Episode 2 of The Naked Constitution Podcast: We the People!

Tne Naked Constitution podcast is back on Ricochet!  This week we discuss the Framers’ use of the term “people” (as in, “we the”) and “person.” I’m joined by contributor Joe Escalante, who, in addition to being a rock star and a matador, is a temporary judge on the Los Angeles Superior Court, as well as member Doug Lee, a leading force in the anti-Obamacare litigation and Mississippi’s personhood initiative.  Together we hash out the radical theory  that “the people” referred to citizens (not Gitmo detainees), question the legal basis for birthright citizenship (risking the wrath of Harry Reid), and wonder why liberals consider the Constitution to be a living creature while a fetus is just a clump of cells.

You can subscribe to this podcast by following the instructions here. Direct link fans, click here.

Direct link to MP3 file

Judge Turns the Constitution Upside-Down to Defeat Wisconsin Union Reform Law

On Friday, a state court judge in Wisconsin struck down virtually all of Scott Walker’s collective bargaining reform as a violation of both the US and Wisconsin constitutions.

The decision is a thinly veiled piece of judicial activism by Judge Juan Colas, who was appointed by the former Democratic Governor, Jim Doyle. How exactly does Governor Walker’s reform infringe the “associational and speech rights” of municipal union members? Well, it prohibits municipal unions from collectively bargaining on non-wage benefits (they can still bargain on wages); it prohibits unions from forcing non-union members to pay part of the union’s expenses (for the privilege of being represented by a union they want no part of), and it prohibits unions from automatically deducting union dues from payrolls. Got that? It’s a violation of free speech to make the union ask its members for their dues.

I confess, I had to read Judge Colas’ opinion several times to discover his rationale.  The heart of the decision appears to be this single sentence on page 15: “Although the statutes do not prohibit speech or associational activities, the statutes do impose burdens on employees’ exercise of those rights when they do so for the purpose of recognition of their association as an exclusive bargaining agent.”

What a gloriously convoluted sentence! The reality is: the law dethrones municipal unions in Wisconsin from their former status as all-powerful closed shops, and finally gives employees the freedom to join, or not, municipal unions. Judge Colas casts this not as a burden on the unions, but on employees’ right to associate for the purpose of forming an “exclusive bargaining agent.” By this logic, every “right to work” law in the country violates the First Amendment.  Judge Colas also held that the reform law violates the Equal Protection clause of the Fourteenth Amendment, but that holding was predicated on the asserted First Amendment violation.

This decision (and another recent one by an Obama-appointed federal court overturning parts of the Wisconsin law) are desperate rearguard actions by Democratic partisans. Under Walker’s reforms, more than half of the Wisconsin members of the American Federation of State, County and Municipal Employees union have dropped out. So have a third of the American Federation of Teachers members in the state. This is terrible news for the Democratic Party.  According to the National Right to Work Legal Defense Foundation, compulsory unionism allows unions to collect $4.5 billion annually in dues “and funnel much of it into unreported campaign operations.”  And now, those employees who have been forced to subsidize Democratic campaigns are heading for the exits.

The idea that Walker has violated workers’ rights by giving them a real choice as to whether to join a union is preposterous.  The Wisconsin Attorney General has vowed to appeal this decision — let’s hope reason prevails in the higher courts.

The case is Madison Teachers, Inc. v. Scott Walker: http://www.scribd.com/doc/105950737/Wisconsin-Collective-Bargaining-Ruling

The Naked Constitution Podcast: Episode 1 – The Living Constitution vs The Naked Constitution

For Episode One, we discuss The Living Constitution vs. The Naked Constitution. I’m joined by Ed Whelan, the president of the Ethics and Public Policy Center, and host of NRO’s Bench Memos Blog, and by our own James Poulos: historian, lawyer, producer at HuffPost Live and a contributor to Forbes and Vice. In this wide-ranging discussion, the danger of the Living Constitution is exposed with references to Napoleon Bonaparte, flogging, and the “metaphysical aromatherapy” of Planned Parenthood v. Casey.

For those who hunger for more, please check out my new book — The Naked Constitution: What the Founders Said and Why it Still Matters.

You can subscribe to this podcast through iTunes here. Direct link here.

A Shoddy Attack on Originalism and Scalia

Veteran appellate judge Richard Posner recently took to the pages of The New Republic to trash – there’s no other word for it – the new book by Justice Antonin Scalia and writing guru Bryan Garner: Reading Law: The Interpretation of Legal Texts.

Posner’s critique generated exultation on the left – after all, here was Justice Scalia getting a public smack-down from a fellow conservative! Whether Posner can still be called a conservative – he recently refused the label in an interview with NPR’s Nina Tottenberg – his criticisms consistently miss the point of Scalia’s and Garner’s book. But, to be fair to Posner, what he lacks in the way of analytical skill, he more than makes up for in gratuitous ad hominem attacks.

Reading Law is a robust defense of “textualism,” i.e., that doctrine that judges must interpret statutes (and constitutions) to give effect to the meaning that the text reasonably conveyed at the time of its adoption. In the realm of constitutional law, this is also known as Originalism, or, more precisely, the “original public meaning” theory that I espouse in The Naked Constitution.  The theory is simple: constitutional provisions should be applied as they were understood by the public that ratified them. Textualism does not seek to divine the “legislative intent” from the self-serving statements made in the course of “legislative history” (committee reports, floor speeches, and the like). Rather, the point of textualism is that the legislators’ intent emerges from the text they adopted.

Posner takes a different view.  In short, he embraces “purposivism” – the idea that judges should apply statutes so as to give effect to their overriding purpose.  This method assumes that statutes have a single or dominant purpose, and that judges should be empowered to insert a purpose that is not clear from a fair reading of the text.

In his New Republic piece, Posner doesn’t try to defend his interpretive philosophy. Rather, he sets up a series of caricatures of Scalia’s philosophy. He begins with the straw man argument that a genuine textualist must never consult anything outside the text. Thus, although Posner agrees with Scalia and Garner that a sign outside a butcher’s shop reading “No dogs or other animals” does not mean that only canines or other domestic animals are excluded, he argues that that conclusion is “not right by virtue of anything textual” but rather by virtue of the meaning that would “come into a reasonable person’s mind.” Talk about a false dichotomy: the very essence of textualism is applying words as they would be understood by a “reasonable person.”

Textualism is straightforward, but not simple. Scalia and Garner never claim that it is always easy to read a statute, which is why they offer up 57 “canons” of interpretation.  Ah ha, says Posner: they don’t believe in the text, after all.  Again, Posner is conjuring up a false dichotomy.  The canons don’t supplant the text, but they are offered as presumptions – rebuttable presumptions – “about what an intelligently produced text conveys,” as the authors point out.  In Posner’s rather paranoid view, however, the canons “provide them with the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.”  The incoherence of this charge is stunning.  If Scalia’s goal is to generate “outcomes,” why on earth would he embrace textualism and canons of construction designed to limit a judge’s discretion?  As a staunch foe of abortion, Scalia could easily re-interpret the “living” Fourteenth Amendment to prohibit abortion.  Instead, Scalia favors an interpretation that would leave the issue to state legislatures, an “outcome” that would inevitably lead to legalized abortion in many Blue States.

Posner attacks Scalia for looking at the historical meaning of constitutional provisions when deciding the Second Amendment case, Heller v. District of Columbia: “Scalia is doing legislative history” he says, and therefore, once again, violating textualism. To the contrary, Scalia’s opinion contains a detailed linguistic analysis to determine what the text of the Second Amendment meant at the time of its adoption (a textualist approach), he did not rely on the “legislative history” of the Second Amendment. Posner’s mistake can hardly be an honest one; he knows what legislative history is.  But Posner has a bee in his bonnet about Heller; he says it is “erroneous,” that it is Scalia’s “most heavily criticized” opinion and – here’s the whopper – that Reading Law is nothing more than a response to the uproar over Heller.

The heart of Posner’s review is his attempt to “prove” that Scalia and Garner have mischaracterized the cases they cite. Although this is the part of the article that most delights the left, the paucity of Posner’s evidence — six cases out of the 600 cited by the authors – rather effectively demonstrates the petty nature of the entire article. In any event, Posner completely misses the point when he argues that the authors failed to give complete summaries of the six cases. Scalia and Garner never claim that they provide exhaustive summaries of the cases. Rather, they use the cases to illustrate particular applications of textualism, not to defend or denounce the ultimate decisions reached by the courts.

Posner also pounces on the book’s example of a sign that says “no person may bring a vehicle into the park.” Scalia and Garner conclude that the term “vehicle” would encompass ambulances since that is the most fair reading of the text. When the authors later point out that there may be other factors that mitigate the otherwise harsh result of the sign – e.g., there may be a separate statute exempting emergency vehicles from traffic rules, or the ambulance driver may claim the common law defense of necessity – Posner denounces this as another “retreat” from textualism. But no, the authors never waver in their opinion that the best reading of the text (the sign) is that ambulances are “vehicles.” But the reading of a single text may not dispose of a particular case. This is the mistake Posner makes again and again: every time Scalia and Garner mention anything other than ink on paper, he assumes that they have undermined their own thesis. Posner seems to have overlooked the fact that the book is about “reading law” not “deciding cases.” It offers guidance on how to interpret legal texts; it does not purport to explain how overlapping legal texts are to be reconciled, nor how a text is to be applied to the facts of a given case.

Posner’s errors have been exhaustively demolished by Ed Whelan of the Ethics in Public Policy Center (and NRO Bench Memos), and by Garner himself in a reply published in The New Republic.  But Posner is unrepentant, refusing to engage Whelan on a single point of substance, instead smearing him as the head of “an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology.”  Well, there you have it.  How could a social conservative possibly say anything worthy of response?

But his attack on Whelan may do more to reveal Posner’s real motivation in denouncing Reading Law than any of his substantive arguments.  Posner is angry – about something. His review is dripping with vitriol: Scalia and Garner follow a “pattern of equivocation,” they “omit contrary evidence,” their interpretive method is “hopeless,” they are disingenuous, etc.   Posner, once upon a time a darling of conservatives, has recanted his conservatism, as noted above.  Perhaps his estrangement from conservatism has led him to lash out at those who still stand by their principles.  Whatever the reason for his latest attack, it is, alas, a sad spectacle to see a federal judge so outraged by the modest proposition that courts ought to be faithful to statutory text.

A Victory Against Government Propaganda

The FDA has suffered another setback in its relentless campaign to turn every cigarette pack into a “mini-billboard” for its anti-smoking agenda. The US Court of Appeals for the DC Circuit has upheld a lower court decision striking down the agency’s rules that would require cigarette makers to include certain government-approved “graphic warnings” against smoking. Nothing too extreme, mind you, just a man blowing smoke out of a tracheotomy hole and similar pictures.

I don’t mean to deny that smoking is unhealthy.  The federal government can require manufactures to convey factual information on their product labelling — cigarette packages and advertising already contains such disclosures.  But can the government force manufacturers to proselytize against their own products?

As I explain here, the Supreme Court has long recognized that the First Amendment right to say what you want would be meaningless if the government could force you to say things you don’t want. In Wooley v. Maynard, for example, the Court affirmed that Jehovah’s Witnesses in New Hampshire could not be forced to use license plates with the State’s motto: Live Free or Die.

Although commercial speech often merits less protection under existing precedents, there is clearly a liberty problem with forcing manufacturers to do everything possible to dissuade potential customers from buying their product. As the DC Circuit points out, manufacturers have been compelled to include certain information on labeling or other advertising if the information is (1) strictly factual, and (2) without the information, the company’s advertising would be misleading. In this case, however, the FDA doesn’t argue that current cigarette labels are misleading — they include all the textual warnings. The FDA just thinks that the packages aren’t scary enough; thus, they would require that 50 percent of the front and back panels of every cigarette pack contain pictures, e.g., of women crying, small children, and the guy with the tracheotomy. As the DC Circuit concluded, the images do not convey factual information, but are “unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat customers into quitting.

And yet, the government would have the courts review its rules under the weakest form of scrutiny available. By the FDA’s logic, the government could dictate that every stick of butter be wrapped in images of open-heart surgery, that every candy bar be emblazoned with pictures of rotting teeth, and every sugary drink carry images of obese children — and these rules would be virtually unreviewable.

As reported last November,  U.S. District Judge Richard Leon initially granted a preliminary injunction against the FDA rules. In February of this year, he issued a final ruling striking down the graphic warning requirement as unconstitutional “compelled speech.” The DC Circuit affirmed on August 24.

The FDA could not even produce evidence that the graphic images would be effective — the agency estimated a mere 0.088 decrease in smoking rates as a result of the shock-and-awe campaign. Ultimately, the agency seems to want the graphic warnings because “everybody else is doing it.”  The FDA cited a “strong worldwide consensus” based on the actions of various countries, including Mongolia, Venezuela, Singapore, and Iran. ” It is worth noting,” the Court said, “that the constitutions of these countries do not necessarily protect individual liberties as stringently as does the United States Constitution.” You can say that again.

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