March 18, 2005

constitutional rights: one

Don Herzog, Herzog: Constitutional Rights: March 18, 2005

Ah, the logistical nightmares of blogging.  I faxed a request over to Central Casting for a scruffy radical.  I needed him to help me dramatize some unhappily abstract but crucial points about constitutional rights.

I figured they'd send a Marxist, maybe with Gulag experience or some expertise with Semtex, surely needing a shave.  Imagine my baffled consternation when a tofu-eating, Birkenstock-wearing guy in tattered blue jeans and a tie-dyed t-shirt showed up.  "Hey!" he said jovially.  Hey, I responded rather more lackadaisically.  "Oh, I know," he said.  "Sorry, Marxists are in short supply these days.  They all get enlisted to masquerade as liberals on right-wing blogs.  It's hilarious, the nearsighted readers always fall for the pathetic disguise.  But I'm for real.  I'm a libertarian.  Yeah, sure, free markets are great.  Whatever.  But mostly I'm into legalizing drugs."  He flashed his NORML button and hinted that he didn't draw the line at soft drugs.

I brightened:  we were in business.  Readers, say hello to Lib.  Lib, say hi to our friendly readers.  Now, everyone, we're going to troop off to the public park and watch Lib scream about legalizing heroin.  There some state official is going to try to shut him up.  And your diligently pedantic blogger will stand by and explain to you what the law makes of the drama.

Skit the first:

Lib:  You ought to be able to buy heroin at the corner store!  Your kid, too!  The state tramples on your chemical liberties!
Cop:  Hey buddy, you can't say that here.  I don't like it.  Clear out.

The cop has just violated the first amendment.  The state may not shut Lib up because it disapproves of what he has to say.  He has not come close to what would count as criminal solicitation or advocacy; he is merely preaching an abstract doctrine.

Skit the second, in which Lib, who really can spout more diverse and entertaining slogans when he needs to, sticks to the tried and true:

Cop:  Hey buddy, you can't say that here.  I don't care myself, but [pointing to horrified social conservative parents and their kiddies by the play structure] those nice folks over there don't like it.

Our intrepid cop has once again violated the first amendment.  The state also may not shut Lib up because others disapprove of what he has to say.  The law calls this a heckler's veto and rejects it.  That's interesting, given our general commitments to having the state respond to what most of its citizens want.  But it's well (and properly) entrenched in the law.  Nothing will change, either, if the families take off in a huff.  That is the state can't justify shutting Lib up by saying he's making the park unusable — at least not if the reason they leave is that they dislike what he has to say.

Skit the third, Lib as before, but with megaphone:

Cop:  Hey buddy, clear out — you're too loud.  Township ordinance says no noises over 68 decibels in the park.  I don't care if it's you yammering about heroin or a boom-box playing music or a jackhammer.  Not in the park.

There could be a first amendment problem here.  If the state rammed through the ordinance in order to shut Lib up, they can't do it.  The law will be interested in sniffing out the possibility that the ordinance is a pretext masking that illegitimate motive.  But given how sensible the ordinance is, it will be hard to show that.  Similarly, there could be a problem if the state selectively enforced the no-noise ordinance:

Lib:  Judge, it isn't fair.  Every Thursday there's a rock concert in the park.  There's a guy who likes to do his metal working outside, and believe me some of that equipment is incredibly loud.  They don't get evicted; I do.  Come on!

In principle, Lib's appeal should win — if he could show that the reason he's treated differently is what he's saying.  But it is very hard to prevail on a showing of selective enforcement, because courts credit the other branches of government with acting in good faith, and accident or sensible discretion, not only opposition to his views, could explain the outcome Lib complains about.  In the usual case, though, the noise ordinance presents no first amendment problems at all.  In a clumsy category I could live without, the law blesses the ordinance as "content-neutral," which just means it isn't worried that the ordinance is "frankly aimed at the suppression of dangerous ideas," as the Court put it in 1950.

Skit the fourth, Lib developing repetition compulsion but still delivering his ardent plea for vending-machine heroin with gusto:

Cop:  Lib, moms, dads, kids, everyone:  out of the park!  Time for the monthly insecticide spraying.

No constitutional problem, unless the park department brought out the spray equipment to make Lib clear out, and the cop cleared everyone else out just to cover up the park department's pretext.  But if it's a regularly scheduled spraying, say, the law effortlessly approves it.  Sometimes the law in these settings worries about whether Lib has a reasonable alternative for getting out his message, but let that complication go.

Notice that Lib is silenced just as effectively in the third and fourth dialogues as he is in the first and second.  So — this is crucial — the first amendment isn't implicated by silencing as such.  Everything here depends on why the speaker is silenced.

Ladies and gentleman, a round of applause for my obliging assistant, Lib.  Lib, don't blush, it's okay.  Now let's join Lib as
yikes!  Nothing politically interesting has happened yet.  This is all preface.  And damned Lib has wandered off to get high — what does my contract with Central Casting provide?  Anyway, he's in no shape for any further dialogues.  When he's lucid again, I'll march him back onstage to do some more work.  Keep your fingers crossed that he doesn't get busted, will you?

March 22, 2005

constitutional rights: two

Don Herzog, Herzog: Constitutional Rights: March 22, 2005

Boy, do I owe Lib an apology.  I thought my grungy libertarian pal had gone slinking off to get high.  In fact, that damned cop busted him while I wasn't looking.  Why?  Because he was in the public park, touting the merits of vending-machine heroin.  I called the station house, and they said he's been released Lib!  You okay?

Lib [growling]:  Sure.  Just great.  I take a routine job at a blog run by some nerdy professors, and next thing I know the cops are threatening to throw me in jail.

Sorry, Lib.  But I need you to get back to work.  You're going to help me demonstrate that left and right both twist their approach to constitutional rights to get the policy outcomes they like.

Lib [sneering]:  Say it ain't so, Joe.

I'd like to, Lib.  In fact I'd like to see if you libertarians have a consistent view, too.

Lib [proudly]:  You bet we do!  We're consistent in our devotion to individual liberty!

We'll see.  But shall we begin?  Lib, do you remember what you learned last time?

Lib:  You bet.  Tussling with the cops is great for learning:  you ought to make your students do it.  Anyway, the state can silence me and blatantly violate my right to free speech.  Or they can silence me without even implicating that right.  Everything depends on how and why they silence me:  on what rule they use and what justifies their action.  I love temp work!  To hell with health insurance:  I am now an expert on the first amendment!

Don't hang out your shingle just yet, Lib.  But you're right about the basic contrast.  The state may not aim at your speech.  So the cop may not tell you to clear out because he doesn't like what you say.  But the state may shut you up if it's not aiming at your speech.  So the cop may clear everyone out for insecticide spraying.  (The curious can compare these two approaches the law takes to deciding when the state is aiming at speech.)

I'll repeat an older formulation from the Supreme Court:  the state may not adopt measures "frankly aimed at the suppression of dangerous ideas."  But now I'll add that it's not as though measures covertly aiming at suppression are okay, either.  As Justice Marshall declared long ago, the courts must not let the government get away with "pretext."

Lib:  So my right of free speech blocks state action justified in some ways, but is powerless and irrelevant against other state action.


Lib:  You think this picture of the constitutional right generalizes to other constitutional rights?

Yes, I do.  Usually settled legal doctrine does, too.  Now let's move to equal protection of the laws, guaranteed by the fourteenth amendment — and, thanks to the miracle of reverse incorporation, by the fifth amendment, too.  Lib, what happens if the law says blacks can't work as policemen?

Lib:  That's got to be unconstitutional.  Whether you think equal protection is about color-blindness or antisubordination, here the state is picking out a racial minority and disadvantaging them.  And it's hard to imagine any nonracist justification for doing that.

Good call.  We wouldn't even let the state say, "hey, we're not racist; we're just trying to provide effective policing to our racist white communities."  That's just like the heckler's veto we examined last time:  the state can't evict you from the park because other private parties condemn your speech.  But now suppose the law requires applicants for government jobs to take a written test, and four times as many black applicants to the police force as white applicants fail the test.  What then?

Lib:  Hmm, that sounds tougher.  Any evidence that the law's purpose is to keep blacks out?


Lib:  Well, then it looks okay to me.  I guess the legislature could change it, if they didn't like the result.  But I don't see how a court could find any violation of equal protection.

Me neither.  That's the rule (and the factual setting) of Washington v. Davis.  The law's "disparate impact" on blacks triggers an enquiry into illegitimate state purposes.  But if the state isn't acting pretextually, the disparate impact or burden on blacks, standing alone, gets nowhere in court.

Lots of people on the left hate this view.  They think it guts equal protection or turns it into mindless formalism.  Lots of people on the right adore this view.  The prospect of courts meddling with legitimate laws to adjust the outcomes makes them shudder.  As long as the rules are fair, they say, let the chips fall where they may.  On this one, I'm with the right.

Lib:  So free speech and equal protection work the same way.  They don't protect against burdens as such; they only stop the state from acting for illegitimate reasons.

Yup.  But now let's see what happens when we turn to free exercise and establishment.

Lib:  Forget it, Don.  Central Casting says I'm entitled to a work break just about now.  And your posts are too damned long anyway.

All too true.  Okay, Lib, try not to get arrested this time, 'kay?

Cop [belligerently, from stage right]:  Like hell.  Lib, back in the patrol car.  Looks like you're the guy who used his car key to scrape the paint off the door.

Lib [plaintively]:  Well, sure, but it was political speech!  I wrote, VENDING MACHINE HEROIN NOW!  VOTE LIBERTARIAN!

Cop [proudly]:  Save it for the judge, Lib.  I'm not busting you for what you said.  I'm busting you for defacing public property.

Lib [appealing to me]:  Can he do that?

Sigh.  Yes, Lib, he sure can.

Lib [frantically, fearing conviction]:  Herzog, you know nothing about the constitution and free speech!  I'm going to the ACLU!  They'll know a first amendment violation when they see one!

The ACLU might think this latest prosecution invades a constitutional right.  Judge Dimwit, sitting in trial court at Sleepy Backwater, just might join them, too.  But they'd be wrong.  I won't be held accountable for the lunacies and confusions of the ACLU, either.

March 25, 2005

constitutional rights: three

Don Herzog, Herzog: Constitutional Rights: March 25, 2005

Lib, kindly bring our occasional readers up to speed, will you?

Lib:  Don't trust a word this guy says!  He's crazy!  He hires me, he gets me arrested for defacing public property, he refuses to bail me out, he — [suddenly sedate] Um, Don, I see you brandishing my contract.  It's like magic.  Every bone in my staunchly libertarian body shudders in religious dread when I see a contract.

Yes, Lib, you and I have contracts with Central Casting and you're in violation.  Please review what we've learned so far about constitutional rights.

Lib [sullenly, dutifully, but obligingly warming to his task]:  Well, let's take your right of free speech.  Your first amendment right doesn't protect you against any and all ways the state burdens your speech.  The income tax doesn't raise first amendment issues, and it doesn't even if you can show that if you had thousands more dollars you'd start a political magazine.  But if the state shuts you up because they think your ideas are dangerous or repugnant, they've violated the first amendment.

Why thank you, Lib.  And then

Lib:  And then you said that left and right both twist their approaches to constitutional rights to get their favorite policy outcomes.  And you just about knocked me off my chair when you said that you agreed with the right about equal protection.  You said that the government doesn't violate equal protection if it uses an employment test that four times as many blacks as whites fail.

Not unless there was evidence they adopted the test in order to get that racially disparate outcome.  And Lib, you weren't sitting down.

But yes, the left wants more from equal protection than protection against state measures aimed at forbidden racial outcomes.  The left often wants courts to reach in and overrule laws that happen to disadvantage blacks, even if the laws don't do that on their face (as, say, "no blacks may work for the police" would), and even if there's no evidence the state adopted the "facially neutral" measure that turns out to disadvantage blacks for bad, pretextual reasons.  And I think that's wrong.

Lib:  Why Don you are the very paragon of independent thought.  Careful about toeing the party line, or David V. will ban you from this blog.

Sorry, Lib, you have no clue about David.  Or the blog.  So let's turn to free exercise.  Lib, since 1796 Tennessee's constitution has said this (Art. 9, sec. 1):

Whereas ministers of the Gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature.

And a statute extended the same provision to bar ministers from sitting in state constitutional conventions.  Think they can do that?

Lib:  No way.  The law is aimed at religion on its face and so violates the first amendment protection of free exercise of religion.  The law doesn't quite tell them they can't be ministers, but it singles out ministers to be deprived of political rights.  And I bet if we take seriously the language that it's to make sure ministers properly serve religion, the state can't do that either.  It's just as bad as religious tests for public office.

Quite right:  the Supreme Court thought this was an easy case.  Take another case.  Hialeah adopts a complicated series of provisions regulating the "slaughter" and "sacrifice" of animals.  They define "sacrifice" as "to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption."  And they say they're concerned about cruelty to animals.  May they do that?

Lib:  Ooh, that's trickier.  The language of "sacrifice" and "ritual" sounds like it's aimed at religion.  But maybe not.  What do we know?

The locals were horrified by the Church of Lukumi Babalu Aye and its observance of Santeria.  Most of the regulations looked tailor-made to prohibit the Church's practices of animal sacrifice.

Lib:  The jig is up.  (Dontcha love it when I say quaint stuff like that?)  Even if we grant that the ordinances weren't aimed at religion on their face, there's an illicit motivation here.  Strike that law down!

Relax, Lib, the Supreme Court already did.  One last case.  Oregon has a controlled substances act, which

Lib [eyes bulging, a blood vessel on his forehead pulsing]:  I hate controlled substances acts!

Thanks for sharing, Lib.  But their controlled substances act, merrily trampling on the chemical liberties of the good citizens of Oregon, includes peyote as a forbidden substance.

Lib:  Ooh, nasty stuff.  Ever try peyote, Don?  Hideously bitter.  Makes you nauseated.  Makes you puke, actually.  Makes me puke, anyway.

Thanks for sharing, Lib.  And Oregon also provides that if you're fired for misconduct, you don't get unemployment benefits.  So two Native Americans who used peyote in religious ceremonies got fired from their jobs working for a drug rehabilitation outfit, and then they got denied unemployment benefits.  Are they constitutionally entitled to the benefits?

Lib:  Well, it does sound kind of like the state has burdened their religious practice, though the private outfit fired them, not the state.  But the state thinks it has interests in controlling drug use and interests in not giving financial support to people fired for good cause.  The generality of those interests makes it hard to think they're aiming at religion.  But I do wonder why they put peyote on the list of controlled substances.  Maybe they're trying to bash Native American religious practices?

Nice question.  But suppose it doesn't look like it.

Lib:  Well if free exercise works the way free speech and equal protection do, Oregon may do this without violating any constitutional rights.

That's what Justice Scalia argued in his excellent majority opinion for the Court in this case, Employment Division v. Smith.  His general rule was that burdens, standing alone, don't implicate free exercise — and I don't suppose anyone will accuse Justice Scalia of not caring about religion.  He added some curious wrinkles about unemployment benefits and hybrid rights, but my guess is that he had to do that to get five votes.

Many on the right have reviled Justice Scalia's opinion.  It did roll back an earlier jurisprudence that purported to pay attention to burdens as such.  And it inspired Congress to pass the Restoration of Freedom of Religion Act under its sec. 5 powers under the fourteenth amendment; the Court then struck down that act.  That debate continues to rage but isn't centrally at issue here.

Lib:  But Don, couldn't the Oregon state legislature permit the religious use of peyote if it wanted to?

Absolutely, and Justice Scalia emphasized that, too.  Legislatures have lots of discretion to carve out exemptions for people with religious interests.  In fact, Oregon has since amended their criminal statute to grant an affirmative defense to those using peyote in religious practices:  see ORS § 475.992.  So too Congress, in a limited and undoubtedly constitutional response to Smith, granted the same exemption from federal drug laws:  see 42 USCS § 1996a.  But our question is, what may or must courts do once the legislature has made its call?  And Oregon's call was to forbid peyote for everyone, not just Native Americans.

Lib:  Well, if a court's not willing to say that peyote is on the list of forbidden substances because the legislature wants to bash Native American religions, then this isn't a free exercise problem.  At least not if free exercise works the same way free speech and equal protection do.

I think they all work the same way.  But left and right pick and choose.  The left worries about laws that happen to burden racial minorities, and tends not to worry about laws that happen to burden religious practice.  The right doesn't worry about laws that happen to burden racial minorities, but does worry about laws that happen to burden religious practices.  It's hard to resist the sneaking suspicion that left and right are cooking their legal approaches to get the kinds of policy outcomes they favor.  And I think that's cheating.

Next up:  establishment clause worries, further ideological gyrations, and some arguments on why the law should take this general approach.  Lib, thanks, you're a saint.

Lib:  Actually, Don, I'm a raving atheist.

March 29, 2005

constitutional rights: four

Don Herzog, Herzog: Constitutional Rights: March 29, 2005

Lib, ready to help me work through the establishment clause?  Don't cringe; you've been helpful so far.

Lib [sullenly]:  Don, everyone knows what you liberals think.  Your Bible, the ACLU's mission statement, calls for "the strict separation of church and state."

Lib, I already told you I won't be held accountable for the lunacies and confusions of the ACLU.  If everyone "knows" that, everyone will have to be at least mildly surprised.  I'm going to say that "separation of church and state" is equivocal.  And on the ACLU's interpretation it's a crummy idea.  It's all a matter of whether a law happens to benefit religion, or whether that's its justification.

Let's begin with the modern case that made "separation" (in)famous. New Jersey had a statute enabling school boards to pick up the bus fares for children going to public or nonprofit private schools.  One board picked up fares for children going to public or Catholic parochial schools.  Justice Black, writing for the majority, upheld the measure.  His stirring conclusion, echoing one of Jefferson's letters:

The First Amendment has erected a wall between church and state.  That wall must be kept high and impregnable.  We could not approve the slightest breach.  New Jersey has not breached it here.

Black danced around a crucial point, but Justice Rutledge, dissenting, hauled out the language of the board's resolution:

The school board of Ewing Township has provided by resolution for "the transportation of pupils of Ewing to the Trenton and Pennington High Schools and Catholic Schools by way of public carrier...."

Lib:  Ouch.  I'd think the state may not do that.  It singles out Catholic schools by name for support.

I'd agree.  But maybe Catholic parochial schools were the only nonprofit private schools in the district; the opinion doesn't say, and I've been unable to find out.

Lib [baffled]:  Suppose they were.  You mean it would be okay for the board to support them as nonprofit private schools, but not as Catholic schools?

Sure — unless it could be shown that their support for nonprofit private schools was a pretextual way of shoveling money to church schools or Catholic families.  Now let's take another case.  The University of Virginia had a Student Activities Fund that defrayed costs for various campus publications.  One such publication was Wide Awake:  A Christian Perspective at the University of Virginia.  The magazine was frankly proselytizing, with plenty of language like this:

When you get to the final gate, the Lord will be handing out boarding passes, and He will examine your ticket.  If, in your lifetime, you did not request a seat on His Friendly Skies Flyer by trusting Him and asking Him to be your pilot, then you will not be on His list of reserved seats (and the Lord will know you not).  You will not be able to buy a ticket then; no amount of money or desire will do the trick.  You will be met by your chosen pilot and flown straight to Hell on an express jet (without air conditioning or toilets, of course).

Lib [derisively]:  Perdition on these student writers.  So let me get this straight.  A public university funds a religious publication.  That's got to violate the establishment clause, right?

Too fast, Lib.  The University denied the magazine funding, on the grounds that giving them the money would violate the establishment clause.  But that was wrong.  Or so said a majority of the Court, and I agree.  They noticed that the check wouldn't have gone straight to the religious group; it would have gone to their printer.  The law does get tied in knots sometimes over who-gets-the-check rules, but that's silly.  If the magazine gets the money not because it's Christian, but because it's a student publication, I see no reason to worry about the establishment clause.

Lib:  Fee, fi, fo, fum:  I smell the whiff of faith-based groups getting public funding.

Yup:  after this case came down, both Gore and Bush embraced including such groups.  Not because they were religious, but because they too provide social services the law has an interest in promoting.

Lib:  Methinks the old schnoz doth detect school vouchers, too.

The Court upheld Cleveland's voucher program, which included religious schools.  The majority opinion was by Justice Rehnquist, and you'll forgive me for saying that it wasn't lucidly reasoned.  But it did emphasize that the religious schools were funded as schools, not as religious groups, and there's no reason to doubt that Cleveland sought to remedy the drastically bad educational plight of their students.  The dissenters complained that the voucher's amount made it most suitable for Catholic parochial schools, but I think only the paranoid would spy a plot to prop up Catholicism.

Should legislatures have discretion over whether to extend vouchers to parochial schools?  To my considerable surprise, in another blurry majority opinion by Justice Rehnquist, the Court permitted Washington state to lop the study of devotional theology out of the coverage of a postsecondary education scholarship.  But the University of Virginia had no discretion to exclude Wide Awake.

There are knotty issues here.  But they don't threaten the general point:  if the state has a generally applicable funding program justified with secular reasons and money happens to go to religion, that doesn't implicate the establishment clause.  James Madison, more temperate than his buddy Jefferson but every bit as fiercely opposed to establishment, demanded,

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

But everything depends on how and why the taxpayer's three pence winds its way to religion.  If "separation of church and state" means a blanket ban on public funds going to religious groups, count me a vigorous opponent of "separation."

Lib:  Don, I hope you're not a card-carrying member of the ACLU.

No, I'm not.  I'm very high on civil liberties, but I disdain their picture of what that means.  Anyway, the fire department should put out fires at churches, too:  imagine if they pulled up and the chief said, "men, let this building burn to the ground; we can't put public funds to work here."  The church gets fire protection as a building, not as a church.  But if "separation" means the state can't support religious groups because they're religious, I quite agree.

Once again, left and right tailor and twist their approaches to constitutional rights to secure the policy outcomes they like.  The religious right thinks free exercise protects against burdens as such, but doesn't think establishment bars benefits as such.  The secular left doesn't think free exercise protects against burdens as such, but does think establishment bars benefits as such.  I can't see any good reason to take such competing approaches to the two religion clauses of the first amendment.

The establishment clause raises plenty of other issues besides public funding.  These days the doctrine is centrally concerned with state actions that express endorsement of religion.  But Lib, we'd better close up shop now.  There's a church group assembling by city hall.  They want you banned from the park:  they've heard you're an atheist who supports vending-machine heroin.

Lib:  They can't get away with that, can they, Don?

Nope.  But they're certainly allowed to make their case in public, and no one should think we can shut them down because they're religious.  I'll support their right to promote their views as vigorously as I support yours.

Lib [dourly]:  Some friend you are.

Well, Lib, you and I both champion individual liberty.  But if you think that means courts should interpret free speech, equal protection, free exercise, and establishment to be specially sensitive whenever the state happens to burden that liberty, you've got a view no better than the more familiar left and right views I'm assailing.

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.

February 15, 2006

color blind?

Don Herzog, Herzog: Constitutional Rights: February 15, 2006

"Our constitution is color-blind, and neither knows nor tolerates classes among citizens."  So Justice Harlan wrote in his stirring dissent in Plessy v. Ferguson.  Harlan added that the Reconstruction amendments "removed the race line from our governmental systems."  That stirring language has been the mantra of those opposed to affirmative action.

There's other language in Harlan's dissent that suggests he worried not about any and all race-conscious legislation, but about legislation subordinating blacks.  So for instance he referred to state laws "conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race."  And so today's patrons of affirmative action too can claim Harlan as their own.

I've been thinking about these matters again because of the Michigan Civil Rights Initiative, on the ballot for this coming November after ridiculous skirmishing about the legality of the language and the petition signatures.  (Here is the key court opinion.)  The Initiative would ban the University of Michigan from using "race, sex, color, ethnicity, or national origin" (so, amusingly, not sexual orientation) in admissions.  Since I'm a reluctant but firm supporter of affirmative action, I'm opposed.

Obviously, color-blindness has its appeal.  And it's not (quite) enough to say that in a more just society, it would be the right way to go, because it has its appeal for us, here, now.  Still, I think it's a bludgeon of sorts where we need scalpels.  So I want to step back a moment and consider the recent race riots in a jail outside Los Angeles.  In response, authorities are segregating prisoners by race.  Not a moment too soon.  So how awful is it for the state to do that?  How important a justification do they need?

Last year, the Supreme Court ruled that California's "unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility" properly triggered strict scrutiny.  That's the most demanding level of judicial scrutiny in constitutional law, and the old quip has it that it's strict in theory and fatal in fact, though some exceptions suggest the scrutiny isn't always all that strict anyway.  The Court didn't decide whether California could meet that scrutiny.  Instead they remanded the case to the Ninth Circuit to decide.  The Circuit hasn't yet ruled.

I don't doubt that once there are race riots, the state can meet the burden of strict scrutiny.  But I wonder whether that's the right burden.  You can imagine facts on which California's "unwritten policy" would stamp blacks with a badge of inferiority, but that doesn't seem to be the actual case.  So that policy isn't color-blind, but it isn't subordinating either.  Is it properly a constitutional problem, a putative violation of the equal protection clause?  I don't think so.  That doesn't mean you'd have to be crazy to worry about it.  But the relevant worries look to me like garden-variety policy worries, of the sort that legislatures and agencies sort out all the time.

Or try this:  does it violate the Constitution when the police search for a criminal suspect described as "a young black male, around 5' 10" and 170 pounds"?  Or for "a young white male, around 5' 10" and 170 pounds"?  Check your intuition:  if you're really devoted to color-blindness, you should think those two search descriptions are equally offensive.  Does the government have to defend these routine police procedures by demonstrating they are narrowly tailored to realize a compelling state interest, the magic wand required to survive strict scrutiny?  Do you think the Constitution requires that the police search for "a young male, around 5' 10" and 170 pounds"?  Isn't the government bumbling enough already?

There may be domains in which color-blindness is a constitutional requirement.  Or domains in which color-blindness is the right policy, even if it isn't constitutionally required.  (The champions of MCRI lost the constitutional battle, after all.)  And, for all I've said here, state university admissions policies may be one such domain.  But I think the demand for color-blindness across the board, come what may, is a suffocating abstraction.  We can do better.