An anecdote about oaths/gettingback to original post
VOLOKH at law.ucla.edu
Wed Feb 17 09:26:43 PST 2010
Why exactly would Nelson dislike a world in which Congress ended slavery earlier in the territories? (I set aside the possibility that he might dislike it simply for the textual reason that the Constitution prohibits it, since the comments I'm responding to appear to be discussing one's dislike for something as a matter of policy, rather than as a matter of fidelity to the constitutional structure.) That hardly seems like a fair assumption to make, unless one has some pretty solid evidence for it.
Or why would Nelson dislike a world where women would have voted sooner (not that it's clear to me that they would have voted materially sooner but for the Nineteenth Amendment, since as I understand it few states allowed women the vote until the decade before that Amendment)? My sense of Nelson's writing on the Lochner era is that he isn't that excited about the Lochner-era economic liberty jurisprudence ("The Lochner era has come to symbolize the practice of judges illegitimately legislating from the bench. That view did not arise because there is something particularly weird or implausible about regarding traditional property rights or the right to contract as fundamental elements of our legal tradition. They almost certainly were regarded as such by a consensus of the Thirty-Ninth Congress, which framed the Fourteenth Amendment. And that position obviously has even deeper roots in our legal tradition, as one can easily see in Justice Washington's opinion in Corfield v. Coryell. But legislatures have always been adjusting the substantive contours of these rights, and must continue to do so. The real difficulty, which the Lochner-era Court never faced up to, was the need to articulate some principled basis, having some real connection to the Constitution, for distinguishing constitutionally tolerable legislative adjustments from those which are beyond the pale. [Well into the Lochner era, for example, the Supreme Court upheld novel regulations that were not much easier than the statute in Lochner to justify as measures reasonably designed to protect the public health, morals, or general welfare. The occasional decision to invalidate a statute looked more like a random strike of lightning than like any kind of principled jurisprudence.").
I do suspect that Nelson opposes race-based affirmative action (I believe he has written on that), campaign finance speech restrictions, and restrictions on supposed "hate speech" -- though I'm not positive about that. But then again many "progressive[s]" oppose restrictions on supposed "hate speech," too. Recall, for instance, the Supreme Court lineups in Skokie and Hudnut.
Finally, shifting from the procedural to the substantive, why exactly should we be confident that abolishing modern judicial enforcement of constitutional norms -- and modern enforcement is presumably what most people would most care about as a matter of policy -- would make the world much more "progressive"? It's true that some such enforcement (see race preferences, gun rights, campaign finance speech restrictions, the very modest protection offered property rights) is more "conservative," even if it doesn't go nearly as far as many conservatives would like. But enforcement of abortion rights, sexual rights, free speech rights as to pornography, Miranda, the exclusionary rule, constraints on the death penalty, and the like is "progressive," even if it doesn't go nearly as far as many progressives would like. So I'm afraid there's a bit of a danger here of caricaturing, both of a particular conservative, and of the supposedly conservative nature of modern Supreme Court jurisprudence.
Eric Segall writes:
> Your theory leads to the end of jduicial enforcement of constitutional norms.
> Actually, that is fine with me, but you won't like that world because it will be far
> more progressive than the world we live in now:
> 1) Congress could have ended slavery in the territories;
> 2) Women would have voted sooner;
> 3) Progressive economic legislation would not have been struck down almost 200
> times betwee 1905 and 1934;
> 4) There would be more affirmative action
> 5) More campaign finance reform,
> 6) Fewer protections for hate speech, etc.
> The left would lose a few good years of the Warren Court and the right would lose
> everything else.
> >>> <crgreen at olemiss.edu> 02/17/10 10:19 AM >>>
> One of your side comments here suggests that the law would do more
> than just challenge Roe--it would seek to protect embryos from being
> destroyed in other ways than just abortion (e.g., embryo-destructive
> research, or embryo-destructive contraception). In that case, though,
> there might be some constitutional applications of such a law, even
> given Roe. 410 U.S. at 162: "[W]e do not agree that, by adopting one
> theory of life, Texas may override the rights of the pregnant woman
> that are at stake." But if there isn't yet a pregnant woman--because
> the embryo is still in a test tube, say--then it might be OK to define
> personhood as beginning at fertilization, I think. At any rate, the
> issue isn't on all fours with Roe.
> > --- Original message ---
> > Subject: RE: An anecdote about oaths/gettingback to original post
> > From: Eric Segall <esegall at gsu.edu>
> > To: <stevenjamar at gmail.com>, <phorwitz at hotmail.com>
> > Cc: <conlawprof at lists.ucla.edu>
> > Date: Wednesday, 02/17/2010 7:10 AM
> > Paul and others have made good points but they don't answer the
> > initial question. Some Ga. reps were in favor of a law defining life
> > as beginning at fertlization. The part of Roe talking prohibiting this
> > is still good law and clearly so. Moreover, to the best of my
> > knowledge no state in the pre-roe world had ever passed such a law and
> > no law like it has ever gone into effect in the post roe world.
> > Roe/Casey may be overruled but the Court is nowhere near allowing
> > states to define life as beginning at fertilization which, among other
> > things, would have serious consequences for contraception as well as
> > abortion where the life of the mother is at stake (not to mention
> > fertility procedures) . So, voting for this bill would be voting for a
> > law which no one in good faith could think would be delcared
> > constitutional by the SCOTUS. My initial point was that, in those
> > specific circumstances, if the oath allows one to vote for that kind
> > of law, the oath means very, very little. And, I !
> > don't see this situation as different than the one facing Arkansas in
> > the late fifties as to segregation.
> > I may be stubborn but I stick by what I believe is a narrow position.
> > Please someone help!!!
> > Best,
> > Eric
> >>>> Paul Horwitz <phorwitz at hotmail.com> 02/16/10 10:51 PM >>>
> > One cite seems essential here: Philip Hamburger's Law and Judicial
> > Duty, which discusses the relationship of the oath to the judicial
> > office at length and in a very interesting and suggestive fashion. A
> > much less essential cite is to my own work, both with respect to
> > judges (see my recent review essay, Judicial Character (And Does it
> > Matter), in Constitutional Commentary), and with respect to other
> > officials such as the President (see my short piece in the
> > Northwestern University Law Review, Honor's Constitutional Moment).
> > My short take on this very interesting question is that the oath
> > certainly matters, but it is a personal oath to honor the Constitution
> > and cannot depend solely on what is "clearly unconstitutional under
> > binding law," if by binding law one means the decision of coordinate
> > departments. It *may* depend on that, if a legislator, say, has a
> > good-faith understanding of her oath that relies that a ruling by the
> > courts on a constitutional question itself becomes part of the meaning
> > of the Constitution; a legislator with that understanding who
> > nonetheless voted to pass a law that violated such authority would
> > arguably be violating her oath. But one can without much controversy
> > take a less stringent view than that, and can certainly believe that
> > the courts' reading of the Constitution, even if it is legally
> > binding, is a mistaken reading; I think such a legislator would have a
> > stronger case that she would not be violating her oath if she voted
> > for a law in those circumstances, even!
> > if it ran afoul of some court decision. That may be unsatisfactory to
> > those who yearn for more uniform or solid answers. But that doesn't
> > mean the oath has no constraining power, unless (as many do) one
> > thinks that honor is an obsolete value or that good faith is endlessly
> > malleable or even illusory. The oath can have genuine constraining
> > value, and can serve as a vehicle for connecting public values and
> > reputations with private qualities of character, even if the ways in
> > which it does so are imperfect and unclear.
> > Date: Tue, 16 Feb 2010 22:23:04 -0500
> > Subject: Re: An anecdote about oaths
> > From: stevenjamar at gmail.com
> > To: esegall at gsu.edu
> > CC: conlawprof at lists.ucla.edu
> > Then what does "oath to defend" mean to you if all of these things are
> > permitted (subject to some modest constraints on a couple of them)?
> > If I do what Obama did in the State of the Union -- criticizing the
> > Constitution as interpreted by the Court, how am I "upholding and
> > defending it" in "any meaningful sense of the term"? Or is it really
> > just so formulaic that I can criticize and we judge only by actions?
> > Again I say that the understanding of language and "oath" is far to
> > cramped and formal for meaningful constitutional discussion if one
> > falls back on such rigid forms. Words and actions matter.
> > As to no. 5 -- read the case again -- it is quite clear -- I'm just
> > using the language of the Court.
> > Steve
> > On Tue, Feb 16, 2010 at 10:16 PM, Eric Segall <esegall at gsu.edu> wrote:
> > ok, one more:
> > Steven Jamar wrote: Surely it cannot be a violation of the oath to
> > uphold the Constitution to
> > 1. Criticize it--OF COURSE NOT
> > 2. Contend it should be amended--OF COURSE NOT
> > 3. Contend an interpretation is wrong-OF COURSE NOT
> > 4. Seek to change an interpretation of it through the courts-DEPENDS
> > SEE BELOW
> > 5. Engage in the "dialogue" discussed by the Court in
> > Boumediene-DON'T KNOW WHAT YOU MEAN
> > 6. As a state legislator introduce a law to test a ruling one thinks
> > is
> > constitutionally wrong--DEPENDS SEE BELOW
> > 7. To call for or host a constitutional convention-OF COURSE NOT
> > It does, however, violate the oath to vote for legislation that is
> > clearly unconstitutional under binding law and without any good faith
> > belief that those who define the law will see it your way--for
> > example, a law defining life as beginning at fertilization, which
> > would have rewrote much of Ga. law on torts and property, and clearly
> > will not favored by the SCOTUS any time soon.
> > Eric
> > --
> > Prof. Steven Jamar
> > Howard University School of Law
> > Associate Director, Institute of Intellectual Property and Social
> > Justice (IIPSJ) Inc.
> > _______________________________________________
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