David Schultz is an election law expert who teaches at Hamline University and the University of Minnesota law school. (He and I also co-authored my last book, a Law and Policy textbook.) When the Court handed down the McCutcheon decision, he took to his own blog to analyze it.
On one level the Supreme Court yet again issued a decision in which it examined one issue about American politics and elections–the role of money or the right of individuals to make political contributions–without adequately considering the broader impact of that decision on the actual performance of American democracy. The Court treats in isolation one aspect of our political democracy–the right of an individual to spend money–without considering other competing values and how they come together to form a more complete theory about government, politics, and elections. Yes individuals may have a right to expend for political purposes, and such an act may further an important value of free speech, but that is not the only act and value that must be furthered or considered in a democracy.
Democratic theorists such as Robert Dahl point out that a theory of democracy includes several values, such as voting equality, effective participation, enlightened understanding, control of the agenda, and inclusion. For each of these values there is a need to construct institutions that help sustain them or give them meaning. Effective participation includes institutions that create for example free and fair elections, opportunities for non-electoral participation, and competitive parties. However, none of these values operates in isolation; a real concept of democracy requires that one understand how they interact, coming together to form a fuller theory of American Democracy.
Someone once said that the problem with the contemporary Supreme Court is that none of the Justices ever held elective office–that we’d be better served if one of these brilliant jurists had ever had to run for county sheriff.
An L.A. Times story that ran early last week focused on a new clause in Capital One’s credit card agreement–one of those lengthy, small-print “disclosures” that cardholders get periodically, and rarely read.
The story described an unusual clause in Capital One’s most recent contract iteration. The update sent to cardholders specified that “we may contact you in any manner we choose” and that such contacts can include calls, emails, texts, faxes or even a “personal visit.”
The L.A. Times story, written by someone named David Lazarus, characterized the “personal visit” warning as creepy and over the top–an understandable enough reaction. But in the course of criticizing the provision, he suggested that Capital One might be violating the Fourth Amendment’s prohibition against unreasonable searches and seizures.
Excuse me while I hit my head repeatedly against this wall.
The L.A. Times used to be one of the nation’s premier newspapers. How is it that they have a reporter who doesn’t know that the Bill of Rights only restrains the government? How is it that no editor caught an error that egregious?
This is civics 101. Private parties cannot violate the Fourth Amendment. Only “state actors” (people acting on behalf of the government) can. Ignorance of this absolutely foundational principle should disqualify one from being a journalist.
I’ll grant you, banks seem to occupy a highly privileged status, and too many bankers seem to consider themselves above the law. But whatever their pretentions, they aren’t government–at least not yet.
They ought to be worried about being punished for a lot of things, but “breaking” the Fourth Amendment isn’t one of them.
When we cannot rely on reporters to understand the most basic principles of the constitution, is it any wonder that the broader American public is civically illiterate?
I had lunch with an old friend yesterday–a former law school dean and noted legal scholar–and our talk turned to the current impasse over the debt ceiling. He asked me whether I was familiar with a 1935 Supreme Court case titled Perry v. United States; I admitted I’d never heard of it.
Perry, it turns out, is pretty compelling precedent for the proposition that the United States cannot constitutionally be permitted to default on its obligations. The Court relied primarily on language in Article 1, Section 8 of the Constitution, although it also cited Section 4 of the 14th Amendment. My friend sent me a legal memorandum that he had co-authored on the subject. That memorandum included the following paragraph:
In short, the core holding of Perry is that the constitutional “Power” of Congress “To borrow Money on the credit of the United States” carries with it a concomitant duty to pay ― and not to default. While some members of the Court held differing views on the correct factual resolution of the Perry case, all nine justices, including four dissenters, agreed that the United States could not, within constitutional limits, default on its financial or contractual obligations.
The case has been cited with approval by the Supreme Court several times–most recently in 2005.
My friend’s legal conclusion is blunt: If default would be unconstitutional, then the Debt Ceiling Act is unconstitutional if it is read to require default. Since there are a number of federal statutes that confer power on the President and Secretary of the Treasury to borrow money–statutes that are routinely used when the debt ceiling isn’t an issue– and since an unconstitutional Act is void, those statutes would (again, according to the memo) continue to authorize the President to pay the country’s debts.
Makes sense to me, but this is definitely not an area of expertise for me.
Of course, if the President were to follow Perry and pay the nation’s debts, the Obama haters would immediately move to impeach (they would impeach him for breathing if they could).
It’s hard to envision a successful impeachment for actions taken to avoid an international economic catastrophe–but then, it used to be hard to envision a Congress as insane as this one.
I see where Justice Scalia has been claiming to be the Court’s one true originalist again.
“Originalism” is one of those words that gets thrown around a lot–mostly by people who (unlike Scalia) don’t understand how law works, or how “original intent” actually operates to guide today’s judges.
When I ask students who profess to be originalists to define the term, the answers generally come down to a desire for constitutional fidelity–an admirable desire and one that I certainly share. The devil, as usual, is in the details. What, exactly, do we mean by fidelity to the Founder’s original intent?
If originalism meant–as some insist–that courts must read the constitutional text through the eyes of the Founders as those gentlemen saw their world in 1786, the Constitution would have outlived its usefulness many years ago. Such assertions betray a lack of understanding about what constitutions are, and how they function.
Constitutions aren’t statutes prescribing or proscribing specific actions; they are broad frameworksof values, statements of important principles to which statutes, ordinances and government actions must conform.
I sometimes ask my students what James Madison thought about porn on the internet. Those who actually know who James Madison was (a subject I have dealt with elsewhere) will laugh; obviously, whatever Madison may or may not have thought about pornography, he didn’t anticipate the invention of broadcast media, let alone the internet. But Madison (and Jefferson and Hamilton and all the rest) did think about the importance of free expression, about the individual’s right to access information and exchange ideas without fear of government censorship.
Madison and the other Founders intended to privilege and protect the principle of free speech. Fidelity to that original intent requires contemporary judges to protect free expression in situations the Founders could never have imagined. That’s what is meant by legal scholars who talk about the “living constitution”–fidelity to the values protected by our Constitution and Bill of Rights and their consistent application to new “facts on the ground.”
We can agree or disagree about whether a given decision is faithful to the principle or value that the Founders were trying to protect, but we need to recognize that social change necessarily requires the application of the Constitution and Bill of Rights to a constantly evolving civic landscape.
When someone like Justice Scalia pontificates that judges have “the power to say what the law is, not the power to change it,” he is selling snake-oil. Every decision that applies settled legal principles to a new set of facts “changes” law, if only incrementally. That is how the common-law system works, and Scalia is smart enough to know that–and smart enough to know that most Americans don’t. His “originalism” allows him to pretend that his favored ideology is really principle; that he is only a sort of legal automaton looking at the world through the Founders’ eyes.
“Scalia is neither a faint-hearted or stout-hearted originalist. He is a convenient originalist. He’s an originalist when it leads to the result he wants and he’s not an originalist when it doesn’t. His ruling in Raich is a perfect example. And he’s perfectly happy contradicting himself to reach the result he prefers. Just compare his ruling in Raich to his ruling in the challenge to the Affordable Care Act last year. In Raich he agreed that the interstate commerce clause gave Congress the power to regulate the growth of marijuana for personal use — an action that is neither interstate nor commerce — despite that being legal under state law. In the ACA case he argued that the interstate commerce clause did not give Congress the power to regulate the health insurance market, which is, by any definition, a matter of interstate commerce. Ironically, Scalia is exactly what he has for decades accused liberals of being, a results-oriented judge.”
Indeed. And intellectually dishonest about it, to boot.
Tea Party types love to talk about the Constitution. Evidently, the only thing they like more is evading its requirements.
George W. Bush showed the way. With his aggressive use of signing statements, he avoided that pesky “veto override” problem. (Recall the tactic: he would sign a bill he didn’t like, rather than vetoing it, but he’d issue a signing statement to the effect that he wouldn’t enforce the law if he didn’t feel like doing so. That “veto by another name” avoided an override vote by Congress. Mission–i.e., end run around the Constitution– accomplished!)
Today’s Congressional zealots are doing George one better. As Robert Reich recently pointed out,
The Constitution of the United States does not allow a majority of the House of Representatives to repeal the law of the land by de-funding it (and threatening to close the entire government, or default on the nation’s full faith and credit, if the Senate and the President don’t come around).
If that were permissible, no law on the books would be safe. A majority of the House could get rid of unemployment insurance, federal aid to education, Social Security, Medicare, or any other law they didn’t like merely by deciding not to fund them.
Like it or hate it, the Affordable Care Act was passed into law by affirmative votes of both Houses of Congress. It was signed (without the crossed fingers of a Signing Statement) by the President, who subsequently ran for re-election on a record that prominently included it and who handily won. Its constitutionality has been upheld by the Supreme Court. There are not nearly enough votes to repeal it using the proper process.
But none of that matters to the arrogant ideologues who want to circumvent the Constitution they claim to revere by failing to fund the law of the land.
The truth of the matter is, the only Constitutional provision they really care about is (their version of) the Second Amendment.
