservatives like Buckley, exceeding constitutional limits is no big deal — "the law is the law" — so long as it's to accomplish something you happen to like.

What a cruel PsychOps torture we libertarians are subjected to by conservatives. It's the ivory tower equivalent of "good cop, bad cop." Does conservatism mean the reasoned, historically-rooted analytics of George Will (not always correct, but always respectable), or is it the consequentialist histrionics of pompous fools like Buckley?

From where I stand, the Buckleys of the world are winning the battle for conservatism. How sad.

I won't quote any particular passage from this atrocious New York Times op-ed by Princeton professor Robert P. George on whether there is a broad right to privacy in the Constitution or a specific right to contraception or abortion.

Of course, I'd gladly quote and critique his discussion of the Ninth Amendment, but he doesn't have one. Go figure.

Modern substantive due process jurisprudence, as strained and contorted as it may be, only arose because the other, more straightforward protections of rights, including the right to privacy, were so thoroughly quashed in earlier courts -- particularly the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment. If you lock the front door, then don't be surprised when people enter through the back door.

The truly maddening part of this never-ending debate are the so-called "conservatives" who are aghast at judges who "find" rights in the Constitution. What can possibly be more conservative than adhering to the plain text of the Ninth Amendment? Be as shocked -- shocked! -- to learn that judges are "inventing rights" as you want. Just don't do so while calling yourselves "conservatives."