Extended Phenotype

After my post this week on DeLay and Hostettler’s trial balloon on “jurisdiction stripping” as a tactic in the fight to ban gay marriage, I did a bit of research. Naturally, the history of Congressional jurisdiction modifications is complex, and unresolved. In a nutshell, there are arguments on both sides, stemming from the Jurisdiction Clause of Article III, Section 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Proponents of Congressional control over jurisdiction read the last sentence as indicating that Congress can make laws both positive and negative regarding the jurisdiction of Article III courts. Opponents of Congressional control range from claiming that Congress may only make procedural, not substantive, regulations concerning jurisdiction, to those who admit that Congress can legislate jurisdiction, but only if such restrictions do not themselves violate other provisions of the Constitution.

The case law is slight. Decisions appear to be minimalist, ducking the sticky overall question. The broadest statement by the Court on jurisdiction limitation is perhaps United States v. Klein, decided in 1871. Chief Justice Chase wrote:

It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.

The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? …. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it?

We think not; and thus thinking, we do not at all question what was decided in the case of Pennsylvania v. Wheeling Bridge Company. 27 …. No arbitrary rule of decision was prescribed in that case, [80 U.S. 128, 147] but the court was left to apply its ordinary rules to the new circumstances created by the act. In the case before us no new circumstances have been created by legislation. But the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely contrary.

We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power.

It is of vital importance that these powers be kept distinct. The Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress shall from time to time ordain and establish. The same instrument, in the last clause of the same article, provides that in all cases other than those of original jurisdiction, ‘the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.’

Congress has already provided that the Supreme Court shall have jurisdiction of the judgments of the Court of Claims on appeal. Can it prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? This question seems to us to answer itself.

Klein upholds a broad understanding of separation of powers, and specifically that Congress may not direct the outcome of a case or class of cases by prescribing rules of decision. More broadly, Klein would suggest (but does not state) that Congress may not impair the Court’s ability to be the arbiter of Constitutional interpretation and construction.

In practice, the Court has upheld a small number of Congressional restrictions on jurisdiction (out of many attempts: 60 bills were proposed from 1953 to 1968 alone). One of the most important is perhaps Felker v. Turpin, in which the Rehnquist Court upheld Title I of the 1996 Antiterrorism and Effective Death Penalty Act, limiting state prisoners from bringing successive habeas corpus petitions unless their petitions are approved by the U.S. Court of Appeals. Title I of the AEDPA was upheld because the Court believed that it did not repeal the Court’s authority to hear habeas petitions, since original petitions may still be heard. In essence, the Court said that Congress may shape jurisdiction as it sees fit until a threshold is crossed where ALL judicial review of a class of cases is prevented.

This seems to be consistent with the current Court’s take on separation of powers: the democratic process as expressed by the legislative branch is to be given maximum latitude whenever possible, up until it threatens the ability of the other branches to exercise their enumerated powers.

Thus, one might expect that certain types of jurisdiction stripping to enforce gay marriage bans might be upheld by the Court, and not others. The good news for opponents of DeLay and Hostettler’s tactics is that the Court is unlikely to look kindly upon Congressional actions which prohibit ALL judicial review of the subject. The Court seems likely (based on track record) to allow procedural restrictions on what subordinate courts are allowed to hear, but history would seem to suggest that it will brook little interference on its own rights to determine constitutionality.

This is another situation where the classical liberal/conservative analysis of the Court isn’t very useful. The Rehnquist Court has been a strong advocate of judicial supremacy and the Court’s right to be an arbiter, even in situations where one would imagine that a majority of justices would politically align with those trying to limit their power on specific issues.

Given my schedule, I don’t often have the ability to go to rallies and other political events that happen during the week. But I’ve never seen Teresa up close, and I’d heard good things about her speeches. So along with a friend from Maria Cantwell’s campaign, I took the morning off and saw her speak at the convention center.

She was simply amazing. While she obviously had a set of topics to discuss, the speech seemed fairly extemporaneous. She was alternately soft-spoken and passionate, humble and strong, and in the end, very moving. She doesn’t speak in political catch-phrases or sound bites. Stories from her life and childhood growing up in a dictatorship illuminate her points about the idea and ideal of America. She spoke of complexity and how we must learn to embrace it, because we face no simple issues. She spoke of optimism, and our need to embody it while still facing the real work ahead. And she spoke of the disappointment internationally when we fail to live up to our own rhetoric, to be the role model we always tell ourselves America is.

It was a terrific speech and she’s an amazing person. If you haven’t had a chance to hear her speak, I recommend doing so.

Robert Reich, in a recent American Prospect column, argues that the “coming conflict” of the 21st century isn’t against terrorism but between partisans of religious society versus secularists. He concludes:

The great conflict of the 21st century will not be between the West and terrorism. Terrorism is a tactic, not a belief. The true battle will be between modern civilization and anti-modernists; between those who believe in the primacy of the individual and those who believe that human beings owe their allegiance and identity to a higher authority; between those who give priority to life in this world and those who believe that human life is mere preparation for an existence beyond life; between those who believe in science, reason, and logic and those who believe that truth is revealed through Scripture and religious dogma. Terrorism will disrupt and destroy lives. But terrorism itself is not the greatest danger we face.

I’m in agreement with Eugene Volokh — Reich is wrong that the “next” battle is religion vs. secular society. It’s simply more complex than that.

On the other hand, Reich is not entirely incorrect in identifying religion versus secularism as a major source of tension in this country. Christopher Hitchens would seem to agree, characterizing himself as a “single issue person” whose goal is the “unapologetic defense of civilized societies against the intensifying menace of clerical barbarism.” Carl Sagan, before his death, wrote and spoke tirelessly about the need to supplant superstition with rationality and science in order to survive humanity’s own worst instincts.

And Reich’s sense that a conflict is brewing is likely true. Even at a subjective level, many of us feel it when we look at this country and its deep divisions. Stanley Greenberg’s “Two Americas” aren’t separate by accident. Political disputes are more acrimonious, and debate more polarized, than it has been in decades. So what is the actual source of the conflict? Can it be avoided?

I’d like to advance a thesis, and discuss it a series of posts. I believe there is both a strong division and a gathering conflict, and it is between two visions of how a liberal democracy works. (1) The first vision could be called “autonomy,” and describes what happens when a liberal society works to demolish sources of illiberal restrictions, whether economic or ideological, in order to protect individual rights. The second vision could be called “diversity,” and describes what happens when a liberal society works to protect the right of free association and diversity, even if the behavior within protected groups is illiberal and may violate a universalist notion of individual rights.(2) This division, not religion itself, drives our current cultural conflict. Religion and secularism are only in conflict because each tends to be allied with a different vision of how liberal society should work.

Adherents to the first vision tend to believe that civil and human rights are universal, and an important job of government is to ensure their application equally, even if this means denying certain groups a right to engage in a behavior which is judged to be illiberal. Adherents to the second vision tend to believe that freedom means the ability to choose how to live, even if that way of life doesn’t match other people’s notion of civil society.

To see why these visions are often mutually exclusive, consider the situation of a religious group that requires women to stay at home, and not join the workforce. Liberals who follow the “autonomy” vision are horrified by this, perhaps thinking “after all the progress we’ve made towards civil rights and women’s rights, how could people still be so unenlightened? How could the women in this group allow their rights to be trampled like that?” Autonomy liberals would naturally tend to support laws or court decisions which banned such behavior. Champions of diversity, on the other hand, champion the preservation of the choices people make in their ways of life. The ability to pursue religious practices, even if not shared by all, is a hallmark of a free society. After all, the choice of free adults to belong to such a religious group is adequate to indicate their consent to its practices, even if illiberal. Diversity liberals would be horrified by laws or court decisions which banned the right of free association and enforced governmental control over group practices, because the role of government is to preserve diversity, not outlaw ways of life.

Neither group falls outside the normal political spectrum in a liberal democracy. Neither view is incompatible with a free market or private property rights, and therefore the distinction made above is different, and orthogonal to, the distinction usually made between political “conservatives” and “liberals” on issues of economy.(3) And frankly, since both political “liberals” and “conservatives” in the U.S. today believe in free markets (albeit with differences on regulation and redistributive economic justice), the distinction between universal autonomy and protection of diversity (even if illiberal) is the biggest source of acrimony between the “liberal left” and the “religious right.”

Thus, Reich wasn’t entirely wrong in identifying the conflict between religion and secularism. He simply didn’t identify the source of the conflict between them, because it has often been possible for religious and secular groups to co-exist peacefully in the past.

Today’s conflict may be different, and less tolerant of compromise. Strongly religious groups necessarily support protection of free association and group diversity, at the expense of individual freedom and autonomy. Advocates of a strongly secular public sphere necessarily support universalization of civil rights, suppression of illiberal traditions and behavior, and are willing to destroy diversity in order to achieve guaranteed individual freedom. Some groups, both religious and secular, are willing to draw from both liberal traditions, and achieve a balance. But others increasingly are not, and as the groups who are unwilling to compromise become further polarized and extreme, the battle lines are drawn for a conflict between these views on how a free society should work.

As we become further polarized, and committed to a “winner takes all” approach to solving political problems, both sides in a conflict seem to adopt “universalist” tactics: in order to protect the group freedom and practices they support, the solution is to impose that way of life on everyone. And this is happening today in the U.S.: the “religious right” seeks to embody fundamentalist Christian ideals into state, federal, and Constitutional law. And the more secular left seeks to prevent any form of illiberal practice, even if held dear by a religious group, from being protected by law. The controversies over abortion and gay marriage are excellent and ongoing examples.

In this post I’ve simply outlined the philosophical division that I believe underlies the “Two Americas” and our sense of looming cultural conflict. My intention is to dissect this further in upcoming posts — many questions suggest themselves. Are these views of liberal society truly mutually exclusive? If so, is there a strong argument for how one position better protects liberty and freedom better than the other?

And if we are to revitalize liberal political thought in this country, do we follow one vision or the other? Or do we need the mythical “third way” which might allow us to heal the polarization and appeal to individuals of both stripes?

NOTES:

(1) Within this and following posts, the term “liberal society” and “liberal democracy” is meant to indicate the generic commitment to individual rights, self-government, and liberty found in societies that have given up (or rebelled against) absolutist forms of government.

(2) This distinction, between autonomy and diversity, is a deep one in the political philosophy of liberalism, and did not originate with me by any means. I’m simply exploring its history and ramifications in these posts.

(3) In situations where I mean to refer to the modern U.S. notion of “liberals” and “conservatives,” both of which are really flavors of traditional “liberal” thought, I do so in double quotation marks. Perhaps in a future post I’ll take up the differences between modern U.S. and classical definitions of “liberal” and “conservative,” and how these relate to modern “libertarians” who purport to be the successors of traditional 19th centural liberalism.

The National Journal’s congressional vote ratings apparently show that John Kerry is the “most liberal” Senator in their 2003 analysis. It’s difficult to read the original analysis, however, because NJ is $1700 annually. So here’s a summary article from GovExec.com.

It just doesn’t smell right to me. Yeah, Kerry’s voted on the liberal side many times, but not consistently enough that anyone thinks of him as more liberal than say…Barbara Boxer or Ted Kennedy.

Right?

Common wisdom is that “statistics can be used to prove anything.” While untrue, it does matter enormously what methods you use and how one creates the measurements which are summarized by the statistics.

Here’s a case in point. Keith Poole of the University of Houston is a researcher on the statistical analysis of voting patterns. Poole’s analysis of roll call voting in the 108th Senate (as of the end of 2003), shows Kerry mid-way through the Democratic pack. Click the “Continue reading…” link below to see Poole’s roll call ranking (or visit his site for analyses of the House and Supreme Court!). Byrd and Boxer, on average, are the most liberal members of the Senate, according to Poole’s ranking. Kerry occupies the middle of the liberal “half” of the ranking, sandwiched in with Patty Murray, Joe Lieberman, and a few others. Joe Biden, Bayh, Baucus, and Breaux are all “less liberal” than Kerry according to the ranking — which would seem to fit my intuitive notions well.

Kerry is actually fairly moderate, as you’d expect in this election. And his running mate is in the next “cluster” of Senators to the liberal side, along with Hilary Clinton and Maria Cantwell.

Their public statements tally fairly well, in my opinion, with their liberal-moderate ranking in the Poole data set. This should be taken as evidence that despite window-dressing, we’re not seeing markedly different positions from Kerry and Edwards in the presidential campaign than we have as senators. So what we’re hearing from them is probably a fair reflection of what they’ll press as an agenda while in office. There’s no chance Kerry is going to rip off the mask after inauguration and reveal Eugene Debs hiding underneath.

So I’d take the National Journal’s study with a grain of salt. The tar-and-feathering of John Kerry as the “most liberal” member of the Senate is likely pure electioneering, not a statement of fact — or even a credible research result.

….to Tom DeLay and the radical right. The Hill is reporting that Republicans are considering other tactics in the fight to ban gay marriage. The principal tactic being discussed is a “jurisdiction stripping” bill (sponsored by Indiana representative John Hostettler) which would bar Federal courts from even hearing lawsuits related to gay sex and marriage.

Tom DeLay is quoted as saying that he plans to use similar “jurisdiction stripping” legislation to achieve other socially conservative policy goals. Key goals seem to be barring courts from hearing cases relating to the Pledge of Allegience, and abortion, but one can easily surmise it doesn’t stop there.

I’ve seen articles saying this kind of maneuver is allowable, but I’m not so sure. It’s true that Article III only establishes the Supreme Court, and leaves lower court establishment up to Congress, but Article III Section 2 seems fairly clear on jurisdiction:

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State; (See Note 10)–between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Hmmm…the judicial power extends to all cases arising under the Constitution and the laws of the United States. And the judicial power is exclusively vested in the Federal courts according to Article III Section 1.

Granted, I’m an amateur, but I read that as meaning that Congress can’t strip jurisdiction from the courts. Period. Congress certainly has the right to establish and regulate the number of Article III courts (Article III, section I, and Article I, Section 8, clause 9), but it can’t say that the courts don’t have the right to adjudicate a lawsuit arising under the Constitution or a law of the United States.

Justice Scalia has been a huge proponent of allowing controversial issues to be decided within the “political branches.” And he’s often right — some issues really should be deliberated by the country’s representatives. But that means that the losers have to abide by the results, and not try to tear down the rules in order to change the outcome. That’s not the rule of law, and it’s not what our country stands for.

What the hell are these guys thinking?

This must be posturing, in an effort to keep the radical right “base” believing that Congressional conservatives are working hard for their world-view.

I hope.

But it certainly seems like there is no depth to which the radical right isn’t willing to go in order to win. Apparently heterosexual marriage is sacred, but the Constitution isn’t. Well, I’ll tell you what. I’d be more likely to respect their views if they respect our Constitution and the rule of law.