Trivial Pursuits

Blawging -- the Horror

One reason I gave up on blawging outside of a few very specific topics -- like caps on damages related to medical malpractice -- is that so many blawgers cover it so much better and with much greater expertise than I could ever hope to marshall.

So I'm not going to comment on the Ten Commandents decisions SCOTUS released yesterday, but I will link to a post by Publius, within which he links to a post of Professor Balkin's, that accurately characterizes my opinion on originalism, for which there is actually a paper trail, believe it or not.

"if yesterday’s Scalia dissent doesn’t show that originalism is a fundamentally dishonest facade for political preferences, nothing does. Jack Balkin nails him – so I’ll just direct you there (via Volokh). Apparently, according to Scalia, the original understanding was that the Establishment Clause drew a line between monotheistic religions and everything else. That seems right – after all, I think 1789 was the year that Madison coined the term “Judeo-Christian-Islamic” given the strong tolerance of Jews and Muslims in 18th century American society. I’ll let Professor Balkin have the last word:

Once again, I must insist, as I have before in other posts, that although Justice Scalia repeatedly claims that his theory of adherence to text, original understanding and tradition is superior because it constrains judges from imposing their personal views into the Constitution, it does nothing of the sort. This case is a perfect example. Justice Scalia has particular views about religion and about what sorts of government invocations of religion should or should not be regarded as offensive or as marginalizing people with different religious beliefs than his own. These political beliefs produce the outcome he takes in this case.

Indeedy.  This comment is also spot on, IMO.  With TP, it's all about intellectual honesty, which is why he dislikes originalism so much.  It's generally not politically or legally conservative views that exercise me.  But I demand candor in the attempt to defend and advance such views, and I think the entire project of originalism lacks that candor.  It's nothing more than a (admittedly very compelling) narrative for the enactment of political preferences, IMO.

Wow.  That's like as much blawging/poliblogging as I've done in months.  Feels icky, frankly.

UPDATE: Jon Rowe has a good post on the general subject of EC jurisprudence.

Another Brick In the Wall

I don't do much law or poliblogging these days, as (1) I'm exceedingly dubious of my ability to change anyone's views on most questions of law and politics; and (2) it's generally covered in greater detail and with greater skill elsewhere in the blogosphere.

But I did very much like Alex Knapp's examination of the common assertion posited by supporters of allowing more entanglement between religion and civic government, viz., that the United States is "founded" on the Christian religion, in some sense.  I've always believed that this is far too vast and sweeping a statement: it does not follow from the fact that most of the Founders were, in some sense, Christian that the keystone documents of the U.S. were centered on purely religious ideals.  Knapp gives voice to my belief, no pun intended:

Incontrovertible fact that law and societal norms derive from Judeo/Christian beliefs? I find this odd, seeing as how the Constitution of the United States makes no mention of God. Period. I find that odd considering that in 1797, in the Treaty of Tripoli, Congress approved and the President signed language stating that “…the Government of the United States of America is not, in any sense, founded on the Christian religion;…". I find this odd considering that Thomas Paine, the author of the pamphlet Common Sense–which is largely considered to be the document that created popular support for the American Revolution–was a notorious opponent of Christianity. I find this odd because one of the military leaders of the American Revolution–Ethan Allen–wrote a famous atheist tract entitled Reason the Oracle of Man.

[ . . .]

Anyone who honestly looks at history cannot deny that there are Christian influences on the development American society and its legal system. After all, a majority of people in the country have been Christian since its founding. However, it is equally historically inaccurate to claim that Christian ideas are the “foundation” of the American polity. The founders of the Republic were much more heavily influenced by the history of the Roman Republic, the Iroqouis Confederation, and the political philosophy of John Locke than they were by Christian philosophy. Especially when you consider that most Christian political philosophers up until the time of the Founders were supporters of monarchial governments. Especially when you consider the humanistic, secular philosophies of many of the Founders, including Washington, Hamilton, Jefferson, and Franklin. It is an outright historical distortion to claim that the foundation of constitutional governance in the United States is the Christian religion.

I agree wholeheartedly.  Again, of course Christianity had a profound influence on both the Founders themselves and the legal and political movements that birthed the U.S.  But the question of the extent of that influence, especially on the key legal and political principles underlying the Constitution and the Convention of 1787, is a much more complicated question than the reductionist, obfuscatory assertion that religious ideals form the intellectual backbone of the Constitution. 

And that's really the point, isn't it? It's so much cleaner to oppose attempts to disentangle items of religious significance (monuments, school prayer, etc.) if one begins with the sweeping premise that "this nation was founded on religious/Christian ideals."  That premise accomplishes so much in the argument, covers so much ground, opponents of the argument itself are immediately swept into a more difficult defensive position.  It's an excellent rhetorical move, but it's a move that is simply far too strong to be supportable in all of its particulars.  While Christian/religious views obviously influenced both the Founders and the keystone documents, the extent of that influence is not nearly so sweeping as suggested by the premise in question.

There is plenty of room for honest debate on what the proper role of religion in public life should be.  But I think the key is that the debate should be honest; the argument for greater entanglement should proceed on its own merits, not on the basis of a rhetorically effective but logically and historically dubious premise.

This is an emotional issue for many, so I'll break with tradition and request in advance that y'all please keep the comments civil.  Thanks in advance.

They Fought the Law

Good.  As I've said on the subject multiple times (to no avail, because this subject gets people so emotionally invested, I feel that my thoughts on the matter have not been actually heard), whether you think Bible displays ought to be allowed on the grounds of a county courthouse is one thing, as is whether you think the Supreme Court's Establishment Clause jurisprudence is a load of bunk.  But, the legal question of whether, under that case law, the Bible display runs afoul of the Establishment Clause is simply not a close question. 

Three Cheers for the Ninth Circuit

I've made the point in the blogosphere that though I disagree with 90% of his conclusions, the more I read of J. Thomas' opinions, the more I'm convinced he is among the more intellectually honest judges on the Court, and he is the least afraid of the cold, dead hand of stare decisis. His concurrence in Newdow further convinced me of that belief.

Professor Morrison from Cornell says it much, much better than I can (hat tip to Professor Leiter):

Let me explain (and apologies for the lengthy nature of what follows). Before arguing that the Pledge should be upheld because the Establishment Clause should not apply, Thomas' opinion discusses how the issue should be resolved under the Court's current precedents. Specifically, he examines Lee v. Weisman, 505 U.S. 577 (1992), which held, inter alia, that the Establishment Clause prohibits "coercive" state action relating to religion. Having done that, Thomas "conclude[s] that, as a matter of our precedent [i.e., Lee v. Weisman], the Pledge policy is unconstitutional." Slip op. at 5. This isn't a problem for Thomas, as he thinks Lee v. Weisman was wrongly decided. See id. But I think it is extremely significant for our understanding of the lower court's decision to hold the Pledge unconstitutional.

As you know, the lower court decision came from the Ninth Circuit. Conservatives in the White House, on the Hill, and elsewhere lambasted the decision as yet another decision by what they charge is an impermissibly liberal court. President Bush, e.g., called the Ninth Circuit's decision "ridiculous." Senator Hatch called it an "outrageous example of judicial activism and overreaching," and charged that it "further place[d] the Ninth Circuit out of the mainstream of both American law and culture." He further stated that the decision "clearly demonstrates why the Supreme Court overturns this Circuit's opinions more often than any other Circuit."

These same conservatives consistently praise Justice Thomas -- by any measure one of the two most conservative judges on the Court -- as the very model of an ideal jurist. President Bush has said repeatedly that he wants to fill the federal courts with more judges like Thomas and Scalia. Hatch is one of Thomas' biggest fans, and routinely champions him as an ideal "strict constructionist."

Well, the ideal conservative jurist has just concluded that the Ninth Circuit was right in Newdow. Lower courts have no power to overrule Supreme Court precedent, and the Court has repeatedly warned lower courts to avoid attempting to guess whether certain Supreme Court precedents are no longer favored by the Court itself. If Supreme Court precedent dictates a particular outcome, lower courts must apply that precedent and arrive at that outcome. When the Supreme Court reviews the case it may decide to abandon its precedent, but if the lower court's decision was consistent with then-existing precedent, one cannot really call the decision wrong, much less "ridiculous" or "outrageous." And it certainly isn't "out of the mainstream" to follow Supreme Court precedent. According to Thomas, that's all the Ninth Circuit did in Newdow: follow existing Supreme Court precedent and properly strike down the Pledge on that basis.

So Thomas' opinion suggests that Bush, Hatch, et al. must either consider Thomas' constitutional reasoning "ridiculous," "outrageous," and "out of the mainstream," or concede that reasonable jurists can go either way in determining what Supreme Court precedent dictates with regard to the Pledge. Like you, I'm inclined to think that an honest application of Establishment Clause doctrine compels the conclusion that the Pledge is unconstitutional, at least when recited in elementary school classrooms. My aim here is not to argue the merits of that point, but to say that Thomas' opinion in Newdow reveals the conservative condemnations of the Ninth Circuit's decision to be far more overheated political rhetoric than honest constitutional reasoning.

Judicial Review

Curmudgeonly Clerk has a post up on the problems with libertarian views of the judiciary, mainly assailing Sandefur's (IMO, masterful and accurate) conception, both historical and theoretical, of the proper role of the judiciary.

Let's begin.

It is not clear to me why we should read a principle enunciated in 1859 back into the Constitution, but I am sure that libertarians have all sorts of selective quotations from the founding fathers that, notwithstanding their incompatible historical conduct, demonstrate that they were all committed closet libertarians

Notwithstanding the relative snark of this statement, it is no substitute for actual, proper originalist argument demonstrating that the principles enunciated by modern libertarians were in fact relatively close to those held dear by the Founders. Given that I had thought CC was a committed originalist, it is relatively surprising to me that he takes a somewhat dismissive tone to the ample historical evidence Sandefur has and does produce supporting his point. If Sandefur's conception is inaccurate, by all means, demonstrate it, but I'm not sure how dismissing it really advances CC's position.

Assume libertarianism; everything else follows . . . In the absence of a shared libertarian moral consensus, assertions that "x" violates the harm principle simply fail to persuade

Hmm. As far as this is a general critique of first principles, I don't have much argument with this. But CC's point, as I take it, is far more than a general ethical critique of first principles; he believes that the first principles he espouses (those resonant in majoritarianism) are preferable to those espoused by a libertarian like Sandefur or myself. Thus, to simply state the point that unless one assumes a first principle the conclusions are not likely to follow, while accurate, does little to advance the merits of CC's position, because, unless I am mistaken, he is advocating the adoption of different first principles than the ones a libertarian is likely to take as true.

In the end, society's rough moral calculus, however flawed, is about all we have when it comes to first principles.

This is an interesting perspective, but a dangerous one, IMO. In any case, I disagree that the proper derivation of first principles should arise wholly out of the will of the majority. And then CC makes what I perceive as the fatal move to his position:

Those dissatisfied with the arithmetic always have the democratic process for pressing for a recalculation.

As I've argued before, this is simply fallacious. IMO, this is the stress fracture, the weak point of CC's position.

Let's assume that law X is passed, supported by a majority of state Y's voters (yah yah, representatives, work with me here). Now, let's say that X unconstitutionally discriminates against a minority group Z. CC thinks that the legislative process is a better guarantor of Z's rights than the judiciary. But how can that be? If the majority Y likes the statute, and wishes to keep it around, what can Z do? A constitutional amendment is no help, since they often require supermajorities, and even if they don't , they at least require A majority.

Legislative process only helps group Z if it is in the majority, or of it can obtain a majority of the votes. But if they can't, and if we assume that X is truly and actually unconstitutionally discriminatory, then they're stuck up TP's Creek.

Thus, to rely on majoritarian processes to correct majoritarian abuses is fallacy, IMO. Under these circumstances, the only remedy has is to look to the one branch of government, that since its inception (or at least since Marbury), was intended to curb the worse majoritarian abuses.

CC anticipaties this move, and he has a response:

The immediate difficulty with this response is that it fundamentally distorts the concept of tyranny (i.e., "a government in which absolute power is vested in a single ruler") beyond recognition. "Tyranny of the Majority" is, in fact, a rhetorical flourish and nothing more. Majority rule, by definition, cannot constitute tyranny.

Let me just say that I very much enjoy CC's blog, his rhetorical style, and his precision. But this is without question the most absurd statement I have ever heard him make. Is CC really trying to argue that because the etymological semantics of 'tyranny' rely on the notion of one ruler, it is impossible for a majority to act in a tyrannical manner? That is so preposterous I'm nothing short of flabbergasted that CC advanced it. I would think that regardless of the roots of the word 'tyrant,' it is certainly not too far-fetched to postulate that majorities can and do exhibit tyrannical behavior, given the abundance of historical examples of such behavior.

Even if we assume that CC is correct, and that a majority cannot actually be tyrants, it certainly does not follow that the set of conduct and actions fairly described as tyrannical cannot apply with perfect sense and meaning to actions and conduct taken by a government of the majority.

I refuse to seriously entertain the notion that CC really disagrees with this. And in any case, where the Supreme Court has 9 members, by his own reasoning, judicial tyranny is a semantic impossibility as well. This is not a strong thesis by any measure, IMO.

Ultimately, I think it is reasonable to contend that as a matter of course, the unfettered will of the majority can be dangerous, to say the least. Our Founders certainly thought so, which is precisely why they vested a judiciary with power to act as a check against the worst kind of majoritarian abuses.

But I am afraid that those who expect the law to correct such injustices would have it supplant the role of moral and political suasion (however that not fully rational process is understood to operate).

This is a legitimate concern, but it is not an attack on a libertarian conception of the judiciary per se as much as it is a reminder that moral and politiclal suasion is needed in addition to judicial reservation of minority rights (i.e., liberty interests). All well and good; democratic process is fabulous, IMO, but as I said before,

Democracy is rule by the majority, plain and simple. If it is the majority that is doing the tyrannizing, then I cannot see how it follows that majority rule will check that tyranny. It is the cause of that tyranny, the locus of its power. It is the fuel, not the retardant.

UPDATE: CC responds here. Sandefur rebuts here. I trust it is obvious whose perspective I align with.

Ninth Amendment Redux

I have neither the time nor the interest in weighing in on this again, but I will say that Sandefur, as usual on this point, has got it exactly right, and he captures the nub of my disagreement with the opposing viewpoint so eloquently. His target, of course, is the Nefarious Courreges.

Anyway, it's a good read, and aside from its mild snarkiness, I think it relatively fairly describes Owen's positions, as I understand them, and points out the flaws of said positions.

The Newdow Case

Jacob Levy over at Volokh, Inc. has the best post I've seen yet on the Pledge case. Highlights:

Except...

Except that nearly every schoolchild in America, every one who doesn't make a spectacle of him or herself by conscientiously objecting, is expected every schoolday to "pledge allegiance to the flag of the United States of America And to the Republic for which it stands One nation under God, indivisivible, with liberty and justice for all" which is, really, an awful lot like an oath of loyalty and citizenship.

Maybe too much under Locke's influence, I'm of the view that oaths of loyalty matter, that they are to be taken seriously, and that their content is to be taken seriously. The current defenders of "under God" seem to be saying simultaneously that the Pledge is a matter of utmost civic importance and that it's a bit of harmless ceremonial claptrap. "Ceremonial Deism" is the phrase the Supreme Court has used in the past about, e.g., the announcement "God Save this honorable court!" and the motto "In God We Trust;" such stuff is held not to violate the Establishment Clause more or less on the grounds that it doesn't matter very much.

But there does seem to me something profoundly different between walking around with quarters in one's pocket that say "In God We Trust" and expecting millions of schoolchildren to swear an oath, every day, to "one nation, under God."

Exactly. Now, don't get all up in arms about it, because ceremonial Deism may well apply to the pledge situation. But I think Levy is absolutely right that asking children, unless they wish to be singled out by refusing, to swear an oath to one nation, under God, is fundamentally different from In God We Trust being printed on the coins. The difference does not necessarily imply constitutional infirmity, but the analogies I've seen drawn have not sat well with me, and Levy expertly pinpointed why.

Establishment Clause

Tim Sandefur has an excellent and informative post up regarding the history of the Establishment Clause. Highly recommended.

Scalia-Cheney Recusal Flap

Milbarge, one of the proprietors of that fine blog Begging the Question has an excellent take on the Scalia-Cheney-recusal issue. The WSJ has a truly ludicrous editorial explaining why no reasonable person could think Scalia should recuse himself, and Milbarge in the comments over at Southern Appeal explains:

How would people have felt if Richard Nixon and Warren Burger had gone bowling while U.S. v. Nixon was pending? Or if Bill Clinton had gone golfing with Stephen Breyer while Jones v. Clinton was pending? Yes, those cases, like Cheney's, were technically about the *office* and the *institutional* claims of privilege. But it is the office-holder who is asserting the scope of the privilege. It is Cheney himself, not some empty office, refusing to hand over the records. Other vice-presidents would not necessarily take the same approach, and that's why this is not *just* about some institutional claim of privilege. If Justice Scalia doesn't think he needs to recuse here, I can live with it, but for editorial writers to write about other "editorial writers" and suggest that no reasonable person could think this all looks fishy is, in the words of my fellow commenter [Ed.--that's TP he's talking about], preposterous.

Obviously, Milbarge is one of the real GLG20s, rather than any decoy. If you don't know what the heck I'm talking about, you should really go watch Spies Like Us. RIGHT NOW. And soon thereafter, go visit Begging the Question. It's bursting with fruit flavor.

He Name Names

Now this is interesting. A group of doctors, fed up with the rising medical malpractice premiums (of which, of course, large jury verdicts are a small, if not a negligble factor in causing) in Texas, has created a web site which lists the names of patients who have sued and recovered for medical malpractice.

"They can sue but they can't hide," states the DoctorsKnow.Us Web site. For $4.95 a month, members can perform up to 250 name searches.

"Malpractice plaintiffs must now permanently bear the burden of their public claims," the site states.

Jones did not return a telephone call left at his office Friday. He was quoted in the Wall Street Journal on Friday as saying he wants the site to deter frivolous lawsuits.

"People are going to find that if they sue doctors, they are going to find their access to health care may be limited," Jones was quoted as saying.

But the web site does not give any information about the background of the suits. It's difficult to see how blacklisting certain patients who have brought non-frivolous lawsuits will deter frivolous lawsuits. Perhaps the intention is to deter all lawsuits.

The irony of course is that the web site that details which doctors have been sued for what is not available to the public (it's called the National Practitioner Data Bank). Therefore, I can't check any registry to see if the physician I am going to see has been sued 5 times for medical malpractice (and settled one, none, or all of them), but my doctor can check online to see if I have ever sued and/or recovered from a physician for medical malpractice.

Of course, none of that really matters since the Texas State Board of Medical Examiners essentially refuses to do anything vis-a-vis the few doctors, who as the repeat offenders, are responsible for most of the worst malpractice violations in the state. As they are generally permitted to keep practicing medicine in this state, it might be important to actually be able to find out who they are via the NPDB.

But it's much more important to blacklist patients who have sued for medical malpractice, without any differentiation between those that legitimately deserved compensation and those that didn't.

UPDATE: The web site has been taken down. Good riddance.