Ahead of the Curve

Last week I argued that what the California Supreme Court did was not only correct as a matter of law, but that its "activism" fulfilled a role that is absolutely central to our form of government. In the process, I quoted extensively from Hamilton's Federalist #78, and pointed out that democracy is not an end in itself, but rather a means to end, and that without freedom and legal equality, democracy is meaningless. I further noted that we do not live in a democracy but rather a constitutional republic.

Today, Glenn Greenwald argues that what the California Supreme Court did was not only correct as a matter of law, but that its "activism" fulfilled a role that is absolutely central to our form of government. In the process, he quoted from Hamilton's Federalist #78. He further noted that we do not live in a democracy but rather a constitutional republic. So, not surprisingly, I fully approve of this:

The principal purpose of the Constitution is to prohibit the enactment of rights-abridging laws which, by definition (given that they are being democratically enacted), are supported by majorities. Anyone who argues that a court is acting improperly solely by virtue of the fact that it is striking down a popular law is someone who doesn't believe in the American system of government created by the Founders.

This of course was the central point of my argument last week. It is also the basis for my subsequent post pointing out that conservative reactions to the gay marriage decision have frequently shown a disdain for the Constitution that was once their touchstone.

(H/T: Sully)

Litigating Against Subsidies: Bleg

My last post on agriculture subsidies got me wondering, particularly in combination with my support of judicial "activism" in the sense of overturning laws. The question I was wondering about is this: Has there ever been an attempt to overturn pork barrel spending through a lawsuit where the basis for the suit was the spending's non-budgetary consequences?

The last part of this question is the important part. There have been numerous attempts to overturn various government programs in the past; however, they almost never work because the person suing the government rarely has legal standing to sue (the courts have repeatedly found no standing where the basis for standing is the plaintiff's status as a taxpayer). What I am not aware of, however, is a situation in which someone sued the government because the government's spending policy had a direct, negative effect on them.

Specifically, has there ever been an instance where the government was sued on the grounds that a subsidy had direct negative effects on a taxpayer in the form of higher costs? If so, was there standing? It's been a few years since I delved into that area of law, but I seem to recall precedent from law school that would suggest there would be standing.

If there is legal standing, then the second question would be: what causes of action, if any, would have the best chance of success in overturning agriculture subsidies?

The Evil of Agriculture Subsidies

Publius at Obsidian Wings hits on something that I've been meaning to post on for a couple of weeks:

Instead, farm bill opponents should have spent more time arguing that it’s a substantively bad bill — more precisely, it’s a bill that jeopardizes health and
increases hunger. For one, the subsidies of corn, sugar, and meat play a huge
role in our nation’s obesity problem (not to mention in the broader lack of nutrition). Ezra Klein in particular has been criticizing the meat subsidies lately (see here and here). Second, the ethanol subsidies are, quite literally, about the worst policy you could imagine. They not only actually harm the environment (mostly through land use changes/deforestation), they are quite literally starving people across the globe.... In fact, you could easily imagine a progressive-evangelical political coalition forming around this issue.

I believe that this issue is one that provides the blogosphere an actual opportunity to have an effect on the real world. Although I lack the time, prestige, or influence to lead such an effort, I am hereby proposing an organized blogosphere campaign against agriculture subsidies, especially Demon Ethanol. As I wrote in a comment to Publius' post:

I've been meaning to write about this myself for about a week now. The estimates I have seen have attributed at least 25% of the increase in food prices to ethanol; the other factors are largely out of anyone's control. I read last fall that the food crisis could cause literally hundreds of millions of deaths over the next decade worldwide. Even using the low end of that estimate, it's likely that 25% of that number would still be in the tens of millions. Which means that ending ethanol subsidies (and Western agriculture subsidies more generally) could save tens of millions of lives.

Frankly, if ever there was an issue where the blogosphere actually could have a positive impact on a policy, it would be this. The interests causing the subsidies are small in number; they are successful only because: 1. (Most importantly) Almost no one cares about the farm bill other than the people who seek to benefit from it, meaning that there is no political risk in supporting the farm bill; 2. They are well organized; and 3. The size of the subsidies makes it rational for them to spend an unbelievable amount of money lobbying on the issue and making campaign donations. Without those factors, it would be irrational for politicians to support the subsidies, especially considering how tiny in number the subsidy advocates are. An organized internet campaign against subsidies would actually have a chance of success in a way that other organized internet campaigns can only dream of, because the main reason these subsidies exist is that there is no political risk in supporting them. An organized internet campaign would change that equation substantially by raising awareness of the issue. This is not like other issues where there is or would be a vocal and sizable constituency on both sides no matter what you do, thereby making an organized campaign highly unlikely to succeed.

Moreover, this is an issue that ought to have appeal to just about every part of the blogosphere: Liberals ought to be motivated by it because it is an actual opportunity to strike a blow against corporate interests. Conservatives ought to be motivated by it because it is such an egregious example of government waste. Libertarians ought to be motivated by it because it is the epitome of everything we view as being wrong with government. And most importantly all sides ought to be motivated by the fact that it has such devastating effects on people all over the world.

One more thing- for those seeking an apolitical contribution to helping the world's hungry, Dyre Portents is conducting an internet blogosphere food drive that I highly recommend.

Disturbing Admission by Camden, NJ Police Dept.

This post is far from my usual subject matter, but I think the events described in it are worth publicizing so others might do something with it.

While doing research this morning for a case I'm working on, I stumbled across a recent decision out of the US District Court for New Jersey. The case, Monaco v. City of Camden, 2008 U.S. Dist. LEXIS 10455 (D. N.J. Feb. 13, 2008) contains a revealing insight into the way in which internal affairs investigations are conducted when it comes to allegations of police brutality and harassment. The case itself stems from a fight in 2002 outside of a concert to which police responded. The plaintiff in the case was not involved in the fight, but was nonetheless allegedly brought to the ground, beaten, and arrested, suffering numerous injuries in the process. He was then allegedly detained for two hours before being interrogated. During the interrogation, he was allegedly accused of drinking in public (of all things), ordered to confess to this "crime," and then threatened with additional charges should he choose to fight the public drinking charge in court. He eventually pled "not guilty" to the charge, and the Department refused to provide him with information substantiating the charge upon his request; as a result, the charge was eventually dismissed for lack of prosecution. The plaintiff ultimately filed suit against the City (and the relevant, but mostly unnamed, police officers) for civil rights violations and for malicious prosecution. After discovery, the City and police officers moved for summary judgment, which the court wound up denying in part and granting in part (the reasons for which are unimportant for purposes of this post).

The decision on the summary judgment motion contained the following paragraphs, which suggest some deep-seated problems with the way in which complaints against the police are handled.

Shortly after the incident at the [concert] occurred, Plaintiff and Police Department Captain Joseph Richardson were each interviewed on television by a news reporter about the fight and the police officers' response. Captain Richardson stated in the interview that if Plaintiff submitted a complaint about the events of May 31, 2002, the Police Department would investigate the matter.

It appears that the Police Department did not investigate Plaintiff's allegation that he had been the victim of police misconduct until February 2005, after Plaintiff filed his Complaint in this action. Detective Xemaril Cruz, who works in the Police Department's Internal Affairs division, was assigned to investigate Plaintiff's allegations. As part of her investigation, Detective Cruz conducted what she referred to during her deposition as "interview[s]" of the police officers who might have come into contact with Plaintiff on May 31, 2002. Detective Cruz did not ask the officers any questions at these interviews, but instead simply informed them that an Internal Affairs investigation was underway and that they were required to submit reports to her summarizing their recollections of the [concert] incident. Based on the information she received in these reports, Detective Cruz determined that Plaintiff's allegations had not been sustained, which, as she explained during her deposition testimony, meant that "there was an incident and there was an assault involved, but it could not be determined if it was the officers who . . . committed the assault . . . due to the large fight that took place." Detective Cruz did not speak with the officers in order to clarify these indeterminate findings or clarify the contents of their reports. When asked during her deposition why she did not speak with the officers and relied exclusively upon the contents of their reports, Detective Cruz replied that "that's the way that we do it."

(my emphasis).

As disturbing as I find the fact that a police department would wait three years to investigate a complaint, only after that complaint was the basis for a lawsuit, and that the "investigation" would be no more than a request for the officers to provide their own written reports of the incident, it is the last sentence that is most disturbing. That sentence makes clear that the standard practice of the Camden Police Department (and most likely many other departments) for investigating complaints is to merely give the officers involved a pen and paper to describe the events at their leisure. No questioning each officer individually, no requiring the officers to answer questions on the spot, just a report that the officers could work on at their leisure and on which they could easily collaborate.

One More Post on Judicial Activism

Marc Moore at the Poligazette has a thoughtful response to my two recent posts arguing in favor of a kind of judicial activism. His response warrants a couple of clarifications on my part:

1. Not all judicial activism is "good." There are instances where the courts in fact do make new "law" without simply ruling on the constitutionality or unconstitutionality of a law or a part of the law. In such instances, the courts are actually having a coercive effect on private citizens. The example provided by Marc is directly on point here: it was one thing for the courts to overrule "separate but equal" laws, but quite another to then mandate school busing. My point about judicial activism being a nearly-exclusive good is limited to situations where the court is overturning a law/executive action or significantly limiting its application. I am extremely suspicious of instances where the court acts "passively" and chooses to uphold a law under popular pressure (think, e.g., of the New Deal cases), but I am equally suspicious of judicial "activism" wherein the court goes beyond protecting a less-powerful faction and actually makes that less-powerful faction the more powerful faction. In the case of the California decision, though, the court is simply insisting that the law be "blind" as to the two factions in issue, which is precisely the purpose of "equal protection."

2. My argument that the judiciary exists "primarily" as a means of protecting the minority against the tyranny of the majority is based on a couple of logical steps that I did not lay out in the original post. Marc would have preferred that I wrote "that the judiciary’s primary function was to defend the Constitution against increasing irrelevancy in the face of excessive expansions by the other two branches. To define and defend the fundamental laws and values of the nation, in other words." In a sense, Marc's version is accurate; however, my view- based largely on my unhealthy obsession with Federalist #10 - is that the protection of less-powerful factions from more-powerful factions is a (maybe even "the") central "fundamental value of the nation" as expressed in the Constitution. Put another way, the American experiment in self-governance is in my view fundamentally based on the desire for self-government wherein the government is hamstrung as much as possibly from acting tyrannically. Because the legislative and executive branch have the sole power to make and execute* the law as they see fit, it falls on the courts to ensure that they are not doing so in a way that can be construed as tyrannical under concepts like "equal protection,"** freedom of speech and religion, etc.

3. Marc also writes that:

The issue that conservatives have with the ruling is the recent tendency for courts to drive change into every state in the union, whether it’s wanted locally or not. The Constitution is also supposed to divide powers between the state and federal level, a division that, to the framers, had been made quite clearly in the language of the document. Unfortunately, the balance of power has tilted dramatically in favor of the federal government.

Conservatives do no disdain the Constitution as Mark suggests. But many do disapprove of actions taken in its name without justification. If the gay marriage debate were to end with the California case I suspect that most conservatives would be happy enough to let the ruling stand. But it won’t and that’s the rub.

My dispute with this statement is that what we are talking about here is a state court decision, not a federal court decision. I, for one, most certainly agree that the balance of power has tilted far too dramatically in favor of the federal government on most issues. But this is why I do not understand the desire of so many conservatives to seek federal intervention (in the form of a Constitutional amendment) on an issue that is being decided on a state level. It is these conservatives who, consciously or not, are showing a disdain for the very Constitutional principles they once sought to uphold.

Moreover, if you view the Constitution (and most state constitutions) as a document that seeks to protect the political rights of less-powerful factions vis-a-vis more-powerful factions (I again refer to Federalist #10 here), then the California court's action is hardly without justification. This, mind you, is not an issue of reading rights out of "penumbras" and whatnot, but instead flows directly from words such as "equal protection" and "privileges or immunities" (I am one who remains appalled that the Slaughterhouse Cases were never overturned).

Also, we cannot and should not forget the 9th Amendment (as is too often done), which makes very clear that individual rights are not limited to what is stated in the Constitution and its amendments; instead, the powers of government are supposed to be restricted to those powers specifically enumerated in the Constitution. To be sure, I doubt that there is a 9th Amendment-like clause in the California constitution; my point is simply to show the way in which the foundations of American government demonstrate a distrust of governmental power and a desire to protect less-powerful factions against more-powerful factions.

*In the post-New Deal, and especially post-Chevron era, the difference between "execution" of the law and "legislation" is extremely small, perhaps close to non-existent.

**Not an endorsement of the entire body of equal protection doctrine, much of which has become arbitrary thanks to affirmative action jurisprudence. But affirmative action jurisprudence demonstrates the importance of judicial activism- an "activist" judge would be willing to overturn affirmative action laws as unconstitutional under "equal protection" or, if they had the courage to overturn the Slaughterhouse Cases, the "privileges or immunities" clause.

Conservatives Show Their Disdain for the Constitution

***UPDATE***The original version of this post included a quote from Patterico. Patterico left a comment to the effect that his inclusion for criticism in this post did not make sense. Looking at his quote again, I realized that his complaint was justified, and that I should not have singled his post out for criticism within the context of this post (although I obviously disagree strongly with his position nonetheless). I apologize for that, and have removed that portion of this post.

The other day, I wrote a defense of "judicial activism" in which I showed how "activism," in the sense of judges overturning laws, is in fact one of the two primary purposes of the judiciary (along with the obvious job of arbitrating criminal and civil cases). In support of my contention, I quoted extensively from Alexander Hamilton's Federalist #78 (and if you recall your history, Hamilton was far from a libertarian, at least in relation to the other Founding Fathers).

To be sure, it is the job of the judiciary to "interpret" the Constitution (or the state constitution in the case of the gay marriage decision). But the job is substantially larger when it comes to statutory or administrative law rather than Constitutional law - in that case, the job of the courts is to both "interpret" the law AND, if the interpretation runs afoul of the Constitution (or state constitution), to either overturn the law or interpret it so that it does not run afoul of the Constitution. If the courts do not have this power then, as Hamilton pointed out, the legislature, executive, and/or temporary popular majority faction are able to disregard the Constitution (or state constitution) as they please. Indeed, it's worth pointing out that consideration of the constitutionality of a statute or referendum is almost never considered by a legislature or in a public debate.

Constitutions exist to ensure that everyone plays by the same rules- rules that must be respected both by powerful majority and tiny minority factions. When one faction - usually the powerful majority - fails to play by those rules, then it is the duty (not option, not prerogative, but actual duty) of the courts to turn that majority back.

What is so disturbing about conservatives' reactions to the California decision is the way in which it shows they have so utterly abandoned their stated respect for the Constitution in the 1980s for a form of self-serving majoritarianism in which the sole power capable of overturning local legislative action is through the Presidency of the United States (Oregonians know of what I speak). In the 1980s, Justices Scalia, Rehnquist, and others became folk heroes of the conservative movement for their willingness to overturn laws whenever they (correctly, I might add) found those laws violative of the Constitution (typically in the arena of federalism jurisprudence). By almost any definition those decisions, which interpreted laws in such a way as to find a conflict with the Constitution and which significantly departed from about 50 years of SCOTUS jurisprudence, were "activist." And conservatives and libertarians alike celebrated these decisions. During the several years I considered myself a conservative, it was this view of the role of the courts to which I thought I was signing on. But that all changed, most notably with the Terry Schiavo ridiculousness, but really well before that even.

The reactions to the California court's decision demonstrate just how far the conservative view of the judiciary has strayed.

For instance:


Robert Stacy McCain:

"What Justice George overlooks is the question of who makes the laws in a democratic polity. It is not up to judges to arbitrarily re-write the laws that the people have enacted through their freely elected representatives. If the people of California wished their state laws to recognize same-sex unions, they could petition their legislature to enact such laws."

NRO's Editorial Board:

"But in a representative democracy, everyone ought to agree that any changes should result from legislation, not from activist judges who twist and distort constitutional text to their own ends."

But - giving credit where credit is due - there is also Allahpundit, giving an analysis that represents the conservative legal philosophy as I once understood it:

"All they’re doing is denying gays the label of marriage to preserve a sense of stigma, which is almost a paradigm case of what equal protection is meant to prevent. I have no problem with the ruling as long as other states aren’t compelled to recognize Cali marriages per full faith and credit, which, needless to say, is the battleground on which this decision’s going to be fought in the presidential race. Taking the federalist approach and letting each state decide for itself is an easy call for Maverick; what about the Prince of Peace?"

That all said, there is one thing I am finding quite noteworthy about this decision. That is the relative indifference that is meeting it from the conservative blogosphere on the whole. Oh, to be sure, they're still not happy about it. But they seem to have bigger fish to fry, something which suggests that gay marriage opponents are going to have a mighty hard time mobilizing voters to overturn the court's decision in November.

More at memeorandum.