Tag: justice ginsburg

Our Constitution Is Out of Step with the Rest of the World

Is the Constitution out of date? That’s the impression that comes across from an article in yesterday’s New York Times, written by the paper’s crack Supreme Court reporter, Adam Liptak. It comes in turn from an article he points to by two law professors, David S. Law at Washington University in St. Louis and Mila Versteeg at the University of Virginia, scheduled for the June New York University Law Review. In it the authors conclude that the Constitution appears to be losing its appeal as a model for constitution drafters in other countries, despite its having served that role up until as recently as 1987, the year of its bicentennial. So what’s changed over the past quarter century?

Unfortunately, from the Times article we don’t get a clear picture of just how it is that the constitutions other countries have drafted in recent years differ from our own, except for the emphasis throughout the piece on rights. Yet right there is a clue about what’s going on. On that score, in fact, Liptak cites striking comments Justice Ruth Bader Ginsburg made in a television interview during a visit to Egypt last week:

“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

Liptak then notes, not entirely accurately, that “the rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber.”

To be sure, the rights enumerated in our Constitution and in the amendments that were added later, including in the Bill of Rights, are few in number. But numbers alone, like rights alone, tell only part of our constitutional story. To tell the story more fully and accurately, we have to step back a bit.

It’s true that our Framers, unlike many others, especially more recently, did not focus their attention on rights. Instead, they focused on powers— and for good reason. Because we have an infinite number of rights, depending on how they’re defined, the Framers knew that they couldn’t possibly enumerate all of them. But they could enumerate the government’s powers, which they did. Thus, given that they wanted to create a limited government, leaving most of life to be lived freely in the private sector rather than through public programs of the kind we have today, the theory of the Constitution was simple and straightforward: where there is no power there is a right, belonging either to the states or to the people. The Tenth Amendment makes that crystal clear. Rights were thus implicit in the very idea of a government of limited powers. That’s the idea that’s altogether absent from the modern approach to constitutionalism—with its push for far reaching “active” government—about which more in a moment.

During the ratification debates in the states, however, opponents of the new Constitution, fearing that it gave the national government too much power, insisted that, as a condition of ratification, a bill of rights be added—for extra caution. But that raised a problem: by ordinary principles of legal reasoning, the failure to enumerate all of our rights, which again was impossible to do, would be construed as meaning that only those that were enumerated were meant to be protected. To address that problem, therefore, the Ninth Amendment was written, which reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Over the years, unfortunately, that amendment has been misunderstood  and largely ignored; but it was meant to make clear that the people “retained” a vast number of rights beyond those expressly enumerated in the document.

Thus, the rights expressly enumerated in the Constitution may be “parsimonious,” but understood in light of the larger theory of the document, they are not. Neither, moreover, are they “frozen in amber,” because the courts are called on regularly to interpret and apply them in the varying factual contexts that surround the cases or controversies that are brought before them. Thus, the right to freedom of speech has been read to entail the right to desecrate the flag, and the right to liberty has been read to entail the right to engage in sexual practices that others may dislike. Judges may sometimes fail to draw the proper inferences, of course, or draw inferences not entailed. But that says nothing about the Constitution itself.

The idea, then, that our Constitution is terse and old and guarantees relatively few rights—a point Liptak draws from the authors of the article and the people he interviews—does not explain the decline in the document’s heuristic power abroad. Nor does “the commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century” explain its fall from favor. Rather, it’s the kind of rights our Constitution protects, and its strategy for protecting them, that distinguishes it from the constitutional trends of recent years. First, as Liptak notes, “we are an outlier in prohibiting government establishment of religion,” and we recognize the right to a speedy and public trial and the right to keep and bear arms. But second, and far more fundamentally, our Constitution is out of step in its failure to protect “entitlements” to governmentally “guaranteed” goods and services like education, housing, health care, and “periodic holidays with pay” (Article 24 of the UN Universal Declaration of Human Rights). And right there, of course, is the great divide, and the heart of the matter.

The modern view, which we too have followed, at least statutorily if not constitutionally, is to recognize all manner of “entitlements” of a kind that can be provided only through massive governmental institutions that engage in material and regulatory redistribution. We are constitutionally out of step in that, to be sure. Countries like Greece, Italy, Spain, and Portugal are far ahead of us.

A Misimpression of Constitutional Moment

A little bit of errant security information made its way into the Supreme Court’s oral argument in U.S. v. Jones this week. Justices Ginsburg, Kagan, and Breyer were testing the fairly narrow limits of the position advocated by Jones’ counsel. He focused on invasion of Jones’ “possessory interest” in his car when the government placed a GPS device on it.

If the Court were to find that attachment of a device invaded Jones’ Fourth Amendment interests, this wouldn’t protect him from a system of cameras that developed much the same information, noted Justice Ginsburg. Justice Kagan continued:

What is the difference really? I’m told — maybe this is wrong, but I’m told that if somebody goes to London, almost every place that person goes there is a camera taking pictures, so that the police can put together snapshots of where everybody is all the time. So why is this different from that.

Justice Breyer continued down this line:

And in fact, those cameras in London actually enabled them, if you watched them, I got the impression, to track the bomber who was going to blow up the airport in Glasgow and to stop him before he did. So there are many people who will say that that kind of surveillance is worthwhile, and there are others like you who will say, no, that’s a bad thing.

I’ve spent a lot of time examining terrorism incidents, and the scenario described by Justice Breyer does not sound familiar to me. There was an attack on the Glasgow airport in 2007. That attack was a qualified success—heavily qualified: one of the attackers incinerated himself in the course of causing minor injuries to a few standers-by and only modestly damaging the airport. I’ve found no report that surveillance cameras were involved in monitoring or apprehending the attackers—much less stopping the attack—or in stopping any similar-sounding attack.

Security cameras and surveillance generally are over-rated as preventives of crime and terrorism. They are some help in discovering information about crime after the fact. No help is needed when a major incident turns the eyes of an entire city or nation toward discovering what happened.

I doubt that the case will turn on Justice Breyer’s apparent error, but it clearly influences his thinking, and he shared it with other members of the Court. The people he counts as saying surveillance is worthwhile do not have prevention of an airport bombing in Glasgow to back them up.

Wal-Mart v. Dukes: The Court Gets One Right

In today’s decision in Wal-Mart v. Dukes, the Supreme Court unanimously found that the Ninth Circuit had jumped the gun in certifying what would have been one of the largest class actions in history, a job-bias action against the giant retailer on behalf of female employees. A five-justice majority led by Justice Scalia found that the plaintiffs had clearly not met the requirements needed to have the case certified for class treatment; four dissenters led by Justice Ginsburg would have sent the case back for more consideration.

While some press commentary simplistically treated this case as a “Which Side Are You On” parable of workplace sexism, both the majority and the dissent spend much time grappling with more lawyerly issues specific to class actions as a procedural format, such as the exact role of “common questions,” whose implications will inevitably be felt in litigation far removed from the employment discrimination context. To sweep hundreds of thousands of workers (or consumers or investors) into a class as plaintiffs even if they personally have suffered no harm whatsoever – to use sexism at Arizona stores to generate back pay awards in Vermont, and statistical disparities to prove bias without allowing defendants to introduce evidence that a given worker’s treatment was fair – bends the class action mechanism beyond its proper capacity. Also to the point, it is unfair.

Because both class action law and employment discrimination law are in the end creatures of federal statute, the elected branches will have the last word. Advocates of expansive employment litigation can be expected to introduce legislation in Congress to overturn key elements of today’s decision, a strategy that has worked well for them in the past on issues like back pay, “disparate-impact” law and the scope of coverage of the Americans with Disabilities Act (ADA). While we will soon be hearing a drumbeat to that effect, Congress should resist it, because the majority’s opinion today is to be preferred as a matter of policy, fairness, and liberty.

In particular – to take just one of the policy issues in employment law brought to center stage by today’s case – plaintiffs seek to establish that Wal-Mart’s policy of decentralized manager discretion over pay and promotions is itself an unlawful practice because (they argue) it allows too wide a scope for (unconscious or otherwise) bias on the part of store managers, notwithstanding the company’s adoption of overall policies banning sex bias. The majority led by Scalia marveled that Wal-Mart’s corporate non-policy – that is, its decision not to micromanage its local executives on personnel choices – would wind up being legally interpreted as amounting to an affirmative centralized decision to discriminate. But it’s not – and we should be glad lawyers at every big company aren’t yet insisting that every local HR decision be sent to a distant headquarters for fear of liability.

Kentucky v. King

Awful ruling handed down by the Supreme Court this morning in a case called Kentucky v. King [pdf].  The case concerns the power to break into a person’s home without the occupant’s consent and without a warrant.  Our homes are supposed to be our castles–so the general rule is that the police must get an independent judge to approve a warrant application before the door can be forced open.  There are a few common sense exceptions to the general rule.  For example, if someone is screaming for help, the police can enter.  Also if the police are in hot pursuit, they can follow the suspect on to private property and into a home under such circumstances.  Today’s ruling expands the exceptions to situations where the police suspect that the occupants of a house may be destroying contraband such as marijuana, cocaine, or other narcotics.

In this case, the police were after a drug dealer after he fled from a controlled-buy transaction.  The dealer entered some apartment but the police were unsure of the unit number.  As the police got closer, they could smell marijuana coming from a nearby apartment.  Instead of posting an officer nearby and applying for a warrant, they decided to bang on the door, shouting “Police!”  Hearing some rustling inside, the police broke down the door so evidence could not be destroyed.  The occupants were arrested on drug charges and they later challenged the legality of the police entry and search.  (As it happens, the dealer the police were trying to capture was found in another apartment.)

The lower courts have generally frowned on what they describe as exigencies manufactured by police conduct, but the Supreme Court has now overturned those lower court precedents by a 8-1 vote.  In dissent, Justice Ginsburg asked the right question: “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”  And the unfortunate answer to the question is, a lot less secure.   

For more on the power to search, go here and here.