The Sunday Oregonian (July 8) contains an excellent summary and analysis of the Supreme Court's recent decision in Leegin Creative Leather Products v. PSKS, overturning a century of precedent in retail price maintenance under Sherman Act section 1. A link to Laura Gunderson's article is here. The Supreme Court's decision is here.
It's an old debate - what is the basis for the doctrine of judicial review in the United States, and is it a valid one? Here's my offering on the subject. I invite comments from any and all who see this and want to weigh in. The Constitution's text implies judicial review vaguely or not at all. Article III section 2 extends "the judicial power" to "all cases * * * arising under this Constitution," and the second sentence of Article VI makes the Constitution "the supreme law of the land," but evidence from the Constitutional Convention and ratifying conventions does not support that language as a source for judicial review. Madison argued at Philadelphia that Article III specifically does not give the Supreme Court power to invalidate legislation. See Christopher Collier, Decision in Philadelphia (1987) at 269.
It was up to the antifederalist known as Brutus, in his Twelfth Essay, to warn that under the Constitution courts would use arbitrary standards to refuse enforcement to laws they thought were unconstitutional, and (presciently) that the dangerous outcome would be to "give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter." See Ralph Ketcham (ed), The Antifederalist Papers (2003) at 300.
If one argues that the Supreme Court's authority depends upon its being faithful to the spirit as well as the language of the Constitution, one needs to assume there is common agreement on what comprises its unwritten "spirit." If judicial review is to be performed at all, that highlights the need for a Supreme Court that departs from the Constitution's literal text only in the rarest of cases - to invoke a "spirit" of the Constitution only when the Court is essentially unanimous and even then, as Alexander Bickel wrote, to think of itself as "a court of last resort presumptively only." Alexander Bickel, The Least Dangerous Branch (1962) at 258.
Assuming that an objective "spirit" of the Constitution does exist, and that the word "authority" means the Supreme Court's credibility with the American public, then the Court's fidelity to that spirit is indeed vital to its survival as a respected institution. Chief Justice Marshall successfully invoked the "spirit" of the Constitution in McCulloch v. Maryland (17 U.S. 316, 421 (1819)) to confirm Congressional authority to charter a national bank. Justice Harlan was less successful when he invoked a Constitutional "spirit" in his dissent from the majority in Plessy v. Ferguson (163 U.S. 537, 563 (1896)), but the Court vindicated his view 58 years later.
So who wins the debate on judicial review? In Federalist 78, Alexander Hamilton reasoned that because a constitution must be regarded by judges as fundamental law, and because the Constitution does not authoirze Congress to be the judge of its own powers, it belongs to the judiciary to ascertain the meaning not only of Congressional acts, but also of the Constitution. Hamilton said it is rational to view the courts as an intermediary between the people and the Congress, to keep Congress within its delegated authority.
Hamilton said it well. Judicial review lies at the heart of a government of separated powers. It is, in that most fundamental respect, constitutional.
John Milton delivered his famous address Areopagitica to the English Parliament in 1644 on the subject of book censorship. It has often been quoted for its strong defense of freedom of the press and of speech. Stanley Fish, former English Professor and Dept. Chair at Duke University, former Provost at the U of Illinois (Chicago Circle), and currently Professor of Law at Florida International University, wrote a much admired study of Milton, entitled How Milton Works, Harvard Univ. Press, in 2001. Fish is a post-modernist whose interpretation of Milton's Areopagitica is different, and not surprisingly, post-modernist, compared to more conventional interpretations. Here are some excerpts from Milton's Areopagitica and a summary of Fish's interpretation of what Milton was up to in this famous address.Download con_law_areopagitica.doc
One of the most quoted works on constitutional law is John Hart Ely's Democracy and Distrust: A Theory of Judicial Review, Harvard University Press, (1980). The core of Ely's theory of judicial review was footnote four in United States v. Carolene Products Co., 304 U.S. 144 (1938). At pages 73-74 of his book, Ely sets forth what he believes to be the core of the work of the Warren Court:
1) Cases regarding criminal procedure and other questions of what judicial or administrative process "is due before serious consequences may be visited upon individuals." Process oriented decisions.
2) Decisions on political expression and association "as related to the proper functioning of the democratic process."
3) The voter qualification and malapportionment cases.
4) The decisions "insisting on equal treatment for society's habitual unequals: notably racial minorities, but also aliens, 'illegimates,' and poor people."
Then, in his own footnote on page 75 of his book, Ely gives us the center of his constitutional theory: "[M]y point [is] that the "values" the Court should pursue are "participational values" of the sort I have mentioned, since those are the "values" 1) with which our Constitution has preeminently and most successfully concerned itself, 2) whose "imposition" is not incompatible with, but on the contrary supports, the American system of representative democracy, and 3) that courts set apart from the political process are uniquely situated to "impose."
Turning to footnote Four in Carolene Products, Ely points out that the first paragraph simply says that the Court should enforce the "specific" provisions of the Constitution. The second paragraph "suggests that it is an appropriate function of the Court to keep the machinery of democratic government running as it should, to make sure the channels of political participation and communication are kept open." The third paragraph "suggests that the Court should also concern itself with what majorities do to minorities, particularly mentioning laws 'directed at' religious, national, and racial minorities and those infected by prejudice against them."
Regarding prejudice highlighted here and in the preceding sentence, Ely has this to say at page 153 of Democracy and Distrust: "For whatever else it may or may not be, prejudice is a lens that distorts reality. We are a nation of minorities and our system thus depends on the ability and willingness of various groups to apprehend those overlappiing interests that can bind them into a majority on a given issue; prejudice blinds us to overlapping interests that in fact exist."
Here is link to a two page reminder of Carolene Products and the words of its famous footnote four written by then Justice, later Chief Justice, Harlan Fiske Stone. .Download con_law_carolene_products_caseu.doc
John Locke, of course, influenced the ideas behind the The Declaration of Independence as well as those contained in the Constitution. His ideas about property are often referred to in legal discussions, for example, concerning land use planning, condemnation law, taxation, and the like. The following link is to a ten-page summary of Locke's life, his roles in English politics, and his views on property. The sources for these ideas are listed in the document.Download locke_and_property.doc
If you want a more humorous view of Locke and his ideas concerning human knowledge then go to Laurence Sterne's 18th century novel, The Life And Opinions Of Tristram Shandy, Gentleman, first published in installments between 1759-67 and now available in a Penguin Books paperback (1997).
First, we need to go to Locke's An Essay Concerning Human Understanding, vol. 1, Book II, Chapter XIV where Locke explains to us his idea of time from an internal point of view:
"Hence I leave it to others to judge whether it be not probable that our ideas do, whilst we are awake, succeed one another in our minds at certain distances, not much unlike the images in the inside of a lantern, turned round by the heat of a candle. This appearance of theirs in train, though perhaps it may be sometimes faster and sometimes slower, yet, I guess, varies not very much in a waking man: there seem to be certain bounds to the quickness and slowness of the succession of those ideas one to another in our minds beyond which they can neither delay nor hasten."
Now, we go to Chapter XVIII of Volume III of Sterne's novel where Tristram Shandy's father is having a conversation with Tristram's uncle Toby. Uncle Toby is a retired artillery man and not much given to philosophical thinking. Tristram's father, however, is prone to it, but is usually stopped dead in his abstruse abstractions by Toby's much more earthbound responses. Tristam has not yet been born but is giving us his account of it. Dr. Slop has been called because of Tristam's mother's labor pains and has been with her now for 2 hours and 10 minutes, and Tristam's father has remarked to Toby that "to my imagination it seems almost an age." Now, he is determined to give Uncle Toby an account of how such a short period of time could seem like "an age." So, he asks uncle Toby if he has any idea as to how 2 hours and 10 minutes could seem like "an age." "No more than my horse, replied my uncle Toby." "Gracious heaven! cried my father, looking upwards, and clasping his two hands together, --- there is a worth in thy honest ignorance, brother Toby, --'twere almost a pity to exchange it for a knowledge ----But I'll tell thee." Tristram's father then gives Toby a lecture that follows Locke's ideas about our sense of time having to do with ideas circling within our head, one in succession to another.
Tristam's father concludes by saying to Toby:
"Now, whether we observe it or no...in every sound man's head, there is a regular succession of ideas of one sort or other, which follow each other in train just like -- A train of artillery? said my uncle Toby -- a train of a fiddle stick!---quoth my father,---[his father continues] which follow and succeed one another in our minds at certain distances, just like the images in the inside of a lanthorn [lantern] turned round by the heat of a candle ---I declare, quoth my uncle Toby, mine are more like a smoak-jack [the smoak-jack was used to turn a roasting-spit by means of the hot air rising from the fire]---Then brother Toby, I have nothing more to say to you upon the subject."
Toby's ideas are more like something powered from the hot air below, [perhaps akin to Tristam's father's philosophical perambulations] and Locke, as explained by Tristram's father, seems to think that ideas are more like images on the inside of a turning lantern, so the discussion stops dead because of their differing mental images of the process, tied to different physical objects.
If you are still with me, the whole motive behind all of this Tristram Shandy/Locke stuff is that there is a now a film playing, Tristram Shandy, which I understand is excellent, although I have not yet had time to see it. I wonder if the script-writer picks up on any of the very clever pot-shots that Laurence Sterne takes at Locke's theories in the course of his novel? And, of course, even if Locke didn't get it quite right about the relationships between ideas in our head and the passage of time, others have diffiuclty in explaining time, too. And, I think Locke's political philosophy can stand reasonably well and independently of his early understanding of psychology and his theory of knowledge.
Samuel Johnson, with the help of a band of Scottish copyists working in the attic of his house, just off Fleet Street in London, produced in 1755 one of the first English Dictionaries. The project took six years to complete. Johnson was a noted English writer, but he was also a noted conversationalist, as James Boswell demonstrated to the world, in his The Life of Samuel Johnson, first published in 1791.
If you are wondering why Samuel Johnson is appearing on a constitutional law blog, it is because law, and constitutional law in particular, does not do well without some sense of style that lends to the gritty words of law and of justice an occasional spark of deeper insight, of humor, or of irony. Johnson had a gift for wry and insightful commentary. In his dictionary he offered these among his definitions:
1) Lexicographer - a writer of dictionaries; a harmless drudge, that busies himself in tracing the original, and detailing the signification of words.
2) Oats - a grain which in England is generally given to horses, but in Scotland supports the people.
3) Patron - commonly a wretch who supports with insolence, and is paid with flattery.
4) Pension - An allowance made to one without an equivalent. In England it is generally understood to mean pay given to a state hireling for treason to his country.
5) Tory - a cant term, derived, I suppose from an Irish word signifying a savage.
Johnson was the master of the pithy aphorism. Here are a few, often with considerable philosophical insight, to help make your weekend more enjoyable. Download samuel_johnson.doc
Apparently the instances reviewed by the Ninth Circuit where Gathright allegedly interfered with the speech rights of permittees who had obtained a permit for use of park space from the City of Portland all involved events that were free and open to the public. You can easily imagine Gathright or some other provocateur walking into one of these events, as anyone is permitted to do, and walking up to a Bush supporter at a Bush rally who is wearing a Bush button and saying "You ought to talk that pimp President into going quail hunting with "gunner" Dick Cheney every weekend, and have him take his Jezebel wife along too." You can then imagine that the Bush button wearer, an organizer of the event, orders the provocateur to leave the premises. The provocateur stands his ground, and a police officer is found to enforce the order and when the provocateur refuses to leave he is arrested and charged with a class C misdemeanor. Why? Because he "unreasonably interfered with the permittee's lawful use of the park space." Remember, he hasn't seized the microphone to give his own speech, he hasn't even made a speech without a microphone. All that he has done is have a conversation (well, ok, a one-sided conversation) with one person at the event. What he has said is no doubt offensive to the Bush button wearer, but it isn't obscene, it is not "fighting words" (I don't think it is really an invitation to a brawl). Actually, it is political speech of a sort, the kind of speech that is more highly valued than, for example, "indecent" speech.
Portland's ordinance "[i[t is unlawful for any person unreasonably to interfere with a permittee's use of a park" (PCC 20.08.060) is plainly overbroad and not narrowly tailored to restrict only that activity that would interfere with the speech rights of the permittees who have a permit to use the park space. Someone stepping inside the park space and saying "How about a light, Bub?" might be offensive to a permittee who would consider it an unreasonable interference with use of the park space, but it would hardly justify an arrest for a class C misdemeanor in the face of a First Amendment excercise of speech. Overinclusive or Overbroad legislation that sweeps in protected speech along with speech that may not be protected is a very different matter than Time, Place, and Manner restrictions. The former discriminates on the basis of content; the latter must be content neutral. Let's imagine a third situation.
The provocateur walks into the Bush event, walks up to the Bush button wearer and says "Bush is the best. Here is $100 for his re-election." Is the provocateur going to be asked to leave for his unreasonable behavior at the Bush event? Of course, not. The ordinance is not content-neutral regulation of Time, Place, and Manner. It is overbroad and facially invalid because of its ripe capacity for content discrimination. And, it is also overbroad and content discriminatory in its application.
Apparently Portland has now changed its ordinance and issues permits to fenced and gated events with permittees in charge of admission. The case has been remanded to the district court to consider the modified injunction entered by the district court judge in light of Portland's new ordinance. That case could be a better candidate for eventual Supreme Court review if new facts develop and the expectation of privacy in a fenced and gated and permitted public space (more like a private space, or even more like a private home) and the speech rights attendant to the use of that space are matched up against Gathright's right to harrangue them from the adjacent sidewalk, outside the fence.
Since I have managed to cite not a single U.S. Supreme Court case in support of my position, I assume that Jim Westwood, my brother blogger, will now correct me concerning my errant hypotheticals. There is an Oregon Supreme Court case that is somewhat similar to Gathright. It is State v. Ausmus.
Thanks to Ed Trompke for the link to this paper out of the University of Southern California Law School discussing the benefits and burdens of a government that is a "hybrid" of direct and representative democracy.
The Ninth Circuit today denied a petition for rehearing en banc in Bockting v. Bayer, 399 F.3d 1010, 1024 (9th Cir. 2005), in which a three-judge panel decided, by a 2-1 vote, that the confrontation-of-witnesses ruling in Crawford v. Washington, 541 U.S. 36 (2004), applies retroactively. Judge O'Scannlain, joined by 8 other judges, including Judge Kozinski, dissented from the denial of rehearing. Today's opinion is here.
The point that interests me is that Judge O'Scannlain noted that the Ninth Circuit, in a previous unpublished opinion, had held that the Crawford rule was not retroactive. Hiracheta v. Att’y Gen’l, 105 Fed. Appx. 937 (9th Cir. 2004) (unpublished memorandum disposition). I don't know how Judge O'Scannlain feels about it, but I know that Judge Kozinski has been among the most vocal opponents of recent suggestions that parties (and judges) should be able to cite unpublished opinions as precedent. If that were the rule in the Ninth Circuit, the controlling precedent on the retroactivity of Crawford would be just what Judge Kozinski wants it to be. But alas for him, he can't cite Hiracheta as precedent, so the contrary ruling in Bockting is now the controlling authority in the Ninth Circuit. (Perhaps not for long, since the case seems like a good candidate for Supreme Court reversal, based on the several reasons given in today's dissenting opinion by Judge O'Scannlain.
This small irony will probably do nothing to change Judge Kozinski's mind, but to my mind, it is further evidence that the rule against citing unpublished opinions is a bad one.
At the First Amendment Center, David L. Hudson, Jr., has compiled this summary of First Amendment cases litigated by Judge Roberts. Hudson observes that although Roberts has not had an opportunity to develop any significant body of First Amendment jurisprudence on the bench, Roberts has substantial practical experience with First Amendment issues.
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