Tag: 14th amendment

Senator Hawley’s Apostasy and the Substantive Due Process Problem

A week or so ago, the nomination of George Mason Law’s Neomi Rao to fill Justice Brett Kavanaugh’s seat on the D.C. Circuit ran into some unexpected headwinds when Missouri’s freshman Republican senator, 39-year-old Josh Hawley, raised several concerns about her views, all centered around his opposition to abortion. Fearing that the nomination might fail in committee, the Wall Street Journal’s editorial board took the extraordinary step last week of running not one but two house editorials questioning Senator Hawley’s “judgment.” In the end, the senator came around. On Thursday, Prof. Rao, since July 2017 the head of the Office of Information and Regulatory Affairs and a highly credentialed critic of the administrative state, was voted out of committee on a straight party-line vote of 12-10. 

But questions linger about the motivation and thinking behind Sen. Hawley’s opposition, not least because he himself is highly credentialed (Stanford, Yale Law, clerk for Chief Justice Roberts), and he came of age when the issues he raised were being hotly debated on the Right. He was quoted initially, for example, as saying that “I am only going to support nominees who have a strong record on life”—the “litmus test” approach to nominations more often associated with the Left. But he was also cited as concerned, more broadly, that Rao “might be comfortable with substantive due process,” the doctrine the Supreme Court employed in 1973 when it found a right to abortion. It seems, however, that he may have finally reconsidered that larger concern, for the Journal’s second editorial tells us that “Mr. Hawley now claims he doesn’t object to using this method to incorporate the Bill of Rights to states, only to progressive abuses of substantive due process.” 

Few constitutional doctrines have more vexed conservatives than substantive due process, so a word is in order on the subject, especially given that it’s likely to reemerge with future nominations. Justices Scalia and Thomas have called the doctrine an “oxymoron,” yet that hasn’t stopped the Court’s conservatives from employing it variously, as in finding that the Second Amendment binds the states pursuant to the Fourteenth Amendment’s instruction that no state shall “deprive any person of life, liberty, or property, without due process of law.” And a fortnight ago, joined this time by the Court’s liberals, they again invoked the Fourteenth Amendment’s Due Process Clause to apply the Eighth Amendment’s Excessive Fines Clause against the states, although here, as elsewhere, Justices Thomas and Gorsuch expressed their concerns that the Fourteenth Amendment’s Privileges or Immunities Clause might be the better way to go: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” 

Thomas and Gorsuch are right, but they’re up against stare decisis. In one of its worst decisions ever, especially considering its context and implications, the Reconstruction Court in the infamous Slaughterhouse Cases of 1873 rendered the Privileges or Immunities Clause “a vain and idle enactment,” as Justice Stephen Field put it in dissent. Meant to protect “the natural and inalienable rights which belong to all citizens,” the Court majority read the clause as protecting only a few federal rights, like “the right to use the navigable waters of the United States.” There the clause has sat, all but “idle” ever since. One might think that result an embarrassment for conservative originalists, constitutional textualists as they generally are.

What then explains their refusal to override stare decisis, a principle at its weakest in constitutional adjudication. Hawley put his finger on it: progressive abuses of substantive due process. After the Slaughterhouse debacle, Fourteenth Amendment cases continued to come before the Court, of course. With the Privileges or Immunities Clause having been reduced to a nullity, however, the Court turned to the Due Process Clause, finally incorporating its protection for property rights in 1897, for contractual freedom in 1905, free speech in 1925, and so on, one right at a time. But after the New Deal constitutional revolution, the Court was largely deferential to the political branches and the states, until the mid-1950s when it got its second wind, and not a moment too soon in the case of civil rights, criminal procedure, and certain other rights. But at the same time, the Warren and Burger Courts were finding other “rights” that were nowhere to be found, even among the unenumerated rights the Ninth Amendment was written to protect. And that led to a conservative backlash and a call for “judicial restraint.” 

It is that fear that lingers today among a fair number of conservatives, although in the last few decades, the debate has shifted on the Right, with ever more conservatives, prodded often by classical liberals and libertarians, recognizing the political infirmities of judicial restraint and, more important still, its constitutional inconsistency. For if textualism is originalism’s bedrock methodological principle, then judges cannot ignore the plain text of the Ninth and Tenth Amendments—they must be read together—or the Privileges or Immunities Clause of the Fourteenth Amendment. Rather than restrained, judges must be engaged. And that means, when necessary, informing the text with the rich natural rights and common law theory that stands behind it.

So Senator Hawley was right, eventually: The problem is with progressive abuses of substantive due process—with court’s finding rights nowhere to be found (and powers nowhere granted). Thus, the Griswold Court was right. The Connecticut statute that criminalized the sale and use of contraceptives, like the Texas statute years later in Lawrence that criminalized private same-sex sodomy, was enacted under the state’s police power, the power mainly to secure our rights. But in those cases, there were no rights to be secured—no plaintiffs who might have brought a civil suit or criminal complaint against the defendants—yet there were rights the statutes did infringe, our basic natural right to liberty, a right “retained by the people.” 

Roe v. Wade, however, is a very different case, for the question there was whether the Texas statute at issue was indeed protecting rights, the rights of the unborn child. Here too the scope of the police power was at issue. Just after Samuel Alito’s 1985 Justice Department memo on abortion came to light—his 2007 Supreme Court confirmation hearings about to begin—I argued in the Wall Street Journal that because abortion at bottom is a criminal law matter concerning where to draw a line about which reasonable people can reasonably disagree, this police power question belongs with the states, which in 1973 were already drawing that line, in different ways, as they should have been left to do. That is a point that no less than then-Judge Ruth Bader Ginsburg made in her NYU Madison Lecture in 1993, two months before she was nominated for the High Court—and it almost nixed the nomination! 

Thus, contrary to what too many conservatives have too long believed, it is hardly difficult for judges to read the text of the Constitution—the whole text—in light of the document’s structure and background assumptions and theory. Griswold, Lawrence, and similar cases, especially many involving economic liberty, are straightforward rights cases, easily decided by courts. Roe was more difficult, but in the end, because the inherent line-drawing belongs properly to the people and their state legislatures, absent egregious examples like those that would sanction infanticide, it was a federalism case. 

Unfortunately, with the Slaughterhouse Cases, the Fourteenth Amendment got off to a bad start, and it’s never fully recovered. And the debate over substantive due process, a concept with roots in Magna Carta, has often only clouded matters. The Due Process of Law Clause will do the job, but it takes more work than many judges are prepared to do. As I wrote above, Justices Thomas and Gorsuch are right. The Privileges or Immunities of citizens of the United States Clause is the better route, because it takes us more directly to the Constitution’s text and, especially in light of the ample debates that produced it, to the natural rights theory that lends substance and legitimacy to our political and legal order. 


Birthright Citizenship Slightly Boosts Immigrant Assimilation: What the Research Says

Former White House national security official and Hillsdale College lecturer Michael Anton wrote an op-ed recently in the Washington Post where he used falsified quotes, poor legal reasoning, and displayed ignorance of the history and debates surrounding the 14th amendment to argue that President Trump should unilaterally end birthright citizenship (here’s Anton’s poor response to the devastating criticisms). 

Few commentators discussed what the actual effects of removing birthright citizenship would be and instead focused on the comparatively unimportant legal questions.  As an exception, my piece for the American Conservative argued that such a move would diminish immigrant assimilation in the United States.  However, I neglected to mention any of the social science that backed up my assertion in the American Conservative.  Below is a short summary of the relevant literature of the evidence that birthright citizenship helps immigrant assimilation.   

There are more assertions that birthright citizenship helps immigrant assimilation and integration than there are individual research papers testing the claim.  The major measures of assimilation or integration, both internationally and domestically, consider citizenship important.  The National Academies of Sciences (NAS) mammoth literature survey on the integration and assimilation of immigrants in the United States mentions birthright citizenship but never cites research backing up assimilations claims.  “Birthright citizenship is one of the most powerful mechanisms of formal political and civic inclusion in the United States,” the report says without any supporting evidence.  Later, the authors state, “Birthright citizenship is one of the most powerful mechanisms of formal political and civic inclusion in the United States; without it, the citizenship status of 37.1 million second-generation Americans living in the country (about 12% of the country’s population), and perhaps many millions more in the third and higher generations, would be up for debate.”  Again, the report does not provide any support for how powerful a mechanism for assimilation birthright citizenship is except to show that many people born here would not be citizens. 

Perhaps the NAS report doesn’t report on how citizenship affects assimilation and integration because the United States has had birthright citizenship for a long time.  Because of that continuity of policy, there is no experiment to run in the United States to test the importance of birthright citizenship for assimilation.  However, there are three suggestive pieces or strands of literature in the American context.  The first is Immigrants Raising Citizens where the author, Hirokazu Yoshikawa, writes that citizenship confers enormous benefits on the children of immigrants but the non-citizen status of their parents limits their ability to help them succeed. 

The second piece is the academic literature (see ft. 9) that shows that earning legal immigration status through an amnesty or DACA, even if it results in a status less than citizenship, confers enormous assimilative and economic benefits on the beneficiaries.  DACA and amnesties are better experiments to test the importance of citizenship or legal status by itself rather than normal naturalization because studies of the former policies remove the endogeneity concern while studies of the latter variety are plagued by it.  That’s a concern because people who choose to naturalize are probably different than those choosing not to, and those differences probably explain assimilative or economic outcomes better than the actual grant of citizenship.

The third piece, a book chapter by Irene Bloemraad, has a section based on interviews with many U.S.-born children of immigrants and what they think it means to be an American.  A common answer is that being born in the United States makes them an American.  One respondent said “we are all 100 percent Americans, we were born here. No matter what people say, we are Americans.”   Another telling exchange went like this:

One Vietnamese American teen’s response was typical.  Asked why he thinks of himself as America, he seemed a bit puzzled and said, “Because I was born here.”  This sort of response – repeated among a fair number of the teens – did not involve discussion of civic principles of cultural habits.  U.S. birth was enough or this teen to feel like he was American.

The third sentence of that quote may worry some folks concerned about the assimilation of the children of immigrants, but I doubt almost any other American-born teen would have answered differently.  Compared to Real Americans and not to the Imagined Americans of nationalist lore, birthright citizenship appeared to have helped here. 

However, the United States is not a great place to study the effects of birthright citizenship because we have not had a shift or reinterpretation in those rules in over a century.  Some countries like Ireland, the Dominican Republic, and Germany, have recently changed their citizenship laws to restrict birthright citizenship, also known as jus soli, and provide a quasi-natural experiment to study these effects

Germany provides the best opportunity to study the effects of birthright citizenship on assimilation.  The German Citizenship and Nationality Law of 1913 only granted citizenship to those who had at least one parent who was a German citizen at the time of the child’s birth.  In 1999, the German parliament amended that law to create a birthright citizenship component for children born on January 1, 2000, or after if at least one parent had been ordinarily resident in the country for at least eight years.  The law also created a transition period for many children born from 1990 through 2000 to naturalize if they met the requirements of the new law. 

Supreme Court Should Use Texas Redistricting Case to Reconsider Voting Rights Act

The decennial redrawing of electoral districts consistently produces extensive litigation. The most notable cases this cycle come, as they often have, from Texas.

A number of activist groups challenged the Texas legislature’s maps for state house, state senate, and congressional districts, alleging racial discrimination under Section 2 of the Voting Rights Act in a special three-judge federal district court in San Antonio. At the same time, Texas is seeking in another three-judge district court in D.C. the “preclearance” of its maps that it needs to implement them under the VRA’s Section 5.

Enacted in 1965 to combat pervasive discrimination against black voters in the South, the VRA has exceeded expectations in excising that shameful phenomenon. Its application now, however, stymies the orderly implementation of free and fair elections, particularly in jurisdictions subject not only to the general prohibition on race-based voter discrimination, but also the Section 5 preclearance requirement.

Originally conceived as a check on states where discrimination was prevalent in the 1960s, preclearance requires certain jurisdictions to obtain federal approval before changing any election laws. (The Section 5 list is bizarre: six of the eleven states of the Old Confederacy — and certain counties in three others — plus Alaska, Arizona, and some counties or townships in five other states as diverse as New Hampshire and South Dakota. Curiously, (only) three New York counties are covered, all boroughs in New York City. What is going on in the Bronx, Brooklyn, and Manhattan that is not in Queens or Staten Island?) To obtain preclearance, proposed changes may not result in “retrogression,” a reduction in minority voters’ ability to elect their “preferred” candidates.

Section 5 was originally a valuable tool in the fight against systemic disenfranchisement, but now facilitates the very discrimination it was designed to prevent. Indeed, the prohibition on retrogression effectively requires districting that assures that minority voters are the majority in a set number of districts — an inherently race-conscious mandate. The law, most recently renewed in 2006 for another 25 years, is based on deeply flawed assumptions and outdated statistical triggers, and flies in the face of the Fifteenth Amendment’s requirement that all voters be treated equally.

In any event, because the D.C. court here had not yet ruled on preclearance, the San Antonio court felt obligated to draw “interim” maps for use pending final adjudication of both the Section 2 and 5 cases. Texas filed an emergency appeal with the Supreme Court, arguing that the lower court insufficiently deferred to the Texas legislature’s maps. Now on an expedited briefing and argument schedule, Cato filed an amicus brief supporting neither side and arguing that this case demonstrates all that is wrong with the VRA as it currently exists — highlighting the tension between the VRA and the Constitution and the practical difficulties that conflict engenders for election administration.

Put simply, the VRA’s success has undermined its continuing viability; courts and legislatures struggle mightily and often fruitlessly to satisfy both the VRA’s race-based mandate and the Fifteenth Amendment’s equal treatment guarantee. We also point out that Section 5’s selective applicability precludes the establishment of nationwide districting standards, confounding lower courts and producing different, often contradictory, treatment of voting rights in different states — in large part because Sections 2 and 5 themselves conflict with each other. We note that regardless of the outcome of this litigation, it is unlikely that Texas will have fully legal electoral maps in time to administer the 2012 elections in a fair and efficient manner.

These difficulties — constitutional, statutory, and practical — disadvantage candidates, voters, legislatures, and courts, and undermine the VRA’s great legacy of vindicating the voting rights of all citizens. The Court should thus schedule this case for broader reargument on the constitutionality of the Voting Rights Act as presently conceived.

The Court will hear argument in Perry v. Perez on January 9.  See SCOTUSblog’s coverage for more on the case.

The Constitutional Case for Marriage Equality

On June 12, 1967, the U.S. Supreme Court struck down bans on interracial marriage in more than a dozen states in the case of Loving v. Virginia. Today, the highest court in the United States may soon take on the issue of marriage equality for gay and lesbian relationships. Attorneys David Boies and Theodore B. Olson are hoping the case of Perry v. Schwarzenegger will further establish marriage as a fundamental right of citizenship. Also featured are John Podesta, President of the Center for American Progress, Cato Institute Chairman Robert A. Levy and Cato Executive Vice President David Boaz.

Watch the full event from which many clips were pulled here and Robert A. Levy’s presentation here.

Federal Education Results Prove the Framers Right

Yesterday, I offered the Fordham Foundation’s Andy Smarick an answer to a burning question: What is the proper federal role in education? It was a question prompted by repeatedly mixed signals coming from U.S. Secretary of Education Arne Duncan about whether Washington will be a tough guy, coddler, or something in between when it comes to dealing with states and school districts.  And what was my answer? The proper federal role is no role, because the Constitution gives the feds no authority over American education.

Not surprisingly, Smarick isn’t going for that. Unfortunately, his reasoning confirms my suspicions: Rather than offering a defense based even slightly on what the Constitution says, Smarick essentially asserts that the supreme law of the land is irrelevant because it would lead to tough reforms and, I infer, the elimination of some federal efforts he might like.

While acknowledging that mine is a “defensible argument,” Smarick writes that he disagrees with it because it “would presumably require immediately getting rid of IDEA, Title I, IES, NAEP, and much more.” He goes on to assert that I might “argue that doing so is necessary and proper because it’s the only path that squares with our founding document, but policy-wise it is certainly implausible any time soon.” Not far after that, Smarick pushes my argument aside and addresses a question to “those who believe that it’s within the federal government’s authority to do something in the realm of schools.”

OK. Let’s play on Smarick’s grounds. Let’s ignore what the Constitution says and see what, realistically, we could expect to do about federal intervention in education, as well as what we can realistically expect from continued federal involvement.

First off, I fully admit that getting Washington back within constitutional bounds will be tough. That said, I mapped out a path for doing so in the last chapter of Feds In The Classroom, a path that doesn’t, unlike what Smarick suggests, require immediate cessation of all federal education activities. Washington obviously couldn’t be pulled completely out of the schools overnight.

Perhaps more to Smarick’s point, cutting the feds back down to size has hardly been a legislatively dead issue. Indeed, as recently as 2007 two pieces of legislation that would have considerably withdrawn federal tentacles from education – the A-PLUS and LEARN acts – were introduced in Congress. They weren’t enacted, but they show that getting the feds out of education is hardly a pipe dream. And with tea parties, the summer of townhall discontent, and other recent signs of revolt against big government, it’s hardly out of the question that people will eventually demand that the feds get out of their schools.

Of course, there is the other side of the realism argument: How realistic is it to think that the federal government can be made into a force for good in education? It certainly hasn’t been one so far. Just look at the following chart plotting federal education spending against achievement, a chart that should be very familiar by now.

Education Spending

Notice anything? Of course! The federal government has spent monstrous sums on education without any corresponding improvement in outcomes!

Frankly, it’s no mystery why: Politicians, as self-interested people, care first and foremost about the next election, not long-term education outcomes. They care about what will score them immediate political points. That’s why federal politicians have thrown ever-more money at Title I without any meaningful sign it makes a difference. That’s why No Child Left Behind imposed rules that made Washington politicians look tough on bad schools while really just pushing more dough at educrats and giving states umpteen ways to avoid actual improvement. That’s why Arne Duncan vacillates between baddy and buddy at the drop of a headline. And that basic reality – as well as the reality that the people employed by the public schools will always have the greatest motivation and ability to influence government-schooling policies – is why it is delusional to expect different results from federal education interventions than what we’ve gotten for decades.

OK. But what about a law like the Individuals with Disabilities Education Act (IDEA)? Hasn’t it helped millions of disabled kids who would otherwise have been neglected by states and local school districts?

For one thing, it is constitutional and totally appropriate under the 14th Amendment for the federal government to ensure that states don’t discriminate against disabled children in provision of education. IDEA, however, does much more than that, spending billions of federal dollars, promoting over-identification of “disabilities,” and creating a hostile, “lawyers playground” of onerous, Byzantine rules and regulations, all without any proof that the law ultimately does more good than harm. And again, this should be no surprise, because federal politicians care most about wearing how much they “care” on their reelection-seeking sleeves, no matter how negative the ultimate consequences may be.

Alright-y then. How about the National Assessment of Educational Progress (NAEP)? Isn’t it an invaluable source of national performance data?

NAEP results are used in the above chart, so obviously I have found NAEP of some value.  But does its usefulness justify ignoring the Constitution? Absolutely not. For one thing, instead of NAEP we could use extant, non-federal tests such as the SAT, ACT, PSAT, Stanford 9, Terra Nova, and many other assessments to gauge how students are doing. And as useful as NAEP may be, it sits perilously close to being as worthless as everything else that Washington has done in education. All that has kept it from being hopelessly politicized is that there is no money attached to how states and local districts do on it. And as Smarick’s boss at Fordham, Chester Finn, testified in 2000, even with that protection NAEP and other supposedly netural federal education undertakings are under constant threat of political subversion:

Unfortunately, the past decade has also shown how vulnerable these activities are to all manner of interference, manipulation, political agendas, incompetence and simple mischief. It turns out that they are nowhere near to being adequately immunized against Washington’s three great plagues:

• the pressing political agendas and evanescent policy passions of elected officials (in both executive and legislative branches)and their appointees and aides,

• the depredations and incursions of self-serving interest groups and lobbyists (of which no field has more than education), and

• plain old bureaucratic bungling and incompetence.

Based on all of this evidence, it is clear that the only realistic avenue for getting rational federal education policy is, in fact, to follow the Constitution and have no federal education policy. In other words, the very realistic Framers of the Constitution were absolutely right not to give the federal government any authority over education, and it is time, right now, for us to stop ignoring them. Doing anything else will only ensure continued, bankrupting failure.

Barnett on the Supreme Court Confirmation Hearing

Cato senior fellow Randy Barnett has a piece in the Wall Street Journal on the Senate’s confirmation hearing for Obama’s nominee to the Supreme Court.  Excerpt:

Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment “incorporate” the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

Read the whole thing.