Law and politics worldwide, etc. (That description should stick for a while)
Howard Bashman calls attention to Philippine Commentary, which includes some learned commentary on the subject of impeachment in Philippine constitutional law. There I learn that the Philippine Constitution does in fact allow a minority of representatives to begin impeachment proceedings, something that I found weird here. And there's lots more. Check it out.
David Bernstein takes issue with WaPo's claim that Justice Brown is rightfully opposed by Democrats because, in his paraphrasing of the editorial, she has "sincerely praised Lochner." Bernstein is less concerned with whether or not Judge Brown actually did praise Lochner itself, an issue taken up by Will Baude, here. Here is WaPo's key editorial paragraph:Justice Brown is one of the most unapologetically ideological nominees of either party in many years. In speeches, she has openly embraced the Supreme Court's so-called "Lochner" era, during which the justices struck down numerous worker protection laws on grounds that they violated the supposed right of free contract. Across the spectrum of constitutional law scholarship, there are few points of greater consensus than that this period is a blot on the Supreme Court's history. The very word "Lochner" -- named for the 1905 case that forged the doctrine -- has come to be used as a pejorative shorthand for judicial usurpation of legislative authority. Yet Justice Brown has insisted that without such usurpation, "a democracy is inevitably transformed into a Kleptocracy -- a license to steal, a warrant for oppression."
Bernstein's post is an excellent canvas of current professional evaluations of Lochner and what it does or does not stand for in early 20th century jurisprudence. (We're reading Lochner next week in my Con Law class, so I'll recommend to inquiring students that they read his post.) But personally, I think that it is odd that Bernstein doesn't include the following argument:
Lochner was bad because it struck down a worker protection ordinance.
Perhaps this aspect of the case is covered under Bernstein's invocation of the traditional areas of state police powers. But combine his defense of an anti-Lochner view and his general contention that praising Lochner should not disqualify people from sitting on a federal appeals court, and I think you can see what I'm getting at. There is a real dividing line between people who think that the best constitutional principles are those that require protection of workers (safety, etc.), and those that don't think that constitutional law should be understood in this fashion and that it is worth opposing nominees who don't seem to share the same principles.
In Bernstein's admittedly bloggy schema, the only other category in which something like my objection might fit is under this heading: (3) Lochnerian decisions overturned "social legislation" that would have aided the poor and necessitous at the expense of the wealthy and powerful. In fact, the redistributive consequences of the laws that the Supreme Court invalidated were far more complex than the standard myth allows. Indeed, some of those laws clearly would have redistributed wealth upwards by creating monopolies or monopsonies at the expense of consumers, or by restricting entry into an occupation by new workers. Consider, for example, New State Ice Co. v. Liebmann in 1932, in which the Court invalidated an Oklahoma law creating a government-sponsored monopoly in the ice industry. Justice Louis Brandeis wrote a preposterous disssent, which is unjustly celebrated as a Progressive masterpiece.
(links in original)
Bernstein only goes after the redistributive aspects of so-called "social legislation," but it should be clear that there are other aspects that are just as important. It might be the case that Bernstein supports these other aspects, however timidly, in refering to "traditional police power regulation[s]" -- if his criticism of Lochner is not simply jurisdictional or based on an understanding of the scope of the 10th Amendment. Supporting a law that limits maximum hours because of safety concerns because you think that laws that target worker safety are good -- even if those who benefit from that law are primarily existing job-holders, and those who are harmed are people who are essentially excluded from the profession -- is a sensible and defensible position. The Republican attack on ergonomics helps to clarify where one might draw the lines here. That attack reflects the true heritage of the spirit of Lochner; my point here becomes visible primarily if the case is taken out of the jurisprudential context and discussed as a matter of workplace regulation as such.
The lack of a focus on the workplace as such is also one of the flaws in Clayton Cramer's post, here, which attempts to pit Harlan's dissent in Lochner against his dissent in Plessy against the current solicitude for privacy rights in sexual matters in the Supreme Court's recent decision in Lawrence. I really am not quite sure what Cramer is getting at, although the main point seems to be that courts should either defer to legislatures or they shouldn't, and that they thus can't have Lawrence (non-deference) and also have Harlan's dissent in Lochner (deference). I gather that Cramer wants to accuse Harlan of a similar inconsistency in his approach to maximum hours legislation when compared to his approach to state-enforced segregation in railway cars: courts should either defer or they shouldn't. In general, I think that the central question is under what conditions and in what situations it is a good idea for courts to defer to legislatures; in this respect I think that Cramer (and Scalia and Bork, on occasion) fall into a reflexive democratism rather than a defense of liberal democracy.
But the main point here is that what is specific in Lochner has already been lost in the discussion -- namely, that it was a defensible workplace regulation that would apparently make a palpable difference in the health of existing workers. Indeed, one of the things that is so odd about the majority opinion in Lochner is that it seems to pit workplace safety regulations against liberty of contract and then simply choose liberty of contract as the preferred principle. Today, presumably, as the opposition to ergonomics makes clear, the discussion would revolve primarily around costs to business and large-scale redistributive questions. In other words, workplace safety regulations can be opposed if they are a potential macroeconomic drag. Jurisprudentially, the modern heir to Lochner could even write something like this:Appropriate regulation can serve to foster, not tax, economic growth and social well-being by creating and maintaining an environment conducive to beneficial commerce.
The author of that quote? Judge Brown (from Will Baude's post, linked above). The appropriate question, I would submit, is whether or not a judge is going to take opportunities to strike down things like ergonomics regulations if and when they are presented in a form where the question is close. (Bernstein says that a judge would never have an opportunity to resurrect Lochner and similar cases, but that's too narrow an issue.) And I think that it is not unreasonable to read her opinions to indicate that she might find ergonomics a closer question than those who generally believe that the attempt to safeguard worker safety and health is an appropriate area for Congressional action (e.g., even if it is a traditional area of state responsibility, or was part of state responsibility before what Justice Brown herself has apparently called the "socialist revolution" of the New Deal). If you're disturbed by the rhetorical flourish inside the parentheses, then ignore it and focus on the question of whether you believe that (a) ergonomics was an unjustified regulation on businesses, or (b) it was a justified attempt to protect worker health and safety. If you believe (a), you're close enough to Lochner for me, and I'm going to oppose your nomination to the federal bench. I sure as heck am not going to want you in line for a Supreme Court post.
MORE: Bernstein takes a shot at responding to his critics, here. He rightly attacks those who imply that the Lochner case as such had anything to do with child labor. Then he argues that the Court in Hammer v. Dagenhart was right, given, as he puts it, "the text of the Commerce Clause and the state of Commerce Clause jurisprudence at the time," to strike down federal laws aimed at punishing those who employ child labor. I don't think that he adequately states the nature of the issue in Hammer, either in its narrow dimension (he omits the 10th Amendment and 5th Amendment arguments, for example, but then again it's a blog post so shorthand is permissible), or in the broader political dimension, namely, that powerful political forces had argued that child labor should be something within the reach of Congress, and that a rigid interpretation of the constraints of the Commerce Clause was also advanced by powerful political and economic forces. As a lawyer, you don't necessarily have to care about that fact if you don't want to, although I suppose if you think that jurisprudence properly changes over time, as Bernstein seems to indicate when he references the historical jurisprudential context of the case, then it's not so much of a stretch to argue that the sphere of congressional action changes over time. Plus, there were four dissenters in Hammer. Perhaps they were partly swayed by Holmes's invocation of Champion v. Ames, in which the Court found Congressional power to prohibit the interstate transport of lottery tickets. You can quibble with either case on purely jurisprudential grounds; seems to me that if Champion v. Ames is valid, then Hammer is weak, but I'll admit that I think lottery tickets are less harmful than child labor. It should also be noted that even in the First Amendment context, under narrow conditions the Court has been willing to uphold regulations concerning the distribution of child pornography. It's a short step from there to upholding regulations concerning the distribution of goods produced by children, I'd say.
It's in his second objection where Bernstein's argument comes into full flower, however, and where his points connect to the broader political point I was trying to make in my post. The general complaint of Bernstein (and of Judge Brown) is that if the Court is willing to uphold noneconomic liberties (speech), then it should also be willing to uphold economic liberties (as it did in Lochner). This view is part of the reason why Brown's answers to Schumer's questions were so stilted: she didn't want to say simply that the case was wrongly decided. Read again the comments, helpfully republished by Will Baude, here:Schumer: You don't agree with the holding of Lochner?
Brown: I think that I've been clear. I said that it is appropriately criticized to the extent that they were inserting their views into this case. Or into the Constitution, I guess. That's the issue.
Lochner was wrong because it represented judges "inserting their views into this case." For her, that's the issue. Let me draw the general argument out a bit in a way that I don't think is unfair to either Bernstein or Brown:
I don't think that anyone is particularly well served by a narrowing of the issue ("she likes Lochner," "no she doesn't"). Right now we are in the midst of a serious attempt to change the guiding principles of government, and the courts are but one aspect of that effort. The sad truth for Democrats is that this attempt does not spring from "outside the mainstream" -- this is not 1960 any more, and we have a new breed of aggressive anti-government folks who have spent a long time developing some very well-articulated and institutionally supported views spanning economics, jurisprudence, political science, and history. I'm not a conspiracy theorist here, either: this has all been done out in the open and it has allowed many Republicans to win elections. My sense is that court commentators should realize that they are not dealing with a special case -- namely, an institution that moves according to internal principles understandable and advanced by cultural insiders, who can use terms such as "the Commerce Clause" or even "interpretation" with a clinical precision that boxes out all merely political considerations. Instead, some folks fear that Bush's judicial nominees share the view that government should get out of the way of corporations in a variety of circumstances, and that the Constitution even requires government to do so in many situations.
Read the article, "Justice O'Connor Puts Foreign Law Center Stage," from Law.com:
Justice Sandra Day O'Connor received three standing ovations and a mounted glass globe this week when she gave a speech at a black-tie dinner for the Atlanta-based Southern Center for International Studies.At the U.S. Supreme Court, however, O'Connor's message -- that American courts should pay more attention to the laws of other countries -- gets a much more mixed reception.
Seems to me that the laws, customs, and rulings of other countries are an appropriate a source for constitutional argument. Or, framed more negatively, parochial nationalism is hardly a good constitutional principle, and it's not one that is well founded in the constitutional text. Supreme courts in other countries (India, Australia, for example) often look to U.S. precedent for a variety of reasons. I'm not persuaded of the value of American exceptionalism in this regard. That's not a full argument, but the weather's nice here (close to 70 degrees, sunny) so I'm going to teach and then get outside. . .
If you looked at Novak's editorial in WaPo on Monday, as I did, you may have reacted in the same way as this perceptive reader. I especially liked the line from Novak that is highlighted in the letter, the line decrying theunprecedented filibuster campaign to prevent a sitting president from selecting his own judiciary
(Emphasis added)
Slip of the pen? Sense of Republican entitlement? Commitment to the imperial presidency? Woeful constitutional ignorance? Conscious distortion? You decide.
MORE: I've struck out twice this week, according to Jim at OTB. And a reader e-mailed me to object of the use of the phrase "Republican entitlement" rather than "partisan entitlement." The more narrow objection may be fair, although I never heard anyone describe Clinton's appointments as establishing "his judiciary." I'm not saying that Presidents shouldn't choose judges they like, as Jim implies. What I am saying is that the move to the use of the possessive is more than a mere semantic choice. The President certainly has a right to appoint [er, should read, "nominate"] judges, but he has no right to see any of those judges actually serve (unless he makes recess appointments). Senators can kill all the nominations if they want. That's hardly a basis for secure possession. More seriously, it's "our judiciary," not the President's, and thank God for that.
MORE: The aforementioned reader, revealed, here, as my old friend Jack Gould! [The link may have been premature. . .sorry!]
The influential German newsweekly Der Spiegel has picked up on Bush's slight of NATO in favor of his daughters' graduation ceremonies, here.
If President Bush doesn't want the burdens of being President any longer, there are a lot of smart, talented, and dedicated people who would be willing to fill in for him.
Man, what a lightweight.
MORE: Compare Bush's dedication to his own family with this scathing (and expressly anti-Bush) attack on Bush as the "anti-family President" by Bill Kauffman. Even if you don't think that Kauffman's essay is fair, it's hard not to be struck by the contradiction between what President Bush allows himself and what he asks of others.
The more I think about this story, the more upset I get. President Bush slights NATO and Turkey so that he can attend his daughters' graduation ceremonies. Here's a section of the WaPo story again: These summits are huge undertakings, with leaders from more than 40 countries -- NATO members, the Euro-Atlantic Partnership Council and other organizations -- and thousands of people showing up. Planning to accommodate so many people and events usually takes more than a year. The Turks, who have but one suitable venue for such an extravaganza, started planning immediately. President Bush, as leader of the free world, is naturally the indispensable star at these gatherings. And this would be part of a very busy diplomatic spring for him. In addition to the summit, he has the 60th anniversary of D-Day in France on June 6 (wouldn't do to be out-patriotic-ed by Ronald Reagan from the 40th), then two days later the G-8 economic summit in Atlanta. But the White House discovered a huge problem. Seems the proposed NATO dates conflicted with the graduations of the Bush daughters from college in Texas and Connecticut. So the administration has informed the rest of NATO that they would have to change their schedule or Bush wouldn't come.Things seemed pretty set a few months ago for the NATO summit meeting next spring in Istanbul -- the first in Turkey since 1957. After much consultation, meeting dates were sketched in for a couple of days at the end of May.
OK, so part of the reason that I'm upset is that I can start ticking off the important family events I've missed in the past few months because of work obligations, such as an art opening that my sister had in Boston and my mom's graduation from Divinity School. I suppose I could have asked my class to reschedule and quashed my own sense that I would be cheating the good taxpayers of New York (in addition to my students) who are paying me to teach the next generation whatever it is that I have to teach. But I was always taught that sometimes your familial obligations have to give way to broader concerns, especially when you have been charged with doing a job well.
This sense of priorities on the part of Bush should destroy any pretentions that this President has to being a "multilateral" actor. "I'm sorry, ye other leaders of the world's most important military alliance: I've got to show my daughters that I love them. Reschedule or I can't be at this historic meeting in Turkey. That's the way this White House operates: you're on my personal schedule, or you can forget it."
And even if Bush doesn't want to present himself as concerned first with his family and then with the rest of the world, people in the rest of the world are going to read it this way. Here are some of the German-language headlines: "Family takes priority over world politics" (tagesschau), "NATO summit is postponed because of Bush's daughters" (Kleine Zeitung, Austria), "Private life more important than NATO" (Focus, Germany).
We should call this what it is, namely, imperial arrogance and a shirking of official duties for private reasons. Grounds enough for calling into question President Bush's leadership, I'd say.
Remember way back in the early days of the Clinton administration when the President caused flights at LAX to be delayed as President Clinton got an expensive haircut while Air Force One sat on the tarmac? At least that was only LAX. Here we're talking about what are arguably our most important allies.
And the "liberal media" is, of course, all over this one.
Or not.
MORE: It's worth articulating further what precisely is wrong with this kind of decision on the part of the President, if the story is accurate. It is hard to imagine other wartime presidents acting in the same fashion. Would Lincoln or FDR wreak havoc with our most important military alliance for family obligations? If we really are in wartime -- and if the President is going to ask members of the armed forces, including the national guard, not only to sacrifice their family lives but their lives as a whole -- then the President should act like a real Commander-in-Chief and put his international obligations first. What sort of a message does this kind of behavior send to the troops?
MORE: Jim at Outside the Beltway responds here, noting that his daughters' graduations are a "pretty good cause" and "there's really not that much done at the head of state level at these things, anyway." I'm not saying that graduations aren't important, or that NATO meetings are the center of the diplomatic universe. Heck, I'd love to have gone to my mom's graduation last spring. It's just that I would have had a hard time justifying ditching my classes (where some might contend "not much is done" on any given day, although I would dispute that!) for the trip. Moreover, I'm not the President and Commander-in-Chief, but Bush is. Perhaps when all you're doing with your life is running the Texas Rangers, or holding some cushy corporate job, you can ditch important yearly meetings, but when you're elected to do the people's business, and you claim that it is wartime and sacrifices need to be made, it is selfish and un-leaderly to refuse to make those same kinds of sacrifices.
Steven at Poliblogger argues that there will be no "domestic fallout": One thing that strikes me is that this is the kind of thing that is likely to make Bush detractors quite angry and cause Bush supporters to largely yawn.
Yes, I'm a Bush detractor. I also think that if you're a Bush supporter, you have to admit that putting a higher priority on you daughters' graduation over our most significant military alliance (and a meeting at which one could have solidified relationships with Turkey and discussed, well, I don't know, the war on terrorism?) indicates a lack of seriousness about international affairs. The domestic political fallout is secondary, I'd say, and if Bush is more concerned about that than about anything else, then we're really in trouble. We're also in trouble if Bush is less concerned about ticking off our NATO allies than ticking off his family, who probably should know that he is the President, after all.
MORE: see above.
MORE: The comments at Jim Joyner's blog cast some doubt on the infamous LAX-delaying haircut episode; fair enough. I have no idea whether or not an expensive Clinton haircut actually caused flights to be delayed. It is certainly true that this story helped to craft an image of Clinton as being excessively self-regarding, and at the very least someone dedicated a whole lot of time and thought to spreading the story, whatever its factual basis. With Bush's insistence that his daughters' graduations take precedence over NATO, however, no one has made a similar effort, and the press hasn't shown any interest in integrating this episode into a more general account of Bush's character. That's a shame.
Should a Supreme Court be able to rule on whether one of its members is properly the subject of impeachment? Apparently, the Philippine Supreme Court can, or at least thinks it can.
Apparently, impeachment articles can also be sent to the Senate with less than a majority vote, if I am reading the news reports correctly.
Not a great idea. In general, it would seem that a constitutional draftsperson would want to limit impeachments by requiring a majority or a supermajority (and high transaction costs), not encourage them by allowing a minority of representatives to employ them.
For today's news (the House adjourned early, apparently in order to prevent the charges from being filed), read here, here, here, and here. Read also the fascinating op-ed by Father Ranhilio Callangan Aquino, here.
The German papers are all over this one: for example, "Bush Daughters More Important than NATO Summit." The Washington Post picked it up Friday, here.
Seems like the online world has set the bar pretty low for GW.
Would you like a little historical reflection on Nazi persecution of the Jews to go with that set of hand-blown martini glasses from Crate and Barrel?
Montgomery Mall in lovely Bethesda, Maryland (where I went this weekend to spend some time with Anita -- fun weekend, by the way!) has a travelling exhibit on Anne Frank. As you leave Hecht's (I think) and enter the mall area, you're greeted by a video screen with the famous picture of a smiling Anne Frank. In the center of the mall, where in a few weeks they'll set up Santa's playland, if I'm not mistaken, you can encounter a tasteful and informative bilingual exhibit on Anne Frank.
I didn't study the exhibit. We were shopping. In fact, I was looking for a nice floral print shirt (didn't find one; flowers aren't part of the seasonal patterns this year, apparently).
Serious reflection on history is critical, and my comments are not meant to reject the implicit claim that such reflection is necessary in order to remain human. Unfortunately, I think that this kind of exhibit, while well meaning, verges on being a trivialization of the holocaust.
I understand that the mall is the "new town square," and that it is a good idea to encounter people where they are, not where you'd like them to be.
Still, the mall is a strange forum because unlike the town squares of old, it is too single-mindedly devoted to the fact of consumption to serve serious purposes without distorting those purposes.
