Friend‐of‐Cato and 2010 Milton Friedman Prize Dinner keynote speaker George Will published an excellent column today about a case under review at the Supreme Court, Arizona Christian School Tuition Organization v. Winn:
The case concerns an Arizona school choice program that has been serving low‐ and middle‐income families for 13 years. The state grants a tax credit to individuals who donate to nonprofit entities that award scholarships for children to attend private schools — including religious schools. Yes, here we go again.
The question — if a question that has been redundantly answered remains a real question — is whether this violates the First Amendment proscription of any measure amounting to government “establishment of religion.” The incorrigible 9th Circuit has declared Arizona’s program unconstitutional, even though there is no government involvement in any parent’s decision to use a scholarship at a religious school.
If this case hadn’t originated in a state within the Ninth Circuit’s jurisdiction, nobody would have heard about it because any other federal appellate court would probably have decided it correctly. Will correctly and convincingly argues for summary reversal — as our friends at the Institute for Justice, who represent the petitioners, request — because the Ninth Circuit’s decision ignores clear Supreme Court precedent allowing parents to choose how to direct state funds for their children’s education (to a sectarian school or otherwise):
So, [Chief Justice William] Rehnquist wrote [in 2002], public money “reaches religious schools only as a result of the genuine and independent choices of private individuals.” Therefore any “advancement of a religious mission” is merely “incidental” and confers “no imprimatur of state approval … on any particular religion, or on religion generally.” These standards had been developed in various prior cases.
Cato filed a brief in this case that I previously blogged about. And you can listen to Will’s Friedman Dinner address here. (Unrelatedly, if you still haven’t read his masterful Men at Work: The Craft of Baseball – which has sold many more copies than any of his political books — pick up the re‐issued twentieth anniversary edition.)
In case you haven’t heard, Rep. Mark Souder (R‑Ind.) is departing Congress because of an extramarital affair with one of his staffers. His replacement can only improve Indiana’s Third District on drug policy and limited government (and here).
During the initial hearings on the creation of the Department of Homeland Security, Souder was one of two representatives (the other being former Rep. Benjamin Gilman (R‑N.Y.)) stressing the need for DHS to get into the drug war business. Souder went so far as to compare drug use to chemical warfare: “more than 4,000 Americans die each year from drug abuse – at least the equivalent of a major terrorist attack.” Rep. Gilman went so far as to propose that the DEA fall under the DHS since, as anyone can see, its supervision of nearly two‐dozen subordinate agencies isn’t enough. And drug dealer = terrorist. Clearly.
While it would be preferable for voters of his district to reject pork‐barrel spending and the nonsensical drug war, this resignation is not lamentable.
On Tuesday I discussed the Supreme Court’s decision to strike down laws that allow juveniles to be sentenced to life without parole (LWOP) for non‐homicide crimes. What concerns me here isn’t so much the morality or policy wisdom in applying such sentences — though Chief Justice Roberts makes some good policy points in his concurrence — or even the interpretation of what constitutes a “cruel and unusual punishment” — which I think Justice Kennedy mishandles in a confusing discussion of national consensuses.
No, the most troubling part of that case was the unfortunate reference to foreign authorities to support the Court’s interpretation of the Eighth Amendment. Justice Kennedy notes that juvenile LWOP has been “rejected the world over.” “The judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency,” he writes, “demonstrates that the court’s rationale has respected reasoning to support it.”
Justice Thomas, in his dissent, disputes Justice Kennedy’s math, noting that 11 countries allow the punishment. More importantly, “foreign laws and sentencing practices” are “irrelevant to the meaning of our Constitution.” He adds that most democracies around the world remain free to adopt the punishment should they wish to. “Starting today,” Thomas concludes, “ours can count itself among the few in which judicial decree prevents voters from making that choice.”
And that’s the crux of the matter: citing foreign law, using it to support a given reading of domestic law undermines democratic self‐governance. The interpretation of the U.S. Constitution should depend on that document’s text, structure, and history, what it means in the context of the American polity. Even if a judge cares about “evolving standards of decency” or invokes the “living Constitution,” it should be the updated standards in America that matter, or the opinions and values of modern Americans.
That is, federal judges derive their powers from the Constitution, which is a wholly American document. To the extent they use foreign extrinsic evidence to interpret this document, they are engaging in something — comparative law? social science? — that is not judging. It’s not a matter of being closed‐minded or provincial — I actually enjoy reading comparative political research, and think our legislators and constitutional draftsmen engage in malpractice if they don’t use it — but, as Justice Thomas describes in Graham, the judicial role is different than the legislative or academic one.
Now, in practice U.S. courts actually rarely cite foreign law, and most of the time when they do it’s not controversial. For example, it’s relevant to see how all the contracting parties interpret a treaty, because you want a treaty (a contract among nations) to be understood the same way everywhere. Similarly, foreign court pronouncements are relevant to interpreting customary international law — the law of nations as the Framers understood it — to the limited extent it applies to a given case (crime on the high seas and the like). Next we have the coordination of litigation, with international companies suing each other based on contracts that specify that “X” provision is subject to British law whereas “Y” deals with Hong Kong law, and that the arbitration forum is supposed to be Switzerland: here the citation of foreign law is absolutely appropriate. Another appropriate use is in conflict of laws analysis: figuring out which law applies and sometimes even applying foreign law as binding in a dispute.
But using foreign law to interpret domestic law, and especially the Constitution, is problematic — but the Supreme Court does it more than lower courts, particularly in high profile cases: those involving the culture wars, moral issues like the death penalty and abortion, and other charged cases like affirmative action and sex discrimination. Libertarians should not welcome this trend because it signals judging based on something other than the principled reading of our own laws — in short, judicial usurpation of the policy‐making function.
Hans Bader of CEI provides a longer write‐up of Graham, and here again is Cato’s brief. For a pithy critique of the improper use of foreign law by U.S. courts, see Richard Posner’s now‐famous article in Legal Affairs. And for an in‐depth and entertaining exploration of these issues, read or watch a debate Justices Scalia and Breyer had in 2005.
Coincidentally, the same day the Court issued both Graham and Comstock (which I discuss here), it also decided an important case, Abbott v. Abbott, that uses foreign law to interpret an international treaty on child abduction. (While I haven’t yet gone through the Abbott decision, both the majority and dissent are correct to use foreign law to help them reach their conclusions.)
Rand Paul’s landslide victory in the Kentucky Republican primary is being hailed as a big win for the Tea Party movement, a slap in the face to the Republican establishment, and maybe even as a harbinger of the rise of libertarian Republicanism. (Only 19 percent of Kentucky Republicans say they’re libertarians, but that’s got to be more than before the Rand Paul campaign.) It’s also a big loss for Washington neoconservatives, who warned in dire terms about the horrors of a Paul victory.
Back in March, Jonathan Martin reported in Politico:
Recognizing the threat, a well‐connected former aide to Vice President Dick Cheney convened a conference call last week between Grayson and a group of leading national security conservatives to sound the alarm about Paul.
“On foreign policy, [global war on terror], Gitmo, Afghanistan, Rand Paul is NOT one of us,” Cesar Conda wrote in an e‑mail to figures such as Liz Cheney, William Kristol, Robert Kagan, Dan Senor and Marc Thiessen.
With an attached memo on Paul’s noninterventionist positions, Conda concluded: “It is our hope that you can help us get the word out about Rand Paul’s troubling and dangerous views on foreign policy.”
In an interview, Conda noted that Paul once advocated for closing down the detention center at Guantanamo Bay and sending some suspected terrorists to the front lines in Afghanistan.
“This guy could become our Republican senator from Kentucky?” he exclaimed. “It’s very alarming.”
A week later, Dick Cheney himself issued his first endorsement of the campaign season to Secretary of State Trey Grayson, hardly the most promising Republican candidate of 2010. Obviously, Cheney was urging Kentuckians not to vote for Rand Paul.
David Frum kept up the pressure on his website and in national magazines, where he tossed around words like “extremist,” “conspiracy monger,” and “his father’s more notorious positions.” (That column also included the most amazing confession of political error I’ve ever seen: “many of my friends fell (briefly) victim to Lyndon Larouche’s mad ideology, which exploited those good themes to bad ends.” Say what? I never knew anyone who fell for Lyndon Larouche; I never even heard of any actual person who followed him; but David Frum had “many friends” who became followers of the nuttiest guy ever to run for president? That’s some band of friends.)
The big‐government Republican establishment rallied to Grayson’s side against the previously unknown opthalmologist from Bowling Green. Late in the campaign, Grayson ran ads featuring endorsements from Senate Minority Leader Mitch McConnell of Kentucky, Cheney, Rick Santorum, and Rudy Giuliani. That’s more raw tonnage of Republican heavyweights than you’d see on a national convention stage.
And after all that Kentucky Republicans gave a 25‐point victory to a first‐time candidate who opposed bailouts, deficits, Obamacare, and the war in Iraq. That’s a sharp poke in the eye to the neocons who tried so hard to block him. They don’t want a prominent Republican who opposes this war and the next one, who will appeal to American weariness with war and big government. They don’t want other elected Republicans — many of whom, according to some members of Congress, now regret the Iraq war — to start publicly backing away from perpetual interventionism.
There were plenty of winners tonight. But the big losers were the neoconservatives, who failed to persuade the Republican voters of Kentucky that wars and bailouts are essential for national progress.
That’s why the House of Representatives has put “Katie’s Law” (H.R. 4614, the Katie Sepich Enhanced DNA Collection Act of 2010) on the “Suspension Calendar” today. That’s the procedure for considering non‐controversial bills, giving them about 20 minutes of debate.
The bill would promote collection of DNA samples from people based simply on their arrest for certain crimes. Needless to say, being arrested is nothing close to conviction of a crime, at which time it might be fair to collect a person’s DNA for use as a powerful identifier in later criminal investigations. And if DNA evidence is relevant, let it be collected and used according to existing procedures.
But getting your DNA put in a database just because an investigator got you in his or her sights? It’s the reverse of “innocent until proven guilty.”
An atrocious ruling from the Supreme Court yesterday in United States v. Comstock, as has been noted. It is no real surprise that the liberals on the Court ruled the way they did. They believe in big government and need a way to get around a Constitution that set up a federal government of limited and enumerated powers. Thus, we are told a “living” Constitution “evolves” in such a way as to accomodate the administrative state that is all around us. But the law at issue in the Comstock case did not arise during the Clinton years. The Adam Walsh Child Protection Act was championed by conservative legislators in the Congress and signed by Bush.
Until the Comstock ruling was issued, court watchers were unsure of how committed Bush’s Supreme Court picks (Roberts and Alito) were to the constitutional doctrine of enumerated powers. The answer has now arrived: Not much. As the Bush memoir makes its way to the bookstores, I expect there will be a good deal of spin about how good the Bush presidency was. Well, it wasn’t.
More here, here, and here.
One of the major problems with the growing body of federal crimes – over 4,500 and counting, expanding at the rate of 500 each decade – is that many lack the traditional requirement that the defendant has acted with a guilty mind, or mens rea. Highlighting the overcriminalization of nearly everything is necessary to educate the citizenry and put pressure on politicians not to pass overbroad and ill‐defined criminal offenses. At some point, however, Congress must act to address the existing flawed statutes and put procedural barriers between bad ideas and the federal criminal code.
Enter the Heritage Foundation and the National Association of Criminal Defense Lawyers with their groundbreaking report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.
The report studies the legislation proposed or passed by the 109th Congress (2005–2006) and finds that a majority lacked an adequate mens rea requirement. The report closes with a strong case for several fundamental changes in the way that Congress creates criminal laws:
- Enact default rules of interpretation ensuring that guilty‐mind requirements are adequate to protect against unjust conviction.
- Codify the rule of lenity, which grants defendants the benefit of the doubt when Congress fails to legislate clearly.
- Require adequate judiciary committee oversight of every bill proposing criminal offenses or penalties.
- Provide detailed written justification for and analysis of all new federal criminalization.
- Redouble efforts to draft every federal criminal offense clearly and precisely.
This report is indicative of a broad effort developing across the political spectrum to fix a federal criminal code that has become disconnected from traditional notions of punishing blameworthy conduct. Northwestern Law’s Searle Center on Law, Regulation and Economic Growth held its 2009 Judicial Symposium on Criminalization of Corporate Conduct.
The Heritage Foundation is hosting an event highlighting the findings of Without Intent on Monday, May 24 that can also be viewed online.