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Sorry to do two posts back to back, but the Fourth Circuit has dropped a steaming pile of dog shit on my front porch and I'm kind of mad about it. (Is that too heated? Honestly I feel like I'm soft pedaling it.)
Porter v. Board of Trustees of North Carolina State University is a case on academic freedom and speech by government employees. Stephen Porter was a tenured professor of education in the university's "higher ed" program. His statistical research on higher education has dealt at times with questions of faculty and student body demography. After complaining that
he found himself removed from the higher ed program for being "insufficiently collegial." He sued. And now, barring a reversal by SCOTUS, he has lost. More from the article:
This analysis suggests that the Fourth Circuit has quite perplexingly decided that "intramural" speech does not qualify for the Garcetti academic exception. Essentially, in the Fourth Circuit, academic freedom apparently extends to lectures and publications, but not "when professors speak and write as citizens of the campus community and officers of an educational institution." This is an especially awkward position, however, when the professor in question teaches and researches higher education specifically. Imagine being free to make assertions about higher education policy in the classroom and in your writing, but not being free to repeat those things at a faculty meeting, or to university administrators! The author also notes that this may reflect a circuit split with the Ninth, which is good news for any planned appeal.
But the age of that split (the Ninth Circuit case was decided in 1976) also highlights how much the American Left has changed in the last 50 years, and how right-coded Free Speech has become--even, maybe the speech of tenured university professors (who are of course overwhelmingly left-identifying). As one commenter over at Brian Leiter's blog observes:
A second commenter adds further context:
Leiter himself then weighs in on Richardson:
Posner, of course, is the father of the Law and Economics movement, which is not universally embraced by conservative lawyers but is very often a right-coded jurisprudence. So here we have a flip from the stereotypical expectations, with leftist judges constraining the academic freedom of a tenured university professor (as well as government employee freedom of speech generally--they give a narrower interpretation than the conservative Supreme Court furnished in 2006!) and a right-wing judge dissenting.
Naturally, most analysis seems to agree that this is a results-oriented decision; the "real issue" is not academic freedom or freedom of speech at all, it's the total inviolability of the gospel of DEI. Porter committed a heresy, and got slapped down for it, and the high priests of the church of DEI confirmed his punishment. All other details are irrelevant. This does not mean Republicans are now going to be the champions of academic freedom, or that Democrats have abandoned that position. It's just pure, unadulterated who, whom, as the dissent seems to grasp.
I hate when judges add fuel to the cynical fires of "there is no principle, there is only power." I have seen judges choose principle over their preferred results. I know that something like reasoned objectivity is broadly achievable, if we value it. But it seems to be happening less and less, and certainly the forcefulness with which DEI has been rammed down our collective cultural throat seems best described as oppressive ideological totalitarianism.
I have to say, I do not find this curious. I have admitted previously to being legally unsophisticated and I remain so; in recent months, I've taken to reading more decisions than I had in the entirety of my life up to that point, and the experience has substantially shaped my view of left-leaning jurisprudence for the worse. There are, of course, decisions with sketchy logic running in either direction, but the number of times that I run into reasoning from left-leaning judges that aligns with that first comment you quote on the "bad man" theory of law is so, so much more frequent. Sotomayor and KBJ seem to have particular enthusiasm for explaining how a decision will have bad outcomes rather than focusing on whether it's, you know, legal and consistent with an ordinary reading of statute. For instances, [this Sotomayor dissent regarding Covid restrictions] or the recent KBJ perspectives on affirmative action. In contrast, Gorsuch seems the most likely of the justices to just read the text to mean what it literally means on ordinary reading.
In practice that’s probably true, but they do have a theory of the constitution as a living breathing document that needs to be adapted to the times, and because amendments are short that means lots of penumbras and the like.
As a legal naïf, I'd rather just be able to read a statute's plain language and understand it than have to rely on the deep expertise of those who can sense penumbras. Ideally, any normal person that would like to engage in commerce or speech would be able to do so based on such a naive understanding of the ordinary meaning of laws without needing to consult a penumbra expert, but I suppose such a situation would be quite unprofitable for the legal industry.
You can just look at contemporary political discourse and see why this theory of legal interpretation runs into problems. Rarely do people agree on the "plain meaning" of anything.
Consider the text of the second amendment:
Already, this one sentence presents multiple interpretive issues:
1.) If a "well regulated militia" is no longer necessary to the "security of a free State", does that mean that the amendment is no longer applicable? This could be read as a conditional - "given that a militia is necessary, the right to bear arms shall not be infringed". You could say that that part doesn't really matter, that it's just "flavor text", and the important and permanently binding part is the "...shall not be infringed" part - but then, that seems to call for a general theory of which parts of a text can be ignored as "not really mattering".
2.) What counts as an "infringement" of the "right of the people"? Does that mean that no person can ever be prevented from owning a gun? Maybe. But, "the people" is not the same thing as "any person". It's reasonable to say things like "the people of the United States are free", even though there are individuals in the United States who are imprisoned and unfree. So, maybe we're allowed to restrict the right of certain individuals to own a gun, as long as "the people" as a whole have not had "their" rights infringed. But then that raises the question of where to draw the line. How many individuals is too much? When do we cross the line from "individuals have had their rights infringed" to "the people have had their rights infringed"? 50%?
3.) What counts as an "arm"? Do nuclear weapons count? The phrase "nuclear arms" is relatively commonplace, so it seems like they might. But, I've never seen anyone suggest that the second amendment should prevent the government from restricting access to nuclear weapons.
I've always wondered about the viability of demanding that new laws do something along these lines:
Give answers to pre-emptive hypotheticals. Ah yes, the 2nd Amendment will no longer apply if the "arms" in question are capable of killing >10 people in the span of 1 minute.
Or, this prohibition against speeding above 60 mph or legalizing a requirement for child seats in cars no longer applies if subject to the widespread availability (>50% of active motor vehicles) of self-driving cars (or technological advances of other natures) that have the effect of reducing per kilometer fatality rates to below 50% of the value today.
Think of it as test cases in programming, you provide clear examples and documentation of how your natural language commands ought to be interpreted.
Even if the law seems dead simple and foolproof, never underestimate the universe's ability to generate a better class of fool.
I am also mildly positive on all laws having an automatic expiry date if they're not verified, perhaps graded by the degree of unanimity with which they were passed. I heard this didn't work out in Texas, but I don't think it's in the grave yet, in conjunction with the above.
@naraburns have lawyers considered something like this? Is there a deep and inscrutable (to me, an ignoramus) reason why it's not advocated?
What--sunset provisions? Sure. Congress often passes laws with expiration dates. They're usually laws aimed at funding something-or-other, but the idea of a law that expires is a totally normal one. The badly-misnamed PATRIOT Act is one famous case where big chunks of the law were supposed to go away as the apparent emergency of Islamic terrorism was beaten into submission, but Congress kept renewing various objectionable chunks of that law and I think eventually made many parts permanent (or, as permanent as law ever is).
I think what you're maybe missing, though, is the "separation of powers" doctrine. Congress is supposed to be the legislative branch of the federal government, and also the political branch. American courts of law are supposed to fulfill two basic functions: interpreting the (politically-crafted!) legislation from an objective or "non-political" perspective when disputes arise, and safeguarding individual rights against legislative overreach.
American courts are actually pretty good at fulfilling that first function. It's the second function where stuff gets weird. Personally, I think this is largely a matter of having a Constitution written by natural law theorists, that is still the "final word" on government activity in a nation where almost no one even understands natural law, much less believes it to be true, much less believes it to be divinely appointed. The Supreme Court is thus routinely accused, often with compelling evidence, of just making shit up about what the Constitution supposedly "says" or "implies" or whatever. And these accusations come from both the Right and the Left, but of course since people tend to treat their arguments as soldiers, those accusations rarely get leveled by anyone whose ox isn't being actively gored. This makes the Court a kind of "super legislature," any time it can be persuaded that the Constitution somehow demands yet another thing no one has ever before believed the Constitution to demand.
But maybe your question was referring more to this:
Congress does a lot of this, too, during its various hearings and debates. But due to the "cases and controversies" clause limiting (at least in theory) what questions the judiciary can hear, American courts are generally not able to issue such "advisory opinions." Even so, shenanigans with the cases and controversies clause are also definitely a thing.
It was:
I'm asking why it's not enshrined into the law itself, not just debates surrounding it. From my limited understanding, the judiciary would have no choice but to consider it if was part of the law outright.
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