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April 01, 2005

courts and legislatures

Don Herzog, Herzog: Constitutional Rights: April 1, 2005

Kudos to those of you who've had the stamina to work through my posts (one, two, three, four) on constitutional rights.

There I argued that constitutional rights aren't implicated by mere benefits and burdens, standing alone.  The income tax doesn't implicate free speech, even if it's true that if you had (lots!) more money you could read more political magazines — or even start one.  Equal protection isn't violated when there's an employment test for government work that four times as many blacks as whites fail.  The establishment clause isn't threatened by a voucher program, even if parents can use the vouchers for religious schools.  You're not entitled to a judicial exception from any law, however unimportant, on the grounds that you'll go to hell if you follow it.  In all such cases, courts can take "disparate impact" or benefit as an invitation to make sure the legislature isn't cheating, isn't using an apparently even-handed law as a pretext to trample on rights.  If there's no pretext, that's the end of the matter.

Ordinarily your rights protect you only against government actions deliberately taking aim at rights, or, to put it differently, actions justified by forbidden reasons.  The state may clear you out of the public park because it's time for insecticide spraying, and no sane judge will listen to a first amendment complaint.  But they may not clear you out because they disapprove of what you have to say.

So why take this view about constitutional rights?  In large part, because of the different roles of courts and legislatures.

Suppose courts were in the business of worrying about benefits and burdens.  I'll 'fess up:  some courts think they are.  Indeed sometimes the same Court thinks it is and it isn't:  contrast these two cases.  It's not just that such courts will be awfully busy — it's child's play to comb through the statute books and find all kinds of benefits and burdens.  (I suppose that states' decisions on road layout and maintenance, or tort awards driving up malpractice insurance premiums, can make it harder for women to procure abortions.  No one in her right mind should think any of that should trigger an enquiry into "undue burden," the legal standard floating around in that terrain.  But some might.)  What must courts do when they hear such challenges?  They have to "balance" the importance of the government interest against the importance of the individual exercise of right.

But balancing is messy.  T
he considerations in the scales look incommensurable, and courts shouldn't have to puzzle over questions of the form, "is red bigger than p?"  And balancing is absurdly manipulable.  A Jehovah's Witness challenged Pennsylvania's requirement that all schoolchildren salute the flag.  (The Witnesses thought that salute forbidden by the language in Exodus on graven images.)  Writing for the Court, Justice Frankfurter rejected the challenge:

the question remains whether school children, like the Gobitis children, must be excused from conduct required of all the other children in the promotion of national cohesion.  We are dealing with an interest inferior to none in the hierarchy of legal values.  National unity is the basis of national security.

Well, if it's national security against a mandated exemption for these children, no surprise the state wins.  But Frankfurter could as easily have asked if it was worth forcing Jehovah's Witnesses to flout sacred principles and participate in a mindless ritual mandated by a local board of education.

There is nothing past rough intuition to decide what the right level of generality or abstraction is to characterize the state's interests and the constitutional rights.  So even courts acting in good faith can effortlessly fiddle to reach whatever policy outcomes they like in particular cases.  Since a 1932 dissent by that inveterate liberal Brandeis, members of the Supreme Court have chorused that they do not sit as a "super-Legislature."  It's nonsensical for courts to be in the business of second-guessing bad policy judgments by the legislature.  Nonsensical — and antidemocratic.  Yes, at least since Aristotle we've been used to the thought that we can rely on those enforcing the rules in particular cases to temper them with equity in order to secure just outcomes.  And — I won't pause to fuss over the differences some early modern English courts had robust equity jurisdiction.  We mostly don't, even if Delaware does (but really it handles the state's booming business in corporate law and the like), and a good thing too.  Justice Scalia was exactly right:  "it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice."  Not just religious practice, either.

Courts can, though, decide when a law takes illicit aim at a protected right.  That task requires no invidious balancing.  If the state acts for a constitutionally forbidden reason, strike down the law
— unless "compelling state interest," that joker in the constitutional deck, rears its ugly head.  The categorical nature of this enquiry lends itself to principled reasoning, just what we properly demand of courts.

Legislatures can balance.  They don't have to offer principled justifications for why they do what they do.  And they're accountable to the voters.  That's why it's properly up to the legislature to decide when to carve out exceptions for free exercise, as Oregon and the US did to protect Native Americans using peyote for religious purposes from the reach of drug laws.  That's why it's properly up to the legislature to decide whether to revise a test that burdens minority applicants for public jobs.  And so on.  To say that courts shouldn't respond to complaints about benefits and burdens isn't to say that those complaints don't matter.  It's just to say they're better directed to legislatures.

So I'm exasperated with public pressure on courts to fiddle with the law in order to get the "right" outcomes.  I'm exasperated with lobby groups whispering in the ears of appellate judges to try to secure policies they should be fighting for in democratic debate and legislatures.  Courts are pretty good at what they do.  We do them, legislatures, and most profoundly ourselves a disservice when we press them into "balancing," policy fiddling, and acting like super-legislatures.  And I'm afraid that we routinely press them that way.  Check the headlines — not just this week.


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Posted by: Simon


Lots of questions occur, but I have time now just to get started.

I'm pretty sure you'd agree that legislatures are bound, independent and apart from any fear of judges striking down the laws, to interpret the Constitution as best they can. (Opening up, of course, a huge can of worms about judicial deference to that interpretation on close questions, but that's for another day.)

And if you so agree, are legislatures bound to use the same tests, or similar tests, that courts do? I'm thinking specifically of endorsement/establishment concerns, and the jumble that would result if Congress truly internalized the view that government shouldn't be sending messages of inclusion or exclusion based on religiousity.

And a second related question, from before: you give a pretty persuasive account as to why legislatures and not courts should be creating exceptions or accommodations. But under your view of the establishment clause, would a legislature that sought to do so (a la state or fed RFRA, or RLUIPA) being acting for impermissible motives?

Posted by: Simon | Apr 1, 2005 7:52:11 AM

Posted by: dondon

"To say that courts shouldn't respond to complaints about benefits and burdens isn't to say that those complaints don't matter. It's just to say they're better directed to legislatures."

In principle, I agree with this philosophy. However, part of the reason we have a checks and balances system is to ensure that one branch does not dominate any of the others. If courts give legislatures carte blanche when it comes to 'benefits and burdens' who's left to ensure that there isn't widespread abuse?

From your post, your answer appears to be voters whose power lies in the forced referendum system we like to call elections.

Yet, that seems to place too much power into the hands of legislators and too much responsibility in the hands of voters. You will grant that when we vote for elected officials they often promise one thing and deliver another. If we take your approach, who defends the defenseless?

Courts are seen, though in practice we know they are not, unbiased pillars to which we all bow. Constitutional questions are brought to them and them alone. It's worked for 200+ years, and despite embarrassing as some 1800's opinions are, we are served well if we continue this practice.

Unduly giving that responsibility to the legislature is unwise and out of step with the charge given to the judiciary, in my opinion.

Posted by: dondon | Apr 1, 2005 12:57:55 PM

Posted by: miab

"Suppose courts were in the business of worrying about benefits and burdens. I'll 'fess up: some courts think they are. . . . . .But balancing is messy. The considerations in the scales look incommensurable, and courts shouldn't have to puzzle over questions of the form, 'is red bigger than p?' And balancing is absurdly manipulable. . . . some early modern English courts had robust equity jurisdiction. We mostly don't, . . . and a good thing too."

Actually, courts are constantly sitting "in equity", and constantly balancing benefits and burdens to various persons. And sometimes, they have to decide whether or not red is bigger than p. It's their job. Different statutes conflict with each other; different individuals' rights and interests conflict with each other; injunctions and specific performance, as well as nuisance suits, are requested and granted and rejected based in large part on a benefits/burdens test; even a finding of negligence is at heart a balancing test -- all of these are based on judgment calls by a judge balancing various things.

The issue here is that you do not believe these same courts should play that same function in the rare cases where a court is called on to evaluate the constitutionality of a statute or executive action, as opposed to the much more common cases where a court is deciding particular cases on their facts.

You may very well be right, but if you are, it's not because of any inherent incompatibility between a court's function and a benefit/burden balancing function. Rather, you are making a substantive claim about what the rule against infringing on free speech really is. You say it is: "do not make any law designed to infringe on speech," as opposed to: "do not make any law resulting in an increase in the difficulty of speech."

In fact, some laws are phrased expressly in the vein of "do not create a burden on x," and courts just go ahead and balance the burdens. The recent Supreme Court case on age discrimination is a good example. The court decided that the meaning of the age discrimination statute is to prohibit the burdensome effect, not to prohibit the discriminatory intent. Now, courts will go ahead and case-by-case balance and test and come up with results, some right and some wrong.

If the Court was wrong, it was wrong as a matter of statutory interpretation, *not* because testing and balancing burdens is an inappropriate function for a court.

Posted by: miab | Apr 1, 2005 2:56:21 PM

Posted by: stick

"Equal protection isn't violated when there's an employment test for government work that four times as many blacks as whites fail."


"The establishment clause isn't threatened by a voucher program, even if parents can use the vouchers for religious schools."

False. Were large number of people to take kids out of public schools with rational and scientific standards, and use vouchers to put their kids in Psychic Research Schools, the democracy is threatened. Work out the details.

Posted by: stick | Apr 1, 2005 3:27:02 PM

Posted by: oliver

Sounds like good philosophy and bad realpolitik. With paperwork and patience an individual more or less can compel the attention of a local court, whereas the same plaintiff might have to rally crowds to command the attention of even just one of their representatives in congress...who will then measure the size of your rallies against your opponents' and consider your party affiliation. With an onerous burden looming, it's no wonder a judge might feel obliged to cut the Gordian knot.

Posted by: oliver | Apr 1, 2005 4:09:49 PM

Posted by: oliver

Then again, our system of governance allows people to die from lack of health care, so I guess disallowance of judicial relief for legally imposed burdens is one of its lesser problems.

Posted by: oliver | Apr 1, 2005 4:14:35 PM

Posted by: David Sucher

Just a note on language. Please. Write ordinary plain English.

I started to read this post but the second sentence was so obscure that I stopped. What do you mean by the use of the word "implicated" in the sentence "...constitutional rights aren't implicated by mere benefits and burdens, standing alone."

I know what the word implicated means. But your usage is so odd, strained etc (and worse) that I realized that I was in the wrong blog.

Posted by: David Sucher | Apr 1, 2005 7:14:07 PM

Posted by: stick

Apologies if a bit off topic:

Ending judicial immunity at all levels is the proper course of action. Perhaps the scholars here could discuss that. The Constitution does not protect judicial immunity. If a judge (or prosecutor) makes a mistake either in civil or criminal courts (or appellate) he or she should be held accountable--disbarred, or charged with crime, and financially liable.

Posted by: stick | Apr 2, 2005 11:07:30 AM

Posted by: lefty

Yikes - left2right has devolved into almost 100% (white?) male posts. And none of them seem upset about it. With lefties like this, who needs Falwell?

Posted by: lefty | Apr 2, 2005 11:46:26 AM

Posted by: amh

Of topic but....

Stick- Judges are not immune...they can be impeached. So I don't see what your post is really about? Do you really want judges to be elected and or punished for rulings? Do you really think a judge would be able to hand down a controversial verdict (aka integration, interracial marriages), if they were at the will of the majority? For many people, these rulings were a immense ‘mistake’ and wanted the judges held accountable. Just because a judge does not rule how you would prefer, doesn't mean they should be fired and thrown to the wolves. The framers set up the judicial branch this way for a reason...and it seems to have not hurt our country evolve and grow these past 200+ years. Do you really think our democracy would last with your changes? I wish people wanted to hold the legislature (and executive) branch as accountable as the judges…..

And who determines the mistake? I (and many others) thought the court made a mistake in 2000 by not allowing a full vote recount...so should we then prosecute them for this...?

(p.s. female here :-) ...so it is no longer all male!)

Posted by: amh | Apr 2, 2005 12:41:13 PM

Posted by: Reader

I presume Don is aware that the Supreme Court reversed the result in Gobitis within three years (see here) -- after all, I suppose that fact could easily be marshalled to support the argument that balancing is messy & given to unpredictable outcomes.

Posted by: Reader | Apr 2, 2005 4:20:30 PM

Posted by: stick

"Do you really want judges to be elected and or punished for rulings?"

I don't think electing judges is a great idea, yet "appointments" are not so great either. There is far too much discretion and the possibility for discrimination in the civil and criminal courts. (btw I m not an attorney or in law school, thankfully, but a humble struggling adjunct instructor).

Recently the Supreme Court ruled that new evidence was never admissable at the appellate level. That may sound nice and tidy to law students and those "proceduralists" who think the law is some big bureaucracy that must be kept orderly, but that ruling ( Fox?) is a COMPLETE injustice, and indeed facsist. The courts should not be built on some efficiency model. The judges' ability to overrule objections and evidence is itself right from the House of Lords, if not the KGB. If the judge can overrule or refuse to admit evidence that is IN FACT true, then a falsehood, if not a lie is introduced into the record and that lie may suffice to convict one of a crime.

It's not science, nor is it even logical.

In both fed. and state courts, there also are hundreds of many little rules and procedures that are completely anti-democratic (filing fees, short filing deadlines, form requirements). That may not be a problem to rich people who can afford some high-powered attorney-gun and his crew of office slaves to take care of the details; it is for someone saying appealing an injust decision or wrongful conviction. And wrongful conviction IS a real problem. I have no problem when the courts put away real murderers or robbers, rapists, but when a zealous prosecutor is trying to earn a name for himself and is convicting citizens who are innocent or mostly innocent or sentencing say petty drug dealers to life ( as happens in Cali) something is horribly wrong.

The Schiavo thing is just hype---and I am not a fan of De Lay, but his suggestion of review is not bad idea---yet wrongful conviction is another issue entirely.

Posted by: stick | Apr 2, 2005 5:06:29 PM

Posted by: D.A. Ridgely

stick writes "btw I m not an attorney or in law school, thankfully, but a humble struggling adjunct instructor."

Ordinarily, I'd never pry, but I can't help asking what subject you instruct.

Posted by: D.A. Ridgely | Apr 2, 2005 5:18:16 PM

Posted by: stick

Will that have some bearing on whether you agree or disagree with what I say? I'llve gie yo choice--it's either Underground Database Administration, Percy Bysshe Shelley Studies, Low-Budget Munitions Workshops, or Remedial Quine.

Ronald George works for el diablo

Posted by: stick | Apr 2, 2005 5:27:21 PM

Posted by: stick

Having passed the bar confers some nearly aristocratic priviledge on American lawyers and judges, which is out of proportion to their real usefulness to society. European lawyers are more like administrators and social workers; but in America, following the English common law model, they are, or become, after a suitable amount of hypocrisy, barons and potentates. The laws and concepts they are asked to master, while requiring erudition and some scholarship, are not that difficult in comparison to organic chemistry or even electronics. Though they are often paired up with physicians, the average law student is more or less a bright if chatty social worker-bureaucrat; the physician's course of study and preparation is far more arduous. Anyone who dares criticize judges and lawyers riskss being branded as a hick or conservative or whatever, yet Jefferson and the founding fathers had I think serious doubts about the power of the judiciary. Lysander Spooner also saw some of this.

Posted by: stick | Apr 2, 2005 5:46:51 PM

Posted by: Don Herzog

Simon: RFRA and RLUIPA get more technical than I want to get here. If you cast them as telling courts to reinstate the balancing approach sometimes taken before Smith, I'm opposed. If you cast them as doing legislative balancing on the merits -- an easier case to make for RLUIPA -- and remember that Congress has sec. 5 powers under the 14th amendment, then I'm more sympathetic to them. But they are poised right at the frontier of my views about the competences of courts and legislaturs.

miab: Quite right, some statutes explicitly direct some kind of balancing approach. Courts dodge even when they're told to do that, which is instructive. But if that's what the legislature demands, so be it, messy and weird as it's going to be. When the law doesn't demand it -- and I think the Constitution doesn't -- then they shouldn't. And again even some legal language that looks like it really is about balancing absolutely isn't. The "undue burden" standard on abortion regulation is all about laws taking explicit aim at abortion, not other laws that happen to burden abortion.

Reader: Barnette was decided on the theory that the pledge is forced speech, not that the religious interests of the objectors entitled them to a judicially granted carve-out from the general rule. In his endless and whimpering dissent to Barnette, Frankfurter missed what the Court was doing. If you think that the first amendment means that the government can't enlist you as its billboard -- the same background thought motors Wooley -- then Barnette is an example of sensible constitutional ruling with no balancing at all.

stick: I'd argue that making judges liable for bad rulings is a recipe for destroying the rule of law. By the way Tocqueville noticed the aristocratic role of American lawyers -- and celebrated it as a useful tonic for those in the clutches of democratic fantasies of the abilities of ordinary men. (No, not women.) Not my view, but the historian in me wants to advise you that you have a more mainstream predecessor than my much beloved Spooner.

Posted by: Don Herzog | Apr 2, 2005 6:10:06 PM

Posted by: stick

IN a trial or hearing say a sheriff or probation person is asked to testify by the DA. The sheriff says something untrue--that the defendant at one time had say drugs or a weapon in his possession when he was arrested. WHile O'Riley is screaming obscenities and being restrained by the bailiffs, O'Riley's attorney humbly objects, and says this should not be admissable. Judge Canberra overrules and evidence is admitted that O'Riley had firearm when arrested.

Now the defendant must track down a sherriff's or PO's report--and hope that it reports the truth. The typical blithe law student is not overly troubled by this, unless perhaps it's
a rich kid--but situations like the one described happen ALL the time. And if O'Riley is convicted (due mostly to the bogus testimony) then he can't admit new evidence at appeal level; he can file a habeas which may or may not be read--and if he doesn't have the right paperwork or evidence it won't matter.

Yet suppose some ethical sheriff does locate an arrest report for O'Riley's 4th DUI or whatever which contradicts the testimony. ORiley gets a habeas in, and some of the appellate guys decide to take it: and his conviction is overturned. A perjury charge could be pending on the sheriff who testified--but nothing happens to either the judge nor the DA???

Posted by: stick | Apr 2, 2005 6:55:20 PM

Posted by: D.A. Ridgely

Will that have some bearing on whether you agree or disagree with what I say?

Of course not. It might have some bearing on my views on the state of higher education, however.

Posted by: D.A. Ridgely | Apr 2, 2005 7:07:46 PM

Posted by: stick

Yeah, Dean Ridgley, but I tend to think say ETS, GREs, CBESTs, etc are better assessors of intellectual worth than either bloggers, legalists, or rhetoricians............

Posted by: stick | Apr 2, 2005 7:19:47 PM

Posted by: Achillea

... to put their kids in Psychic Research Schools ...

I suspect Psychic Research Schools would have some difficulty getting past the accreditation process.

lefty, as little relevant as it is, I'm also female.

Posted by: Achillea | Apr 2, 2005 10:26:12 PM

Posted by: Don Herzog

I deleted an unfortunate comment by stick. I don't like to do that, but we're trying to have a reasonably civil conversation here.

Posted by: Don Herzog | Apr 2, 2005 11:54:35 PM

Posted by: don roach

There's still a problem with Internet Explorer and this blog

In stick's analogy he ask's "A perjury charge could be pending on the sheriff who testified--but nothing happens to either the judge nor the DA??? "

Nothing should happen to the judge or DA. That's transferring culpability to the DA and/or judge when a trusted 'expert' gave false information.

Are you truly promoting this idea?

Let's throw out the DA for a second. How could a judge know that the sheriff was lying? Or are you saying that simply because the sheriff lied, the judge should be tried via association?

...also, I am a black male.

Posted by: don roach | Apr 3, 2005 6:50:33 AM

Posted by: stick

Yeah I am saying that. It's the judge's responsibility to make sure any statements or reports admitted as evidence actually be true or have high probability of being true (that's called cogency). Judges aren't currently bound by "truth" requirements, as far as I can tell. They decide what are the "facts," (or decide on what facts the jury sees, if jury is present) and many times they let errors into the record simply because they decide that something's "true"--(since it helps the case). And the DA is often involved in that as well: staging of evidence, character assassination, bogus reports from psychologists and probation goons. That happens in CA superior courts quite often. If the prosecutors or judges deliberately introduce a falsehood into the record they should be held criminally liable; if it's oversight or mistake, then that's negligence as well. Either way they should be held accountable just like management or educators or doctors are held accountable.

Posted by: stick | Apr 3, 2005 9:39:40 AM

Posted by: D.A. Ridgely

I suspect Psychic Research Schools would have some difficulty getting past the accreditation process.

And the legitimate ones would probably already 'know' that.

Posted by: D.A. Ridgely | Apr 3, 2005 9:50:25 AM

Posted by: stick

The point is what is the difference between Our Lady of Immaculate Reception High School and a "Psychic Research School" genius.

It's simply a matter of degrees

Posted by: stick | Apr 3, 2005 11:16:45 AM

Posted by: stick

That conservatives and academic libertarians are calling for the privatization of education is due to the "let them eat cake" factor: the public schools are in a dismal state--warrior academies as one person put it-- but neo-cons don't seem to care to improve them or make them functional or efficient--instead they cynically put forth the suggestion that the wealthy have their kids avoid the warrior academies by allowing them to buy a real education somewhere else.

Posted by: stick | Apr 4, 2005 3:46:59 PM

Posted by: Chief

In your hypo of the Sheriff lying, most would not hold the judge accountable if a witness lied. However, the DA is a different matter. First, an attorney is never going to ask a question s/he doesn't already know the answer to. Second, the DA has all the written reports, including the arresting officers report. It is called Prosecutorial Misconduct and appellate courts have overturned convictions for just that reason.

Posted by: Chief | Apr 6, 2005 10:10:46 AM

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