Legal Affairs – It’s Time to Junk the Double Standard on Free Speech

National Journal

It made news when hecklers booed Sacramento Bee publisher Janis Besler Heaphy so loudly and long-for suggesting that the government had gone too far in curbing civil liberties since September 11-that she could not finish her December 15 commencement speech at California State University (Sacramento). "Many interpret it as a troubling example of rising intolerance for public discourse that questions the nation’s response to the September 11 terror attacks," reported the Los Angeles Times. The New York Times and other major newspapers weighed in with similar articles. ABC News’ Nightline did a special report.

Legal Affairs – Victims’ Rights: Leave the Constitution Alone

National Journal

Chances are that most Senators have not really read the proposed Victims’ Rights Amendment, which is scheduled to come to the floor for the first time on April 25. After all, it’s kind of wordy-almost as long as the Constitution’s first 10 amendments (the Bill of Rights) combined. And you don’t have to go far into it to understand two key points.

The first is that a "no" vote would open the way for political adversaries to claim that "Senator So-and-so sold out the rights of crime victims." This helps explain why the proposed amendment has a chance of winning the required two-thirds majorities in both the Senate and the House. Sponsored by Sen. Jon Kyl, R-Ariz., it has 41 co-sponsors (28 Republicans and 13 Demo-crats), including Dianne Feinstein, D-Calif., and has garnered rhetorical support from President Clinton, Vice President Gore, and Attorney General Janet Reno. (The Justice Department has hedged its endorsement of the fine print because of the deep misgivings of many of its officials.)

Compassion Breeding Hubris

About 3 a.m. one night last April, after reading the two federal appellate decisions creating a new right to assisted suicide, and being pulled one way by concerns about judicial imperialism, and the other way by heart-rending anecdotes of people dying in excruciating pain-or blowing their brains out or jumping off bridges-because they lacked the more humane option of lethal medication, I settled on an ingenious solution.

It was a "constitutional remand," proposed by Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit, in his concurrence in one of the cases now before the Supreme Court. (That case, Vacco v. Quill, and the case of Washington v. Glucksberg, in which the 9th Circuit struck down another statute barring assisted suicide, were argued Jan. 8.)

Judge Calabresi’s idea was to hold New York’s long-standing ban on assisting suicide to be semi-unconstitutional as applied to physicians who honor requests for lethal medication by mentally competent patients in the last stages of terminal illness.

Because the statute seemed anachronistic, and at least "close to violating" substantive due process or equal protection, Calabresi said, the court should strike it down for now, but should reserve the possibility of upholding a similar (or even identical) law if the legislature were to re-enact it while articulating persuasive policy justifications.

"That makes sense to me, at least at first blush," I concluded ("Life, Death, and Imperial Judges," April 15, 1996, Page 23). At second blush, it doesn’t make sense. Rather, it seems clear that the Supreme Court should uphold the long-standing line against assisted suicide, as most of the justices seem inclined to do.

Why Term Limits Flout the Framers Intent

"A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of public business…The greater the proportion of new members and the less the information of the bulk of the members, the more apt they will be to fall into the snares that may be laid for them."

James Madison, The Federalist, No. 53

”The gentlemen deceive themselves; the amendment would defeat their own design. When a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument."

Alexander Hamilton (arguing at New York ratification convention that term-limits laws would make representatives less accountable to the people)

I think term-limits laws are bad policy-a cure worse than the various diseases of entrenched incumbency. Rather than some arcadian realm of "citizen legislators." term limits would (I conjecture) give us legislators whose main distinctions from the ones we have now would be a relative lack of useful experience, knowledge, and seasoning: a greater inability to coalesce behind leaders, en-sage in reasoned deliberation, and produce coherent legislative programs: a greater dependence on the lobbyists and special interests that finance campaigns and provide employment opportunities for ex-legislators.

I therefore bring a certain bias to the question of whether state laws aimed at forcing long-term incumbents out of Congress should be struck down as unconstitutional, on which the Supreme Court heard arguments on Nov. 29 in an Arkansas case. U.S. Term Limits v. Thornton. But 1 also have a countervailing bias: When in doubt, the Court should let voters try out any damn fool idea they please.

The Haiti Precedent: Limiting The Damage

Having accused President Bill Clinton of preparing " a near-fatal blow to the framers’ carefully crafted restraints on the president’s war-making power" ["A Betrayal of the Constitution," Sept.19 1994, Page25], I write now to concede (with some relief) that the not-quite-invasion of Haiti ended up doing less damage to the constitutional fabric than I had feared.

I also respond below to a rebuttal by Lee A. Casey and David B. Rivkin Jr. ["In Constitutional Interpretation, Read the Framers’ Words," Oct. 3, 1994, Page 24], who defend-as well as anyone could, perhaps-a position bordering on the frivolous: that the framers of the Constitution gave the president sweeping power to invade any nation in the world without congressional consent.

President Clinton committed an unconstitutional act (in my view) by ordering an invasion of Haiti on Sept. 18 without a prior congressional vote of approval. But the importance of that act as a precedent for future presidents planning unconstitutional adventures was limited, thanks to some careful lawyering by Walter Dellinger, head of the Justice Department’s Office of Legal Counsel (and thanks also to the last-minute deal with Haiti’s milijary that averted actual hostilities.)

In a Sept. 27 response to an inquiry from Senate Minority Leader Robert Dole and others, Dellinger offers a set of after-the-fact legal rationales for the unconsummated invasion that have the significant virtue of being narrow and Haiti specific. The assistant attorney general’s letter will be of less value to those claiming broad presidential power to launch future invasions than to those opposing such claims.

A Betrayal of the Constitution

In a sad display of Democratic hypocrisy-only cosmetically offset by a smaller dose of the Republican variety-President Bill Clinton is about to trash one of the Constitution’s cardinal principles: its solemn reservation to Congress of the power "to declare war."

If this would-be imperial president fulfills his lawless (and foolish) vow to invade Haiti without first seeking a congressional vote of approval, he and his congressional accomplices will have administered a near-fatal blow to the framers’ carefully crafted restraints on the President’s war-making power.

Already weakened by decades of Cold War strangulation-most recently by Presidents Reagan and Bush-those restraints may not survive this betrayal by their supposed Democratic guardians. Senate Majority Leader George Mitchell of Maine, House Speaker Thomas Foley of Washington and many others have abdicated their constitutional responsibilities and bowed to Bill Clinton’s power grab.

The planned 20,000-troop invasion of Haiti would surpass recent Republican rapes of the Constitution in at least one sense: It would be the first time a president has launched an invasion without seeking congressional consent solely because he couldn’t get it. It will also apparently be the first time an invasion has been sped up to pre-empt Congress from voting to forbid it.

Worse still, the White House claims power to launch an invasion even if Congress does forbid it. Or, at least, so one anonymous official told The New York Times, " ‘Either the [congressional] leadership figures out a way not to have the vote, or we find some compromise, or we lose and go ahead with the invasion anyway.’ " Having thus posited a presidential predisposition to commit an impeachable offense, this official blandly added, " ‘Politically, there are no great options.’ ”

Thomas’ Tortuous History Lessons

Justice Clarence Thomas’s eye-catching February 25 dissent in a prison-beating case left one thing a bit unclear. Suppose that instead of just loosening a few of the handcuffed prisoner’s teeth and mussing up his face while their supervisor was admonishing them "not to have too much fun," the two Louisiana penitentiary guards had gotten a little bit rough.

Suppose that they had broken both his legs, or stretched him out on a medieval rack, or torn out his fingernails, or cut off his hand, Saudi-style, or locked him naked in a freezing room.

Would that be "cruel and unusual punishment"?

No way, Thomas and his ideological mentor Antonin Scalia seem at first to suggest in Hudson v. McMillian: The Eighth Amendment was conceived two centuries ago only as a protection against punishments meted out by judges and legislatures-not against anything done to a convict once arrived at prison.

As history, that may be plausible. As constitutional law for 1992, it’s hard to stomach.

Which is why Thomas and Scalia don’t really press the point. Instead, they premise most of thei dissent on narrower grounds, indicating that they might uphold Keith Hudson’s $800 damage aware if he had suffered "serious injury."

In doing so, they expose the flaw at the heart of the "originalist" jurisprudence of which Scalia and Robert Bork are the guru’s, Thomas is an awkward apprentice, Chief Justice William Rehnquist a dabbler, and Ed Meese was once mass-marketer:

Taken to its logical conclusions, originalism leads to results intolerable even to its most ardent expositors.

These results would include constitutional indifference not only to the torture of convicts, but also to most forms of racial discrimination, ranging from state-enforced segregation of black children (the norm when the 14th Amendment was adopted) to quotas that discriminate against white males.

Power to the People. What People?

The central vice of liberal judicial activism, conservative theorists have long contended, has been unwarranted interference with the rights of the people to make the laws through their elected representatives.

Now that Reagan and Bush appointees are firmly in command of the Supreme Court, will they practice the deference to elected representatives that their sponsors preach?

Perhaps. But the record so far suggests no great devotion to the policy-making primacy of the nation’s pre-eminent representative assembly, the U.S. Congress-which also happens to be the object of withering conservative scorn. And some decisions have the feel of a judicial-executive pincer movement cutting Congress out of the process of revising statutory policy.

A few examples:

• The much-discussed abortion-counseling decision this May, Rust v. Sullivan, adopts an approach to statutory interpretation that amounts to a significant transfer of law-making initiative from Congress to the executive.

• Other rulings have evinced an unrestrained readiness to revise the settled meaning of statutes by overruling precedents that Congress has not chosen to disturb.

• Some of the conservative justices seem ready to impose major limitations on the power of Congress, as well as the states, to use racial preferences to remedy past societal discrimination. If they succeed, it would be an arrogation of power as activist in some ways as the 1973 decision legalizing abortion.

The Reagan and Bush appointees are far from being a monolithic bloc, and it is too early to say whether they will be as prone as liberals have been to thwart majoritarian democracy. But it maybe time to start keeping score.

Who Leads on Foreign Policy?

The battle over allocation of foreign-policy powers between the president and Congress, joined so publicly during the Reagan administration, has moved underground amid signs that neither branch learned much from the traumas of the late 1980s.

The Bush administration, bolstered by bold misreadings of the Constitution and its history, has issued sweeping claims of executive power that virtually exclude Congress from the conduct of foreign affairs.

Two administration lawyers recently asserted in a letter to The New York Review of Books that the Framers had intended a system "whereby the president executes the law and conducts foreign affairs, subject only to specific congressional checks"-and armed with ”a residual power that encompasses all authority not expressly delegated to the other branches of government.”

And in a pretrial brief in the Oliver North case, Dick Thornburgh’s Justice Department contended in 1988 that "the president has plenary power which Congress cannot invade" to circumvent congressional spending bans by soliciting money from foreign leaders for covert military operations. When Congress voted last year to bar such solicitations, the administration said it was unconstitutional and the president vetoed the bill.

Meanwhile, after episodic resistance to the Reagan policies in Central America, Congress has resumed its decades-old habit of acquiescence in unilateral presidential actions, including those that skirt its own laws.

When the president invades Panama, hardly bothering to notify (let alone consult) anyone in Congress, the public approves, so Congress applauds. So much for the War Powers Resolution of 1973, which was supposed to prevent unilateral presidential use of military force.

Meese v. Brennan

The New Republic

An activist jurisprudence, one which anchors the Constitution only in the consciences of jurists, is a chameleon jurisprudence, changing color and form in each era.

The Constitution… is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.

If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made… the people will have ceased to be their own rulers.

The Court… has improperly set itself up as… a super-legislature … reading into the Constitution words and implications which are not there, and which were never intended to be there… We want a Supreme Court which will do justice under the Constitution – not over it.

SOUNDS LIKE Ed Meese, doesn’t it? Well, the first quotation is the attorney general’s. But the second comes from Thomas Jefferson, the third from Abraham Lincoln, and the fourth from Franklin D. Roosevelt. When Meese assails government by judiciary, he is in good company.

Meese has denounced major Supreme Court rulings of the past 60 years and called for judges to look to "the original meaning of constitutional provisions" as "the only reliable guide for judgment." No attorney general in the past four decades has set out so deliberately to reduce the power of the judiciary or to screen the ideological credentials of new appointees.