Tag: judicial review

Gingrich Agonistes

Today POLITICO Arena asks:

Can Gingrich rein in “judicial activists”?

My response:

As I wrote in the Daily Caller a week ago, Newt Gingrich’s attack on the judiciary in chapter nine of his 21st Century Contract with America is a mass of constitutional confusions. It’s a direct assault on judicial review and on “judicial supremacy,” in particular – the idea that it falls to the courts to say what the law is. Newt would have us believe that that idea was invented by the Supreme Court in its 1958 decision in Cooper v. Aaron, where a unanimous Court told Arkansas officials resisting a school desegregation order that they couldn’t “nullify” a Court decision. But the power of courts to say what the law is far predates that decision. It’s implicit in our written Constitution with its independent judiciary. It was discussed explicitly and at length in the Federalist Papers. And it was secured by the Court in 1803 in Marbury v. Madison.

There’s no question that courts do not always decide cases correctly. That’s why we have review by higher courts, which doesn’t always solve the problem either. But the answer, in an imperfect world, is not to abolish whole circuits, as Gingrich threatens to do with the Ninth Circuit. It’s to have better judges and better judging – plus better education at all levels about our constitutional system, which is too often woefully lacking, even in our law schools. If the errors of this sometime historian contribute to a better understanding of our system, they’ll have served a purpose. But if this is a serious proposal for governing under our Constitution, it’s deeply misguided – and dangerous besides.

More Ground-Breaking Constitutional Theories

Last year I blogged about a fascinating new approach to constitutional interpretation that Georgetown law professor Nicholas Quinn Rosenkranz was developing, in a Stanford Law Review article called “The Subjects of the Constitution.”  Now Nick has a sequel, titled, naturally, “The Objects of the Constitution.”  Here’s an excerpt from the abstract:   

In short, this Article and its predecessor, The Subjects of the Constitution, amount to a new model of constitutional review, a new lens through which to read the Constitution. This approach begins with a grammatical exercise: identifying the subjects and objects of the Constitution. But this is hardly linguistic casuistry or grammatical fetishism. The subjects and objects of the Constitution are not merely features of constitutional text; they are the pillars of constitutional structure. The very words “federalism” and “separation of powers” are simply shorthand for the deep truth that the Constitution empowers and restricts different governmental actors in different ways. To elide the who question is to overlook the central feature of our constitutional structure. And it is this structure, above all, that is the object of the Constitution.

Josh Blackman (on whom more shortly) called the piece a “gem” and Larry Solum of Legal Theory Blog labeled it a Download of the Week.  Given that this approach takes seriously constitutional text and structure, it’s quite libertarian-friendly.  And if these two articles aren’t enough, Nick has an expanded treatment coming out as a book to be published by the Oxford University Press.  Pre-order yours today!

But that’s not all; like last year, I’d like to offer Josh Blackman’s latest article as the undercard in the same post as the one covering Nick Rosenkranz’s latest.  “The Constitutionality of Social Cost,” to be published in the Harvard Journal of Law & Public Policy, looks at “the constitutional dimensions of the social cost of liberty.”  Here’s a bit of the abstract:

Although some have suggested that courts should look to the First Amendment for interpretational guidance for the Second Amendment, I propose a more holistic approach: look to the entire Bill of Rights. Liberty interests certainly vary by type, but the Court’s precedents balancing those interests against society’s need for safety and security coalesce into different schools. By reconceptualizing the right to keep and bear arms through the lens of social cost, in light of over a century of Supreme Court jurisprudence, one can see that despite its dangerous potential, the Second Amendment is not so different from all other rights; accordingly, it should not be treated differently.

Josh (my sometime co-author and a friend of Cato) asks why the right to keep and bear arms, for example, just because its abuse can harm people and impose costs on society, is any different from any number of constitutional protections for liberty that also impose social costs.  (The most obvious example is that we tolerate a certain number of guilty people going free to maintain the Fourth Amendment, due process, the presumption of innocence, etc.)  It isn’t, he concludes.

Good stuff!  And ground-breaking constitutional theory!

Thursday Links

  • DON’T FORGET: Our fiscal policy conference, “The Economic Impact of Government Spending,” featuring Senators Bob Corker (R-Tenn.) and Mike Lee (R-Utah), former Senator Phil Gramm (R-Tex.), Representative Kevin Brady (R-Tex.), and other distinguished guests, begins at 2:00 p.m. Eastern today. Please join us on the web–you can watch the conference LIVE here.
  • Atlas Shrugged Motors presents the Chevy Volt.
  • The parable of the Good Samaritan teaches us about the moral value of voluntary charity toward the needy–it says nothing about using coercive government programs of the modern welfare state.
  • It is not the role of the Court to rewrite laws for Congress.
  • The failed “war on drugs” has reshaped our budgets, politics, laws, and society–and for what?

Targeted Killing of U.S. Citizen a State Secret?

That’s the claim the Obama administration made in court. As Glenn Greenwald puts it:

[W]hat’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”:  in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

Italics in the original. My colleagues Gene Healy and Nat Hentoff have expressed concerns about targeted killings. Charlie Savage wrote a good piece on this that highlights how even the most ardent defenders of executive power may blush at this broad claim of power.

The government’s increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” he said.

In fairness, Rivkin would defend the administration’s claim of power on other grounds – that targeting is a “political question” for the elected branches of government – but this approach seems to have lost out because it invites the judiciary to determine whether the U.S. is at war in Yemen.

Amending the Authorization for the Use of Military Force passed by Congress after 9/11 is long overdue. What groups are we truly at war with, where does the line between war and peace sit, who can we detain and kill, and what process is owed before a citizen may be targeted with lethal force? Questions of war are political in nature, and if we don’t know the answers, it is Congress’ role to step in and provide them.

Obama’s Military Commissions

President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses.  Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”

Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:

What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins.  It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking.  Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.

Greenwald is right.  The primary issue is not due process.  The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?

For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.