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PaperclipPerfector  1yr ago (text post)   36369 thread views

Culture War Roundup for the week of April 10, 2023

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Don't sleep on this excellent Caplan piece. The man is a national treasure.

In "Lawsuits are the Hitman of the State," Caplan makes the case that the Texas "Heartbeat Act" is functionally equivalent to workplace discrimination laws that punish racist or sexist remarks.

(One thing I would be interested to see further discussion from Caplan on is the development of the idea that having a "job" is a "right," but he doesn't go into that in this piece. Basically, the Constitution is a document of enumerated powers, meaning the federal government can't--in theory--do anything the Constitution doesn't explicitly allow it to do. But the judicially-crafted breadth of the Fourteenth Amendment, combined with loose interpretation of the Commerce and Tax-and-Spend clauses, metastasized through the 20th century into today's rather grabby American legal system. This has given rise to the idea that you haven't just got a right to your own labor, but that you have a right to personally profit from other people's capital, at their expense, even if you contribute nothing of value to the enterprise.)

Something I really like about Caplan is how concise he manages to be while making absolutely cutting points:

The government starts with the blatantly illegal goal of banning “bigots from expressing their opinions in a way that abuses or offends their co-workers.” Then instead of respecting those limits, the government’s judicial branch gets creative: “Murder’s illegal? Fine, we’ll hire hitmen instead.” By affirming liability, it dangles piles of cash in front of potential plaintiffs to terrorize employers into banning what the government, legally, must allow.

Precedent on what counts as "government action" is remarkably unhelpful in understanding these things. Georgia v. McCollum (1992) is all about how a defendant in voir dire acts as an organ of the state when they select their own jury, and therefore are forbidden from considering race when seeking to exclude potential jurors. This, even though in virtually every other regard, as Justice O'Connor then noted, "our [past] decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions." Whether any particular action counts as "government action" proscribed by the Fourteenth Amendment does not seem to depend at all on who actually took the action, in other words, but only on how the Court wants the case to come out.

So I think Caplan is dead on, here--the Civil Rights movement basically shredded any kind of principled interpretation of the Fourteenth Amendment, in pursuit of socially-engineered results.

Civil rights wasn’t just a change in the 14th amendment. It basically was a new constitution. So many items (either explicitly or implicitly) under the CRA blatantly contradict the constitution (eg freedom of association, contract clause, 14th amendment as you note). CRA also dramatically expanded the scope of the executive and heavily reduced the scope of the State’s powers.

I can only think of the NRA and possibly the 17th amendment which committed such violence to the constitutional scheme.

I can only think of the NRA and possibly the 17th amendment which committed such violence to the constitutional scheme.

Not Marbury v. Madison? (Kidding, kind of.)

But relatedly, the Civil Rights Act was just the legislative prong; I would argue that the Warren court overall did far greater violence to American liberty than any specific act of Congress. In particular, "one man one vote" via Baker v. Carr (1962) and Reynolds v. Sims (1964) stripped "protected minority" status from rural Americans, in effect ensuring that the United States would eventually follow the same trajectory as every other urban-centered empire in history. When your cities are packed with low-agency wards of the state who can vote themselves unlimited quantities of free grain, keeping the lights on becomes an increasingly fraught undertaking.

When your cities are packed with low-agency wards of the state who can vote themselves unlimited quantities of free grain

This seems at odds with the reality that in the US urban poverty is lower than rural poverty and that in developed countries cities are economic engines that subsidize infrastructure and welfare for rural areas.

stripped "protected minority" status from rural Americans

That is one way to put it. But in 1960, the twenty-eighth district of the CA Senate, made up of Alpine, Mono, and Inyo Counties, had a total population of fifteen thousand people. The thirty-eighth district, Los Angeles County, had a population over 6,000,000. Is there some other "protected minority" that is given veto power over state legislation?

Is there some other "protected minority" that is given veto power over state legislation?

That's Fourteenth Amendment jurisprudence in a nutshell.

Then I assume you have an example? Because the case law on redistricting certainly doesn't say that.

The case law on redistricting studiously avoids recognizing that the problem with "one man, one vote" is exactly the problem the Framers recognized when reaching the Great Compromise. Urban and rural populations have different interests. Majority rule is mob rule. Protecting minority interests by creating a bicameral legislature with separate apportionment rules, instituting the electoral college, implementing an independent judiciary, etc. are all moves aimed at preventing "one man, one vote" from being the law of the land.

Then I assume you have an example?

Every single "strict scrutiny" case overturning state legislation grounded in a "suspect classification" is a concrete and often explicit example of a protected minority being given veto power over state legislation.

[half-baked] Technically, avoiding "one man one vote" as a way to prevent tyranny only works when you combine two or more different "weightings" of the voter base. If some people have more than one vote and others have less than one, all you've done is reduced the number of people necessary for a mob-majority rule, not increased it! So combining some 'one person one vote' bodies with some rural-weighted bodies is a better way of accomplishing a generic anti-tyranny goal than having every vote be rural-weighted.

Then it sounds like you don't have an example, because that is nothing like what was happening in CA. You are advocating for giving rural voters veto power over ALL legislation, not the tiny minority of legislation that intentionally discriminates against them, as is the case re the equal protection cases to which you refer.

Then it sounds like you don't have an example

I just gave you all the examples. I can't tell whether you're being deliberately obtuse in hopes of setting some rhetorical trap, or whether I have mistakenly attributed to you a substantial knowledge of the law that you don't actually possess. (For some reason I thought you were a lawyer, but now I'm thinking I must be mistaken about that. If so, my apologies!)

You are advocating for giving rural voters veto power over ALL legislation, not the tiny minority of legislation that intentionally discriminates against them

What reason would they have to use a veto power on anything else?

Or maybe more importantly--why are you advocating for rural voters to never have a veto over ANY legislation, even legislation that intentionally discriminates against them? Because that is clearly the result of "one man, one vote."

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Marbury was technically wrong so you aren’t wrong but probably the o LT real workable outcome.

And agreed, Warren court was terrible for constitutional design. Really the entire period from 1930-1980 was terrible in fucking up the constitutional order for which we now are paying a price.

Fwiw quite a few of the founders seemed to think judicial review was going to be a thing; Hamilton famously argued for it in the Federalist Papers. It was already practiced in State and Federal Courts and of course for a long time in English Common Law, so I don't know if it should be counted that highly as a legal revolution, at least as measured by how far it departed from founding intent and the historical context.

The difference was at least in England is that the judiciary was an appendage of the King’s authority whereas under the US scheme the judicial authority was both separate but co-equal.

So the idea that the SCOTUS could command the executive to do an action was at least questionable under the constitutional scheme.

Now, I think you need a scheme to ensure the Fox isn’t guarding the henhouse so as a prudential matter I don’t dislike Marbury. But I would like it a lot more if it functioned to say “Executive can’t do X” instead of “Executive must do X” in the civil application by the executive (criminality is a whole different ball of wax)

The logic of Marbury is this:

  1. The Constitution says that the Constitution is the supreme law of the land.

  2. Therefore, if a state law conflicts with the Constitution, the Constitution must prevail.

  3. Whether a law conflicts with the Constitution depends on how the Constitution is interpreted.

  4. The interpretation of law, including the Constitution, is the judicial power. (As opposed to the executive power or the legislative power).

  5. The Constitution give the judicial power to the Supreme Court, and to such inferior courts as Congress may establish.

  6. Therefore, if the Supreme Court interprets the Constitution to forbid what a state law does (eg, exempting religious schools from funding available to all other schools), then the state law is invalid.

Why is that incorrect? Note, btw, that all three branches get a crack at tossing a federal law if they think it is unconstitutional: Congress can refuse to enact it; the President can veto it, or perhaps refuse to enforce it; and the Supreme Court can declare it unconstitutional. For state laws, it is effectively four branches. All of that enhances limited government: A law cannot be enacted unless all branches agree that it is constitutional.

I think your argument fails on point 3. Interpreting the Constitution is not just a power of the judiciary. The President swears to uphold the Constitution, so presumably interprets it (as he does not get to ask the Supreme Court about every action). So does the legislature, in much the same way.

  1. I think you meant point 4.

  2. As I noted, of course the President and Congress can each opine that a statute is unconstitutional: "Note, btw, that all three branches get a crack at tossing a federal law if they think it is unconstitutional"

Remember, the Judicial Power only covers "cases" not over-ruling statutes or setting policy:

? Yes, but if there is a case -- ie, the state charges someone with a crime for advocating socialism -- then, courts have jurisdiction over it.

but that is going from a "case" to a general rule, which is beyond the old interpretation of judicial power - the authority to resolve a dispute.

Yes, a SCOTUS decision is technically only binding on the parties thereto. But, once a decision is issued, then lower courts are bound to follow that precedent in each specific case. So, this is really not a meaningful distinction.

Finally, your interpretation enables the Supreme Court to overrule the other two branches, which does not seem like a very good design.

As I noted, the system is designed such that a law cannot take effect unless ALL branches agree that it is constitutional. A court's power to weigh in is a feature, not a bug.

And, this is what Federalist Paper no 78 says:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Roe is a good example

Maybe, but why focus only on the abuses of one branch? What about the many laws that have been passed by Congress and state legislatures that blatantly violate individual rights? If the courts have no say, then those rights are meaningless. It is as if the First Amendment were amended to say, "Congress shall make no law abridging [long list of rights], unless Congress thinks it is ok."

And, I would note that when autocrats in countries from Hungary to Zimbabwe and everywhere in between want to take power, the first thing they do is neuter the independence of courts, either by packing them or otherwise.

judicial independence means that the liberal elite can not be replaced,

That's an odd argument, given that after Warren retired, Republican presidents nominated the next 10 justices.

But, again, you haven't really addressed the problem of giving the legislature and executive carte blanche to ignore the Bill of Rights, as well as other individual rights protected by the Constitution.

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When your cities are packed with low-agency wards of the state who can vote themselves unlimited quantities of free grain, keeping the lights on becomes an increasingly fraught undertaking.

One thing that I find particularly striking about this is that it seems like basically everyone that's interested in politics is well aware of just how low-agency and incompetent said wards of the state are, with the observable discussion around their voting looking (to me) like an example of the celebration parallax. On the one hand, these voters are so incompetent that it's important that they receive "ballot assistance" to fill out ballots and have them delivered by political operatives, they are people that are completely incapable of doing something as simple as walking over to a polling station and checking boxes, or requesting an absentee ballot themselves, yet on the other hand their votes are important to collect for the sake of Our Democracy. When turnout among the mentally incompetent is high, this is a good thing, and any efforts to shift in the direction of restoration of the secret ballot, or at least requiring that the voter demonstrate that they're a legal voter is regarded as "voter suppression".

Our system hasn't been distorted to allow compiling ballots from mentally incompetent wards of the state, but it's a good thing that it has been.

That celebration is entirely due to partisan valence, though- these same people think that Republican precincts not having enough ballot paper is no big deal.

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