Entries categorized "Constitutional Interpretation"

Scalia's "Federalism"

As with his "originalism," Justice Scalia selectively incorporates federalism into his opinions.  Snuck into Castle Rock v. Gonzales was this gem:

[Castle Rock's] result reflects our continuing reluctance to treat the Fourteenth Amendment as a font of tort law, but it does not mean States are powerless to provide victims with personally enforceable remedies.  Although the framers of the Fourteenth Amendment andthe Civil Rights Act of 1871, 17 Stat. 13 (the original source of ยง1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.

Slip op. at 19.  Cute.  Very cute.  The Fourteenth Amendment should not be a "font" of tort law, since tort law is better left to the states.  After all, every cause of action allowed under the Fourteenth Amendment applies to all 50 states.  Scalia, it seems, interprets the Constitution with federalism in mind.  Or does he?

Why did he not write the same thing of the Commerce Clause in Raich?  There, he could just have easily have written: "This result reflects our continuing reluctance to treat the Commerce Clause as a general police power."

What an unprincipled jerk.

Time for the Court to Reconsider the Bill of Rights

Consider this story next time someone tells us we must look to foreign sources of law for insights into our Constitution:

A legal principle which prevents people being tried for the same crime twice is being scrapped in England and Wales.

The ban on "double jeopardy", which has existed for around 800 years, will be consigned to history from Monday.

The Court of Appeal can now quash an acquittal and order a retrial when "new and compelling" evidence is produced. ...The change will apply retrospectively, so someone could face a second trial if evidence such as DNA material, new witnesses or a confession came to light.


The reforms -- which also allow hearsay evidence to be admissible in court -- come under the new Criminal Justice act.

However, it will only be possible to retry an acquitted person once.

Does this mean that the liberals who were overjoyed at citations to foreign law in Roper v. Simmons and Lawrence v. Texas are now ready to do away with the Double Jeopardy Clause?  Should the Supreme Court reconsider Crawford v. Washington in light of England's move?

Or do we look for foreign sources of law only when the law supports our pre-determined conclusion about what the Constitution means, or should mean?  In other words, do liberals use citations to foreign law like conservatives use federalism - as a way to trick people into believing a decision is principled?

(Story via KipEsquire).

Takings and Textualism

The Fifth Amendment's Taking Clause reads: "Nor shall private property be taken for public use, without just compensation."  What should a textualist take this to mean?  Could it mean what Professor Kerr suggests:

The text of the clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn't address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn't even seem to require the government to pay just compensation for it. The text doesn't say, "Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation." It only says "Nor shall private property be taken for public use, without just compensation." Obviously there are good policy reasons why we might not want the Court to read the text this way, and there are also reasons why someone might or might not be a textualist. Still, if you're a textualist it seems that you're kinda stuck with that reading.

Quite frankly, I'm much too young to be a "textualist" or anything other than Mike.  But as someone who takes seriously the Constitution's text, I offer my response.

A textualist still has basic assumptions when reading the text.  One of these is that Congress is limited to enumerated powers.  The Bill of Rights was not theoretically necessary, see Federalist No. 84, and if anything, says: "Congress you can't do these things anyway, but just in case you decide to get out of line, we'll preemptively remind you that you really-really can't do these things." 

Under the reading of the Takings Clause Professor Kerr proposes, the Bill of Rights would enumerate further powers, since in not excluding private takings, it must therefore allow them.  (Expressio unius est exclusio alterius).  Instead, the text of Bill of Rights should be read as further limiting Congress' already limited power.

Thus, whether Congress has the power to take private property for private gain without paying just compensation should be answered elsewhere, e.g., does the Commerce Clause give Congress this power?  The answer might be that Congress indeed, may take private property for private gain without paying just compensation, but if it does, the power comes not from the Takings Clause.

I realize that this form of textualism has its problems, as how can we determine what is a "basic assumption"?  The 11th Amendment cases are an example of this problem -- It's "ahistorical literalism," according to Justice Scalia, to read the 11th Amendment literally, because states' immunity from suit is, at least to 5 members of the Court, a basis assumption of the Constitution.


UPDATE: Stuart Buck made similar points before I published this post, though I hadn't read his entry until now.