This week I learned that the folks over at Rasmussen have conducted yet another embarrassingly-misleading poll, "gauging" the American populace's opinion of the Supreme Court. The poll, conducted late last month, asked 1,000 likely voters a familiar question:
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
The problem with this question, of course, is its false assumption that a judicial decision based on a proper interpretation of the Constitution would, by definition, not be fair or just. I can only assume that in order to come up with a question like this, the folks at Rasmussen must not have read much constitutional text, or history, which in fact make clear that the Constitution - including its 200 years of amendments - is itself largely based on a sense of fairness and justice.
Not surprisingly, a whopping 70% of respondents chose "what's written in the Constitution," while a mere 25% selected "a sense of fairness and justice." (We're declaring the 6% who went with "Not sure" the winners here.) Also unsurprisingly, our friends at NRO's Bench Memosseized these figures as evidence of widespread rejection of President Obama's call for judges with empathy.
Setting aside, however, the problem with how this poll was constructed, I have a different take on what these figures could mean. Interestingly, the difference between responses on this issue is becoming more pronounced. Back January, when Rasmussen conducted the same poll, only 64% of respondents chose "what's written in the Constitution" (27% chose "a sense of fairness and justice"), and when it conducted the poll in June 2008, only 54% of respondents chose "what's written in the Constitution." (37% selected "a judge's concept of fairness and justice.") I think this steady increase in the percentage of respondents selecting "what's written in the Constitution" is due not to a stealthy success of conservative talking points about "activist" or "empathetic" liberal judges, but to a growing recognition by voters everywhere that the text and history of the Constitution uphold the progressive legal outcomes they prefer. Perhaps a high-profile Supreme Court confirmation this past summer - featuring a judge who pledged allegiance to the "immutable" words of the Constitution - helped contribute to the latest results. Or perhaps Americans across the political spectrum are discovering that the text and the history of the Constitution embody a sense of fairness and justice, illustrated, for example, in the document's guarantees of due process, equal protection, and fundamental individual liberties for "We the People."
If Rasmussen had elected to word its poll more carefully - and had not given respondents choices that presume, erroneously, that following the Constitution and following a sense of fairness and justice are somehow mutually exclusive - then it might have found stronger evidence of this trend. Instead, we are left once again with a lousy poll; one with little substantive meaning and that is based on a profound lack of understanding of the text, history, and principles of our Constitution.
Originally posted at Text & History. Hannah McCrea is proud to work for the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
This month, the U.S. Supreme Court is threatening to strike down key provisions of the 2002 "McCain-Feingold" bipartisan campaign finance reform act, overruling two of its prior rulings in the process and uprooting a century-old principle - existent in American law since Teddy Roosevelt's Administration - that corporations should be barred from making unlimited expenditures in elections.
Wait, what? What did I just say? Corporations might soon be able to make unlimited expenditures in elections? Can they do that?
The answer is yes, if the Supreme Court says they can. And if you didn't know that already, you should certainly keep reading.
The case I'm referring to, of course, is Citizens United v. Federal Election Commission, which is being argued before the Court, for the second time, tomorrow morning. The reason the Court is hearing this case again is because in June, the Court ordered that the scope of the case be dramatically expanded following its first oral argument in March. At that time, Citizens United, a conservative non-profit corporation, was focused upon the FEC's decision to treat "Hillary: The Movie" - its feature-length film criticizing Hillary Clinton during last year's Democratic primaries - as a standard attack ad for the purposes of campaign spending regulations. Citizens United, which is subject to campaign regulation because it accepts money from businesses, argued that the film did not constitute an "electioneering communication" as defined by federal law. Not surprisingly, the FEC disagreed.
However, once the Court decided to hear the case, Citizens United - represented by Bush Solicitor General Ted Olsen -- began to push for massive changes in settled campaign finance law, arguing that corporations' "speech" (i.e., their expenditures) in elections was entitled to just as much protection under the First Amendment as speech by individuals. This argument has been raised many times by conservatives and business leaders throughout the years, and rejected repeatedly by the Court. (While current federal law allows business corporations to form political action committees, or PACs, with money collected from individuals associated with the corporation, it clearly prohibits them from using money from their general treasuries -- where all their profits sit - to influence elections.) Nevertheless, to the horror of the members of Congress and progressive groups who worked so hard to pass campaign finance reform, the conservative justices on the Roberts Court seemed amenable to the argument that restrictions on corporate spending on elections were unconstitutional. Rather than deciding the case last June, the Court asked the parties to supply supplemental briefing on the constitutional question, scheduling a special September session to re-hear argument.
What the Court threatens to do now is remove these restrictions, and say that corporations can funnel unlimited amounts of money from their corporate treasuries into elections. Citizens United argues that because individuals can spend unlimited amounts of money to influence elections, corporations should be able to do so as well, in essence asserting that there is no difference between corporations and individuals when it comes to spending money on elections.
That this is an absurd assertion should be obvious to everyone, but especially to progressives, who have been fighting corporate "voices" for generations. If the Court accepts this argument, it will be undoing over 100 years of progress in campaign finance rules, starting with the Tillman Act of 1907, which established that corporations are distinct from individuals and must not be able to spend their profits in elections. This distinction builds on the text of our Constitution, which never mentions corporations, and on two hundred years of Supreme Court rulings that treat corporations and individuals differently. Abolishing this distinction will release the floodgates of corporate money - in quantities that are orders of magnitude greater than what is spent now - into federal and state elections. It will, in one fell swoop, undo decades of hard work by progressives who have fought to adopt strong campaign finance and disclosure laws. And perhaps most urgently, such a ruling stands to undo the benefits of the months of exhausting work done by millions of progressives to elect Barack Obama and progressive leaders in Congress, undermining or placing out of reach nearly every outcome on the progressive agenda, from health care reform, to clean energy, Net neutrality, consumer protection, civil rights, and more.
Think for a second about how you would have reacted to a proposal sponsored by the Bush Administration in 2003 to repeal a century's worth of campaign finance laws that limit the ability of corporations to influence elections. Constructively engaging and pushing back against the conservative activism of the Roberts Court is trickier, but no less important. At the very least, we should all be expressing our outrage. The justices on the Supreme Court do keep an ear toward public opinion, and it is too often because progressives at large are silent about the issues and cases that come before them that they're able to quietly, though tragically, chip away at our work. We owe it to ourselves not to let that happen here. We need to make noise about this case, and we need to do it now.
Hannah McCrea is proud to work for the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.
(Combating the conservative hegemony in the legal field should be a top priority, because conservatives have been fighting with limited opposition for far too long. Above all, we need to raise awareness of conservative's OWN judicial activism, hidden behind a wall of generally meaningless rhetoric attacking liberals. This diary does an excellent job of focusing on an eggregious threat posed by such activism. - promoted by Paul Rosenberg)
On Tuesday, Senate Judiciary Committee Chair Sen. Patrick Leahy (D-VT) delivered a speech at the University of the District of Columbia's David A. Clarke School of Law, during which he discussed the Supreme Court and the nomination of Judge Sonia Sotomayor to replace retiring Justice David Souter.
During his speech, Sen. Leahy highlighted the Court's imminent decision in Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO), expected to be the Court's most significant ruling of the Term and, as Senator Leahy called it, "one of its most important decisions in years." The plaintiff is this case, a utility district in Texas, has challenged the constitutionality of the reauthorization by Congress of a key provision of the Voting Rights Act of 1965 -- the "preclearance" provision. Given questions posed by a number of the conservative Justices during April's oral argument, it is widely expected that the Court will rule that Congress exceeded its constitutional authority in 2006 when it voted overwhelmingly (98-0 in the Senate) to reauthorize the preclearance provision. That action was taken by Congress, as Sen. Leahy stated yesterday, based on extensive hearings and written testimony indicating the provision still played an important role in preventing racial discrimination in voting.
In his nationally-televised, keynote speech to the CPAC conference last night, Rush Limbaugh pulled the standard conservative trick of claiming the Constitution and the Declaration of Independence as a conservative birthright, under assault from progressives:
We [conservatives] love and revere our founding documents, the Constitution and the Declaration of Independence. We believe that the preamble to the Constitution contains an inarguable truth that we are all endowed by our creator with certain inalienable rights, among them life, Liberty, Freedom. And the pursuit of happiness. Those of you watching at home may wonder why this is being applauded. We conservatives think all three are under assault.
Limbaugh may love and revere these documents, but he clearly hasn't read them recently. Limbaugh says he's quoting the Constitution's majestic Preamble, but it says nothing close to what Limbaugh asserts. Here's its text in its entirety:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Limbaugh appears instead to be referring to the most famous line of the Declaration of Independence, but he's butchering that too. Here's that line in its entirety:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Rush adds in a fourth inalienable right to Jefferson's list - freedom - and he edits out Jefferson's grandest ideal, equality. No wonder Limbaugh likes the founding documents so much: he's edited them to his liking.
There is a serious point here, which is that conservatives often distort our Constitution and other founding documents and act as if the Founding Fathers strangely presaged the present-day Republican platform. The errors are not usually as obvious and ridiculous as Limbaugh's, but they are there nonetheless. As we've explained in more detail elsewhere, progressives need to spend far more time calling conservatives on their false and distorted claims about the meaning of our founding documents and start making more claims of our own.
(Here's the logic coming at us that Hannah is warning about: Because Democrats didn't rubber stamp ALL of Bush's judicial nominees, Republicans are justified in filibustering ALL of Obama's nominees. But knowing that logic is just the beginning of being prepared to fight it. - promoted by Paul Rosenberg)
Conservatives have spent much of the last eight years viciously attacking progressive Senators for mounting mostly unsuccessful filibusters against a handful of the most problematic Bush nominees to the federal bench. That was then, this is now.
In a turnabout startling event in the topsy-turvy world of judicial nomination politics, prominent conservatives have already started to threaten filibusters against President Obama's judicial nominees before Obama has nominated a single judge. In Boston recently, former Whitewater prosecutor and Bush I Solicitor General Ken Starr quoted Senate Republican sources for the proposition that a filibuster (denial of an up-or-down vote) is appropriate treatment for Obama nominees because Obama joined in attempted Senate filibusters of Bush nominees. Specifically, Starr noted that Senate Republicans have said that Obama's "voting record and long simmering resentments over Democrats' treatment of President Bush's nominees will leave Mr. Obama hard-pressed to call for bipartisan help confirming judges or even an up-or-down vote."
Never mind the fact that the Supreme Court nominee Obama attempted to help filibuster (Samuel Alito) had a disturbing record and was confirmed anyway, and that Senate Republicans during the Bush Administration criticized the use of filibusters and threatened to change the rules of the Senate to prevent them. Never mind, also, that the constitutional role of the Senate is to provide "advice and consent" -- and not "categorically reject" - the president's judicial nominees, something that President Obama certainly understands as both a former constitutional law professor and a former U.S. Senator who refused to join several filibuster attempts and voted to confirm the vast majority of Bush's nominees.
(An excellent diary about constitutional law and stupid hegemony tricks. - promoted by Paul Rosenberg)
This week, Matthew Franck, writing at Bench Memos (the legal blog of the National Review) put a predictable conservative spin on results from a recent Rasmussen poll, which asked 1,000 adults the following question:
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
Reveling in the indication that "nearly two-thirds of Americans say the sensible thing" (i.e. 64% of respondents chose "what's written in the Constitution"), Franck nevertheless decries the fact that "more than a quarter of respondents, [27%,] have so little understanding of what the Court's job is that they think 'a sense of fairness and justice' should guide the judges." He also points out that 35% of respondents thought President Obama wants the Supreme Court to follow what's written in the Constitution, 38% thought he wants the Court to be guided by "a sense of fairness and justice," and 27% weren't sure what he wants, to which Franck concludes:
[A] lot of Americans appear to distrust or suspect the president where the Court and the Constitution are concerned-and rightly so, I'd say.
There are quite a few things wrong with Franck's post (the comment about "waterboarding" liberal law professors comes to mind) but the first and foremost is the Rasmussen poll itself.
While most Americans tend to think of the Supreme Court as the final arbiter of what the law is, in fact, under our constitutional system of separation of powers and checks and balances, there are circumstances in which Congress and the President can act to overturn a Supreme Court ruling.
They are expected to do just that today when President Obama signs into law the Lilly Ledbetter Fair Pay Act of 2009. This new law effectively overturns the Supreme Court's infamous 2007 ruling against Ms. Ledbetter in Ledbetter v. Goodyear Tire & Rubber Co., a ruling that made it much harder for workers who have been victims of unlawful pay discrimination to obtain compensation for that discrimination.
At issue in the Ledbetter case was the proper interpretation of certain provisions of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, race, and similarly irrelevant factors, and which generally gives employees only 180 days to file a complaint if they believe they have been discriminated against.Unbeknownst to Ms. Ledbetter, for much of her long career at Goodyear she had been paid less than male colleagues doing the same work, all because of sex-based discriminatory compensation decisions.After she learned about the discrimination from an anonymous tip, Ms. Ledbetter sued, and a jury ruled in her favor, awarding her several million dollars.
But the Supreme Court, in a sharply divided and much-criticized 5-4 ruling, took that verdict away, holding that Ms. Ledbetter had sued too late.The Court's opinion, written by Justice Alito, rejected the longstanding notion that each discriminatory paycheck given to Ms. Ledbetter by Goodyear started the time to sue running again, and held that Ms. Ledbetter should have sued when the discriminatory compensation decisions were first made.In a harsh dissent, Justice Ginsburg pointed out that in many workplaces, employees have no idea what their co-workers are earning, and it may only be over time that a worker learns she has been the victim of unlawful pay discrimination.
Because the Court's ruling concerned the interpretation of a law passed by Congress, Congress had the power to pass a new law essentially correcting the Court's misinterpretation of the original statute and effectively overturning the decision.Shortly after the ruling in Ledbetter, legislation was introduced to do just that, but it did not get through Congress, and President Bush promised to veto it even if it did.Then-presidential candidate Barack Obama, on the other hand, pledged that if elected, enactment of the Fair Pay Act would be a priority of his Administration.
Today, with the help of the new Congress, which quickly passed the Fair Pay Act this month, President Obama is scheduled to make good on that pledge.With Lilly Ledbetter looking on, President Obama will sign into the law the legislation named in her honor, which clarifies that an unlawful discriminatory act takes place each time a worker is paid based on a discriminatory compensation decision.
While Americans should be heartened by this example of checks and balances at work, it is still important to remember that Congress does not always have the power to correct the Court by legislation (for example, when a ruling is based on the Constitution).Moreover, as the Ledbetter example shows, the reality of Washington, D.C. is that Congress and/or the President may have no desire or political will to correct the Court even when the power to do so exists.
For these reasons, among many others, the Supreme Court remains a powerful branch of our government, vital to protecting the constitutional and statutory rights and interests of all Americans. And Americans, therefore, must continue to care about who is nominated by the President, and confirmed by the Senate, to fill vacancies on the High Court.
(I've got more writing malaise than Matt & David combined. But I know how to promote a GREAT diary when I see one! - promoted by Paul Rosenberg)
With rancor over the Constitution and the future of the Supreme Court already at dangerously high levels, it's important to at least fairly characterize the candidates' positions when it comes to the Court. Today the Drudge Report failed this test spectacularly, with its blaring headline:
The headline (along with those plastered throughout the conservative blogosphere this morning) refers to the recently-unearthed interview Barack Obama gave a Chicago public radio station in 2001, in which he discussed the Supreme Court and the civil rights movement. In the interview Obama states:
This morning, the LA Times editorial board addressed an ongoing legal debate over the historic Supreme Court ruling that struck down parts of the D.C. handgun ban.
Yesterday, the NY Timeshighlighted the fact that two conservative federal judges, Richard Posner and J. Harvie Wilkinson III, have recently and strongly criticized Justice Antonin Scalia's majority opinion in District of Columbia v. Heller for being overly "activist" - a bitter insult to the proudly conservative Justice Scalia. Posner and Wilkinson have thus caused a stir among legal scholars by accusing the Heller Court of doing exactly what conservatives (such as Justice Scalia) accuse liberal justices of having done in Roe v. Wade - using "an ambiguous text to impose its policy preference on the nation, at great cost to the democratic process and to local values."
Though the LA Times does not here take a stance on whether Heller was a good or bad ruling, it does with alarming ease dismiss the contention that activism in judging is a bad thing:
[Posner and Wilkinson's] conclusion is pretty much guaranteed to infuriate Scalia, and that's welcome by itself. What's more enlightening about these critiques, however, is that they demonstrate that there are no real originalists, only activists of different stripes. And that's OK. It is essential to recognize that one original intent of the Constitution's framers was to create an elastic document, adjustable for the ages. So the task for the court is not to determine whether the framers kept rifles under their beds but whether owning a gun today serves the social function the Constitution created for it, namely, the preservation of militias.
The authors of the piece go on to note that the traditional conservative accusation that Miranda v. Arizona was an activist ruling is not only correct, but pretty much a good thing. By implication, then, the Times seems to be arguing that activist judging is quite alright, especially since both sides are now doing it.
This is a dangerous game to play, and one that does a huge disservice to all Americans, most notably the progressive community.
For years liberals have endured relentless attacks for having an activist approach to judging, but this is a label that needs to be shed. To call the Constitution an "elastic document," or to encourage justices to let value judgments and modern day politics guide their decisions is a failing proposition for all Americans, but especially for progressives, whose values are in fact best upheld by the text, history, and principles of the document itself. These constitutional sources must be what control Supreme Court decisions in order to protect the integrity of the progressive legal movement, as well as the legal process as a whole. As we've noted in the past, any criticism of Heller should be focused less on the outcome and more on the arguments made in the majority and two dissenting opinions, none of which did that great of a job parsing text and history relevant to the question of whether the Constitution protects an individual right to possess handguns.
Contrary to the LA Times' editorial activist judging is not a thing to be proud of. Conservatives and progressives alike should strive to uphold the text and history of the Constitution - and acknowledge that neither archaic obsession with 18th century intent nor adventuresome departures into modern day politics should have a place in the rulings of the high court.
Chief Justice John Roberts is enjoying a ton of favorable publicity today for his channeling of Raymond Chandler in the first two paragraphs of a dissent yesterday from a Supreme Court decision not to review a ruling by the Pennsylvania Supreme Court in Pennsylvania v. Dunlap:
North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighborhood.
Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.
While we've long been fans of the Chief's writing flair, Roberts' opinion is entirely predictable. He's a law and order conservative who wants the courts to get out of the business of second-guessing the decisions made by police officers. Roberts argues that the police have "probable cause" under the Fourth Amendment to make an arrest whenever they see a "hand-to-hand" transaction in a high-crime area and asserts that "the Pennsylvania Supreme Court's decision will make it more difficult for the police to conduct drug interdiction in high-crime areas, unless they employ the riskier practice of having undercover officers actually make a purchase or sale of drugs."
Like in his Sprint v. APCC Services opinion last term, where Roberts cited Bob Dylan in support of a strained argument for limiting access to courts, Roberts is using rhetorical flourish to make the conservative goals of limiting constitutional protections and court access seem "cool." Count us as unmoved.
Cross-posted at Text & History.
Last week President Bush was in Cincinnati delivering a speech that touted his judicial legacy:
Our Founders gave the judicial branch enormous power. It's the only branch of government whose officers are unelected. That means judges on the federal bench must exercise their power prudently, cautiously, or some might even say, conservatively. (Laughter.)...
A lot has happened since 2000. Yet I can still remember the heated debate over the kinds of judges Presidents should appoint. One group said that judges ought to look at the Constitution as "a document that grows with our country and our history." This concept of a "living Constitution" gives unelected judges wide latitude in creating new laws and policies without accountability to the people...
I made a promise to the American people during the campaign that...we would seek judges who would faithfully interpret the Constitution -- and not use the courts to invent laws or dictate social policy.
Bush's remarks elicited this response from Senator Patrick Leahy (D-VT), who is Chairman of the Senate Judiciary Committee:
During the Bush-Cheney administration, the Supreme Court has been siding with big corporations at the expense of workers, consumers, injured Americans and investors. Recent decisions by the Supreme Court, like Ledbetter, Exxon, and Riegel have left countless Americans without redress for corporate misconduct. Justices Scalia and Thomas, along with the Bush appointees, have been on the wrong side of these decisions.
Of course, Senator Leahy is spot on in noting that in recent years, Bush model justices (Antonin Scalia and Clarence Thomas) and his appointees to the Court (John Roberts and Samuel Alito) have combined together in issuing a significant number of pro-corporate rulings that have hit hard on the pocket books of middle-class America.
But Leahy could have gone one step further in noting, that not only have these justices been on the "wrong side" of many crucial decisions, they have frequently failed to faithfully uphold the Constitution's text and history.
Despite President Bush's claims that his model justices and appointees possess "an abiding belief in the sanctity of our Constitution," these justices have, in practice, frequently departed from the text and history of the Constitution in recent terms. For example, just months ago in Exxon Shipping Co. v. Baker, Chief Justice Roberts joined by Justices Thomas and Scalia (Justice Alito was recused) formed the core of 5-3 majority opinion in voting against the environment, against the victims of the Exxon Valdez oil spill, against an earlier citizen jury's decision, and against the will of Congress in favor of a huge and demonstrably-irresponsible corporation, despite sound Constitutional arguments against the Court's ruling. As explained here, these judges were also on the wrong side of the Constitution's text, history, and principles in their ruling on detainees' rights in Boumediene v. Bush, and on various rulings pertaining to access to courts (as with Massachussets v. EPA and Sprint Communications Co. v. APCC Services). Too often, Bush judges have practiced "faux originalism" and "faux judicial restraint."
All of this highlights that President Bush's lip service to "faithful interpretation" is largely empty, and that his criticism of "activist judges" is markedly hypocritical. As the new Supreme Court term kicks off and we have another opportunity to evaluate whether Bush's model judges and appointees to the bench will actually uphold the Constitution's text and history in several key cases, progressives everywhere should be asking themselves "who really, are the activist judges on the Court?"
Conservatives have learned how to talk about judicial nominations and the future of the Supreme Court in ways that rally the base while not alienating the political center, and progressives haven't mastered this trick.
This was shown most recently in polling that pitted John McCain's message about appointing strict constructionists with Barack Obama's assertion that judges should share the nominees deepest values and core concerns." Sixty-nine percent of those polled by Rasmussen on this question agreed with McCain's position, only forty-one percent agreed with Obama's.
Polling like this has convinced progressive candidates in this and in past election seasons that talking about their vision for the Supreme Court is a losing proposition. Of course this issue is critical, with justices serving for life, deciding questions of critical importance for all Americans, and all the Court's more liberal members past (in some cases decades past) normal retirement age. Certainly, some in the progressive base care deeply about this issue. But because the progressive position on the Court doesn't poll well, particularly in the purple states that decide national elections, the less said about the topic the better.
This prevailing wisdom is wrong. It's not that Americans are peculiarly fond of judges who treat the Constitution like a boa constrictor treats its prey, squeezing it so tightly the life drains out of our framing document. It's just that they prefer strict construction to the current living Constitution/empathy story currently being offered by progressives.
If he becomes President, Barack Obama will be uniquely positioned to take this conversation in a different direction. Usually when we talk about the Constitution, we think of Philadelphia and 1787. Obama needs to secure a bigger place in this story for the major changes to the document made after the Civil War, in the Progressive Era of the early 20th Century, and in the 1960's and the civil rights movement. Most importantly, he needs to talk about the Fourteenth Amendment, passed in 1868, which rebuilt the Constitution around the Declaration of Independence's promises of liberty and equal citizenship and secured the "new birth of freedom" Lincoln had promised the nation at Gettysburg. Obama can convincingly argue that the Supreme Court needs Justices who are committed to enforcing the whole Constitution, including the text and principles underlying the Fourteenth Amendment.
Not only is this a powerful story, but polling done recently by The Mellman Group for Constitutional Accountability Center demonstrates that progressive messages rooted in the Constitution's text, history and principles resonate far more strongly with the American public than the current talking points of both conservatives and progressives. The results prove that progressives can turn this losing issue into a winner, if they simply change the way they talk about the Constitution and the future of the Supreme Court.
Consider, for example, the debate over whether the Constitution is a "living" document, or alternatively, whether its interpretation should be fixed by its "original" meaning. Mellman tested the traditional progressive argument that constitutional principles must be applied in light of current circumstances against the conservative message that judges should "act according to the original meaning of the Constitution's text." The conservative message was favored by the American public by a margin of 54% to 42%.
But consider what happens when you put the living Constitution point in terms of the actual text of the Constitution. As alluded to above, the biggest difference between conservatives and liberals on the Supreme Court today is not the silly dispute about whether the Constitution is living or dead, it's about how much weight to accord the Amendments that have been passed over the past 200 years. Conservatives tend to treat the Amendments - particularly the post-Civil War 13th, 14th and 15th Amendments and the 19th Amendment, which secured political equality for women - as tinkering around the constitutional edges; liberals think these Amendments changed the entire fabric of the document.
Progressives should say this: that judges must faithfully interpret the entire Constitution, "including all the Amendments passed over the last 200 years." This argument not only captures the most justifiable and important aspect of the idea of a living Constitution, but it also happens to crush the conservative "original meaning" argument 59% to 34%. This represents a 36% swing towards the progressive side of the argument simply because the idea of the living Constitution is rooted in the constitutionally-prescribed amendment process.
As Mellman explains, "across the political spectrum and with nearly all key demographic groups, the American electorate responds powerfully to the invocation of Constitutional text, history, and principles."
Mellman also paired head-to-head remarks by Barack Obama and John McCain over the type of judges each would nominate if given the chance. Mellman was fairer to Obama than Rasmussen, prominently coupling a comment Obama has once made about ensuring judges that are "highly competent in interpreting the law" with his message about appointing judges who share his "deepest concerns and values." This was tested against McCain's promise that he will nominate judges who will "strictly adhere" to the Constitution and not "legislate from the bench." Americans split right down the middle on the choice framed this way, with 47% supporting McCain's position and 46% supporting Obama.
Mellman then tested McCain's message against an alternative progressive message that emphasizes fidelity to constitutional text, history and principles, and responds more directly to the idea of strict construction: "The President should nominate judges with a proven record of faithfully applying the Constitution's text, history, and principles, and not relying on their personal political views." This formulation encompasses the concerns and values of most progressives, without detaching them from the Constitution. This alternative beat McCain's message badly, 56% to 37%. As Mellman concludes: "progressives would reach a broader range of the American public by rooting arguments about judicial results in the Constitution's text, history, and principles."
In Audacity of Hope, Barack Obama poignantly talks about the Supreme Court's vile 1858 opinion where "the black man Dred Scott, would walk into the Supreme Court a free man and leave a slave." We rightly celebrate our 1787 founders for giving us the most durable and best governing document in world history, but we should never forget that our original Constitution was deeply flawed. An important part of our constitutional story is redemption, as heroic Americans in successive generations have poured blood and treasure into amendment campaigns that have produced the document that all Americans can celebrate today.
A President Obama will be perfectly positioned to tell this story of constitutional redemption and root in it his vision for the Supreme Court's future. Doing so will help him get his judicial nominees confirmed and move his vision closer to fruition. As importantly, Obama can give progressives a new way of talking about the Supreme Court and the Constitution that not only connects with the political center, but trounces the conservative vision of a Constitution drained of its inspiration and life.
This article was written by Doug Kendall, president and founder of Constitutional Accountability Center (CAC). It is cross-posted at Text & History.
If anything is certain following this week's intense coverage of proposed bailouts and economic catastrophe, it is that our national priorities for the upcoming administration have been altered. Whereas a few short months ago the war in Iraq, healthcare, and the energy crisis occupied prime real estate in the electorate's attention, the country's recent devolution into financial crisis may have significantly altered the political climate for tackling global warming. In yesterday's LA Times Ted Nordhaus and Michael Shellenberger sounded the disquieting alarm:
Republicans stole the energy issue from Democrats by proposing expanded drilling -- particularly lifting bans on offshore oil drilling -- to bring down gasoline prices. Whereas Barack Obama told Americans to properly inflate their tires, Republicans at their convention gleefully chanted "Drill, baby, drill!" Obama's point on conservation and efficiency was lost on an electorate eager for a solution to what they perceive as a supply crisis...
The train wreck happened in the Senate and went by the name of the Climate Security Act. That bill to cap U.S. greenhouse gas emissions would have, by all accounts (even the authors'), increased gasoline and energy prices. Despite clear evidence that energy-price anxiety was rising, Democrats brought the bill to the Senate floor in June when gas prices were well over $4 a gallon in most of the country. Republicans were all too happy to join that fight...
Within days, Senate Democrats started jumping ship. Democratic leaders finally killed the debate to avert an embarrassing defeat, but by then they had handed Republicans a powerful political club...Seeing the writing on the wall, Obama reversed his opposition to drilling in August, and congressional Democrats quickly followed suit.
Nordhaus and Shellenberger are being characteristically hyperbolic here, but they are right to question whether there will be the political will in Washington in 2009 for strong, cap-and-trade climate change legislation. Despite the fact that both leading presidential candidates initially talked about such legislation as central to their energy plans, neither campaigns are seriously talking much about cap-and-trade today. While most progressives weren't happy with the Climate Security Act, the resolution this summer was to regroup after its failure and resolve to pass a stronger, better version in the upcoming term. Today, the political energy for that seems missing, and the most strongly-voiced alternative is replacing a cap-and-trade scheme with a massive, job-creating investment in renewable energy. As Joseph Romm reminds us, regardless of whether you support this switch, such an investment would still require broad Congressional support.
Certainly the changed political climate should not dim our enthusiasm or weaken our push for a cap-and-trade bill, a carbon tax, an investment package for renewable energy, or any other impactful legislation that addresses greenhouse gas emissions. However, it does guarantee that actually winning any of these victories will be difficult, and should make us all think hard about the ways in which the next administration can tackle climate change without sweeping Congressional support. Certainly Congress will be necessary for any policies that require funding or impose taxes. However, existing environmental statutes, bolstered by the Supreme Court's landmark ruling in Massachusetts v. EPA (2007), in which the Court ordered the EPA to evaluate and regulate greenhouse gases under the Clean Air Act, gives the next administration broad powers to tackle global warming without accompanying legislation. In a few strokes of a pencil the next president could improve CAFÉ standards, crack down on New Source Review, and strengthen acceptance requirements for programs like Energy Star.
Perhaps most crucially, the next EPA could institute a dramatic improvement in auto emission standards almost immediately, simply by overturning the waiver denial that is blocking California from adopting its Clean Cars program. This program, first adopted by California in 2004 and since adopted by 12 other states, would compel automakers to start designing and building cars that will emit 30% less greenhouse gases by 2016. However, it cannot be enforced until the EPA grants a waiver allowing the states to go above and beyond the national, default auto emissions standards. As Warming Law has extensively documented, the Agency's own scientists and officials have stated there is absolutely no reason to deny this waiver - other than the reality that the Bush Administration doesn't want to.
Whether Democrat or Republican the next administration will thus have a powerful means of addressing global warming starting on Day One, which could in itself set the tone and the bar for Congress to match its environmental efforts. Through the powers already invested in the EPA, as well as (crucially) through local and state regulations and court decisions, we can keep fighting to reduce greenhouse gas emissions while weathering the storm of political discontent, and perhaps in so doing set the stage for a truly powerful climate security act in the not-so-distant future.
The meeting today between George Bush, John McCain and Barack Obama has me thinking back to the most famous meeting among three political leaders in U.S. history: the dinner between Thomas Jefferson, James Madison and Alexander Hamilton, where these great Americans agreed that the federal government would assume $25 million in state Revolutionary War debt incurred and the nation's capital would be moved to the District of Columbia to placate the southern states that had already levied high taxes to pay off their debts.
Try to stop laughing. I know, this sounds like the set up for one of those Letterman skits that compare speeches by FDR, JFK and Reagan to the bumbling oratory of George W. Bush. Stick with me, there is a serious point here.
The Dinner remains famous today because it set the precedent for a strong federal role in guiding and shaping the national economy. For Hamilton, the federal government's assumption of the states' war debt was the knot that would tie the states together in a national union. As Ron Chernow says in his wonderful biography of Hamilton, this debt assumption "created an unshakable foundation for federal power in America."
This consolidation of federal power was controversial then and it remains controversial to this day. Jefferson stated later in his life that the debate over debt assumption was "the most bitter and angry contest known in Congress before or since the union of the states." Jefferson complained that he was "duped" by Hamilton and he viewed his role in having brokered the deal that led to assumption as the political error that "has occasioned me the deepest regret." As Chernow tells it, Hamilton's victory on the issue of debt assumption led directly to the division of this country into two rival political parties, divided over the proper role and reach of the federal government.
It is no surprise that Hamilton's vision about the need for a strong national government will prevail at today's Meeting. That has happened repeatedly in our nation's history: in the Civil War, the Progressive Era, the New Deal and the decision to intervene into two world wars.
But what is certainly remarkable about the federal bailout on the table today is that it is being engineered by a Republican president whose party views itself as the ideological heirs of the small federal government views of Jefferson and Madison. The modern Republican Party, built by Goldwater and Reagan, is premised on the idea of lower taxes and shrinking the federal government. Today, George Bush is seeking authority for his Treasury Secretary to assume $700 billion in private financial debt -- a figure that, according to my calculation, is almost 10 times greater in terms of percentage of U.S. GDP than the Revolutionary War debt assumption engineered by Hamilton.
In pushing for a massive federal bailout of our nation's financial system, Bush is raising a white flag in the war over the size and role of the federal government. This is the right thing to do: history has again and again proven Hamilton right in the vision he laid out for America both in the Federalist Papers and in his work as the nation's first Treasury Secretary. It is too bad this revelation happened before the financial crisis got to this point--if there had been greater federal oversight in the first place, we wouldn't be in this mess.
If the bailout works, the Meeting today may be viewed by history as the day when the central role of the federal government in American life, first forged at the Dinner, finally was accepted by Americans across the political spectrum. At the very least, the Meeting, like the Dinner, should include a discussion about what those left footing the bill for bailout get out of the deal. After all, the southern states that had paid their war debts got the nation's capital out of the Dinner. Perhaps the American people can get a federal government committed to protect their rights and interests, and not just the pocket books of corporate fat cats, out of the Meeting.
In sharp contrast to the rhetorical emphasis placed on federalism and states’ rights by Reagan/Gingrich era conservatives, George W. Bush has engineered a dramatic reversal of long-standing, bipartisan positions against federal preemption in many critical areas. Whereas his conservative predecessors endorsed a vision of federalism in which the federal government had little authority to overrule states, Bush’s administration has embraced a system in which federal action, or even federal inaction, trumps states’ efforts to protect their citizens’ health, welfare and environment from corporate misconduct.
Nowhere are the dangerous consequences of this approach more glaringly evident than in the current financial crisis.
This week’s proposed historic bailout of the US financial institutions is only the latest development in a broader, ongoing financial crisis, which largely started with the collapse of sub-prime mortgage lenders earlier this year.
What many do not realize, however, is the extent to which state lawmakers across the Nation attempted to protect consumers from predatory lending practices in recent years, only to be blocked by the Bush administration. Facing a rapidly-escalating foreclosure crisis states sought to restrict predatory lending practices both through their own laws and by calling on Federal Reserve to tighten regulations on the mortgage industry at the federal level. These state officials were stymied at every turn by the Bush Administration. Former NY Governor and Attorney General Elliot Spitzer (discredited for unrelated reasons) put it this way in a February 2008 op-ed in the Washington Post:
Not only did the Bush administration do nothing to protect consumers, it embarked on an aggressive and unprecedented campaign to prevent states from protecting their residents from the very problems to which the federal government was turning a blind eye.
Let me explain: The administration accomplished this feat through an obscure federal agency called the Office of the Comptroller of the Currency (OCC). The OCC has been in existence since the Civil War. Its mission is to ensure the fiscal soundness of national banks. For 140 years, the OCC examined the books of national banks to make sure they were balanced, an important but uncontroversial function. But a few years ago, for the first time in its history, the OCC was used as a tool against consumers.
In 2003, during the height of the predatory lending crisis, the OCC invoked a clause from the 1863 National Bank Act to issue formal opinions preempting all state predatory lending laws, thereby rendering them inoperative. The OCC also promulgated new rules that prevented states from enforcing any of their own consumer protection laws against national banks. The federal government’s actions were so egregious and so unprecedented that all 50 state attorneys general, and all 50 state banking superintendents, actively fought the new rules.
Despite the fight waged by state officials, the OCC got its way. In a deeply splintered 5-3 ruling in Watters v. Wachovia Bank (2007), the Supreme Court upheld 2004 OCC regulations that preempted any state effort to regulate national banks or their subsidiaries even in the absence of federal protections against predatory lending, a decision that left the Nation’s mortgage industry in a regulatory vacuum.
The ensuing collapse of the financial industry and the need for a $700 billion taxpayer buyout thus highlights the fundamental dangers of the Bush administration’s use of its power to displace states as an ideological weapon. Rather than envisioning a system in which the federal government says to states “we’re not regulating, so you can’t either,” the framers sought a complimentary system where the federal government would be empowered to address national problems while states would generally remain free to operate (as Justice Louis Brandeis eloquently argued in 1932) as “laboratories” of government innovation and democracy.
That’s the vision of federalism Constitutional Accountability Center advanced in our book Redefining Federalism: Listening to the States in Shaping Our Federalism, and our project of the same name. The financial crisis illustrates how desperately we need a president that values the critical role states play in our constitutional structure.
Today's NY Times features a cover story on Wyeth v. Levine, one of the most important cases before the Supreme Court this coming term. CAC has filed an amicus brief for this case, arguing in favor of Ms. Levine in the key area of federal preemption. From the Times:
In November, the Supreme Court will hear arguments about whether Ms. Levine may keep more than $6 million that a Vermont jury ordered Wyeth, a pharmaceutical company, to pay her for failing to warn her adequately about the risks of one of its drugs. The case, the latest in a brisk parade of similar ones, will help define the contours of a signature project of the Roberts court.
In legal jargon, the cases concern "pre-emption," a doctrine that can bar injured consumers like Ms. Levine from suing in state court when the products that hurt them had met federal standards. The issue is less boring and more consequential than it sounds, and Ms. Levine's case is shaping up to be the most important business case of the term....
Business groups, often supported by the Bush administration, have vigorously pursued pre-emption arguments, hoping to build a barrier against many kinds of injury suits. Plaintiffs' lawyers oppose broad pre-emption doctrines, saying they short-circuit valid claims arising from terrible injuries.
It bears noting that before he was in favor of it George W. Bush also claimed to oppose heavy-handed federal preemption, though his administration has now come to epitomize it. Even today on issues such as abortion, Republican leaders like to wax lyrical about the need to return discretion to the states, while moving to crack down on state innovation in areas such as environmental and consumer protection.
The Wyeth case could have a big impact on the lives of millions of Americans. The Supreme Court's ruling will determine whether certain federal regulations, such as drug labeling, will serve as a minimum standard of protection on which individual states can then build, or a maximum level of protection that broadly preempts and negates states' efforts to further safeguard consumers.
CAC holds that the Constitution is clearly on Ms. Levine's side in this instance in endorsing the former, because the Vermont Supreme Court's decision did not contradict any federal laws. Our brief argues:
As scholarship has demonstrated, the Supremacy Clause authorizes displacement of State law only to the extent it directly contradicts a valid federal law. No other provision of the Constitution can support a theory of obstacle preemption either. To the contrary, the text and history of the Constitution express a commitment to the preservation of State authority in traditional areas of local regulation.
Text and History will be keeping readers appraised of this case, which is set for argument Monday, November 3rd.
