Archive for March, 2010

What Was Congress Thinking?

March 31, 2010

Among the things that judges and law professors love to argue about is how a judge interprets the written words of a constitution or a law. In the United States the Constitution proscribes what must happen before something becomes a law: It must be voted upon and passed by majorities in both the House of Representatives and the Senate, then signed by the President.

Truman Committee Hearings during WWII

But Congress usually does a lot of work on the proposed law before it is passed. Usually staffers write the bill, either in the White House or committee staffers in Congress do it. In the normal course, committees on both sides of the Hill hold hearings on the bills which are often rewritten or amended as the process continues. Then, before both houses of Congress vote, all congressmen have the opportunity to be heard about the bill. Their debate and the record of the hearings gets written down and saved. The statute becomes law after passage by both houses and signature by the president. (Or by both houses overriding the president’s veto.) Lawyers call the record of passage the “legislative history.”

But the language of statutes is like that of politics, “designed,” wrote Orwell, “. . .to give an appearance of solidity to pure wind.”

Laws, like all human language, can be, and often are, ambiguous. The job of “disambiguating” ambiguous laws belongs to judges.

So, of course, Justice Scalia has opinions about how they are to go about it.

So does Justice Breyer and his ideas differ from Justice Scalia’s. The two of them have been in the news lately because they sometimes go to law schools and other public fora to debate about it.

Which makes one of this week’s opinions of the Supreme Court interesting. By a vote of 7-2 the court interpreted a statute allowing a private citizen to sue on behalf of the U.S. Government when the government has been overcharged by someone or some corporation. Justice Scalia agreed with the result but added a short concurring opinion expressing his disdain for “legislative intent” as revealed by the record of congressional action before the bill became a law.

Justice Scalia, as always, is succinct:

I agree that the stray snippets of legislative history . . . the dissent have collected prove nothing at all about Congress’s purpose in enacting [the law at issue] But I do not share the Court’s premise that if a “‘legislative purpose’” were “‘evident’” from such history it would make any difference. The Constitution gives legal effect to the “Laws” Congress enacts, Art. VI, cl. 2, not the objectives its Members aimed to achieve in voting for them. If [the law’s] text includes state and local administrative reports and audits, as the Court correctly concludes it does, then it is utterly irrelevant whether the Members of Congress intended otherwise. Anyway, it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.

Justice Breyer dissented, believing that the majority misinterpreted Congress’s intent in passing the law and maintaining that a it is a part of a judge’s job to resolve ambiguities by looking at legislative intent.

Unlike Scalia, Breyer hardly ever is succinct.

But it didn’t matter. Justice Breyer didn’t write the dissent. He has a new soul-mate on the question of legislative intent. Justice Sotomayor wrote the dissent and all Justice Breyer had to do was sign her opinion. She thinks the Court misread Congress’s intent as discerned from the text of the law and the legislative history.

One can imagine that Justice Scalia was not pleased.

We pass without comment on Justice Scalia’s 100 plus page opinion in the gun case where he does exactly what he usually disdains. Only he goes beyond what Congress intended: He discerns what the pre-industrial-age-male, property-owning voters intended when they voted to ratify the Bill of Rights. Apparently their intent is relevant and easier to discern than that of 20th Century legislators.

Amazingly, Justice Scalia’s divinations of what those voters of long ago intended almost always accords with his own inclinations. Probably a coincidence.


For more on legislative history, here is an informative page about the Congressional Record.

The opinion of the Court to which this post refers is here.

For more on Justice Scalia’s views about original intent see this post discussing two conservative judges’ take on his opinion in the Heller case.


Email for Luddites

March 27, 2010

Luddite Smashing Machines

For many years now, stretching back into the 20th Century when I stopped being a Luddite and got my very own email address, AT&T has been my only home and only email address.

It grieves me to tell you that AT&T returns to the Dark Ages at the end of the month. It demands that I switch to something called “ATT Dial Internet” service.

That word “dial” gives me pause.

No longer a Luddite, I have the latest and fastest cable internet access, wifi all over the house, and my computer is not even close to a telephone line; even if it was, I certainly wouldn’t use something as retro as a dial-up modem to get my email. Would I sell my car to buy a horse and buggy?  Of course not. Would I turn off my computer and read a book?  Would I throw away the microwave?

I called up AT&T to ask if this new “service” will indeed require me to actually dial up its computers to get my email. After an hour on the phone, a very nice person in India who spoke flawless, but heavily accented English, assured me I would not. But then another letter arrived, indicating the opposite. Deliberate obfuscation is the order of the day at AT&T.

It is a puzzle and I don’t like puzzles and harbor ill-will toward corporations that puzzle me.  In fact I am reminded of Mark Twain, who once wrote a letter to a patent medicine seller:

Puzzles fret me, puzzles annoy me, puzzles exasperate me; and always, for a moment, they arouse in me an unkind state of mind toward the person who has puzzled me. A few moments from now my resentment will have faded and passed and I shall probably even be praying for you; but while there is yet time I hasten to wish that you may take a dose of your own poison by mistake, and enter swiftly into the damnation which you so richly deserve.

Mark Twain was a more charitable man than me. I won’t be praying for AT&T, even though the Supreme Court tells us that corporations are people just like you and me and we have to treat them like real people and be nice to them. Rather than pray for AT&T, I reluctantly, but firmly, leave it in my wake. If its stock crashes and the entire enterprise goes bankrupt, it will be on my head and I don’t care.

Not About Health Care

March 24, 2010

Here is an entire post not about health care in the United States. Grateful?

Sooner or later though, explanations of the law will be in order as disgruntled conservatives and libertarians mount legal challenges to the new law.  Teaser: Broad constitutional challenges to the entire statute are unlikely to get far. Smaller scale challenges to individual parts of the new law might. More later.

For now though, it is time – once again – for a few samples of the personal ads published in “The London Review of Books.”

This ad is an attempt to hypnotise women to 35 into sleeping with me. All those for whom it works should write to box no. 7896. Man, 31.

Technically, by writing this ad, I’m breaking the terms of my probation. Technically, though, I’m not really a woman either. Box no. 7386.

Meteorologist (F, 38). Damned into over-use of the phrase ‘since records began’. Devoid of all sexual pleasure since… yaddah, yaddah.

The Rites of Spring

March 19, 2010

Once, when spring arrived, we lit up the skies with joyous bonfires of celebration and danced around the fires encouraging the earth to once again bear food for us. We went into the fields and dallied with one another as a happy, fecund example for the earth to follow. It wasn’t all pretty though. For awhile we sacrificed young men and young women because we thought their blood was necessary for the earth to bring forth fruit. But pretty soon we stopped that and used animals instead.

Now all we do is change the clocks.

Feeling dissatisfied and vinegary, like old wine in a bottle whose cork long ago dried out, I headed out to the Grand Canyon this week seeking springtime connection with Mother Earth.

Actually, some of us don’t even change the clocks.

As you know, the Grand Canyon is in Arizona and the citizens of Arizona, more rational than most, refuse “daylight savings time.” Not for them, this constant and futile attempt to rearrange time. Nor are they bothered twice a year trying to remember how to change their digital watches and clocks. For them, the seasons march serenely along and they always know what time it is.

Not all of Arizona’s citizens are rational. A conservative is running for the U.S. Senate against John McCain, a rational person and conservative politician, because he isn’t conservative enough. That man wanting to unseat McCain worries that legalizing gay marriage would also legalize marriage between humans and horses. Really, that is what he says. I am not making that up. Lost in the debate is the question: Who would want to marry a horse?

But I digress.


I drove to the Grand Canyon the day after the spring time change. Crossing the border into Arizona from the east, I gained an hour. But then, I entered the Navajo Nation and I lost that hour. (The Navajo Nation covers parts of Utah, New Mexico, Colorado, and Arizona and the Navajos change their clocks. For eight months of the year the Navajos living in Arizona are an hour ahead of the rest of Arizona.)

My cell phone was not confused by that. Whenever it passes into a new time zone it politely asks me if I want it to change the time on the display and it knew that we had lost that hour.

But soon I drove into the Hopi Nation and gained it again. The Hopis, you see, agree with Arizona about daylight savings time and they follow Arizona’s practice of not changing their clocks. So, when I entered the Hopi lands, I got that hour back and my cell phone asked me again if I wanted it to change the time.

But the Hopis don’t have much land and the land they do have is surrounded by the Navajo Nation, so before long I was back on Navajo land and Navajo time and so lost that hour again.

By now my cell phone was feeling harassed and confused and it asked me again what to do. But I hardly had time to tell it before we were back in Arizona again. And shortly later, we returned to Navajo land to spend the night at a motel that caters to Grand Canyon tourists. But that motel, even though it’s on the Navajo Nation goes along with Arizona’s time. Otherwise all the foreign tourists who come in tour buses would be confused and miss their buses every morning.

My cell phone threw in the towel. It spent the night trembling like an Aspen leaf and every time I used it the poor thing asked me what time it was.

The Center Line

And I forgot to tell you that the center line of the two lane road in Arizona that traverses the Navajo and Hopi Nations in some places is the actual boundary between the two. When you pull out to pass another car and cross the center line, you lose an hour. It takes more than an hour to pass someone.

I didn’t have the heart to tell my cell phone about that.

It Had to Happen

March 17, 2010

Remember, you read it here first. An American corporation decides to take corporate personhood to the next logical step.


For more, here is the news story. The corporation in question is only five years old and the Constitution requires a “person” be twenty-five years old to run for the House of Representatives, so there my be a legal problem.

Consumer Surveys

March 13, 2010

In this day and age of unsolicited telephone calls, it is important to deal “proactively” with those people who make the calls.

This phone conversation occurred here this morning:


Me: Hello.

Them: Hello. Are you Mr. Jones? [Ed. Note: Not my name]

Me: Yes, I am. [Ed. Note: There is no more harm in lying to these people than the harm they inflict by calling you in the first place.]

Them: Mr. Jones we’re doing a sixty second consumer survey.

Me: What a coincidence! I myself consume things. That makes me a consumer. Why just a few minutes ago I consumed a bowl of cereal. I bought that box of cereal myself at a grocery store and it had hemp seed in it. Did you know there is nothing illegal about consuming hemp seed? Its the same stuff they make marijuana from, but it’s legal to eat it. Just don’t smoke it. That’s illegal. I don’t consume marijuana. That would be illegal. Is this survey about consuming marijuana? Now, I think consuming marijuana ought to be legal. If your survey is about that put me down for favoring legalization. Pot is harmless stuff and should be legal, that’s what I say. Except for old people. Well, what are you waiting for? Let’s get started.

Them: Sir, do you have pets?

Me: Pets? Do we have pets! My goodness, we have a lot of pets. We have 12 chickens. Do you have any idea how hard it is to house-train a chicken? Not the sharpest animals in the drawer I can tell you that. And my wife keeps birds. That’s them you hear in the background. And then we have the dogs, of course. Border Collies. You ever know a Border Collie? Smarter than a lot of humans I can tell you that. They know 150 commands and make you perform each one flawlessly. And we have turtles! Four of them. You should see the Border Collies try to herd those turtles into a corner. You have to have a modicum of intelligence to be herded and those turtles lack it. Probably a function of crania size, don’t you think? I read somewhere that Neanderthals had larger brains than we do. I wonder how come they died out and we didn’t. In fact, of all ten known human species, we’re the only one left. Makes you a little nervous doesn’t it?

Them: Does anyone in your house have breathing problems?

Me: I am so glad you asked! Both my wife and I suffer from hay fever. Now I don’t say that we have it as bad as Daniel Webster did. He had really bad hay fever. Did you know that? It was so bad that he probably decided not to run for president because of it. Was afraid people would laugh at him. Back in those days they called it “the catarrh.” I don’t know if I pronounced that correctly but I did the best I could. He took something called “Rochelle Powder” for it. He was a consumer too don’t you suppose? Probably bought all kinds of stupid over-the-counter hay fever patent-medicine remedies that didn’t work then and don’t work now. You’re not selling “Rochelle powder” are you? Kleenex, maybe? Did they have kleenex back in Daniel Webster’s time? I wonder. We’ll be needing lots of kleenex now that spring is coming. Next question, please.

Them: Are you married, sir?

Me: oops! Your sixty seconds are up. Bye now.


So far, they haven’t called back.

Jigsaw Puzzle

March 8, 2010

Charles Dickens wrote:

We lawyers are always curious, always inquisitive, always picking up odds and ends for our patchwork minds, since there is no knowing when and where they may fit into some corner. (Dickens, Little Dorrit, book 2, ch. 12)

That is why I am able to report today that the New Yorker has added a jigsaw puzzle to its home page and it is a fine way to waste a little time. Subscribers can then read the entire issue underneath the cover they just reassembled.

Guns and Gay Marriage

March 4, 2010

“I will have no man in my boat,” said Starbuck, “who is not afraid of a whale.” Justices Scalia and Roberts will have no man in their boat who is not afraid of the “Privileges and Immunities” clause in the U. S. Constitution.

That pretty well sums up the argument this week in the latest gun case, although if you dropped into the courtroom during the argument, you might not have known the case was about guns, so abstract was the time.

As you’ll remember from our last post, there are two paths for the Court to apply to the states last year’s Heller ruling that individuals have a federal right to guns: It can “incorporate” the federal right via the Due Process clause [Substantive Due Process] or it can overrule The Slaughterhouse Cases and hold that gun ownership is a privilege of U.S. Citizenship, then apply that right to the states via the Privileges and Immunities clause, something the gun owners want.

The gun owners’ lawyer barely managed to clear his throat before Chief Justice Roberts jumped down it:

CHIEF JUSTICE ROBERTS: Of course, this argument [Privileges and Immunities]is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it’s a big — it’s a heavy burden for you to carry to suggest that we ought to overrule that decision.

That question from a man who last month voted to overrule cases more than 100 years old so corporations now can enjoy unlimited spending in political campaigns and who last year voted to upset two centuries of understanding about the right to bear arms.

But nobody outdoes Justice Scalia when it comes to breathtaking judicial hypocrisy and activism. Here is a man who has called substantive due process “babble” and an “oxymoron.”

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have — even I have acquiesced in it?


Remember Justice Scalia’s view of the Constitution: “It is a document that says some things and doesn’t say others.” He claims that to be his lodestar in deciding cases. The “crucial fact” is whether it is there or not. To him, as to generations of lawyers on all sides of the political spectrum, the word “substantive” cannot be used to modify the word “process.” They don’t belong in the same sentence. What’s more, the word “substantive” appears nowhere in the 14th Amendment.

But states may not “abridge the privileges or immunities” of citizens.  Those words are there. Here is what the self-proclaimed originalist and textualist Scalia calls those words. He calls them “flotsam.” (And now we know how Justice Scalia writing for the court in Heller can blow by all those commas in the 2nd amendment as if they didn’t exist. For him, they too must have been “flotsam.”) But the right to bear arms isn’t “flotsam.” Scalia again:

See, the right to keep and bear arms is right there, it’s right there in the Bill of Rights.

This picking and choosing of words in the Constitution needs a name: We’ll call it “Selective Textualism.” You select the words (and grammar)you like, ignore the rest, then decide the case. Beautiful. Take note law professors!

But here’s the rub for a modern Court: What would it mean to resurrect the privileges and immunities clause? Justice Ginsburg asked the most important question for a modern Court:

What does the privileges and immunities of United States citizenship embrace?

Gay Cowboys?

All nine members of the Court are serious people and they take their jobs seriously. Overruling the Slaughterhouse Cases makes perfect sense, but might take the Court and the Nation in unpredictable directions. For instance, today guns; tomorrow, marriage. A Court with slightly different personnel might easily declare that marriage is a “privilege” of citizenship that no state can abridge. What then? Well, these two gun-toting cowboys  could get married. Health care might be a “privilege” of American citizenship. Who knows what other mischief those “activist” judges might get up to?


But don’t worry. Justices Roberts and Scalia aren’t about to let that happen. Everybody who has read the transcript of the argument believes that the Court will apply last term’s Heller decision to the states  using “substantive due process.” The Court’s conservatives seem willing to ensure full-time work for at least one and possibly two more generations of lawyers who will litigate the details.

I see only one way the Court could overrule Slaughterhouse: The four moderates on the Court swallow their displeasure with Heller, agree to use the privileges and immunities clause to apply the 2nd Amendment to the states, walk down the hall, and convince Justice Thomas to join them. Unlikely, but not impossible. If it happens, remember: You read it here first.

You can read the entire argument here. For a good news summary, try this. For a balanced legal analysis go here. For conservative legal views go here. For a more liberal reading, try this. And for an insightful (and humorous) view, try this by Dana Milbank. George Will weighs in, calling substantive due process “intellectual applesauce.”

The Guns are Coming! The Guns are Coming!

March 1, 2010

Today (March 2) the Supreme Court of the United States hears oral argument in the latest gun case. At issue is whether the Second Amendment to the U.S. Constitution prohibits state and local governments from regulating gun ownership.

The outcome is not in doubt; five justices – acting as national legislators – are going to find a way to make certain that no town or state inhibits your right to have guns, if you want them. Those five justices are emotionally invested in guns and will be unable to decide otherwise.

But how they get to that result will be fascinating.

Today, we’ll set the stage. After the transcript of tomorrow’s argument is available, we’ll translate it into English and tell you all about it.

You’ll remember the gun case last year. Blowing past those commas in the Second Amendment, those same five justices decided that the federal government may not interfere with an individual’s right to own guns. Left unanswered was the question whether a state or town could regulate gun ownership.

That is the case that will be argued tomorrow. Here’s what to look for.

The Bill of Rights in the federal constitution sets out many of our basic privileges as American citizens. Until after the Civil War, the Bill of Rights was not applied to the states, only to the national government. But the 14th Amendment, passed in 1868, demanded that no U.S. citizen be deprived of her “privileges and immunities” or of “due process” of law.

Crescent City Slaughterhouse

The Supreme Court promptly slaughtered the Privileges and Immunities clause of the 14th Amendment in the “Slaughterhouse” cases holding that the clause applied only to the recently freed slaves. (I’m simplifying here and will expand on this later, especially if it seems the Court really is interested in overruling Slaughterhouse.)

Most modern lawyers, on all sides of the political spectrum, hate Slaughterhouse, thinking that it effectively eliminates the Privileges and Immunities clause from the Constitution, while doing great damage to logic, law and language.

Nevertheless, it’s never been overruled and the current gun case asks the Court to do just that.

And here’s the rub: Liberal jurists want Slaughterhouse overruled, making the entire Bill of Rights binding on the states; conservative jurists hate incorporating rights through the due process clause, which they contend – with justification – was never intended to deal with substantive rights, such as the right to a jury or the right to receive Miranda warnings if you’re arrested or any of those other “technicalities.” Or the right to bear arms.

Mr. McDonald, the plaintiff in tomorrow’s case claims that the Court should overrule Slaughterhouse. The NRA, which is not in the case, but has ten minutes to argue anyway, doesn’t like that idea. (The NRA claims that it is the oldest “civil rights” organization in the U.S. That’s wrong. It defends only one “civil”right, the right to guns.)

Showing its true colors, the NRA just wants the Court to apply the 2nd Amendment to the states by incorporating it through the due process clause, something distasteful to conservatives. Nonetheless, the most conservative justices will be tempted to overrule Slaughterhouse and some of the moderate justices may well agree, even though they think the 2nd Amendment applies only to militias.

So look for some blurring of political lines tomorrow.

But don’t expect to listen to the argument. The modern-technology-hating Court summarily announced today that no tape recording will be released tomorrow. We’ll have to wait for the written transcript.

For more, open any news site. Here is a good sample of the pre-game news coverage. And here is a sample of editorial opinion.

If you just can’t wait to read more about the Slaughterhouse Cases, here is a good summary.

For more on the first gun case, Heller v. D.C. see my series “Guns and Commas” especially the last post in that series.