Convictions: Slate's blog on legal issues

Prop. 8: Some further Thoughts on Equality by Civil Union; Leave Marriage to Religion

In an essay published Friday in the San Francisco Chronicle,  I proposed that the way to settle the Prop.8 lawsuit was for California to withdraw from the marriage business, substituting civil unions prospectively for gay and straight alike.  The commentary has received many favorable comments, but also several people have posed a number of practical difficulties.  In an effort to answer them, here are just a couple of additional comments to consider:

1.       The Governor has an obligation to ensure that the laws of the state are evenhandedly applied; in light of the California Supreme Court holding that sexual orientation is a suspect class, that obligation arguably includes construing the California family code, including any undefined term such as “spouse” in the Registered Domestic Partner (RDP) statute as well as any of the other general family code provisions articulating the importance or significance of the family in a way that does not differentiate on the basis of sexual orientation;

2.       It is well settled in the case precedent of the federal and state courts that equality can be ensured by either granting a new right to the deprived class or withdrawing an existing one from a favored one.  Thus, equality can be provided either by extending marriage to same-sex couples (this path is, of course, blocked by proposition 8, itself) or withdrawing, prospectively, from “marriage” licensing  altogether;

3.       Even if the Governor took the most conservative view of his administrative, regulatory authority and found the existing family code insufficient to issue such regulations, at a minimum, the Governor could propose the "civil union for all" idea as a remedial option for the California court to consider through the Attorney General who is required to give his views in briefing; the remedial power of the court to construe existing code provisions is arguably more expansive than the Governor's administrative authority alone; you'll remember that both the Vermont and Massachusetts courts gave the legislature a period of time in which to enact appropriate legislation to bring their respective states into compliance with the equal protection holdings in favor of same-sex couples in those states;

4.       Yes, it's true, state civil unions would not confer any federal marriage rights so long as the Defense of Marriage Act (DOMA) was in place; but a California marriage license issued to a same-sex couples would have been equally ineffective to convey federal rights; if federal rights are to be provided, DOMA will need to be modified or repealed;

5.       The establishment clause problem is capable of being addressed in the drafting of either administrative regulation or legislation; specifically, regulation and then any confirmatory or validating legislation would provide  that going forward civil union status  within the state of California substitutes for the past practice of marital licensing issued under the family code;

6.       What then is the value of a religiously granted marriage license? the marriage bond and any certificate issued by religious organizations governs status only within the church community; it would have no operative effect in the state or federal secular systems;  yet, most people of faith view the preservation of religious freedom to be the heart of the matter.  In short, for those of us who believe that marriage is a status authored by God Himself,  this is not insignificant even as it has no temporal effect on medicare or other benefits; importantly, separating state granted civil union from religiously granted marriage does avoid the encroachment by the state on private religious belief that was occasioned by the California Supreme Court decision without proposition 8; so too, the proposed separation of function  also avoids the imposition of religious belief upon nonbelievers that is implicit in the passage of proposition 8.

Again, thank you for the many thoughtful comments on the civil union compromise.  Hopefully, these additional thoughts suggest that the proposal earlier outlined is more tenable than perhaps first thought.  In any event, by both these thoughts and those offered initially, I hope do convey the importance of demonstrating respect for the dignity of all Californians and the continuing importance of observing religious freedom in ways that proposition 8 did not successfully address.

Executive (Over)Privileged -- Must the Abuse Continue?

Today on Findlaw, I explore the problematic misuse of executive privilege in the Bush administration.

That misuse continued late last week when former White House Chief of Staff Karl Rove refuse to honor the subpoena of a House subcommittee looking into whether or not wrongful pressure was brought upon US attorneys in the prosecution of a former Democratic governor of Arkansas.  The subcommittee had subpoenaed Rove in May to explore what, if any role, he played in the prosecution of former Alabama Governor Don Siegelman or in the unexplained dismissal of US Attorneys.  In spurning the subpoena, Rove indicated that he was following the instruction of the White House not to appear before the committee on the grounds that this would interfere with the president's internal communications.  The full committee and ultimately the full House must now decide whether to hold Mr. Rove in contempt.

Late last month, in a related inquiry being litigated in the District Court in Washington, D.C., Judge John D. Bates heard vigorous argument from the Bush White House in defense of its refusal to supply documents to Congress or to allow the Congressional testimony of former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten regarding the controversial dismissal of a series of U.S. Attorneys.   Here too, Congress is investigating based on suspicion that the dismissals were politically-motivated; and, as in the case of Mr. Rove, the Bush Administration has blocked its inquiry by asserting executive privilege.

It is smugly assumed by the Bush administration that the awkwardness and difficulty of resolving an inter-branch dispute over executive privilege will mean that the case will linger past the national election and next January when the matter can be declared moot.   The rule of law deserves better.

Judge Bates who has charge of the Miers/Bolten matter should put the burden on The White House to establish -- as a matter of original understanding -- the constitutional basis for the privilege beyond national security and the protection from outside interference of an on-going federal prosecution.  The historical compilation of privilege claims was undertaken some years ago in the Office of Legal Counsel by the venerable Herman Marcuse whose service in OLC goes clear back to Humphrey's Executor if not before.  Marcuse found what Archibald Cox found:

"Over a period of a century and a half thirteen Presidents found a total of twenty occasions on which to refuse to turn over information demanded by an arm of Congress. . . .If  one looks at what was done and confines the words to the events, nothing appears which even approaches a solid historical practice of recognizing claims of executive privilege based upon an undifferentiated need for preserving the secrecy of internal communications within the Executive Branch."

Allowing Rove, Miers and Bolten to stiff arm Congress in the present matter where the heart of the inquiry is prosecutorial abuse, itself, stands the purpose of the privilege on its head.  

If the court turns away the Administration's overly-broad claim of executive privilege here, it jeopardizes no national security interest or ongoing investigation. The question presented is simply whether existing laws are adequate to avert the apparent or actual politicization of major charging and subsidiary prosecutorial judgments by the mid-term dismissals of U.S. Attorneys  and to ensure going forward that the dismissal of presidential appointees is not fobbed off on unaccountable staff assistants.  In the present matter, neither the President nor the then-Attorney General claimed to have supervised the dismissals closely or at all. Perhaps the administration wishes to argue that is "merely" near-impeachable maladministration, but alternatively, it could well be a systemic failure of the law.  Either way, the Congress has a fully legitimate legislative interest.

Finally, even  if  Judge  Bates  is  reluctant to re-examine the scope of executive  privilege, there is a simple and well-established principle that should foreclose a successful privilege claim: the dismissals represent past, not ongoing, decision-making.  The late Attorney General William French Smith reflected that legislative  oversight  "can  almost  always  be  properly conducted  with  reference  to  information  concerning decisions which the Executive Branch has already reached."

Indeed, the historic defender of the presidential  office,  the  Office  of  Legal  Counsel, has written that "[t]he courts  have  held  that the ‘deliberative process' privilege does not protect documents which reflect final opinions, statements of reasons supplying the bases  for  decisions,  or  policies  actually  adopted,  or documents that otherwise constitute the 'working law' of the agency."

For these reasons, the subpoenas for Rove's, Miers's and Bolten's testimony, as well as for relevant documents, should be enforced.  Better yet, the President should take the high ground and send his one-time aides to the Hill with their relevant papers without compulsory process.  Doing so would affirm that cooperating with legislative objectives can be, in the American Republic, another way to defend and enhance the body politic's respect for the office of the Presidency.

And on an unrelated -- but grateful (yet bittersweet) -- note, so long to Convictions as we have known it.  The short experiment into the blog world has been fun.  I look forward to participating in the new format, and this now blog-homeless-writer welcomes offers of blog-shelter from those who may have interest in the honest application of conservative principles to, well, even conservatives.

Tony Snow and Tim Russert Together Again

Tony Snow was a kind man who enjoyed sparring with his former colleagues in the press. 

As well deserved as most of the criticism of the Bush administration has been - on Iraq, on the economy, on the environment, on just about everything except Roberts and Alito --  that criticism also at times exceeds the boundaries of taste or fact.  With an ever charitable smile and an offer of friendliness, if not friendship, always behind his eyes, Tony could convey, "I know you can't really mean that" without parallel in the journalistic craft.  

Tony saved the Bush presidency from descending into negative approval numbers.  [Read here Tony interjecting from eternity: "I know you can't really mean that."].  His two predecessors -- Ari Fleischer and Scott McClellan and his successor - Dana Perino - each possess individual strengths (respectively: intelligence; awkwardness inviting sympathy; attractive unflappability), but all of them read the job description as including defending the Bush indefensible.

Tony didn't -- well, at least not entirely.  As the colloquy between Katie Couric and the late Tim Russert (below) on the day of Tony's appointment records, Tony became press secretary to one of the most unpopular presidents in our history in essence "with tenure,"  by having been honest in past assessment of the administration.  While Tony was not given to the negative in either personal or professional life - as manifest in his own cheerfully placed thumb in cancer's relentlessly cancerous pursuit of his vitality - he had the gift of knowing the truth and not being defeated by it.  It was as if he was borrowing for his boss the forgiveness of the wrongly accused character in a Tolstoy folktale.  Yes, Tony, "God (does) know the truth, but waits."

Tim Russert, welcome your friend Tony home today.  You now have a pal to watch the conventions with.  God always provides.

Requiescat in Pace.

From the NBC Today Show of April 27, 2006:

Couric: "Let's move on to Snow in April. Tony Snow named new White House Press Secretary. As Kelly mentioned he's been critical of the White House. He has said, called the President quote, 'Something of an embarrasment,' who has quote, 'lost control of the federal budget,' and is the architect of a quote, 'listless domestic policy.' Were you surprised at, at this choice?"

Russert: "Not at all Katie. They had been talking to Tony Snow for about a week or so. He is a polished, articulate, conservative commentator. He is someone that the President wants out front before the American people every morning, every night articulating and making the President's case. His personality is such that he's a pleasant man. They believe that Tony Snow can connect with the American people and help put a positive gloss on the Bush administration policies. That's why he was picked."

What the Heller? Is Only the Supreme Court's Liberty Enhanced?

Jack Balkin and Sandy Levinson are right to probe with hypothetical the dimensions of the newly-minted, or perhaps ancient, right of self-defense, or right to own handguns, in one's home, or maybe outside it, or maybe also to own other weaponry, or maybe not, so firmly established in District of Columbia v. Heller (2008) per those clarifying originalist sources understood by Justice Scalia 5-4.

The Candidates Debate -- well, maybe not

My question relates to this indeterminacy and the politics of discussing this case, and the ultimate effect on political and human liberty. Specifically, is the manifold uncertainty raised by the opinion (and its consequent unsettling of state and local law and disregard of federalism that we conservative types used to care about) going to be challenged (condemned) by John McCain as an invitation to legislate from the bench?  Critiqued by Barack Obama?  Or, as is more likely not to be talked about by either since McCain's complaints about judicial activism are as meaninglessly one-sided as most everyone else's, and Obama is just happy to not have the NRA energized in his direction - and who could blame him?

No Originalism Left Behind -- well, maybe not

As an under-interpreted provision in the Constitution, the Second Amendment provided an opportunity to test the integrity and utility of the original understanding method of interpretation.  It failed.   The language to be construed: "a well regulated militia being necessary to the security of a Free State, the right of the people to keep and bear arms shall not be infringed."  Prior to the Heller, many thought that the second half of the text was to be construed in reference to its preamble.  Justice Scalia concludes instead that the first 13 words of the amendment are "a purpose," but not the purpose.   

It's only Natural (Law) to Disagree

Dean John Eastman (a first-rate originalist scholar and the co-editor of our casebook) and I have been batting about the originalist legitimacy of this move by Justice Scalia.  I'm skeptical given how the preoccupation with state and private militia by the founders as a counterpoint to government tyranny had fit both the history and the text.  It also fit structure as an answer to the threat of abuse of Congress' Article I militia organizing authority.  Dean Eastman believes Justice Scalia is informing the text with an appreciation of a natural law right of self-defense perhaps a la the thoughts of Professor Akhil Amar here on Slate some months back.

As for "the right of the people" language, both majority and dissent agreed that this suggests an individually enforceable right, but that tells us nothing about its scope -- specifically whether that scope must have a militia-nexus. Of course, sometimes text, history, context and structure are contradicted by longstanding precedent which, by reason of reliance, merits adherence. But here the interpretation in U.S. v. Miller in 1939 arguably saw the Second Amendment as militia-related, and it was a precedent followed by virtually every lower federal court since it had been decided.  Justice Scalia argues that Miller holds only that a short-barreled shotgun was not "ordinary military equipment" because it was not the type men bearing arms would be expected to bring when called to militia service, but so what?  How does that free the "right" from the militia nexus?   

The dissent saw the opinion as legislating from the bench.  Wrote Justice Stevens for the four dissenters quoting Miller, "the signification attributed to the term Militia appears from the debates in the convention, the history and legislation of colonies and states, and the writings of approved commentators.'"  In light of that, Justice Stevens concluded: "Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well regulated militia.  The court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations."

But can it be plausibly argued, as Dean Eastman and perhaps Akhil Amar suggest, that there is another view of originalism in play as well?  One which heretofore has been championed largely by Justice Thomas but to which Justice Scalia's opinion in Heller now appears to give credence.  That view holds, with substantial evidentiary basis in the founding-era debates, that the Bill of Rights merely recognizes (rather than creates) pre-existing natural rights.  I concede natural law originalism has always been my preferred view, but given Justice Scalia's past denunciations of it, is it plausible to see him now as among the converted?  He does make reference to 19^th century case law approving of the perspective.  In this regard, the Court makes several references to this "natural law" view of the Second Amendment right, concluding that the Second Amendment necessarily codifies its more expansive right to self-defense, against both private thugs and government tyrants. 

But assuming Justice Scalia is in fact now willing to judicially enforce the text of the Constitution only as informed by the natural law, how exactly does he know that the natural law includes a right to possess a handgun for self-defense?   As he himself might have been given to point out in other contexts, when the right was linked to "the militia," he could define it in relation to an historical purpose originally understood. If natural law is the new lodestar, then Justice Scalia needs a defensible conception of human nature.  And far from the right being new support for abortion as Jack hypothesizes, would not any serious conception of human nature contest, not affirm, that practice?  But staying with just born persons, isn't it possible to see more widespread handgun possession as contrary to any natural law basis for the "right" insofar as gun usage has its own inherent dangers or just simply in light of the number of handgun deaths each year in urban areas, including DC?

Go to Hell(er), Federalism!

Does the new gun right apply against the states?  Within a week of the ruling in Heller, five lawsuits were filed seeking to apply the newly designed Second Amendment to nullify gun control laws adopted by local governments in California and Illinois. Each of the cases makes the argument that the Second Amendment is applicable to the state and local governments through the Fourteenth Amendment - an issue the Supreme Court has not considered since 1894, when it said the Amendment applied only to the federal government.   In note 23 in Heller, the Court declined to reach the incorporation issue. 

The Chicago case, NRA, et al., v. City of Chicago, et al. challenges a restriction very much like the DC ban that had been invalidated - namely, a city code provision that requires registration of firearms, but bars registering handguns.  Chicago is within the Seventh Circuit which last found that the Second Amendment applied only to the federal government in 1982 relying upon the Presser v. Illinois (1894). The Circuit Court specifically declined to find that Presser had been superseded by the Fourteenth Amendment and its incorporation of most of the Bill of Rights.

Raising the Standard (of Review)

Beyond applicability to the states or not, the standard of review is uncertain for laws that differ from the District of Columbia handgun ban that was nullified. Justice Scalia seems to eliminate rational basis as an insufficient standard, but not much else.

Depending on the standard of review to be named later, it is supposed that we will learn the answers to the questions that bedevil us now, including why carrying a concealed weapon beyond the home and hearth is not protected and also why licensing laws do seem - so long as they are not disguised as prohibitions - not to offend the "right."  Similarly, we will know whether switchblades or mace or tazers are beyond "weapons typically possessed by law-abiding citizens for lawful purposes."

Come, Learn from the Master -- or Go Directly to Jail   

Finally, the ever dutiful citizenry will be instructed by its judicial masters as to how far, if at all, the right can be taken outside one's home?  The front stoop?  One's car parked at the curb?  The RV parked out back?  In the meantime, I suspect it won't be long before a law-abiding Dick Heller-type fella is charged by a local prosecutor for a crime because he used a gun or other weapon beyond the home, in claimed self-defense, only to find upon posting bond that he did not successfully discern the constitutionally acceptable geographic location.

My friend, Bob Levy at CATO brought this case to enhance human liberty.  As I see it, only judicial liberty is being advanced.  Indeed, to borrow some florid prose from the one-time author of the opinion itself:  "The Imperial Judiciary Lives!"  Don't expect it to be talked about in those terms by either of the candidates, however, who in one way or the other will have been silenced, well, at the point of a gun.

The Election and the Supreme Court—Possible Vacancies Ahead?

One reason the court is not an issue right now is that the chief justice has done a superb job of lowering the court's profile. It's hard to get the nation worked up over disputed interpretations of the Employment Retirement Income Security Act, for example. The intensity of the gun battle should not obscure the winning Roberts combination of taking fewer cases overall, taking fewer controversial cases in particular, and encouraging the issue of narrowly drawn opinions. That is all to the good, even if it makes it more difficult for Sen. McCain to stoke up an intellectually tired conservative base by raising the hoary specter of judicial activism. He hasn't been successful thus far, in part because activism is not nearly the problem that he describes it to be. 

Sen. Obama is both more perplexing and intriguing on the judicial nomination front. Perplexing, because he voted against (mistakenly, in my judgment) two of the most talented jurists on the bench, John Roberts and Sam Alito, even as he conceded they had the intelligence, capability, and proper judicial temperament. Intriguing, because Obama's stated basis of opposition was a suspicion that these nominees were not sufficiently empathetic with the needs of the average person. Sen. Obama himself, of course, has great empathy for those who are often overlooked by the political process, and it will be fascinating to see how that attractive quality can be translated into identifiable and appropriate selection criteria for the men and women he would want serving on the bench.

It is widely speculated that the next nominee of either party will be a female, and that is likely, given the persistent reminders of Justice O'Connor (not to mention speculations about Sen. Clinton). But the inescapable consequences of the actuarial tables—as well as the personal desires of some of the senior members of the court—will probably result in a two or more vacancies in the next presidential term.

So if gender were not a consideration, is there a standout judicial candidate who could reorient the confirmation process away from real or imagined concerns with "activism"—and be acknowledged as superior in quality, temperament, and personal ethic of concern?

Yes: Carter G. Phillips, the managing partner of the Sidley Austin law firm in Washington, D.C., who argued a remarkable five cases this term, bringing his total before the court to 50 in private practice with an additional nine during his service in the SG's office. There is not another advocate in the country who is as respected for his impartial legal judgment, personal integrity, and genuine friendship and assistance to his fellow members of the bar and to his community. There is also not an advocate before the court who wouldn't desire to have work product be so well thought as to merit colloquial reference by the Justices from the bench, as occurred during the Grutter oral argument with their frequent reference to the "Carter Phillips brief." Phillips is also the right age, 56, and with the circumspect demeanor of his mentor, the late Rex Lee, Phillips is one of those rare individuals of stature who could rather remarkably be seen as a nominee of either party.

There are other men and women who could (and should) be thought of: for McCain, Judge Diane Sykes of the 7th Circuit and former SG Paul Clement come readily to mind; for Obama, Kathleen Sullivan or Judge Merrick Garland of the D.C. Circuit would surely be contenders; and I suppose there are even people with gun racks who would appeal to Bob Barr. But if the objective is to transcend political division, there is no one better than Carter Phillips. 

Originalism Wounded! Justice Scalia Wanted For Questioning

Yesterday, in Giles v. California, Justice Scalia, true to the originalist method, kept to the text of the Constitution and enforced the Confrontation Clause for the benefit of a criminal defendant complaining that his conviction was wrongful because he did not have the ability to cross-examine the out of court testimony of his girl-friend about the defendant's pattern of violent abuse by reason of the fact that, well, he killed her.

Powerful concerns about domestic violence argued to let the testimony into court in Giles, but the Justice held fast even as he was sympathetic to the need to address domestic abuse.  The words of the Constitution matter, he said in Giles, and "It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen."

Giles is hard to explain to the average citizen, but it's principled.

Today, Justice Scalia takes the Second Amendment which so unmistakeably by text and context -- not to mention legions of lower court precedent -- protects the right of the people in the States to maintain a well-regulated militia, as against the threat of tyranny represented by a standing army and Congress' Article I power over militias, and by various linguistic tortures, switches round the phraseology until the Amendment advances the contemporary interest of those citizens who favor possessing arms for self-defense within the home.  As a matter of human liberty, the right found by Justice Scalia may well advance the values lying behind the words of the Constitution in 2008, they just aren't the Constitution as it was originally understood.

More than once, I have enjoyed the lectures of the erudite and witty Justice Scalia on the importance and legitimacy of original understanding and fidelity thereto. I just hope Justice Stevens is up to carrying on the lecture tour.

What's Up, Doc? Why Is Jim Dobson Pretending Not To Understand Barack Obama?

Dr. Jim Dobson is a likeable man of wit and intelligence whom I have long admired for his support for the family.

Recently, however, he—and his national political director, Tom Minnery—undertook on Dobson's nationally syndicated radio program to engage in a hypercritical distortion of an influential and powerful presentation on faith (a "Call to Renewal") by Sen. Obama in 2006.

The radio criticism of Obama has a number of facets to it: Dr. Dobson apparently believes the United States is a Christian nation rather than a nation of many faiths. Historically and today, there are indeed more Christians in America than believers from other faith traditions, but what follows from this? Sen. Obama would suggest respect and appreciation for the influence of Christianity while also appreciating that there are people of other faiths, and of no faith, who are not to be treated as second-class citizens. Surely Dr. Dobson agrees, right? So what's the point?

Sen. Obama also quoted a number of Old and New Testament passages, including some dietary laws that governed the Israelites (like not eating shellfish) to make the obvious point that even if one strictly followed this dietary restriction as a matter of faith in one's own life, it could not simply be codified to bind people of other faith traditions—at least not without majority approval and a lot of angry shellfish eaters.

Dr. Dobson thinks this mocks the Bible, but it is merely underscoring that we have an obligation in the public square to speak in universal or accessible terms.

Obama also said Jesus' Sermon on the Mount is "a passage that is so radical that it's doubtful that our own Defense Department would survive its application." OK, I guess we could ask whether or not Jesus would think the purveyors of preemptive war to be "peacemakers," but again Dr. Dobson's point is more than a little obscure. And to assert that Obama "is dragging biblical understanding through the gutter," more than a little absurd.

Dr. Dobson also attacks Obama for his support for abortion rights. Like Dobson, I disagree with Sen. Obama here as well. But Dobson has mischaracterized the senator's view. Obama believes the woman herself must decide the abortion question. The senator acknowledges the decision to be a "profoundly moral one" and one he would advise a mother to make in favor of life and only after talking with her clergyman. In a meeting with me and other faith leaders a week or so ago, the senator reiterated that he is not "pro-abortion," and that he wants to "discourage" the practice by encouraging personal responsibility as well as enhancing adoption and comprehensive education that would reduce the number of unwanted pregnancies.

Could the senator do more? Sure, and he is open to reasoned argument. Dr. Dobson should make one. The senator's point: All of us as we speak across religious lines need arguments beyond what we accept as doctrinal teaching in our particular faith tradition. How Dr. Dobson misinterprets this to suggest that either Dobson or my religious view would be excluded from the public debate or that "we have no right to fight for what we believe" is a mystery.

There is nothing in Sen. Obama's speech to suggest any denigration of faith generally, Christianity specifically, or Dr. Dobson personally. Far from it. Indeed, the tone, content, and purpose of the speech were all quite the opposite and obviously so.

In Sen. Obama's speeches, it's not surprising to hear references to Lincoln and Martin Luther King and Frederick Douglass. Sen. Obama regularly touches my Catholic soul as well by showing a genuine knowledge of the work of Dorothy Day. In this, Obama tells his audiences that it is an "absurdity" to insist that morality be kept separate from public policy.

Don't misunderstand. Sen. Obama is not the equivalent of a televangelist, nor should he be. Having urged his liberal colleagues to see how much of American life is grounded in the Judeo-Christian tradition, Sen. Obama makes a request of conservatives like myself—namely, try to fully understand the liberal perspective on the separation of church and state. Not the infamous "wall of separation" that bizarrely mandates affirmative secularity disguised as neutrality, but the perspective, according to Obama, that separation more readily protects church from state than the opposite.

This sentiment, unlike the exclusionary view invented by the late Justice Hugo Black in the late 1940s, is as old and wise as Alexis de Tocqueville, who cautioned churches against aligning too closely with the state for fear of sacrificing "the future for the present." "By gaining a power to which it has no claim," Tocqueville observed, "[the church] risks its legitimate authority."

Sen. Obama's approach to faith is strong, but it is not exclusionary. He genuinely seeks to have his efforts bridge the religious and ideological divides on issues ranging from abortion to the importance of the American family to health care that respects the objections of conscientious religious believers to AIDS, climate change, and human rights.

Like all Americans, Dr. Dobson has every right to advocate public policy informed by his abiding Christian faith. I will be counting on him to continue to do so, but he will improve his chances of success by not pretending to lack the most basic understanding of democracy, which we all know he has, or by misreading and mischaracterizing the views of one of the country's most eloquent defenders of the importance of faith—maybe since George Washington opined that it was indispensable to the prosperity of the nation.

D.C. v. Heller: Will Originalism Matter, or Will the Court Misfire?

While deducing from the calendar who is likely to write an opinion from any given sitting is a matter of considerable speculation, there is reason to believe that Justice Scalia may be writing D.C. v. Heller. Should that prove to be true, it is worth recalling Justice Scalia's own definition of originalism, and his particular "originalist" understanding of the Second Amendment, at the time of the oral argument?

First, the general theory:

"The theory of originalism," explains Justice Scalia, "treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. ... I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."

Next, the particular:

Observed Justice Scalia, at the oral argument, "I don't see how there's any, any contradiction between reading the second clause as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State-managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons—that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.

"[Without the Second Amendment] so long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could disband the State militias."

What does this mean for Heller? At the very least, if originalism matters, it should mean that the gun-possession right—whether thought to be individually held or collectively held—is at the very least militia-related.  Because:

1. As understood at the time of ratification, the purpose and meaning of the Second Amendment was as a federalist check upon the feared abuse of Congress' Article I militia power as well as the historical risks associated with a standing army. The Second Amendment—like the original understanding of the Establishment Clause in the First Amendment, and the unenumerated rights retained by the Ninth, or the power reserved in the Tenth—is as a protection of the state, or the people within a state, as against the federal government. The Second Amendment has no application to the laws and ordinances of the District of Columbia, which are promulgated pursuant to the plenary power of Congress as delegated to the District.

2. Were the District a state, the Second Amendment would limit the ability of the federal Congress to interfere with the right described therein. What the scope of that right may be is not before the court, however, in this case. While, as indicated, militias at the time of the ratification of the Second Amendment were not all state-managed or -directed, all existing militias nevertheless did depend upon militia-eligible individuals possessing weapons in their homes that would then be made available for purpose of militia service.   

3. Besides not residing in a state, Mr. Heller is beyond the militia-eligible age as it was understood at the time of ratification, and so he lacks standing to raise a claim in which the court is called upon to define the scope of the Second Amendment.

4. The court also should not address the question prematurely because the claim presents a difficult issue of constitutional obsolescence. There is no modern equivalent to the state or other militias that existed at the time of the founding where it was either required, or at least expected, that an individual would bring a personal weapon for use during militia service. 

5. The court should if possible write consistently with the court's prior decision in Miller and the overwhelming body of case precedent that has assessed the Second Amendment right in terms of whether a militia-eligible person was asserting a right with respect to a class of weapons that would be useful or reasonably expected to be supplied by an individual for militia service.

6. The opinion should also be written consistently with Justice Scalia's longstanding admonition that where the court is called upon to enforce implied rights, or describe the contours of a right inferred from the more general or ambiguous language of constitutional text, that it be stated at the most specific level of generality. Said Scalia: "We must always start from the proposition that "the asserted liberty interest [must] be rooted in history and tradition," and then assess a claim from "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified."

Will this judicially restrained result actually be the opinion? Consider one last colloquy:

JUSTICE BREYER [to Heller's lawyer, Alan Gura]: But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?

JUSTICE SCALIA [to Heller's lawyer]: You want to say "yes." That's your answer.

This is clever oral argument banter, but, of course, unless history is rewritten, the founders cannot be supposed to have justified individual gun possession in support for draft-readiness for a draft that would not exist until the Civil War. And since the historical justification for gun possession bears no relevance to any modern analogue of the actual founding justification (the support of a "well-regulated militia") that cannot really be Justice Scalia's answer, can it?

Why?  

Again, let Justice Scalia speak in his own voice: "Originalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself. Scalia, 57 U. Cin. L. Rev. 849, 864 (.1989).

That's all the American people ask for Heller, a judicial result and an opinion faithful to text and history that is "conceptually quite separate from the preferences of the judge himself."

Following an Infirm Administration, Debating Health Care at the National Constitution Center

Last night at the National Constitution Center in Philadelphia, it was my pleasure to moderate the Sixth Annual Templeton Lecture on Economic Liberty. The lecture endowed by Dr. John Templeton was one of the first endowed programs of this magnificent center, and it has become one of Philadelphia's most looked-for events. Consequently, it is now a considerable distinction to be selected as a Templeton lecturer or respondent. The quality of the scholars who have been selected speaks for itself: Bruce Ackerman, Richard Epstein, Thomas Merrill, and Walter Dellinger, to name only a few. Moreover, because the Templeton understands "economic liberty" in the same broad manner as Madison defined "property"-"as a man is said to have a right to his property, he may be equally said to have a property in his rights"-the Templeton platform has been devoted to topics ranging from campaign finance reform and free speech, to immigration and human work, to eminent domain and the domain of human liberty, to, last evening, health care and its responsible management.

Somewhat unusually, the recent program consisted of two public figures, former HHS Secretary Tommy Thompson, now Akin, Gump's health care expert, and former Senate Majority Leader Tom Daschle who is in a similar spot for Alston & Bird. Both men know their stuff. The program give-and-take was lively, as this summary in Daily Kos suggests, and the intelligent audience-a good portion from co-sponsor AARP-had many questions, including about the respective positions of Sens. McCain and Obama, for whom Thompson and Daschle became unofficial stand-ins (Daschle is, in fact, national co-chair of the Obama campaign).

McCain's idea of separating health insurance from the employment relationship in favor of individually acquired coverage is controversial. It is intended to impose cost discipline through consumer bargaining, though as pointed out last evening, it represents a sharp break from the status quo and might well leave families paying more out of pocket. (Thompson challenged that premise, but earlier in the program, it had been recited without dispute that the average annual health cost for a family of four-insurance, co-pays, etc.-ranges from $8,200 to $11,500 per year, which is significantly more than McCain's proposed tax credit of $5,000. In any event, Thompson thought the McCain plan needed to incorporate insurance pools to really net competitive pricing from insurance companies.) By contrast, Obama's program relies heavily on Internet technology efficiencies and a government accountability model mandating sufficient levels of coverage and the inclusion of uninsured children and those with pre-existing conditions.

Whatever the theoretical merits of McCain's or Obama's models, it rather quickly became clear that the audience's dissatisfaction with the existing health care system was framing the response. Americans like to proclaim or think they have the best health care system in the world, but the life expectancy, preventable disease, and infant mortality stats do not bear that out. Americans endure higher costs than any other comparable industrialized nation and lower quality by WHO standards-lower, at least, than the 36 countries that rank above the United States. This poor report card seemed to work more against the McCain position, at least last evening. Not even the energetic presentation of Tommy Thompson could rescue it-in part, one suspects, because McCain's plan leaves the uninsured, well, uninsured and those with pre-existing conditions uninsured (absent some government guarantee that is not well-explained).

McCain no doubt wants desperately to separate himself from the incumbent, but the missed opportunities of the Bush administration were clearly being visited upon his ideas. Both presenters portrayed an infirm health system, the symptoms of which were hardly a surprise, such as the long-standing, but now impending, Medicare bankruptcy. And in the private sector, Thompson illustrated the ripple effect of uncontrolled costs emphasizing how the cost of health care undermined the market positions of major U.S. industries. For example, Thompson compared GM's $1,725 per car health care burden with Toyota's $225.

While many difficult questions were answered, there seemed to be no answer for what accounted for the lack of accomplishment during the Bush years, and the nominee of his party is just stuck with it. It seems the sitting president did little to take up, for example, Thompson's own innovative wellness and electronic prescription ideas when he was HHS secretary, let alone contemplate the progressive measures being suggested by Daschle and Obama for portable and readily accessible health records and an elimination of the paperwork of a highly fractionated insurance market that allows providers to charge wildly different prices for the same procedure.

Daschle and Thompson were in strong agreement on the need to build wellness into schools and businesses, but they pointed out, if one eats in virtually any public school cafeteria today, you will be served the food groups that feed obesity and diabetes and other diseases. Aristotle's conception of a healthy body and a healthy mind, it's not. And in another obvious category of improving health and lowering costs, Thompson at one point also wondered aloud why nicotine was not regulated by the FDA.

The lecture underscored that economic liberty depends upon more than a free market when the market is ill-informed or shaped by policies more in defense of the economic preserves of the well-fixed-be they drug, tobacco, or health insurance companies-than the average family. Whatever accounts for the failed legacy of the incumbent, everyone is now paying through health care costs that are rising four times faster than wages.

Despite all this, few left the evening without hope, since onstage was tangible proof of good minds, freed of partisan label and special interests, working together to address a nettlesome problem. It was a reminder of the plaque that the Gipper used to regularly point to on his desk: "There is no limit to what a man can do or where he can go, if he doesn't mind who gets the credit."

That was indeed a healthy reminder.

Fondly Remembering Tim Russert—Death of a Partisan

On that Sunday, it was my task to defend the proposition that it was improper to deny John Roberts' nomination to the court on the basis of his Catholic faith. Prominent scholars and senators had argued that Roberts was unsuitable for the bench given his Catholicism and the church's well-known opposition to abortion. This line of questioning was contrary to the prohibition of religious-test oaths and the spirit of the free exercise clause, I argued. Moreover, I contended, Catholic teaching treated those who stand for judicial post differently from legislators and the executive.  Gov. Cuomo insisted that the questioning was both proper and that the church made no such distinction, with highly conservative prelates even insisting that Catholic public figures be denied communion if they didn't toe the church line.

Several things were immediately apparent: Tim likely knew as much or more about the topic than either of his guests, and he was not about to let either of us dodge the more difficult nuances of the question. Indeed, somewhat ironically now, in light of my own recent denial of communion for endorsing Sen. Obama, Tim would ask us about such threatened refusals of the sacrament. The colloquy went like this:

MR. RUSSERT: Professor, many Catholic politicians are faced with the following prospect, that individual bishops in different dioceses can refuse them Communion if they are seen as proponents of abortion. If, in fact, as you said, the Supreme Court in effect formulated the law in Roe vs. Wade, if a Catholic justice of the Court doesn't take assertive steps to undo that law, could they be denied Communion in respective dioceses and is that an appropriate pressure from the Catholic Church?

PROF. KMIEC:  ... Cardinal McCarrick here in Washington said it the best. This is a question of pastoral counseling. It's not something that really should be dealt with at the Communion rail. ... The sacraments shouldn't be used as a weapon. ... But again, the Supreme Court of the United States really needs to [re-] examine [abortion] as a matter of law ... not as a matter of Catholic faith ... not as a matter of any other personal philosophy. It's a question of whether abortion ... can be found in the text and history and structure of the Constitution.

At that point, I decided to interject a bit of Kmiec interpretive theory on the Constitution that is not presently shared by the court itself: namely that constitutional text ought to be interpreted in light of the declared "self-evident truth" of the Declaration of Independence that we are "created equal" with an "unalienable right to life."

"There's no conflict between John Roberts' faith and this constitutional system," I argued, "because this constitutional system is premised upon the dignity of the human person." As a matter of his own Catholic faith, I speculated that Tim would let my advocacy pass without rebuttal. Silly me. Of course, Tim would not personally inject his Catholic view. Rather, in fidelity to the high standards of journalism that by disciplined mind and hard work became part of Tim when he left politics, he adroitly questioned the governor, illustrating that the way Catholic jurists like Justice Scalia avoid an irreconcilable conflict between faith and law is not with my fancy professorial theory but simply by sticking to the text of the Constitution, which says nothing about the subject.

Cuomo affirmed the Scalia position, and in one masterful move, Tim brought the conversation back to its original focus, illustrating in a unique way some common ground. Whether Cuomo realized it or not, his affirmation of Scalia underscored my original contention that if judges follow their intended role, they have no moral complicity in the laws they interpret. But it also allowed Cuomo an opening to reaffirm his longstanding view that Catholics cannot just impose their doctrine on their non-Catholic American neighbors—at least without extended and respectful argument in the democratic process (or, I might add, persuading jurists that the Constitution has an intended and inescapable natural law foundation).

One thing I know for sure, St. Peter is in no position to give Tim a hard time at the gate. If there is any delay whatsoever, look for Tim to sit the onetime fishermen and early church organizer down at the table and with that smiling but tenaciously prepared look ask, as heavenly PowerPoint goes up on the screen of judgment: "Isn't it true, Peter, that earlier on the night before he died, you denied him three times, and yet here you are today the keeper of the gate of the kingdom. How do you explain that?" Like so many other guests on Meet the Press when confronted with the thoroughness of Tim's preparations revealing an undeniable inconsistency of their own words, I suspect Peter might be tempted to bob and weave his way to some sort of answer. Advice to the first pontiff: Don't try it. Just wave Tim on through—he more than deserves it.

Gitmo—Next Time Just Issue a Press Release

After Abu Ghraib, a whole bunch of fits and starts with military commissions, not to mention too loudly the disastrously wrong-headed, deadly, and costly occupation of Iraq, Boumediene will make perfect sense to most of the world that will be mercifully saved from reading the opinion.  

The decision in Boumediene will no doubt be heralded as a victory for civil liberty and a further rejection of the foreign policy, including the conduct of the "war on terror," (if you believe there is such a war) of George W. Bush. The court, of course, did not repudiate either the president or his foreign policy in so many words, but that's what the opinion effectively does—that, and express the view that since we're not sure we're at war, holding people without formal charge or trial who may or may not be associated with the war we're not sure we're fighting for more than six years is not good.

Spurning the president's foreign policy is now commonplace. It is being done every day in offices, schools, and homes across the country; there's no reason the court can't get into the act, too. So, despite its soaring rhetoric that "security subsists in fidelity to freedom's first principles," the opinion might be summarized as: Our security was breached on 9/11; we are unsure of the scope of the continuing threat, but we're feeling safe now. Because that is the case, Guantanamo will be treated as functionally part of the United States, and alien detainees who are within it will be given access to the federal district courts by means of the writ of habeas corpus. It is just not proper to keep noncitizens in custody for six years with no regular, Article III judicial determination that we caught the real enemy.

Putting aside the disregard of precedent, the fact that the history of extending the writ beyond sovereign territory was at best a draw, and that once again the high court left it up to the district courts to figure out what now, it's a fine opinion. It is too facile to say the only losers are the detainees who have the writ but no real certainty that it means much of anything in particular. I bet more than a few petitions for release will be forthcoming with or without great specification of procedure. The chief justice's dissent admirably illustrates the empty suit character of the majority. I'm not prepared to join Justice Scalia's anticipation of military doom, though this much is true: The opinion disregards the wisdom of Justice Jackson, not in leaving an opinion lying around like a "loaded weapon" but by discharging and leaving a mess of anything that used to make sense in the jurisprudence of warfare and foreign affairs.

Next time, issue a press release. They are shorter and easier to read.

The New York Governor's Same-Sex Decree

Re: Your same-sex juggernaut.

Regarding your decree for New York to be same-sex-marriage friendly—my, you are quick—too quick. Thanks to thoughtful comments received to my earlier expressed concerns about your action, let me remind readers upfront that I filed on the side of traditional marriage in the California cases. While the California opinion is long (more than 170 pages and thoughtful in many ways, it managed not to fully discuss either the procreative importance or religious significance of the traditional family). But unless the court reconsiders, which I doubt, or the people overturn by constitutional amendment, which is too close to call, California by its regular legal process is marching ahead—hopefully—in a way that strengthens community and marriage and, most importantly, families upon which so much depends.

Your executive memorandum by these terms seems imprudent. Here's why:

Article IV of the U.S. Constitution provides that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state." It has been a much-debated question among legal scholars as to what exactly it means when one state—say, California—approves something highly controversial like same-sex marriage when another state—oh, say, New York—has strongly disapproved of the same issue in its highest court. You and your legal counsel have not, in my judgment, fully addressed either the meaning of Article IV against the backdrop of New York's public policy in your hasty directive, and, by your precipitous action, perhaps damaged your own position. 

Of course, as a matter of precedent, I know you got zero help from Massachusetts. A quirky old Massachusetts law limited its same-sex ruling to itself—that is, residents of Massachusetts. Imagine stodgy old Massachusetts approving same-sex marriage, but then refusing to marry nonresidents. 

California by contrast is made up of people who arrived here yesterday, so we are not that picky. No waiting periods, no residency requirement, and since we're not much bothered if others don't approve of us, no reciprocity required, either—that is, we're willing to issue same-sex licenses whether other states think them valid or not. California is thus hanging 10 on this surfboard all alone, so it's good of you to send us some New Yorkers to keep us company. But here's a question for you, governor, as you are welcoming back home your residents returning from Disneyland: Does your executive pronouncement also authorize New Yorkers who don't have the gas money for Route 66 or airfare to fly cross-country to Laguna Beach to get married in Massachusetts or not?

Oh, wait, that's really a question for the people of Massachusetts; indeed, the Legislature of Massachusetts. The Legislature actually still makes the laws in the Bay State. To someone, such as yourself, with rapid-fire executive pen, lawmaking by lawmakers may seem quaint, even retro. And get this, they are so into that John Adams HBO special, the tricorn-hatters in Massachusetts even have courts working out the kinky ambiguities in statutes. And kinks there can be, like whether the nonavailability of same-sex marriage in Massachusetts to nonresidents turns on whether the nonresident's state constitution does not mandate same-sex marriage (which is the view of the New York Court of Appeals about the New York constitution) or your rather unprecedented, if not unauthorized, order that out-of-state same-sex marriages simply be treated as valid.  A single lower-court benefits decision that was not appealed is too slender a foundation for remaking the public policy of the state as it has existed, well, since the state has existed, and as recently confirmed by your high court. 

At a minimum, you'll admit it's a question worthy of the final Jeopardy round. Oh, not perhaps for someone like yourself, governor, whose clairvoyant almost paranormal executive decision-making is, as we say in Malibu, way cool. By the way, just curious, but how exactly did you know to instruct New York on the need to handle California same-sex marriages the day before the case was decided?

But don't get us wrong—out here in "Cal-ee-for-nee-a," we like our action-figure governor (you two should "do lunch"), and of course, we're thrilled to be thrust into even an off-Broadway spotlight. We may complain about paparazzi and have Ken Starr drafting ordinances to keep ‘em edgy, but we actually crave the attention. (Who knew, right?)

This "speed racer" disposition of yours is particularly generous since the same-sex marriage licenses we're minting today may not be worth a postage stamp after next November if the people of California decide to amend the constitution and overturn our Supreme Court. As I say, the outcome of that is uncertain and worthy of intelligent debate, and so, as busy as you are making, interpreting, and enforcing  laws—you might well hesitate on our ambivalent account. Moreover, governor, a few of your cranky bureaucrats may snipe at you for the massive administrative headache you may have just created in matters of tax, child custody, divorce, insurance, and such by giving full faith and credit to that which California may or may not decide in a few months is au passé. Trends are like that out here, so do try to keep up.

Or better yet, why not wait until the people of New York themselves can chat it up with those elected representatives in Albany? Way boring, I know—no carpe diem, no 15 minutes of fame. Nope, just listening to the people and governing in accordance with their usually sound inclinations. This won't get you Oprah—and definitely not Ellen. It will give you the satisfaction, however, that you kept your oath.    

Sure, the niceties of lawmaking and law interpreting and law enforcing could all be done in your office. If democracy were premised upon efficiency, rather than representation and deliberation, this would be a salutary thing.  As it is, Madison had a name for the usurpation of power and its unification in a single hand: tyranny.

"RobertsAlito" Is Not All One Word—The End of Judicial Activism as a Campaign Issue

Well, it looks like John McCain will have to stop using Roberts-Alito as if it were one word to describe his preferred type of judicially restrained nominee.

In recent disquisitions about judges, McCain has been trying to simultaneously shore up his conservative base without riling up his moderate friends. It's a difficult rope to walk without hanging oneself. Indeed, the conservatives have already noted a McCain tendency to flatter Roberts and Alito but to omit the more controversial (to moderates) Scalia and Thomas.

Now McCain has a new problem. Roberts and Alito are going different ways. What is a candidate trying to rely on the caricature of judicial activism to do?

Justice Alito has twice rejected the chief justice's willingness to allow government activities immunity from the jurisprudence of the dormant commerce clause that preserves an interstate market from economic protectionism (Kentucky Department of Revenue v. Davis this term and last term United Haulers v. Oneida-Herkimer Solid Waste Management Authority both thoughtfully discussed by Lyle Dennison on SCOTUSblog), and today these Reagan fraternity brothers are divided over an important age-discrimination case. Justice Alito took a lot of heat for carefully parsing the statute of limitation under Title VII last year, which denied a gender-discrimination lawsuit as being beyond the time permitted to sue (Ledbetter v. Goodyear). Roberts agreed with him on that one. Today, in Gomez-Perez v. Potter, however, Alito and Roberts divided again over an age-retaliation claim under the ADEA, with Alito allowing it.

The Alito opinion is a testament to meticulous statutory analysis, fully utilizing text and legislative history as well as situating the decision in the larger body of civil rights and employment statutes and precedent. It gives lie to the notion that Alito is pro-business or anti-employee, so prominently alleged during his confirmation hearing.  As his colleagues on the 3rd Circuit knew (and testified, contrary to the academic sniping), Justice Alito is simply pro-reading-the-law-carefully. That is not to say the chief justice doesn't read statutes well—it's just that his dissenting opinion today puts far more emphasis upon a speculation drawn from why the executive branch has separately treated retaliation claims for federal workers differently than can be found in the text and structure of the statutory regime.

What should not be lost, however, is that even as Alito and Roberts disagree, it is a disagreement that is both civil and broadly incorporating of respect for precedent and legislative history.

And what about Justices Scalia and Thomas—those great unmentionable ones to Sen. McCain? They separately dissented  in Gomez-Perez because of, among other reasons, one suspects, Justice Scalia's well-known dislike for any mention of legislative history.

Oh, and to make things more interesting, Roberts-Alito split together from Thomas-Scalia in a second case, CBOCS West v. Humphries, implying a retaliation claim under Section 1981, a statute that deals expressly with race only. Thomas and Scalia have made a point of emphasizing that racial discrimination and retaliation for racial discrimination are not one in the same. Analytically, it is a sound point. Unfortunately, it is also a point that the court has rejected several times, and that precedent (right or wrong initially) is too embedded in the overall structure of civil rights law to be set aside, a point nicely highlighted by Emily.

Will the real judicially restrained judge please step forward? Using the canard of widespread judicial misbehavior is just not in the cards for John McCain. We are the better for it, and the independent-minded John McCain of 2000 would have agreed.

Throwing Out the Baby With the Diaper: A Response to Eric Posner on the Importance of Marriage

Eric's provocative question whether "within-family reproduction is good in itself" is essentially asking whether the fall in fertility among existing Americans is fungible with the fecundity of recent immigrants from other nations and cultures. Without indulging too much American exceptionalism, I do think there is a distinctive American culture that is lost by that trade. Giving expression to that distinctiveness would violate every principle of blog writing, but for shorthand, let's just say one finds evidence of it in everything from the natural law premises of this Republic's Declaration of Independence to the great success of the recent John Adams HBO special to the content of any presidential aspirant's stump speech. These things begin to capture some of what is lost by supposing immigration to be a perfect substitute for our modest replacement rate.

Thus the significance of sustaining the marital family is far more than a favorable worker-retiree ratio, though that would be helpful in itself to avoid the coming Social Security bankruptcy attributable to both the population decline, and more immediately, the extreme war-related fiscal irresponsibility of the incumbent president. I concede Eric's point that it is more efficient to have people save for their own retirement and avoid transfer payments, but that is not the economic structure we have.

Eric's pro-immigration sentiment expressed within the sentence "paying people to have more babies doesn't seem reasonable when there are so many millions clamoring to get in" does earn two cheers from me, but it not only understates the uniqueness of American culture, it also misses entirely that a marital family is indeed worth preserving and far more than a "bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and carpool planning."

In its traditional form, marriage transforms by covenant the emotional and sexual attraction of two individuals into a lasting relationship (AEI's Michael Novak reports modern marriages have a 66 percent success rate) capable of sharing intimate personal goods as well as serving larger social purposes. That the California Supreme Court declares these same personal goods to be within a same-sex relationship has to date been the public debate. To leap from the acceptance of the inclusionary California ruling to the dismissal of marriage as a "bourgeois construct" is a far more revolutionary notion that I suggest Eric may wish to rethink by simply indulging the thought experiment of how uninviting a world without the civilizing efforts of marital family would be. When the marital union is strong, it is also stable, and in this atmosphere of stability children are welcomed and reared to be responsible, healthy, and well-educated citizens. Who exactly undertakes this responsibility under Eric's model?

Intra-marital union or intra-family, freedom is acknowledged in exchange for the faithful performance by the family of social expectations or obligations toward the education and care of family members. The public sovereign respects the private marital union so long as it sustains itself and yields new individuals with sufficient qualities to maintain the ongoing functions of the community as a whole. In short, it is anticipated that those raised intra-family have received such direction that, upon emancipation and emergence into the public community as free and independent citizens, they will live productive lives and respect the equal dignity of human beings.

Finally, as for "the planet chok[ing] on the greenhouse-gas emissions of the multiplying hordes," this neo-Malthusian supposition is empirically misdirected when world population growth has declined by more than 40 percent since the late 1960s.

Worried about greenhouse gases? It would be far more direct, to use Eric's terminology, to require automakers (and fuel-inefficient, consuming auto-buyers) to pay for the actual value of the air resources their products consume than to undermine the foundation of the civilized world as we know it.

Katherine Kmiec's Bright Idea—Subsidize Families With Children

Holidays like Memorial Day are times for families to gather, and my married daughter, Katherine, a deputy county counsel for a Southern California county government, shared her reflections as a citizen and spouse upon the California Supreme Court's recent decision in favor of same-sex marriage.

Katherine astutely observed that one salutary byproduct of the decision would be to prompt the government to re-examine whether there are adequate existing incentives to have and rear children. Drawing comparison with practices in Europe, Katherine speculated that existing, marriage benefits in the United States might be better directed to and augmented for those same-sex or traditional couples who willingly assume the opportunity costs associated with having and rearing children, as opposed to those who don't. 

As an aside, while we did not undertake a macroassessment of the dollar value of direct U.S. "marriage benefits," they do not seem to be overwhelming; for example, if a couple has disparate incomes, filing jointly is usually a benefit, but because of tax brackets, couples with high incomes may still be penalized; there is also a spousal exemption from estate tax, and of course, modest Social Security and Medicare spousal benefits. The benefits available to married employees (e.g., health and life insurance and retirement plan contributions) and the nontaxability or favored tax treatment of those benefits may be the most significant indirect economic benefit for married couples with or without children. There are few government or employer child allowances for children comparable to those found in other countries (see below). 

It is well-known that falling birthrates threaten to undermine the economies and social stability across much of an aging Europe. Katherine's father (me) thought procreation one of the most plausible state reasons for skepticism toward a public affirmation of same-sex marriage. The argument had a rational but not compelling basis because of the obvious imperfect fit between marriage and procreation (e.g., elderly and infertile couples). The fact that our state Supreme Court has now reached the conclusion that a rational basis is insufficient to justify the traditional definition of marriage does not mean that the state interest in fertility and responsible parenting has disappeared.

Since this concern is even greater in Europe, it is reasonable, as Katherine counseled, to inquire as to thinking and experience in foreign venue. Consider: France. Until recently, French fertility rates had the same downward slope as the rest of Eastern and Western Europe, but today its fertility rates are increasing. In fact, France now has the second-highest fertility rate in Europe—1.94 children born per woman, exceeded slightly by Ireland's rate of 1.99. The U.S. fertility rate, by comparison, is 2.01 children. This has made France the subject of considerable study by officials from Japan, Thailand, and Germany, all of which are facing the prospect of dropping off a steeper demographic cliff.

What accounts for France's increased population? While it might be the romantic nature of Frenchmen and the historic connection to Catholicism, it is more traceable to some rather substantial subsidies for children and families paid by the French government. For example, the government provides reimbursement for child-care costs for mothers of toddlers up to the age of 3 and free child care from age 3 to kindergarten. The Washington Post reported that a new law "provides greater maternity leave benefits, tax credits and other incentives for families who have a third child. During a year-long leave after the birth of the third child, mothers will receive $960 a month from the government, twice the allowance for the second child." 

While some of these allowances are progressive and aimed at low-income families, many are available to all, recognition that France better understands than the United States how it is discriminatory to make women choose between career and motherhood. Moreover, "French law [allows women] to opt not to work or to work part time until her child is 3 years old—and her full-time job will be guaranteed when she returns."

In sum, the French tax and economic system provides the following benefits for families:

• generous child allowances
• subsidized preschool and daycare
• substantial maternity leave and right of return
• tax benefits for transportation and some family purchases
• subsidies for in-home care
• government-provided recreation programs
• a private market that responds with services and hours of operation aimed at meeting working family needs, like, for example, pediatricians who make home visits
• the well-known French extended (36 paid day) vacation.

So, the next time you hear some U.S. official boasting about "freedom fries" rather than "French fries," feel free to tell them they have some ‘splainin to do. America and France may both extol family values, but France (and a number of other European countries as well) also values family in the way hard-headed economists understand. 

In significant part, avoiding stigmatic harm to same-sex families prompted the inclusionary ruling by the California Supreme Court. In the court's words, "the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own—and, if the couple chooses, to raise children within that family—constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society." 

The new importance of not drawing marital distinctions on the basis of sexual orientation should not obscure the equal importance of specially acknowledging the good to society that natural or adoptive parents provide—whatever orientation prompted them to come together.

The Facial/As-Applied Distinction—Partially Aborted

We have previously noted how the Supreme Court might be deploying the facial/as-applied distinction to reach minimal levels of consensus that would otherwise not be possible because of the ideological differences on the court. One prominent example was the Supreme Court's upholding of the federal partial-birth abortion ban on facial grounds in Gonzales v. Carhart. Consensus on the Supreme Court does not mean the division in the universe disappears, however. It is simply shifted back down the judicial hierarchy to the appellate bench. Thus, in Richmond Medical Center v. Herring, on remand to the 4th Circuit in light of Carhart, a 2-1 panel led by Judge Michael invalidated the Virginia partial-birth infanticide act on its face.

Pursuing a facial challenge in the lower court may seem contrary to the Supreme Court's preference for as-applied challenges, but the two-judge majority reasoned that the high court's preference for as-applied adjudication exists only in the partial-birth abortion context with respect to the need for a health exception and not for any consideration of the definitional scope of a statute. That is debatable, but dicing the jurisprudence in this way, the majority believed the Virginia act overbroad because they asserted it would impose criminal liability on a doctor for accidentally performing a partial-birth procedure when a more typical dissection procedure had been intended. Judge Niemeyer vigorously dissented on this point of statutory construction pointing to a mens rea requirement that was identical to the federal statute and most assuredly preclusive of accidental criminal liability.

Putting aside the statutory interpretation question, it will be interesting to see if and when the litigants pursue a petition for certiorari, assuming an en banc denial, whether the high court will view this as defiance of its judgment in Carhart and wade back into this contentious subject. If the justices pass, the case illustrates how thin the consensus achieved by the facial/as applied distinction. Indeed, some would contend that if the lower courts are permitted to disregard Supreme Court rulings in this fashion, the general public has been misled into thinking that abortion is subject to limitation, when it is not. All the more reason to believe that abortion is none of the government's business, and the sooner the people revoke its delegated authority under the 10th Amendment to say that neither federal nor state governments should address this topic, the better.

In the meantime, even assuming a facial challenge was appropriately considered by the 4th Circuit, it should be noted that the panel was doubly defiant in rejecting the traditional Salerno standard of facial challenge. That standard is a rigorous one, requiring a showing by the challenger of no conceivable constitutional application of the statute. By contrast, the specially crafted abortion facial challenge standard fashioned in Casey, but seemingly frowned upon in Carhart, of requiring a challenger to an abortion statute merely to show that a significant fraction of women would be unduly burdened is a standard so easily met that virtually no abortion restriction is capable of meeting it.

Minority Leader McCain

There's no question but that a President Obama would have to find an attractive position for Mrs. Clinton other than the vice presidency. The problem with the vice presidency is, of course, Bill. Absent a Lincolnian desire for a team of rivals, the former president's presence hanging about the West Wing vice-presidential office would greatly complicate executive decision-making.

So some now suggest the Supreme Court. Bracketing the effect on the court of Mrs. Clinton's appointment, the problem with the judicial post is that it doesn't solve Sen. Obama's immediate problem—allowing Mrs. Clinton the opportunity to exit the electoral stage with a prize in hand that reaffirms the achievement of women. It is unseemly to use court appointments quite this brazenly, and the glass ceiling has already shattered upon the O'Connor and Ginsburg heads. Finally, it is not self-evident why Mrs. Clinton would trade life in the highly visible, political lane for the cloister. It would be more likely to suppose that Mrs. Clinton would desire to be Senate majority leader or the secretary of health and human services in order to single-mindedly pursue her health care reform.

That said, a Clinton on the court has been speculated about before. Back when Mrs. Clinton was the likely nominee, I wrote a column for the Wall Street Journal suggesting that were Mrs. Clinton to become president, she herself would have had to extricate her husband from the executive branch and a plausible place to put him might be on the Supreme Court bench.

William Howard Taft found the court far more attractive than the presidency itself. Taft was able to shape not just judicial doctrine, but by virtue of his network of friends as the former chief executive, he had considerable influence over the appointments to not only the Supreme Court but the lower federal courts. Mrs. Clinton would like that, too.

James Andrew Miller, who writes about the possibility of nominating Mrs. Clinton to the High Court in today's Washington Post, suggests that Mrs. Clinton's policy and political perspectives would recommend her strongly to a President Obama. Perhaps. By virtue of Sandra Day O'Connor's retirement and her outspoken advocacy for a female replacement, whether it's McCain or Obama who is the next president, a female nominee for the court is highly likely. While the apointment would not be a "first," a Justice Hillary Clinton would not be without contemporary significance and effect. Her appointment from elective office, in itself, diversifies the bench in ways that others recommend, even as Eric Posner thoughtfully questions whether it is right to see the court as a third policy apparatus, rather than as a body doing narrowly focused legal work.

Mrs. Clinton's far more legally gregarious perspective would be a counterpoint to the Chief Justice's minimalism, and she would likely galvanize the overly hypothetical Breyer/Ginsburg/Souter wing. All pretty exciting for her. All equally frightening for Justices Alito, Thomas, and Scalia. Dizzying for Justice Kennedy.

The GOP, one suspects, will discover newfound respect for the judicial filibuster, which would complicate Mrs. Clinton's confirmation, as Dahlia suggests. But then, will the GOP have 40 seats in the Senate? And who knows what Minority Leader McCain, whose term runs through 2010, might negotiate as part of a reconstituted gang of 14.

Abortion and Same-Sex Marriage As None of the Government's Business

While it was Kelly's thesis that it is activist and not in keeping with principles of federalism for state judges to trump the people, it was professor Weisberg's nice counterpoint that as in many claims of activism, whether one favors the state court over the people (Gov. Schwarzenegger's position in opposition to an anticipated November initiative that would overturn the same-sex marriage case) or vice versa depends on whose ox is being gored. It is not really possible to say that one is more in keeping with federalism than another.

But that is not to say that the distinction between the state and the people is unimportant. The phrasing in the 10^th Amendment speaks of the "reserved [unenumerated power] to the states respectively, or to the people" for a reason. The phraseology illustrates that while the concept of federalism is typically associated with what is federal  (viz. national) vs. what is local, the separate reservation in the 10^th Amendment allows the people of a state to deny a delegation of their unenumerated reserved power to their state legislature. Indeed, the people may decide that no government entity—including themselves by initiative or referendum—should take a position on a given subject that has been so reserved.

This avenue for complete neutrality presents a possible common ground to defuse some of the rancor over abortion and same-sex marriage. Theoretically, it would be possible to declare both subjects as presently beyond the competence of government.

The California Supreme Court catches a bit of a glimmer of the potential for using neutrality as a reconciling device when it suggests that the California assembly might decide not to ascribe the sacred word marriage to any state license whether given to a heterosexual or homosexual couple. Rather, California state licenses might be called "civil unions" or "enduring unions," with the sacred affirmation of marriage being entirely reserved to nongovernmental actors to allocate in accordance with particular their religious traditions. Were California to follow that course, religious bodies would presumably then have less basis to argue that the civil law was affirming or honoring a relationship that cuts deeply against the revealed beliefs of those religions.

The same could be true with regard to abortion. Here, the formulation would mean that if Roe were overturned, the matter would not be returned to the states or to the people in their initiative/referenda legislative capacity but would be reserved to the people solely within their own church and family structures. It would be within those nongovernmental communities that the people would decide whether abortion is a matter of individual liberty or the taking of human life. Obviously, as a practical matter, this would leave the abortion decision to a woman and her doctor as Roe itself does, but critically, the law would not then be giving any civil-law approval or constitutional edge favoring one side over the other. 

Would such reallocation of authority to the people outside of government be more accommodating of those who presently raise religious objection to abortion? Obviously, it does not put the full force of law behind stopping or curtailing the practice, but then it does not endorse it, either. The law would be entirely silent, leaving the people in their individually and voluntarily chosen communities to decide matters for themselves in accordance with their respective beliefs. That this would not be mere window dressing may be illustrated in the Catholic Church's own teaching, which, of course, is strongly against abortion. While the most preferred Catholic position is a construction of the Constitution that affirms the unalienable right to life for all persons from conception onward in the Declaration of Independence, the specific instruction of the church merely calls for the practice not to be "recognized and respected by civil society and the political authority," and admonishes its own believers to not exercise their free will to procure (or aid the procurement) of abortion.

The possibility of reserving sensitive questions over which the culture is deeply divided, and indeed, with respect to which there is insufficient consensus to justify either a positive law or judicial determination has more salience and potential for bridging even profound disagreement than the obscure 1791 formulation of states rights in the 10th Amendment may at first reveal.

In Re: California Marriage Cases—Something Old, Something New, Something Borrowed, Something Blue

As a matter of law, history, social policy, and faith, it is my view as articulated in a brief I helped draft in the California cases that marriage is properly reserved to a man and a woman. In other words, I lost. That said, the California Supreme Court decision in favor of same-sex marriage in both the majority and dissent is written in reasoned and intelligent voices.

It would be especially worthwhile if the California opinion did not immediately trigger the predictable responses by the contending sides or extended gloating or criticism by those pursuing the presidency. The common good will not be advantaged by either gay euphoria on one side or straight predictions of moral disintegration. Nor will the usual hand-wringing about judicial activism be of much utility. 

Sen. Obama might take special care in his assessment of the opinion. He, like the court majority, I am certain believes extending affirmation to same-sex marriage ultimately honors that venerable institution. As such, it would be prudent for Sen. Obama and supporters of same-sex marriage to note that, for the most part, those who opposed that affirmation did so not out of acrimony or dislike, but out of a like appreciation for the family as an irreplaceable cultural building block and often sincere religious belief that deserves respect and accommodation.

So, what did the opinion actually do?

Something Old—Marriage by Any Other Name ...
California's decision to affirm same-sex marriage arguably will not have a dramatic impact within the state itself since the state had already been so generous in its domestic-partnership provisions and in eliminating virtually all forms of employment and housing discrimination. Indeed, the most noticeable impact may be in the usage of the word marriage, though the court puts it more sensitively: "Whether or not the name ‘marriage,' in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature as that accorded to all other officially recognized family relationships." In short, whatever terminology the state fixes upon, it must be extended to same-sex and traditional marriage alike. 

Something Borrowed
Perhaps it would be best if the state would forgo using the terminology of marriage altogether and leave that to religious bodies where the institution is accepted as having divine origin and is associated with sacrament or other blessing. In that event, the state license for everyone could be called "civil union" or, as the court suggested, "enduring union," which indeed is the hope of every couple and the genuine work of life-long friendship.

Something New
Analytically, the court is at its strongest in pointing out how the usage of the term marriage for opposite-sex couples exclusively can stigmatize same-sex couples. The court makes an analogy to the separate but equal decisions that preceded Brown v. Board of Education, where, of course, the minority schools were never quite equal. The court writes: "[P]articularly in light of the historic disparagement of and the discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships ... will cause the new parallel institution that has been made available to those couples to be viewed as of lesser stature than marriage, and in effect, as a mark of second-class citizenship." Poignantly, the court gives emphasis to how the disparity may affect children of gay couples and how privacy can be invaded then in numerous everyday social, employment, and governmental settings in which the individual is asked whether he or she is married or single. An individual who is a domestic partner and who accurately responds to the question for disclosing that status will functionally be disclosing, said the court, his or her homosexual orientation even if that person would not want to make such disclosure in that circumstance, and it is totally irrelevant to the setting of the question.

This is a nice point. It might have been made stronger had the court observed that nomenclature that does not occasion prying into the sexual choices of persons also has the byproduct of not aggravating opposite-sex couples or individuals with explicit sexual identification or discussion of sexual orientation that often seems, and is, out of place in workplace, school, and other public settings.

So, What's the Harm in Same-Sex Marriage?
It is often asked, as Marty's helpful post does, how the acknowledgment of same-sex marriage harms marriage between a man and a woman. The inability to give a simple, secular answer to this explains the California victory in favor of same-sex marriage more than the reasoning of the opinion. That doesn't mean there is not an answer. There is a religious answer, and it is anchored in the creation story recorded in the book of Genesis.  

The religious answer has a secular side, but it is less articulable. Traditional marriage has been accepted without argument for so long that the words custom and history substitute for analysis. When a more searching inquiry is made, it is often related to the genuine belief that the institution of marriage and associated natural procreation should be (and has been for millenniums) interrelated and very much worth preserving. The story of the declining populations and cultures of Western Europe is debated but troubling. No one wishes the same for the United States, though it is hard to deny that marriages are occurring later and with less frequency (with a con-commitant rise in cohabitation and its various adverse instabilities and risks for children). A smaller youthful population with a sizable graying demographic has many negative economic and social consequences manifest in everything from what does or does not get accomplished in schools to the coming bankruptcy of the Social Security system to much else that depends on the constant influx of new people, responsibly prepared to take up for the work of citizenship and community. 

With that as backdrop, did California actually accomplish anything different than Massachusetts already did several years ago?

Exportable California Licenses Seeding State and Federal Litigation
California's decision is more groundbreaking than that of Massachusetts in two senses: First, Massachusetts decided, for the most part, that its opinion applied only to its own residents. Nonresidents can be married in Massachusetts only if the marriage would not be prohibited in their home states, whereas California has no residency requirement or waiting period, nor does it determine the availability of its own license in relation to whether such license would be permissible elsewhere. Presumably, this will mean a large number of same-sex California licenses being issued to the nonresident visitors, who will then return to sister states requesting recognition of those California licenses. If those requests are denied, litigation similar to that just concluded in California under that state's marriage law will result as well as challenges to state and federal Defense of Marriage Acts.

Sexual Orientation as a Protected Class
Second, the fact that California declared sexual orientation to be a suspect classification will likely put additional pressure on Congress to do the same in the Civil Rights Act. To the extent other state courts follow California's lead, one can anticipate that this state jurisprudence will ultimately come to be reflected in federal jurisprudential thinking as well. Certainly, one can anticipate the decision today being cited as instructive (though clearly not binding, given its exclusive state-law provenance) in challenges to the military's ongoing application of its "don't ask, don't tell" regulation. The end of sexual-orientation discrimination has much to commend it, as again Marty nicely illustrates in his quotation from the opinion, but again, there are interwoven religious beliefs that are not based on stereotype and that do deserve accommodation.

Governor of the People—Well, a Few With Robes at Least
Responding to today's California Supreme Court decision approving same-sex marriage in relation to a November ballot initiative that would declare the opposite, Gov. Arnold Schwarzenegger said:

I respect the court's decision and as governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.

Depending on your perspective, this may or may not be a profile in courage. Gov. Arnold seemingly reasons that it is more important to secure the four votes of the majority of the California Supreme Court than the approval of the 4,160,706 voters, or its 2008 equivalent, who had approved affirming traditional marriage in 2000 in Proposition 22. The governor's thinking seems a wee bit anti-democratic.  

Is there a footnote in Active Liberty that explains this new-found gubernatorial respect for the will of the judges? (Sorry, I couldn't resist a little judicial-activist tweaking.)

The Coming Unconstitutional Constitutional Amendment?
In any event, Gov. Schwarzenegger may not be the only person asserting that there can be an unconstitutional constitutional amendment. The language of the proposed initiative on the ballot in November is virtually identical to the provision of the state family code that was today invalidated. Moreover, the signatures given for this initiative were given prior to the court's decision. Certainly a court that is prepared to declare sexual orientation a suspect class and redefine marriage won't be overly shy about questioning whether the wording of a state constitutional amendment initiative was specific enough to overrule an intervening court determination of this magnitude.

But that's assuming the initiative passes. 2008 is not 2004, and the turnout in November for traditional marriage is no sure bet. Voters attracted to Sen. Obama by and large will be pleased by a today's majority opinion and will be of no mind to approve a state initiative reaffirming traditional marriage. 

Something Blue—Will the Outliers Then Be Punished?
Should same-sex marriage and nondiscrimination on the basis of sexual orientation become the norm, as Marty speculates, what will be the impact on religious bodies that sacramentally must decline to conduct same-sex marriages or that cannot under existing religious teaching hire homosexual persons for certain positions such as teacher, athletic coach, or the clergy itself? The Supreme Court's jurisprudence on the Free Exercise Clause is presently insufficient to give any shelter to these practices. Practically, will the existence of religiously affiliated institutions be threatened by the denial of tax exemptions or the denial of access to other public programs on the theory that their practices would then violate public policy? These are real questions that have been aggravated by scholarship and judicial decisions that have allowed or advocated the aggressive exclusion of the Boy Scouts following their successful defense of their right of association before the Supreme Court.  

Let History Be Our Guide—At Least As It Applies Against Polygamy and Incestuous Marriage.
There is one anomaly that stands out in the opinion's rejection of history and tradition. The California Supreme Court opined that its approval of same-sex marriage "does not mean that this constitutional right similarly must be understood to extend to polygamists or incestuous relationships." But why not? In rejecting the state's defense of traditional marriage, the court found the historical support for traditional marriage to be of little purchase. Apparently, with respect to polygamy and incest, history counts for a lot. The court asserts that "although the historic disparagement of the discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment." 

I agree, but wasn't that exactly the state's argument in defense of traditional marriage?

McCain Injudiciously Attacks Judges and the Constitution; Dems Wrongly Attack Obama's Ideal

In covering John McCain's effort to win friends with the conservative base by praising Chief Justice Roberts and Associate Justice Alito (which I agree they deserve, not because they are reflexively conservative, but because they are jurists who are admirably dedicated to an objective appraisal of the law as written), the national media missed the big, and more troubling, story: McCain wrongly attacked both the Constitution and Article III judges.

McCain's claim that there is "systemic abuse" of the federal judicial office is an occasion not to praise him but to ask his apology for the overwhelming legions of federal judges who serve with distinction and at modest pay often without acknowledgment. To say that McCain meant only to single out the few who defy text, and who justly warrant and receive reversal, is to overlook the intemperate sweep of the McCain condemnation of the Third Branch. In his obvious effort to, well, pander, Sen. McCain did a disservice to these public servants and, as I earlier wrote, falsely assailed the Constitution for a flaw that does not exist, and insidiously undermines public trust in the fairness of the judicial process. Let McCain's overbroad and unrefined words speak for themselves:

There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. ... With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states.

This is not straight talk; it is calumny.

The Democratic response issued by DNC Chairman Howard Dean was scarcely better. Dean's feeble, and partisan, tit-for-tat effort to paint the chief justice and Justice Alito as "activists" is so thin that it makes one want to engage in the practice for which Dean is most famous: scream. Dean's response, which shows no appreciation for the solid points Sen. McCain did make about the importance of observing the constitutional structure, illustrates a serious problem for presumptive nominee Barack Obama: Sen. Obama may want to bring his party to a higher, more noble plane where reason is recognized not to be bounded by its red or blue origin, but the leadership of his party apparently still wants to fight in the gutter.