September 13, 2006

Essential Activism

Hatched by Dafydd

Patterico has the most extraordinary ability to generate fascinating discussion of legal issues on his marvelous blog, Patterico's Pontifications; if you're not reading it regularly, you're missing half the picture of any subject he covers.

That isn't to say I always agree with him, however. But the debate uniformly stimulates, forcing me to stretch my little gray cells (mine are actually mauve, for some unaccountable reason) to their limit. Yesterday, he posted on judicial activism, which he's absolutely agin'. In the comments, I opined:

Like jury nullification, 99% of the time and more, judicial nullification is a wretched idea; either it’s in a bad cause, or the unintended consequences are worse than the original problem.

But in a tiny percent of cases, it’s vital. Had the Court not ruled in what I consider a judicially active way in Brown [v. Board of Education], we would still have legalized segregation today in many parts of the United States, with all its evils, ills, and inequalities.

The problem is that those who support judicial (and jury) nullification wildly overuse it. Rather than being the “nuclear hand grenade” it actually is (50-foot throwing range, 5-mile blast radius), they treat it as a routine arrow in the quiver of abstract justice.

(There's more, but it's just my usual blather and can safely be ignored.)

Patterico, prodded by another commenter, took exception to my claim that Brown was an example of judicial activism, good, bad, or indifferent. In an emendation to the post, he argued:

UPDATE: A commenter reminds me that Brown v. Board of Education did not explicitly overrule Plessy. Rather, it evaded the clear holding of Plessy through dubious social science.

This merely strengthens my argument. Brown was an activist case in reasoning, but not in result -- because the result was proper, and could have been reached through a proper application of originalism. If the Court had done so, it would indeed have squarely overturned Plessy, and upheld the Constitution -- an action that would not have been “activist,” while the actual decision’s reasoning was. Not only would such a decision have been non-activist and proper, it would have had benefits for our Equal Protection jurisprudence.

I still demur, and the rest of this tedious exercise in pedantry, in which I once again play sea-lawyer with my betters, follows when one slithers on through to the other side...

Patterico's source for rejecting the "activist" label for Brown is Ed Whelan's article on NRO, the first one Patterico cites. Patterico sums up thus:

Brown was an activist case in reasoning, but not in result -- because the result was proper, and could have been reached through a proper application of originalism.

To me, this is nonsense. Here is that "proper application of originalism" from the Whelan piece:

Under an alternative originalist approach, as Judge Bork and others have argued, even if the ratifiers of the Fourteenth Amendment assumed that segregated public schools were consistent with equality, objective comparisons of facilities and resources had, by the time of Brown, long since disproved this assumption. Under this approach, an originalist opinion in Brown would therefore have concluded that the Fourteenth Amendment's clear purpose of establishing racial equality under the law required an end to segregated schooling.

Boiled down, this argument reads, "even if the framers believed that equality could still be achieved with segregation, thus did not intend the amendment to outlaw all segregation, we now know that they were wrong!"

To call this "originalism" is utter sophistry. To say "sure, the framers of the amendment thought X; but since we now know they're wrong, we'll say Y instead" is the very essence of judicial activism, indistinguishable from the "reasoning" in Roe.

Here's the proof: suppose a state had set up a segregated school system in which the white and the black schools were thoroughly and demonstrably equal in quality, the way men's- and women's-only institutions often are. Would that violate the guarantee of "equal protection of the laws?" How?

The conclusion that such equality is impossible under segregation is a perfectly valid conclusion. But it's a policy choice; and under originalism, such policy choices should be made by Congress (or the state legislatures, in this case), not by the Court.

This is hand-waving of the worst sort: because we all agree (today) that segregation doesn't work, we redefine originalism to include the argument that if the Framers believed something that we now believe was wrong, it's still within the originalist meaning to correct their factual error via the judiciary.

And we do it for no other reason than to claim Brown as an "originalist" decision... because to think otherwise would be bad news for originalist absolutists. It's true because it would be dreadful if it were false.

A Roe-ista would argue, with equal logic, that the Framers clearly erred in thinking that a zygote is a human person; we now know it's not a person until the Xth week of pregnancy... so we'll correct their factual error by enshrining our modern understanding into a Court ruling.

If one is activist, so is the other.

But Whelan makes another argument; he says that indeed, the framers of the Fourteenth Amendment really intended full desegretation all along; they just inadvertently forgot to spell it out in the amendment language.

Let's take the first part. His evidence of their intent is thus:

Further, as McConnell's law-review article shows, in the years immediately following ratification of the Fourteenth Amendment, as Congress acted to enact legislation enforcing the requirements of the Fourteenth Amendment, a substantial majority of both houses of Congress repeatedly voted to abolish segregation in the public schools.

All right. A "substantial majority." But was it 2/3rds, the number required to submit an amendment to the states?

Would 2/3rds have voted for an amendment that explicitly banned segregation? Would 3/4ths of the 37 states then present in the Union -- not even taking coercion into account -- have ratified such a desegregation amendment, given that segregation was not confined to the South?

Would such an amendment, explicitly banning segregation, have been ratified by Ohio, New Jersey, and Oregon, each of which subsequently tried to withdraw ratification of even the version actually submitted? How about Indiana, Minnesota, Kansas, and Wisconsin?

How about West Virginia and Maine? Pennsylvania? None of these states had rebelled; thus none was occupied by federal troops, and none had to ratify the amendment in order to be readmitted to the Union: there was no handy federal lever to coerce any of them. [Per commenter Xrlq, I made a couple of state corrections in this paragraph.]

And would the occupied states have actually agreed to complete desegretation in the mid-19th century, even being a condition of readmission? Or would the legislatures have said "forget it?"

We'll never know, because the framers saw fit not to include such explicit language in the amendment. If they believed in desegregation themselves, they evidently decided discretion was the better part of abolition and chose not to say so in the bills (likely because they knew the amendment would then fail).

Sorry, but I consider Whelan's argument feeble. I think we all accept that any explicit reference to federally mandated desegregation across the land would have horribly complicated passage of the Fourteenth Amendment: which means that some of those voting in Congress and in state legislatures did not, in fact, share the understanding that "equal protection of the laws" was a euphemism for banning all segregation nationwide.

If originalism means interpreting statutes and clauses according to the commonly understood meaning of the words at the time they were adopted, then you cannot stretch it to include meanings that require a secret decoder ring, which some framers had but others didn't.

Brown v. Board of Education was an activist ruling in both reasoning and result... but one of the very, very rare good ones.

Hatched by Dafydd on this day, September 13, 2006, at the time of 7:01 PM

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Comments

The following hissed in response by: Xrlq

Brown had its activist elements, but its basic holding didn't need to be. While I agree that the equal protection clause did not automatically ban segregation, it certainly didn't privilege it against a challenge against invidious discrimination, as the separate but equal doctrine appeared to do in practice if not in theory (i.e., "separate" was observed, and "but equal" assumed). Had the Plessy court applied equal protection honestly, they would have ruled, in essence, "No, the Fourteenth Amendment doesn't say no state can ever segregate anybody by race for any reason, but it does say you can't treat the races unequally, and let's face it, we all know that's what your law is for."

The above hissed in response by: Xrlq [TypeKey Profile Page] at September 13, 2006 8:52 PM

The following hissed in response by: Xrlq

Would such an amendment, explicitly banning segregation, have been ratified by ... West Virginia and Florida? Delaware? None of these states had rebelled; thus none was occupied by federal troops, and none had to ratify the amendment in order to be readmitted to the Union: there was no handy federal lever to coerce any of them.

Florida did indeed rebel; in fact they were only the third state to secede, one day after Mississippi. Delaware not only failed to ratify the Fourteenth Amendment; they explicitly rejected it on on Feb 8, 1867. So did Maryland, another non-rebel slave state, the following month. And the fact that several states attempted to un-ratify the existing amendment is evidence they did indeed think it was a far-reaching amendment; else they wouldn't have bothered (AFAIK no state attempted to un-ratify Amendment 13, and only NY attempted to un-ratify Amendment 15, only to re-ratify it less than 3 months later).

The above hissed in response by: Xrlq [TypeKey Profile Page] at September 13, 2006 9:06 PM

The following hissed in response by: Dafydd ab Hugh

Xrlq:

I believe Brown would strike down even the hypothetical I gave: a segregated school system where the black and the white were really and demonstrably equal in quality.

Would it have done so had it been decided as you suggest? If so, wouldn't the Court have to rule that it was physically impossible for them to be equal -- and then ignore the demonstrable equality inherent in this hypo?

A constitutional ruling that critically depends upon a specific finding of fact is forever harnessed to that fact; if the fact changes at some point -- as well it may -- the ruling falls.

Your so-called "originalist" reasoning is just activist reasoning tarted up in a slightly better costume than the Court actually wore in Brown. It's a continuum, not a lightswitch.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at September 13, 2006 9:24 PM

The following hissed in response by: nk

"[S]uppose a state had set up a segregated school system in which the white and the black schools were thoroughly and demonstrably equal in quality, the way men's- and women's-only institutions often are. Would that violate the guarantee of "equal protection of the laws?" How?"

Because the distinction is irrational. In the strictest sense of "irrational", that is, mindless and insane. A person's skin tone and hair texture have absolutely no bearing on any purpose for which a school exists. The most basic test of any law is "rationality" - its relationship to the furtherance of a legitimate governmental interest. Which begs the question: What legitimate governmental interest was served by "separate but equal"? What part of the Fourteenth Amendment, to reverse your argument, shows that it intended apartheid? But even that is a distraction because the Fourteenth Amendment should be read as a whole and no reasonable reading can be other than that it intended to abolish all distinctions between citizens in the eyes of state governments?

P.S. I do not know who coined this "originalist" stuff. If it was around in 1982, when I graduated from law school, none of my profesors bothered to teach it to me. It seems to me that a whole bunch of people voted for what is written, that they were most likely literate, and that we should just look at the plain meaning of what they enacted.

P.P.S. Since you wrote of mauve brain cells. This question has been bothering me since 1978. David Gerrold and Larry Niven wrote a book "The Flying Sorcerers" whose human character's name was translated to the aliens through his mechanical translator as "A Shade Of Purple-Gray". What color is a shade of purple gray that is also a name?

The above hissed in response by: nk [TypeKey Profile Page] at September 13, 2006 9:27 PM

The following hissed in response by: Dafydd ab Hugh

NK:

Actually, it was translated to: "as a color, shade of purple-gray." And I think you know the answer perfectly well, given the beginning of your P.P.S. <g>

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at September 14, 2006 1:42 AM

The following hissed in response by: Dafydd ab Hugh

Xrlq:

Florida did indeed rebel; in fact they were only the third state to secede, one day after Mississippi. Delaware not only failed to ratify the Fourteenth Amendment; they explicitly rejected it on on Feb 8, 1867. So did Maryland, another non-rebel slave state, the following month. And the fact that several states attempted to un-ratify the existing amendment is evidence they did indeed think it was a far-reaching amendment; else they wouldn't have bothered (AFAIK no state attempted to un-ratify Amendment 13, and only NY attempted to un-ratify Amendment 15, only to re-ratify it less than 3 months later).

Oops, my mistake on Florida; I forgot it was in the list. But you confirm my point: it was touch-and-go even to get the Fourteenth as written; it's very likely that a hyper-Fourteenth that explicitly banned all segregation would never have been passed through Congress; and if so, never ratified.

(I wasn't looking carefully at the date; Delaware ratified it in 1901, outside the timeframe I'm considering. Thanks for the correction.)

Thus, the "plain meaning of the words" found in that amendment cannot be stretched to mean a ban on all segregation. In order to arrive at that (very proper) conclusion, you must have an activist Court... which we did.

But note: the activism in this case was unanimous; all nine justices concurred that, damn the plain meaning, we cannot survive as a segregationist society.

The example stands: an activist decision that was actually good, not bad, and could not have been arrived at with a strict adherence to originalism.

But I cannot think of another right at the moment... which is the other half of my point: that such activism should be rare, rare, very rare.

Those who support judicial nullification tend to use it orders of magnitude more than they should. That's the problem: they're like surgeons who amputate a limb every time there's a hangnail.

But very occasionally, you do need to amputate.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at September 14, 2006 1:57 AM

The following hissed in response by: Xrlq

Dafydd, I agree that reading the Equal Protection Clause as an outright ban on segregation is a stretch; however, it's not that big of a stretch when it is done for no purpose other than excluding former slaves from mainstream society. To the extent it serves that purpose, the exclusion itself works an inequality, and therefore, a presumptive violation of equal protection, unless it can be justified on other bases (e.g., segregating prisoners to prevent riots). Properly interpreted, the Fourteenth Amendment would ban the broad-based, segregation-for-segregation's sake policies of the schools at issue, but would not necessarily ban all forms of segregation, as the overly broad ruling in Brown probably does. I'm not sure it is sound public policy to experiment with black-only schools in troubled black neighborhoods, but I'm even less sure that such pedagogical experimentation is the kind of thing the Fourteenth Amendment, or the federal government in general, ought to be worried about. And I can easily envision a school district in a gang-infested area, where gang warfare is divided mostly along racial lines (e.g., blacks vs. Hispanics, not Bloods vs. Crips), determining that the easiest way to keep Schools A and B from becoming war zones is to send all the blacks to A and the Hispanics to B. Again, maybe not the best policy, but not the sort of thing we should be constitutionalizing, either.

As to whether the judicial amputation was really necessary, even in this case, let's suppose that Brown had been decided not as it was, but by the following the narrower, ostensibly "separate but equal" cases that led up to it. At the time of Plessy, "separate but equal" was a ruse - show the court you're separate, and they'll gladly assume you must have been equal. But in the years leading up to Brown, that was no longer true, and courts started giving "but equal" some real teeth. As a result, school district after school district got ordered to desegregate because in each case, it was clear that "but equal" was not met, and in most cases, the district hadn't even tried. So if the Brown court had stayed the course, I'm not sure our school districts would look all that different today than they do, with segregation either being unheard of (because no one seriously proposes it for any non-invidious purpose) or "safe, legal and rare" (because a few far-left educrats do, but most voters in Middle America find that stuff offensive).

I also have little doubt - no, make that no doubt whatsoever - that if anyone thought today that we needed a constitutional amendment to prohibit school districts from segregating students by race, that amendment would pass overwhelmingly, in a matter of days if not hours. Thus, even if I were to concede your premise that judicial nullification/activism is ever justifiable, I'd be inclined to put some kind of time limit on its force. Every rogue judge thinks he's ahead of the curve, while the rest of us think he's off on a tangent. One way to find out is to see where society as a whole ends up a decade or two later. If society never catches up, maybe you weren't really "ahead" of them to begin with.

The above hissed in response by: Xrlq [TypeKey Profile Page] at September 14, 2006 8:27 AM

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