George WillPosted: 1 Sep 11
I touched on this op-ed from George Will before but I’d like to delve into it a little more deeply. For those who didn’t follow the link, he once posed several questions that he thought ought to be asked of Elena Kagan during her confirmation hearings. I have been mulling these questions off and on ever since and I’d like to take some time to present my own answers to Mr. Will’s questions:
- Regarding campaign finance “reforms”: If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem?
- If the problem is corruption, do we not already have abundant laws proscribing that?
- If the problem is the “appearance” of corruption, how do you square the First Amendment with Congress restricting speech to regulate how things “appear” to unspecified people?
- Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?
The problem is not exactly corruption in the classical definition, but the undue influence of a privileged class in a system that is supposed (at least in the present if not at the time of adoption) to be highly democratic. A good portion of the political reforms of the 19th and 20th Centuries were about removing barriers to entry into the public discourse. We can’t pragmatically remove the barriers to entry of buying television time or the attention of candidates, but we can level the playing field in the other direction by limiting the resources that can be put into public discourse. We should not undo the progress of our great-grandfathers in giving us a more democratic process than they had. With the NewsCorp/News of the World story we have graphic illustration of the power a near unlimited voice can wield in national politics. I’m all in favor of representative government, but I would much rather our representatives be chosen democratically than plutocratically or aristocratically.
With this answer his other three questions are moot, but I will say in answer to his third question, Yes. If I thought I had a better system, I would propose it. Right now, I’m stuck with Democracy as the worst possible form of government except for all the others.
- Some persons argue that our nation has a “living” Constitution; the court has spoken of “the evolving standards of decency that mark the progress of a maturing society.” But Justice Antonin Scalia, speaking against “changeability” and stressing “the whole antievolutionary purpose of a constitution,” says “its whole purpose is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that ‘evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature,’ as opposed to rot.” Is he wrong?
No, he’s not wrong. He’s right that the whole purpose of a constitution is to embed certain rights in such a manner that future generations cannot readily take them away. He’s right that evolving standards do not always mark progress and societies do not always mature. I’m okay with skepticism in this regard. The problem is that preventing change means that we cannot correct the mistakes of previous generations nor embed rights in ways that they apply to people that should have been included from the beginning. He fails to take into account that a society may start out rotten. It is evolving standards of decency that provide the difference between Plessy v.Ferguson and Brown v. Board of Education. The values of equality and justice did not evolve, nor did the ideals upon which we founded the country. What did evolve is our understanding of them and our willingness to apply them consistently. It is not so much that constitutions are anti-evolutionary, but, when properly applied, ought to guide evolution in a particular direction rather than allowing us to backslide.
- The Ninth Amendment says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The 14th Amendment says no state may abridge “the privileges or immunities” ofU.S. citizens. How should the court determine what are the “retained” rights and the “privileges or immunities”?
This is an excellent question and one I think ought to be asked to every judicial appointment. Personally, I put great weight on rights that protect me from oppression by an overreaching government, be that the national or a state government. No legislative body should be able to insert itself into my marriage bed (no pun intended, but the double entendre is an excellent metaphor for such governmental overreach). As long as constituted government has the ill-defined power to do whatever is “necessary and proper” to carry into execution their other powers, I demand an ill-defined grant of retained rights, privileges, and immunities to use against them when (not if) they overreach.
- The 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”) is, as former Delaware governor Pete du Pont has said, “to the Constitution what the Chicago Cubs are to the World Series: of only occasional appearance and little consequence.” Were the authors of the Bill of Rights silly to include this amendment?
I don’t think it is silly at all. One could just as well say the same thing about the Third Amendment, but I don’t see anyone clamoring for repeal. In the case of the Third, its very existence is enough to provide protection. Sometimes, it is important to state out loud what should be obvious because what is obvious to you and me isn’t always obvious to everyone else. And what is obvious in 1787, in a specific political context isn’t always obvious after two centuries of a wholly different political context, especially when you can’t depend on history and civics being taught well as we have currently (at least in Texas).
- Should decisions of foreign courts, or laws enacted by foreign legislatures, have any bearing onU.S. courts’ interpretations of the Constitution or federal laws (other than directly binding treaties)?
I think it is legitimate for decisions by foreign courts or laws enacted by foreign legislatures to provide context or good and bad examples that illustrate the current question. They, of course, have no authority in interpreting the Constitution or federal laws. British laws or court decisions from the Revolutionary Period of our history can certainly inform our understanding of the Framers intent.
- The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about “regulatory takings”? To confer a supposed benefit on the public, government often restricts how persons can use their property, sometimes substantially reducing the property’s value. But government offers no compensation because the property is not “taken.” But when much of a property’s value is taken away by government action, should owners be compensated?
I’d like to say yes, but that would open a Pandora’s Box of endless litigation on every regulation at every level of government (over the value of the “taking” if nothing else), a trend toward no regulation at all (leaving us and our environment open to abuse by private interests as we saw during the laissez faire policies of the 19th and 20th Centuries or in modern China), or ballooning debt as we pay asset owners for the restrictions we put on them. Most likely, in my mind, is that we’ll have to deal with some combination of all three. So pragmatically speaking, the answer kind of has to be no.
- In Bush v. Gore, which settled the 2000 election, seven justices ruled thatFlorida vote recounts that were being conducted in different jurisdictions under subjective and contradictory standards were incompatible with the Constitution’s guarantee of “equal protection of the laws.” Were they right?
I would say yes, but it’s certainly debatable. Even if they were right, I’m not sure stopping the recounts so that vote counts that had already been conducted under subjective and contradictory standards could be set in stone was a solution consistent with this argument.
- In Bush v. Gore, five justices held that Article II of the Constitution gives state legislatures plenary power to set the rules for presidential elections. TheFlorida legislature fashioned election rules to produce presidential electors immune from challenge by Congress. But the legislature said that immunity depended on electors being chosen by a certain date, which could not be met if further recounts were to ensue. The court held that allowing more recounts would have contravened the intent ofFlorida’s legislature. So the recounts were halted. Was the court’s majority correct?
It is not the place of the federal judiciary to determine how well a state action conforms to the intent of the state legislature. That would seem to me to be the purview of the state courts. Since the Constitution gives plenary power to set the rules for presidential electors, the federal courts should only get involved in questions of whether those rules conform to the restrictions placed upon them by the Constitution or other “federal questions.” I think it was incorrect for them to stop the recounts on these grounds if these are in fact the grounds they used. As we will see below, I’m not sure we can trust Will to accurately describe Supreme Court reasoning.
- Justice Thurgood Marshall, for whom you clerked, said: “You do what you think is right and let the law catch up.” Can you defend this approach to judging?
This is a “gotcha” question if I’ve ever heard one. I think the appropriate answer is “I’m a lawyer, it is my job to be able to defend any proposition that supports my clients’ interests.
- You have said: “There is no federal constitutional right to same-sex marriage.” But that depends on what the meaning of “is” is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?
I disagree strongly with Will’s characterization of Roe v. Wade. There is no federal constitutional right to abortion. The Roe court held that the abortion decision is covered, as are so many decisions that are none of the government’s damn business, by a federally protected right to privacy (which is the right that was found lurking in emanations of penumbras; while it is arguably valid to extend the language of Griswold v. CT to Roe, it is a little misleading). Personally, I don’t think it’s any of the government’s damn business who I choose to marry, either (or have sex with, for that matter). That said, just like with reproductive rights, there are some legitimate government interests that need to be balanced, for instance, protecting children from exploitation among others. But the government has no legitimate interest in specifying from which demographic categories I am allowed to choose a mate, whether those categories are based on race, ethnicity, gender, or veteran status, etc.
- Bonus question: In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution’s text would be different if the number of months in the gestation of a human infant were a prime number?
I hardly know where to start with the mistaken premises behind this question. I guess most glaring first. The court explicitly did not hold that the abortion right is different in each of the three trimesters of pregnancy. As is often the case, an individual right conflicts with a legitimate governmental concern, and unsurprisingly, how that conflict is resolved in any given case depends a lot on the particular circumstances. The court found guidelines for resolving that conflict with regard to the circumstance of fetal development. Another major mistaken premise: that the “trimester system” was based on some kind of mathematical formula dependent upon factorization. Does Will really think that if human gestation were seven months that the court wouldn’t have been able to find milestones to use to demarcate changes in the interplay of government and private interests? It’s statements like this and the previous question that makes me wonder if Will has even read Roe v. Wade.