Thursday, March 15, 2007

Restraint matters

Yesterday morning, I participated in a media conference call with Kellyanne Conway in which we rolled out my white paper on the Wisconsin Supreme Court and an opinion poll conducted by Kellyanne's firm, the polling company.

I fully appreciate that there may be a limited audience interested in a conversation about judicial philosophy (as opposed to which candidate is or is not the incarnation of one form of evil or the other), but I think it is important and is most decidedly not, as my Backstory colleague, Jim Rowen, suggests in a comment to an earlier post, "something of a false issue." He could not be more mistaken.

Jim thinks that activism is in the "eye of beholder" and there are certainly reasonable people who disagree about when the line between enforcing and creating law in a way properly left to the legislature has been crossed. That people disagree about what whether some particular thing falls within a category does not mean that the category does not exist or is meaningless.

Jim directs our attention to a recent panel decision of the D.C. Circuit court of appeals in a case called Parker v. District of Columbia. The decision struck down D.C.'s ban on private gun ownership. Jim says "[c]onservatives hailed the decision because they disagree with gun control - - but I'm guessing that if a court struck down a law or ruling as equally dear to the right, conservatives would be all over that court for...activism! "

As John McLaughlin might say "WRONG!" The Parker court did interpret the Second Amendment to create an individual - as opposed to a collective - right to bear arms. Most courts (all but one circuit, really) have gone the other way. Parker may be wrong, but it is not "activist" (to oversimplify for a moment) in that it does not disregard a clear constitution command or create extra-constitutional restrictions on the political branches. Parker is rooted in constitutional language providing that "a well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

This language must mean something and deciding what it means is what courts do. Perhaps the prefatory reference to a militia ought to be read as a restriction upon, rather than an explanation for, the right to keep and near arms (such that one only has such a right as part of an official militia). Maybe not. But the individual right found in Parker is rooted in constitutional text. It is not, like the abortion right in Roe, spun from ... well, nothing really. Not even whole cloth.

We can argue about Parker, but I don't think it implicates the "activism/restraint" debate. Although restraintist judges might be expected to evince a healthy respect for precedent, this does not mean that error, once made, is forever immune from correction.


Anonymous said...

How does a "restraintist judge" construct the constitution to make it permissable for a judge (Ziegler) to violate the rules of judicial behavior that are to assure a fair court?

James Rowen said...

Hey, good question!

James Rowen said...

You will lose more than me in your argumentation if you cite John McLaughlin as anything more than evidence of goofiness.

And you didn't make your case that the DC decision is anything but pure judicial activism - - it's just activism that you like - - but call something else.

Dad29 said...

Mr Rowen, perhaps you've READ the Parker decision. I have.

It's a useful exercise.

The 9th Circuit disagrees, the 5th Circuit DOES agree. The question was in the language, and the 2nd decided that the language meant "X".

They did not decide a Constitutional question through social science. They decided it through analysis of: 1)the plain language of the 2A, 2)the contextual language of the OTHER 9 B.O.R Amendments, and 3)the legislation of the first few Congresses.

Moreover, they did not impose a new duty on either the DC government, nor citizens.

Anonymous said...

This is the classic example of empty rhetoric being piled on top of empty rhetoric to create the illusion of substance, specifically that the labels "restraint" v. "activism" mean something beyond serving as campaign slogans.

You kinda define activism as willing to "disregard a clear constitution command or create extra-constitutional restrictions on the political branches." What's a "clear command?" An answer we like in a given case; What's an "extra-constitutional restriction?" When our side has a functional majority in the executive and legislative branches and we go too far and the court steps in to enforce the constitution.

Do you disagree with Marbury? Do you disagree with the separation of powers doctrines?

The calling card of self-proclaimed supporters of "restraint" is the claim that judging, at least at the constitutional level, is nothing more than a mechanical application of the will of those who drafted the constitution. Then such judges simply declare that they know the will of the long-dead drafters and that any disagreement is "activism." And, its amazing - every example of this ability to channel the spirits of the dead ends up being exactly what political conservatives want to hear.

This all makes me sorely miss Prof. Gordon Baldwin of UW law, a die-hard Republican and a proponent of judicial conservatism. But he spoke about about the rhetoric thrown around in judicial races because he understood that the text of a statute or of the constitution does not obviously answer every question on its face and that interpretation is a key aspect of what judges have to do.

The bottom line is that judges who refuse to acknowlege that the job requires interpretation (as opposed to mere application of "clear commands") are totally misleading the public about how courts work.

This restraint v. activism rhetoric is very effective at the ballot box but only because it totally misleads voters.

Rick Esenberg said...

Jim ... Jim ... Jim

Assertion does not replace argument. If you think Parker was an activist case, you must explain why and, given that it was rooted in constitutional text, my guess is that you cannot.

As for anon-2, I have not claimed that judging is a mechanical process or that the outcome of the interpretive process is always clear. But to say that, because the constitution or the statutes do not always yield a clear result, there is no harm in going beyond them (as long as we have to make a judgment anyway) strikes me as disingenuous. It is a typical postmodern move. You identify some measure of textual ambiguity and then conclude that texts mean nothing.

Anonymous said...

But, if the text is ambiguous, by definition it will not yield an answer in isolation. By definition one has to "go beyond" the text, perhaps to the policy goals behind it or other sources that will permit an interpretation in a given case that will serve the text's purpose.

The "strict constructionists'" cry of "only read the text" is just not an honest approach to the judicial function because where ambiguity exists, everyone has to go beyond the words themselves; but the self-described "restraint types" won't admit it.


Anonymous said...

You must agree that the constitution is textually silent about the vast majority of legal issues. Nowhere will you find reference to a computer or the right of GUantanamo Bay detainees to bake forever in the sun with no right to legal counsel. Therefore, in virtually every case involving constitutional matters, courts have to interpret the constitution to come to what they believe to be the correct constitutional analysis. You just label what you prefer as an end result to be so-called "strict constructionist."

Here's an obvious example:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. " That's the second amendment, correct? It begins with a reference to militias, which at the time of the amendment's enactment was the equivalent of the National Guard. The context of the amendment's passage was maintaining readiness in the event of internal or external strife (like the National Guard).

Your conservative courts have interpretted this amendment to not mean that members of militias (i.e., the national guard) have a right to maintain arms to ensure the safety of the country. Instead, this has been interpreted to include all people, regardless of militia status. But wait--there' more. Despite the statement that the rights shall not be infringed, courts have said that the state can, at least a little bit. You don't want a court deciding that the amendment's true contextual analysis requires us to let parents give their 4 year olds guns to protect them in preschoiol, do you? But you're infringing and th eamendment says you can't!

Activist-- in the eye of the beholder.

Anon #3

Rick Esenberg said...

Anon No. 3

The constitution does not mention computers and Guantanomo Bay, but it does establish principles like the freedom to be free from unreasonable searches and seizures or the right to a speedy and public trial in criminal prosecutions. A judge needs to apply those principles to the issues raised by datamining or Gitmo. That judges may differ on the outcome does not mean that they are not applying a principle to which the governed have consented.

But to pull a "right to privacy" out of a penumbra emanating from a constellation is apply a legal principle that the polity never adopted. The same can be said for reinterpreting a textual principle to mean something that it quite clearly did not mean at the time it was adopted - as opposed to applying the principle adopted to circumstances unforseen.

Of course, there are gray areas and reasonable people will sometimes differ as to whether the line separating judging from legislating has been crossed. But that does not mean that the line does not exist.

Anonymous said...

Anon-2 again. Is it really nuts to read the document that creates a number of protections against government's invasion of individual liberty - and reserves a number of unspecified rights to the people, as creating a right of privacy.

To play textualist for a moment, what's a judge to do with the constitution's explicit reservation to the people of rights that are not listed in the document?

Judge's have to solve this problem and the answer ain't on the face of the text.

Rick Esenberg said...

Whether or not its crazy, it certainly violates the time honored maxim of expressio unius est exlusio alterius.The problem with that view of the 9th Amendment (besides the obvious historic problem when you propose to apply it against the states) is that it creates insoluble interpretive problems. There is no definition of this "right to privacy" other than the whatever can get five votes.

Anonymous said...

Now you are just dead wrong on the text. You couldn't have proven my point about "restraint" and "textualism" spin better.

You invoke the basic principle "expressio unius est exlusio alterius" - "the expression of one means that others are excluded." A fancy way of saying that since the constitution sets out specific rights, rights not listed, are excluded. Privacy ain't listed? Don't exist.

What's this text mean?:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That's in the constitution, no?

Golly, the text seems to say the opposite of "expressio unius est exlusio alterius." The text tells us that rights exist that are not specifically named. What am I missing?