Archive | Constitutional Law

So Why Not Roe?

In today’s Stop the Beach opinion, Justice Scalia (joined by the other three conservatives) criticizes Justice Kennedy for arguing that what Scalia consider “judicial takings” should instead be handled as violation of the Due Process Clause:

The second problem is that we have held for many years (logically or not) that the “liberties” protected by Substantive Due Process do not include economic liberties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536 (1949). [EDITOR: But cf. Schware v. Board of Examiners, 353 U. S. 232 (1957) h/t Tim Sandefur]

The “logically or not” part gets me; Justice Scalia is not a lower court judge. If he think it’s not logical to strictly segregate economic and non-economic rights, he has the power to do something about it.

Imagine, instead, Justice Kennedy writing this sentence in an abortion case, in response to Scalia:

The second problem is that we have held for many years (logically or not) that the “liberties” protected by Substantive Due Process include the right to have an abortion.

Roe has been around for thirty-seven years now, and it’s high time the conservative Justices stop pretending that a decades-old opinion, on which there is huge cultural reliance (as sexual mores have changed in part to reflect the availability of abortion) is somehow less “precedential” than equally bad opinions from the 1930s, 40s, and 50s.

Of course, Scalia does have an answer to this analogy–we should avoid any decision reminiscent of the dreaded “Lochner era”: “Justice Kennedy’s language … propels us back to what is referred to (usually deprecatingly) as “the Lochner era.”

And here’s my response to Scalia, from the second to last paragraph of my forthcoming “Rehabilitating Lochner:”

Lochner serves as a uniquely important negative exemplar of

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“Justice Souter’s Bad Constitutional History”

Last month, retired Justice David Souter delivered the commencement address at Harvard.  His speech was a veiled challenge to proponents of originalism. Some commentators, such as Washington Post columnist E.J. Dionne, Slate‘s Dahlia Lithwick,  and TalkLeft’s Big Tent Democrat were impressed.  Others, not so much.

In today’s WSJ, Northwestern University’s John McGinnis and USD’s Michael Rappaport take issue with Justice Souter, suggesting he misunderstands original meaning jurisprudence and inadvertently justifies the jurisprudential methodology that produced such horrors as Plessy v. Ferguson.  Here is a taste:

At the recent Harvard commencement, retired Supreme Court Justice David Souter attacked what he regards as the “simplistic” model of giving the Constitution a “fair reading.” A judge, he said, must determine which of the conflicting constitutional values should become our fundamental law by taking account of new social realities. . . .

Justice Souter actually provided a primer on how not to be a judge. He made up a Constitution that never was to justify a kind of judicial power that was never intended. . . .

Justice Souter recognizes that his method of interpreting the Constitution is indeterminate, but he argues that it is necessary to put our trust in justices to reach just results. The historical reality is that this interpretive method permitted justices to create a Constitution of their own contrivance in the service of injustice.

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AZ Boycott and the Constitution:

Given that we’re deep into law school exam periods, here’s today’s question (“snatched,” as they say, “from today’s headlines”):

The State of Arizona, you may assume, has passed controversial legislation regarding the legal status of immigrants in the State. The City Council of Los Angeles, protesting the impact of the Arizona law, declares that it will no longer do business with companies headquartered or otherwise doing business out of Arizona. Your boss, the mayor of L.A., has asked for a memo discussing possible constitutional objections to this measure.

Too easy? Perhaps. I wouldn’t think that the “dormant commerce clause,” which prohibits discriminatory measures taken by one State (or municipality within a State) against another, could countenance this. But maybe I’m missing something?

[Thanks to Rochelle Keyhan for the pointer]

[And thanks to commenters who referred me to the “market participant” exception to the dormant commerce clause — I had indeed forgotten about that, and it probably would have applicability here to shield LA’s actions/DGP]


[And finally, Jason Arvak over at the Moderate Voice has some interesting comments on this issue]
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