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The Courts, Criminal Justice & Tort Archive

Monday

31

January 2011

3

COMMENTS

Judge Vinson Piles On

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort

It comes as no surprise at this point, but the major news of the day is that the Judge from my hometown – and whose wife, incidentally, was my 4th grade teacher – has become the second to strike down Obamacare.

Unlike the previous ruling, Judge Vinson found that the unconstitutionality of the individual mandate was enough to invalidate the entire law, as it lacked a severability clause.

Although obviously newsworthy, I’m not sure this ruling changes anything. The Supreme Court was almost certain to take the case already. Sadly, the fate of Obamacare may ultimately be decided by what side of the bed Justice Kennedy rolls out of before oral arguments.

For more on the ruling:

Monday

13

December 2010

1

COMMENTS

Court Recognizes the Obvious: Individual Mandate Unconstitutional

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort

U.S. District Judge Henry E. Hudson has delivered as expected and ruled that the individual mandate is unconstitutional (the full ruling is available here). Even under the modern Commerce Clause jurisprudence, which itself has long ago turned the clear meaning of clause on its head, there has never been recognized any legal authority compelling individuals to purchase a particular good or service.

The oddity of the ruling is that it didn’t throw out the entire law, despite the lack of a severability clause in the original bill (which would make provisions for severing clauses found unconstitutional so that the bill itself could remain intact). As a practical matter, however, the lack of an individual mandate scuttles the entire affair. The question now is: what will the higher courts do?

Monday

13

December 2010

0

COMMENTS

The Constitution Versus Constitutional Law

Written by , Posted in The Courts, Criminal Justice & Tort

Professor Kerr at Volokh conspiracy observes a common source of confusion in constitutional debates:

[T]here are two semantic alternatives, and those alternatives can be used to generate a lot of confusion. We can all agree that there are two different questions: (1) How courts actually have interpreted a provision of the Constitution (and thus how a good lower-court judge would apply it) and (2) How courts should have interpreted that provision based on whatever theory of constitutional interpretation a person adopts. My sense is that the most common way to refer to these two different kinds of claims in our legal culture is that (1) describes what the Constitution presently is or means, and that (2) is what the Constitution should be or should mean. That is, what courts have done is descriptive, and what courts should have done is normative. I’m not saying that is objectively correct: I’m just saying that it is the most common choice of wording. At the same time, you can make a different semantic choice by saying that “the Constitution” means what the courts should have said. If you take this semantic option, (1) is what the courts have said the Constitution is, and (2) is what the Constitution is. Now both are descriptive claims: What the courts have done is descriptive of the courts, and what the courts should have done is descriptive of the Constitution.

He goes on to demonstrate, correctly I think, how these two approaches can lead people to talk past one another.

I have an issue with his overall characterization, however. He seems to have characterized any discussions about the Constitution as one that must necessarily be about constitutional law. That is, one is either describing what Constitutional law should be or what it is. This is not surprising given that he is a legal professional, but I think it’s myopic when lawyers often assume that constitutional law is the only relevant avenue by which we understand the Constitution. It is not.

In addition to the two questions he describes, there are two more. 1) What does the Constitution say, and 2) what should it say? Sometimes these questions overlap with his own, but not always. (more…)

Sunday

19

September 2010

2

COMMENTS

Should Judges Consider Costs?

Written by , Posted in The Courts, Criminal Justice & Tort

The New York Times describes how Missouri judges now have additional information to consider while making decisions:

When judges here sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri.

For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.

Legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.

Noted libertarian economist Jeffrey Miron asks: “When a judge is on the fence about alternative punishments, why not choose the less expensive one?”

For me, the answer to that question likely depends on how those costs are measured. Do they include the different recidivism rates, and thus the different residual costs, that accompany different punishments? Based on the article it seem like that’s probably considered.  What about the economic costs should businesses and residents be driven away by policy that is too lax on criminals? That seems trickier to measure in such a way, but perhaps it can be modeled.

I’m all for giving judges as much information as possible, but jurisdictions should be careful about not using the availability of such information as an excuse to let judges handle decisions about the allocation of social resources that might best be left to the legislature. Ultimately, it should be up to the representatives elected by the people to determine where precious resources are best spent.  That said, if they think giving judges this information will maximize the utility of those funds they have allocated to law and order, than it might be a worthwhile experiment after all.

Tuesday

14

September 2010

0

COMMENTS

Right Ruling, Wrong Reason

Written by , Posted in The Courts, Criminal Justice & Tort

The Ninth Circuit recently struck down a local ordinance that banned tattoo parlors within the city of Hermosa Beach, California.

In Anderson v. Hermosa Beach, decided September 9, the panel struck down a local ordinance that basically imposed a total ban on tattoo parlors within the city of Hermosa Beach, California.  Municipal Code section 17.06.070 provides zoning for a wide variety of businesses, but not these.  So in Hermosa Beach, you could operate an “adult” business, gun shop, or fortune teller (or, ideally, some combination of all three), but you couldn’t run a tattoo parlor.

The plaintiff owns a tattoo parlor in Los Angeles and wanted to open one in Hermosa Beach, but his request for a permit was denied.  He sued, arguing that the ban violated the First Amendment.  The district court ruled that tattooing was not protected expression, at least on the part of the tattooer, largely because the tattooee decides what he or she wants on his or her body.  That court therefore applied the “rational basis” test, and that meant Anderson lost.

On appeal, the Ninth Circuit said its first task was “to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component.”  In other words, is it like writing, which always expresses something, or more like burning a draft card, which might express something (e.g. I don’t want to get shot) or might not (if you are just trying to start a fire?).  The court found there was no dispute that a tattoo itself is protected “speech” even if it doesn’t consist of words.  Disagreeing with other courts, it then held that the process of tattooing someone must also be protected, because you can’t separate the process from the tattoo itself.

What about all those businesses that aren’t expressive? Are they not worth protection? The fact that the First Amendment has to be used here just goes to show how far we’ve fallen in the protection of basic economic rights. Everyone has a right to pursue an honest living, and to engage in trade of mutual consent. That is why this ban should have been struck down. Unfortunately, the courts long ago decided that economic liberties do not deserve the same level of protection as other rights thanks to the infamous footnote four. Hence why they had to bend over backwards and use the First Amendment in such a manner.

The outcome of this case was right, but the reasoning would not need to be so complicated if the courts would simply recognize economic liberties once again.

Wednesday

4

August 2010

0

COMMENTS

Rejected: Missouri Gives Obamacare A Resounding No

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort, The Nanny State & A Regulated Society

As I predicted back in December, the fight over Obamacare has moved to the states.  Several big developments have hit recently which do not bode well for supporters of unconstitutionally government-run health care.

First, a Federal District Court Judge Henry Hudson rejected the government’s attempt to dismiss Virginia’s lawsuit against Obamacare (full decision here).  The establishment line was that legal challenges to Obamacare were just partisan grandstanding, and that of course government has the power to tax a non-economic non-activity through the Commerce Clause.  They were wrong as Judge Hudson noted that Obamacare’s constitutional argument “literally forges new ground and extends Commerce Clause powers beyond its current high watermark.”  Whether or not the court eventually reaches the right conclusion and declares Obamacare’s individual mandate to be unconstitutional remains to be seen, but this is an important first step.

On top of this, the voters in Missouri turned out yesterday to give Obamacare their disapproval.

Tuesday’s 71 to 29 percent blowout vote on Proposition C left no doubt where voters stand as they handed President Obama’s health care law a stunning rejection.

The proposition attempts to protect Missourians from the new federal mandate to buy insurance.

It also tries overturning the new federal prohibitions on insurance companies selling insurance directly to people.

This is just the beginning of the long fight against massive government expansion and government-run healthcare.  But so far, the battles are being won by the side of smart policy and Constitutional governance.

Tuesday

3

August 2010

1

COMMENTS

Friday

25

June 2010

0

COMMENTS

Friday

28

May 2010

0

COMMENTS

School Choice Before The Supreme Court

Written by , Posted in Education, The Courts, Criminal Justice & Tort

Reminding us again how important it is to place judges on the Supreme Court that actually adhere to the doctrine that the Constitution is the law of the land, another important case is before the court.  The Ninth Circuit wrongly sided with the teacher’s unions and others with a vested interest in defending education’s status quo of failure, but now the Supreme Court has a chance to correct this error.

From an Institute for Justice press release:

…This week, the Court agreed to decide whether Arizona’s scholarship tax credit program violates the Constitution’s Establishment Clause.  That will thrust school choice back into the national spotlight to a degree not seen since 2002, when IJ defended the Cleveland school choice program in Zelman v. Simmons-Harris, a case in which the U.S. Supreme Court ruled that vouchers are constitutional.

…The ACLU claims that the state, by giving taxpayers the choice to donate to both religious and nonreligious School Tuition Organizations, is unconstitutionally advancing religion in violation of the Establishment Clause of the First Amendment to the U.S. Constitution because most taxpayers to date have donated to religiously affiliated charities.

Mellor said, “This case is most notable for what it does not involve:  state action advancing religion.  Arizona structured its tax credit program to be completely neutral with regard to religion.  Neither taxpayers nor parents have any financial incentive to donate to a religiously affiliated scholarship organization over a nonreligious scholarship organization or to select religious over nonreligious schools.”

Monday

10

May 2010

0

COMMENTS

How Necessary Is Judicial Experience?

Written by , Posted in The Courts, Criminal Justice & Tort

President Obama’s nomination of Elena Kagan for the Supreme Court comes as no surprise.  I’m working on an op-ed already so I’m not going to go into it too much here, but I wanted to touch briefly on one aspect of the nomination: her lack of any judicial experience whatsoever.

No doubt this opens up a potential avenue of attack against her nomination, though she is all but certain to be confirmed.  So how important is judicial experience?  It certainly hasn’t always been a requirement, as a total of 40 Supreme Court Justices have been confirmed after being nominated with no prior experience.  Yet the last such example was William Rehnquist, who was appointed by Nixon almost 40 years ago.

The practice of appointing Supreme Court members without judicial experience has gradually declined since the nation’s founding, when it was quite common.  It’s only natural that the judiciary would institutionalize over time, forming a standard career path or expected procession for judicial nominees. Due to this, the nomination of an Elena Kagan has become somewhat unusual.

I don’t think that fact necessarily means she’s not qualified. There’s a usefulness to the kind of institutionalization the judiciary has experienced and most of the time it ought to be respected, but it’s also easy for such institutions to become insular and stale. A nominee who has not proceeded along that expected institutional path, in other words, might well have a fresh perspective to offer. Regardless of judicial experience, the most important qualifier should continue to be a nominee’s demonstrated fidelity to the Constitution.

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About Me

profileI serve as Vice President of the Center for Freedom and Prosperity, a non-profit think tank dedicated to preserving tax competition and free markets. This site features my personal views, which are not reflective of CF&P.

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