Happy Holidays from Supremedicta!

From our family to yours, we hope you have a joyous holiday season!

What? It's only money!

From the oral argument in Rumsfeld v. FAIR:

Rosencranz: The law schools are disseminating a message that they believe it is immoral to abet discrimination.

O'Connor: But they can say that to every student to who enters the room.

Rosencranz: And when they do it, your honor, the answer of the students is: we don't believe you. We read your message as being that there are two tiers...

Roberts: The reason they don't believe you is because you are willing to take the money. What you are saying is: this is a message we believe in strongly, but we don't believe in it to the tune of $100 million.

---------------------------------------------------------

Today the Court reiterated its commitment to a jurisprudence that fails to recognize modern political realities. I call this jurisprudence: "It's only money." And it creates a legal allows governmental bodies to do through the public fisc what would otherwise be prohibited by direct legal coercion.

First, a little background. Tuesday the Court heard oral argument in the case Rumsfeld v. FAIR, which is a challenge to a federal law that requires military recruiters be given access to universities that accept federal funds. Several law schools have denied military recruiters access to their campuses because the law schools object to the military's "don't ask, don't tell" policy towards homosexuals. The law schools believe the policy restricts their first amendment rights of free speech and free association.

It seems clear from the tone of the hearing (which was released on audio recording immediately) that most of the justices do not buy the law schools' argument. I reluctantly agree, although for different reasons, which I will address later. The aspect of this case that I take strongly take issue with is the excerpt I list above. The question that should have been before the Court is: does a federal policy requiring access to campus for military recruiters violate the free speech rights of a university by compelling them to air a message they vehemently disagree with? Instead, the question was: does a federal policy making education funding contingent upon requiring access to campus for military recruiters violate the free speech rights of a university? This subtle, yet important difference creates a legal smokescreen behind which the federal government is given substantial and undeserved deference.

The Supreme Court embraced this policy in South Dakota v. Dole in 1987. At issue was a policy to withhold five percent of transportation funds from states that did not have a drinking age of at least 21 years old. Chief Justice Rehnquist, writing for a 7-2 majority, declared "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." The Court found that the legislation was in pursuit of "the general welfare," thus the Court should defer to the judgment of Congress.

The Court has applied the "it's only money principle" in other areas besides federalism. In Rust v. Sullivan, the Court considered a federal health care funding plan. The act provided funding for family planning clinics, but in order to receive federal funds, the clinic cannot even discuss abortion as a family planning option. The Court declared:

The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.

The Court seems to believe that there is a difference between Congress declaring a policy through legislative fiat and providing funding to pursue a policy. If Congress had simply declared that states must adopt a higher drinking age, it would have clearly been a violation of the 10th Amendment. If Congress had forbidden all family planning clinics from discussing abortion, it would be a major free speech restriction.

I argue that there is no substantive difference between these situations. Money makes the world go around. Article I Section 8 of the Constitution grants Congress many powers, but the biggest asset of Congress is the multi-trillion dollar budget it passes every year. Attaching unconstitutional provisions to funding rules is just a means of Congress to cloak its abuses of power. The Court needs to take an ends-based approach to funding preferences. If the result of the restriction is unconstitutional, the funding of that restriction should be prohibited.

Returning to Rumsfeld v. FAIR, this case is a different situation. There is a legitimate federal interest in allowing military recruiter to have access to college campuses - to raise an army. If Congress had mandated this policy by fiat, it probably would be held constitutional. Furthermore, the Court held in Rosenberger v. UVA that a university is a public forum in which a variety of viewpoints must be given consideration. As the Court recognized in oral argument, the law schools in Rumsfeld could articulate their opposition to the policies of the military, but they cannot exclude the military from articulating their point of view.

Although I believe universities should be given substantial autonomy, I would probably rule against the law schools as the Court will likely do. However, it alarms me that the Chief Justice would say, "[T]his is a message we believe in strongly, but we don't believe in it to the tune of $100 million." The Court needs to realize that most people would say or do anything for $100 million.

How did we manage without modern conveniences (like judicial review)?

One cold winter evening when I was about 13 years old, I decided it was time to ask my father some important questions about life. You know, that stuff that adolescents really want to know, but are usually are too embarrassed to ask. I cleared my throat, turned to my dad and blurted out, "Daddy... what was it like in this country before judicial review?"

My father replied, "Well Harlan, it was not a pretty place. Legislatures were free to act without restriction. Being a Supreme Court justice was the dullest job in the federal government. The Court was powerless to check the abuses of the other branches of government. In fact, John Jay resigned from the Court in disgrace after Congress passed a resolution declaring Jay 'a boorish lout.'"

Now as a grown-up, I have gained a lot more insight on this question. In his truly magnificent book, Founding Brothers, Joseph Ellis describes a little-known incident in early American history that I believe demonstrates an example of how questions of constitutional law were handled before Marbury v. Madison.

In 1790, two Quaker delegations to Congress caused quite a stir when they presented petitions calling for the federal government to end the slave trade immediately. A congressman from South Carolina objected to the consideration of such a proposal on the ground that the Constitution prohibited Congress from restricting or abolishing the slave trade until 1808. Other southern members of Congress used much more vitriolic rhetoric, questioning the patriotism of the Quaker congressmen.

James Madison did not see this situation as a crisis, but as a political opportunity. He urged the petitions be heard and forwarded to committee. As Ellis writes, "If...the matter were treated routinely and with a minimum of fuss, it would quickly evaporate." However, the controversy was further enflamed when Benjamin Franklin proposed an even broader petition urging the end of slavery itself, linking emancipation with the ideals of the Declaration of Independence.

Eventually, seven resolutions were brought to the floor of the House, which addressed the question: what are the "the powers vested in Congress, under the present Constitution, relating to the abolition of slavery?" The first resolution confirmed that the Constitution prevented Congress from limiting or ending the slave trade until 1808. The second resolution read: "That Congress, by a fair construction of the Constitution, are equally constrained from interfering in the emancipation of slaves." Some of the other resolutions were gestures to the Quaker petitioners.

According to Ellis, "At this decisive moment, the Madisonian logic worked its will." Madison managed to whittle the committee report down to three anti-slavery resolutions, which passed 29-25. The final version of one resolution also included a provision that slavery remains for "the several states alone to provide any regulation therein." Ellis writes, "What had begun as an initiative to put slavery on the road to extinction had been transformed into a decision to extinguish all federal plans for emancipation."

The most interesting aspect of this decision was that it carried the force of precedent. Over forty years later Daniel Webster cited these resolutions in a debate over slavery: "My opinion on the powers of Congress on the subject of slaves and slavery is that Congress has no authority to interfere in the emancipation of slaves. This was so resolved by the House in 1790...and I do not know of a different opinion since."

Thus, the first major ruling on slavery did not come from the Supreme Court; it came from the Congress in a time when the Court did not have the power to decide questions of constitutional law. In 1790, a power vacuum existed in our constitutional order. The question of federal power over slavery needed authoritative resolution that would be binding upon future generations. Since the judiciary could not provide that resolution, Congress intervened instead.

This historic episode raises several questions that Ellis does not answer: Did Congress make constitutional pronouncements on other issues in the pre-judicial review era? Did the slavery resolutions of 1790 merely provide political cover to future members of Congress or did it really have the force of precedent? Did the slavery resolutions play a role in the 'gag rule' Congress imposed on slavery discussion in the mid 19th century? Did the framers in 1787 expect that questions of constitutional law would be resolved by Congress?

These questions continue to fascinate me as they did when I was a wide-eyed teenager. I hope I will have the chance to write a paper on this unique occurrence.

Extra! Extra! Scalia abandons originalism!

In a stunning development in Washington yesterday, Justice Antonin Scalia announced he no longer adheres to the jurisprudence of originalism. During oral argument in an abortion case, Scalia shocked his colleagues on the Supreme Court by asking a question that clearly demonstrated his faith in the Constitution as a living document.

In the case Ayotte v. Planned Parenthood, the Court will decide whether a New Hampshire parental notification that lacks a health exception for pregnant minors presents an undue burden. A lawyer for the ACLU argued, "I think what is quite clear from all the briefs is that once a minor arrives in the emergency room, it is too late for her to go to court." Scalia responded, "Well, counsel, surely not the delay for a quick phone call...It takes 30 seconds to place a phone call."

An awkward silence fell over the room until Chief Justice John Roberts said, "But Justice Scalia, you know full well that telephones did not exist in 1787! Are you abandoning originalism? Surely the meaning of the Constitution does not change with each new technological innovation?"

"Ever since you got appointed chief justice instead of me, I don't know what I believe any more," Scalia answered, sobbing gently.

At this point someone had nudged Justice Clarence Thomas to awaken him from his customary nap. "Master! Nooo! What am I to do without you?" he screamed.

A law clerk remarked afterwards, "Justice Thomas speaks so rarely during oral argument, I honestly didn't think he had working vocal cords."

Without Justice Scalia, Justice Thomas is the now the only justice who is an adherent to originalism, a philosophy also known as anachronistic constitutionalism.

Later in the hearing, Justice Scalia attempted to play down the significance of his jurisprudential malaise. "Come on, I'm only sacrificing my interpretive principles to achieve an outcome consistent with my policy preferences. I do that all the time. Remember Bush v. Gore?"

--------------------------------------------------------------

An excerpt from Justice Scalia's version of Federalist No. 78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely the telephone; and must ultimately depend on it to get permission for very sick pregnant teenagers to have an abortion.