Tuesday, October 25, 2005
The Frodo Test
The second part is an addendum, taking a detailed look at the family of constitutional balancing tests spawned by Korematsu. These tests were first embraced and elaborated on the strength of their legitimate uses. The extraordinary power of balancing tests does not just make them dangerous. It also makes them indispensable. The Court just has to be very scrupulous about maintaining the proper priority between different kinds of weights. In particular, nothing can be deemed to outweigh a constitutional requirement but another constitutional requirement. Korematsu’s tainted origins destroyed this safeguard from the start, making O’Connor-type destruction of the Constitution inevitable. What is needed now, if the ring of evil power is to be returned to Mt. Doom, is to distinguish the legitimate from the illegitimate uses of the Korematsu family of balancing tests, and banish the illegitimate uses forever.
Article: The Frodo testSince the 1930’s the Supreme Court has worked two fundamental depredations against the Constitution. First, it freed the political branches of the federal government from the Constitution’s clearly articulated system of limited enumerated powers. Second, it arrogated to itself unlimited power to set aside constitutional requirements whenever it deems that there is a “compelling state interest” in doing so.
When evaluating nominees to the Court, it is not their view of the first of these depredations that is the greatest concern. The important question his how they will respond when they become one of the bearers of the ring of unlimited unconstitutional power that the Court has forged for itself. Will they be part of the fellowship of the ring that is trying to return the ring of evil power to the Mountain of Doom from which it was faithlessly drawn, or will absolute power corrupt absolutely, as Lord Acton warned? Will they revel and glory in their unlimited power to choose a path for the nation that no majority can override?
These high stakes, never contemplated by the framers of our Constitution, call for the application of a litmus test that all nominees to the Court must pass before they can be confirmed. They should all have to pass a Frodo test, demonstrated by years of clearly articulated conviction. They must burn with a desire first and foremost to return the Rhinegold to the Rhine: to destroy the ring of evil power, placing it forever beyond the reach of any future Court.
Harriet Miers, who has almost no experience with Constitutional law at all, has never confronted the Frodo test. Thus she has not passed it, and should not be confirmed. That would be like sticking Sauron’s ring on a random person. Her chances of turning out to be a ring-bearer are one in a thousand. We need to appoint those who are already identifiable as ring-bearers, and no one else. The havoc that stands to be wreaked by one who succumbs to the power of the ring makes the stakes too high. Just as important, the only ones who have a chance to find the path back to Mordor are those who have spent a lifetime studying how the ring of evil power came out of Mordor.
The first revolution: overthrowing the system of limited powersUnder threat from President Franklin Delano Roosevelt’s “court packing plan,” the Supreme Court ruled that, since everything affects interstate commerce in some way, the federal government is empowered under the interstate commerce clause to do anything. This interpretation of the commerce clause had earlier been rejected precisely because it annihilates the system of limited powers, proving that it could not possibly have been intended. But a new day had dawned.
A desperate nation, rallied by a popular president, insisted that the Court see the Constitution, not as a dead letter, but as a “living Constitution,” to be interpreted flexibly according to the needs of the day. “Take this scepter and crown,” the nation cried, and after thinking it over, the Justices decided that they could live with that. The historical aphorism is that “a switch in time saved nine”: that FDR’s Court Packing scheme was averted when Justice Owen Roberts switched from resisting FDR’s open ended use of the commerce clause to supporting it. But Roberts is not the only one who switched. Most of the justices quickly accommodated themselves to their new role as philosopher kings, empowered to read into our “living Constitution” whatever requirements would best serve the age.
The second great revolution in constitutional law came through the particular mechanism by which the Justices arrogated to themselves the unconstitutional power that the mob thrust upon them. The problem with a living Constitution is that there is always that pesky written Constitution, standing as a rebuke to any violation of its language. Some means for setting the written Constitution aside was needed. The means was discovered almost by serendipity. It is perhaps best described as a seed that fell into a crack, then grew into an oak, that split the world.
The “compelling state interest” testIn 1944, the Court heard the case of Korematsu v. United States. Fred Kormatsu was a Japanese-American who, refusing to leave the West Coast evacuation zone during World War II, was forced into an internment camp. When he sued the federal government for violating his right to equal protection, the case should have been simple. The Fourteenth Amendment does not apply to the federal government. It explicitly only applies to the states. Nothing in the Constitution barred the federal government from discriminating at will. Korematsu had no case.
To a Court that had taken on the job of fashioning a living Constitution—of reading the Fourteenth Amendment, not for what it says, but for what it should say—this was unacceptable. The states are not allowed to discriminate, but the feds are? Clearly this was an oversight, a mistake, that needed to be fixed. Still, as with the commerce clause, the Court needed to find some linguistic trick by which it could get around the plain language of the Constitution. What it came up with is the H-bomb of constitutional interpretation: an all-purpose means for setting aside any constitutional requirement, anywhere, any time.
It is called the “compelling state interest” test. Unwilling to admit that Mr. Korematsu had no constitutional right to be treated equally by the federal government, the Court instead ruled that his constitutional rights could be set aside in the face of a compelling state interest, such as the need to protect the nation from disloyal Japanese-Americans in time of war. In fact, this was no ordinary state interest. This was a matter of upholding the war powers allocated to the president by the Constitution. Thus if Korematsu actually did have rights that were being violated, that violation could have been allowed under the traditional principle that one constitutional requirement may give way when it comes in conflict with another constitutional requirement.
The problem for the Court was that this traditional interpretation would have distinguished between the state and federal governments, exactly the distinction that the Court was trying to elide. The Court could not advert directly to the president’s war powers without confronting the fact that such federal powers are not constrained by the Fourteenth Amendment at all. Thus the Court asserted a generic “compelling state interest” test and the seed was planted. This test, and the related balancing tests that it gave rise to, carry unlimited potential for abuse.
There had always been the problem of how to discern the meaning of constitutional provisions. Does the right to free speech mean the right to yell “fire” in a crowded theater? No. That was not the intention. But once the intention was discerned, nothing could override it but another constitutional provision. No more. Korematsu overturned the very principle of constitutional supremacy. Henceforth, any state interest deemed by the Court to be “compelling” could constitute sufficient grounds for setting aside constitutional rights.
O’Connor forges Sauron’s ringThe Korematsu Court was almost certainly not aware of what kind of seed it was planting. Nevertheless, as subsequent Courts sought grounds to express their ideas about what the Constitution should say, the compelling-state-interest test spread in its application. At the same time, the bar for what constitutes a “compelling state interest” has been lowered. In particular, Justice Sandra Day O’Connor developed as her signature style the Korematsu-like balancing of constitutional requirements against generic state interests.
O’Connor would collect all of the various competing constitutional arguments that a case raised and throw them on the scale with all of the various competing state interests and interests of the people that a case raised. Then, as the personification of blind justice, she would, without any bias in favor of any class of interest, feel how the weights balanced against each other, and render her judgment accordingly. In fifteen years of dominating the Court as the usual swing vote, she was able to stamp this style on an extensive body of precedent. Two cases from 2003 demonstrate the extent of the destruction.
In Grutter v. Bollinger, the University of Michigan affirmative action case, the bar for what constitutes a “compelling state interest” was stomped into the ground. The state’s race conscious behavior was acknowledged by the Court to violate the most express intent of the equal protection clause, which was to bar the states from treating people differently on the basis of race. Yet the Court was able to find that at least part of what the State of Michigan was trying to accomplish with its race consciousness was race neutral and hence not necessarily barred by the Constitution.
Michigan’s theory was that catering to the race consciousness of individuals would make them more comfortable and hence improve their education. Improving education is not in itself an illegitimate state purpose and that was enough for O’Connor, establishing a new standard for compelling state interests. So long as the Constitution itself does not with absolute certainty brand a particular state interest as necessarily illegitimate, that state interest is sufficient, after Grutter, to overturn the Constitution.
Another O’Connor expansion of the compelling state interest test was introduced in Federal Election Commission v. McConnell where the Court upheld the McCain-Feingold Act’s sweeping regulation of political speech. In this case, “important governmental interests” in campaign regulation were used to set aside the First Amendment rule that “Congress shall make no law … abridging the freedom of speech.” Never mind that the framers of the Constitution already contemplated the state’s interests in regulating speech, weighed them against the state’s interests in freedom of speech, and established freedom of speech as the fundamental law of the land. Wearing the Korematsu ring, the Justices are free to weigh these state interests again for themselves and come up with a different answer, if they think they see better than the founders did.
By its nature, this power is unbounded. As Justice Thomas noted about the upholding of speech regulation in McConnell: “The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press. None of the rationales offered by the defendants, and none of the reasoning employed by the Court, exempts the press.” Thomas cites the difficulty of distinguishing media and non-media corporations, but even if “the press” could be distinguished, it would still be open to regulation wherever the Court might find a compelling state interest in doing so.
This is not just the Court’s de facto position. It is Court’s official position. The Constitution can be set aside in favor of “compelling state interests” or “important governmental interests,” or any of the growing number of forms that the Korematsu test is spreading into. The “living Constitution” de jure is the corner bistro’s soup de jour, especially after O’Connor. Like Galadriel, Queen of the Elves, O’Conner could not handle the ring. She was perverted by it. She reveled in its power, glorying in the irresistible queenliness that it bestowed. All must bow before her wisdom and mercy. All must adore, for she can crush them with a thought. All she was ever aware of was the empowerment of her own judgment, oblivious to the constitutional structure, erected by vastly wiser minds, that lay in ruins behind her.
The fellowship of the ringThe destruction is not yet complete. O’Connor and her enablers burned down a priceless heritage with this flame thrower, but much of the Constitution still stands. It stands like tinder, stripped of all protection, like Topanga Canyon after a month of Santa Anas, ready to disappear at the next dropped match. We have to realize our point in history. If we want to save the Constitution we must secure within the Supreme Court a fellowship of the ring, committed to sinking the ill-got ring back into the oblivion from which it should never have been drawn.
O’Connor established 15 years of ruling precedents that will have to be overcome. The chance that an untested Harriet Miers, as the Court’s crucial swing vote, can guide the ring back to Mordor without succumbing to its power is small. The only thing we know about her is that her views seem highly changeable and inconsistent. Late in life she became a pro-life evangelical Christian. Long after she supposedly switched from Democrat to Republican she helped the SMU Women’s Studies Department raise money for a series of left-wing feminists to come speak on campus. She reportedly was one proponent of the Bush Administration’s position on Grutter v. Bollinger, which contained much of what is most perverse in the Bollinger ruling. Most importantly, she has never made a single public comment that suggests that she even understands the Court’s abuse of power, never mind has a commitment to end it.
With the bar for compelling state interests lowered all the way to the ground, what might a Justice Miers consider a compelling state interest? Anything terrorism related, certainly. And why shouldn’t the steps taken to fight terrorism be used to enforce every kind of morality? After all, as long as a state interest contains at least one thread that does not in itself necessarily constitute an illegitimate state interest, then the state’s interest is sufficient to be considered compelling, and hence superior to the Constitution.
Will Miers glory in that power, as O’Connor did? Most people would. Until the Court’s ring of evil power is destroyed, only a select few can be allowed on the court: those who have passed the Frodo test, by proving over many years their commitment to destroying the ring. Everything else is secondary. Fixing the system of limited enumerated powers is secondary. If the ring is not destroyed, there won’t be any Constitution left to fix.
Part II: Addendum on the Korematsu family of balancing testsThe “compelling state interest test” IS a ring of evil power. It allows the Supreme Court to set constitutional provisions aside whenever a majority of the Justices deem that there is a compelling state interest in doing so. This is not a power the Court is supposed to possess. The Constitution is supposed to reign supreme, yet the justices have empowered themselves to negate it at will.
As stark as this betrayal is, the full story is much more complicated. The ring was forged out of light as well as dark, and not just the light of good intentions, but of good solid constitutional law. The compelling state interest test introduced into constitutional law the concept of a balancing test. This kind of test has very important legitimate uses and it is these legitimate uses that led the Court not only to embrace the compelling state interest test, but to derive from it a whole family of related balancing tests, where the greater the constitutional interest at stake, the greater the state interest required to overbalance it.
One legitimate use of balancing tests is to discern the intended scope of a constitutional provision. An example is the balancing test applied to religious liberty in Sherbert v. Verner, 374 U.S. 398 (1963). Here a state law requiring that government employees work on certain days if they want to receive package benefits was held to infringe substantially on an employee’s First Amendment’s religious liberty right to keep the Sabbath holy. There was no compelling state interest in placing this restriction on benefits packages, so it was not allowed.
This was an appropriate way of trying to discern the intended limits of religious liberty. The framers never intended that government bend over backwards—forbearing what it otherwise had good reason to do—out of deference to this, that and the other proclaimed religion. That would verge on state establishment of religion. Should a sex-cult religion, for instance, constitute an excuse for perpetrating what would otherwise be considered a criminal sexual assault? No. There is a compelling state interest in preventing sexual assault and that properly defines the limit of religious liberty.
The other legitimate role of balancing is to adjudicate conflict between competing constitutional provisions. This use of balancing tests is exampled in Buckley v. Valeo, the 1976 campaign finance law case. The Federal Election Campaign Act of 1971 placed severe limits on so-called “hard money” contributions to a candidate’s campaign financing. These restrictions infringe donors’ First Amendment speech rights by limiting how far they can use their own resources to promote the speech of their choice.
At the same time, "hard money" limits also protect First Amendment rights to association by making it harder for financiers and candidates to engage in quid-pro-quo corruption. Such corruption makes it impossible for others to associate effectively through the election process for the advancement of their political views. They think they are voting for someone who represents their views, but the candidate is actually a corrupt fraud. Instead of representing what he claims to represent, he is selling his representation under the table.
When constitutional rights conflict like this, it is appropriate to balance them against each other. Restrictions must not do more harm to competing rights than is necessary to effect their purpose, and Congress must not be allowed to give a clearly lesser constitutional harm priority over a clearly larger constitutional harm, but within these guidelines Congress should be deferred to.
In Buckley, the Court satisfied itself that these conditions were met by noting that, under the 1971 law, those who want to spend more than the contribution limit on influencing an election were free to spend additional money financing their own speech (rather than a candidate's speech) about how people should vote and why. If they wanted to, they could “expend such [additional] funds on direct political expression,” the Court observed, referring to the “soft money” that the 1971 law did not limit, and this made all the difference. Since people could still spend their money directly on speech, limiting their indirect funding of other people’s speech was not a severe impairment of their speech in total.
In this way, the Court maintained a crucial distinction. Buying a candidate (quid pro quo corruption) harms associational rights and can justify some infringement of speech rights, but the state has no legitimate interest in regulating speech for its own sake. People devoting their resources to the exercise of speech in an attempt to sway how their fellows vote in an election is the substance of free speech and the state can never say there is too much of it. It can try to stop people from buying candidates, but it cannot try to stop them from buying influence with voters through expenditures on speech.
I don’t think the Court balanced these different First Amendment interests very well in Buckley. It over-estimated the threat of quid-pro-quo corruption and it under-estimated the harm that contribution limits do to speech rights. Nevertheless, what is more important is that the Court was on a legitimate track. Like the Sherbert religious freedom case, Buckley’s use of balancing tests was legitimate because the Justices were careful, when placing interests in the scale, to give them the weights that the Constitution says they should have. They looked to the meaning of the First Amendment to decide that stopping people from buying speech was an illegitimate state interest according to the First Amendment: one that could not be weighed positively, but must be weighed negatively, as a harm to First Amendment rights.
Notice that nothing in the abstract form of the balancing test compels this responsible use. The form is wide open. This is a reflection of the Court’s specific intent in Korematsu to elide the crucial distinction between interests specified or implicated by the Constitution and generic state interests (see the main article for this history). If the Court wants to negate the Constitution, all it has to do is take advantage of this wide-open form to under-weigh some constitutional concern, or overweigh some generic interest, or weigh positively some interest that the Constitution says should be weighed negatively. The test itself imposes no guidelines or restrictions. All depends on the Justices being scrupulous, in case after case, not to use the ring of illegitimate power that Korematsu placed on their fingers.
With O’Connor, the dam broke. Writing for the Court in McConnell vs. FEC she simply ignored the distinction made in Buckley between buying a candidate (thereby defrauding fellow voters) and buying an election by spending on speech that convinces fellow voters. The spending on speech that the Buckley Court insisted must be weighed positively is weighed negatively in McConnell. Poof. No more First Amendment. Just weigh free speech negatively. O’Connor did not even have to find a compelling state interest in setting speech rights aside. With speech weighed negatively, anything could overbalance it. Indeed, the negative value of speech itself is all that is needed to justify regulation, which is exactly what O’Connor argued.
Section III of O’Connor’s McConnell opinion simply accepts McCain-Feingold’s characterization of “soft money” as a “loophole” in Buckley’s attempt to quash quid-pro-quo corruption. “Title I,” the section begins, “is Congress' effort to plug the soft-money loophole.” She goes on to uphold this justification, without anywhere acknowledging Buckley’s key condition: that the only reason hard-money regulation is tenable is because soft-money remains unregulated. Sauron-like, she spins gold into lead. Free speech itself becomes an enemy to attack.
But the Buckley court cannot be absolved of blame. Buckley is one of many cases to invoke the Korematsu family of balancing tests without ever articulating the requirements for their legitimate use. It cites (at p.25) three cases as precedents for the use of the compelling state interest test: Cousins v. Wigoda, NAACP v. Button, and Shelton v. Tucker. Each represents a narrowly defined legitimate use of the test, but none of these limited applications is noted in Buckley’s citation. One has to go back and look at the cases to see how their use of balancing tests was limited.
Wigoda favored the weightier of two competing constitutionally protected interests (with rights to participate in primary elections taking precedence over any right there may be to have the state enforce party rules.) Button was a scope-of-constitutional-provision case. (Rights to association were found to include rights to organize civil-rights lawsuits. In contrast, the state’s competing interest in blocking third party promotion of lawsuits was found to be less than compelling.) Tucker held that harms could only be properly balanced if restrictions were narrowly tailored so as not to impose more harm than necessary on protected interests. The latter is the only requirement that Buckley mentions. It makes no note that the other cited cases were examples of the only legitimate kinds of balancing allowed.
Button is even worse. It simply asserts the compelling state interest test without any citation of precedent at all:
The decisions of this Court have consistently held that only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms. (At 438.)One object of this reference must be Sherbert, the religious liberty case described above, since that case was from the Court’s previous term (also 1963). But here the fact that Sherbert is a legitimate scope-of-provision case cannot even be traced, since no specific cases are cited at all. The history of legitimate balancing-test use is simply dropped.
Up through Buckley, the Court was pretty good about applying balancing tests in legitimate ways, but terrible about noting that these tests must be limited to these legitimate uses. That set the stage for O’Connor’s perversion of these tests in Grutter and McConnell, abandoning the legitimate uses of constitutional balancing and embracing the illegitimate: setting aside clear constitutional provisions in favor of whatever O’Connor deeded to be more important state interests. Sixty years after Kormatsu, the full destructive potential the generic balancing test has finally been fulfilled.
Hence the need for Supreme Court nominees to pass a Frodo test. The only people who can be allowed to possess O’Connor’s ring of unconstitutional power are those who are committed to destroying it, without ever using it. Balancing tests can and should be retained. Balancing is a fundamental judicial role that cannot be done without. But these tests must incorporate the two hundred years of pre-O’Connor precedent about what is to be given more weight than what. In particular, constitutional provisions must take absolute priority over any government interests not specified in the Constitution. Balancing tests can help discern the intended limits of constitutional provisions, and they can adjudicate conflicts between constitutional provisions, but they can never be used to give generic state interests priority over the Constitution.
Anyone who got this far should reward themselves by enjoying my internment cartoon!
And just so TruthLaidBear's tracking tool will know: "I oppose the Miers nomination."