Convictions: Slate's blog on legal issues

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.

A Guest Post by Robert Weisberg on the Relationship Between "Actvism" and "Federalism"

Robert Weisberg, of Stanford Law School, offers a guest post:

Dahlia Lithwick’s latest column about the California marriage decision shows how the availability of the "activism” trope is more than the intelligence (or other virtues like rationality, sanity, or honesty) of those decrying it can bear. I would add a twist: the conflation of concerns about separation of powers and federalism. On the Bill O’Reilly show the night of the decision, Fox New jurisprude Megyn Kelly first offered a fairly generic denunciation of the decision as matter of constitutional jurisprudence. Then, when asked (by O’Reilly!) whether the decision at least merited respect under the principle of states’ rights (O’Reilly also noted that the state court was mostly Republican appointees), Kelly got agitated and fumed that states’ rights are not about the rights of state judges but the rights of the people. Whatever the mens rea of Ms. Kelly’s rant (see challenged virtues, above), it wonderfully illustrates the power and plasticity of the activism trope. And the focus on California is especially ironic. Here in the Golden State we have a ruling that may last just a few months, given the voters’ penchant for—indeed their addiction to—direct democracy. 

We do have an elected legislature here, but California voters love to do the legislative work themselves (both the restoration of the death penalty in the 1970s and the three-strikes law in the 1990s were passed the old-fashioned way in Sacramento but then got enhanced via initiative within one year), and the 50 percent rule applies to initiatives that change the Constitution as well. It is a state where the people seem quite willing to kick Supreme Court justices out of office (see Bird, Reynoso, Grodin over the death penalty in 1986) and, of course, find it easy to kick out a governor for no particular reason except dislike and mild buyers’ remorse. So in the separation-of-powers arena, the fourth branch of self-declared people’s sentiment seems quite able to take care of itself. 

Of course, we could also put the problem with this reading of states’ rights in more abstract terms, noting, for example, that the presence of both the Ninth and 10th Amendments in the federal Bill of Rights suggests that in 1791 there was a big difference seen between the autonomy of states and at least one, admittedly vague, version of a residual power of the people. The venerable provenance of federalism in the 18th century is a strange bedfellow to a concern over the phenomenon of ­judicial review—which was hardly on the minds of the Framers­, especially at the state level.

In any event, imagine that the D.C. gun ban had been enacted in a state; the U.S. Supreme Court had upheld it on broad collective rights grounds (contra the likely outcome in Heller), and the state Supreme Court had then struck it down as a violation of the state’s right-to-bear-arms clause: Would the chance of that decision being denounced as activist by pro-gun groups have exceeded zero, or the chance of those groups forbearing from proclaiming it as a vindication of states’ rights less than 100 percent? 

A Federal Case?

I think Judge Gertner's right -- there are some things which flatly shouldn't be a federal case. 

I'm reminded here of the so-called "felon in possession" cases I saw while working as an extern in the U.S. Attorney's Office in Los Angeles.  Under federal criminal law, it's a crime for a previously-convicted felon to possess a gun which has moved in interstate commerce (i.e. any gun). The cases I watched came as part of a massive Justice Department initiative called "Project Safe Neighborhoods" which aimed to reduce gun-related crime in America through various means, including the federal prosecution of persons arrested with a gun who had a prior felony conviction.  Many were initially arrested by local law enforcement; some were even tried first in state corut.  However, they eventually made it into federal court because the feds wanted to take advantage of stiffer federal sentencing laws, more prosecutorial resources at the federal level, and the comparitive advantage of the federal court jury pool versus that in Los Angeles County. 

The strategy has worked.  PSN has locked up a lot of gun-carrying felons for a very long time.  In general, I applaud that outcome, because I want streets that are free of gun violence too.  But, I agree with Judge Gertner that we should be concerned about the larger implications here, especially the stark differences between the federal and state criminal systems which create the incentive to make a federal case out of everything.

Prosecutorial Discretion: Transparency and Federalism

On April 18, the L.A. Times reported the United States Attorney was facing criticism from line prosecutors who said that they were being pressured to file "relatively insignificant criminal cases" for the purpose of driving up statistics that would lead to increased federal funding. The United States Attorney denied the accusation.

Whatever the facts, the question of how prosecutors exercise their considerable discretion to bring federal charges is critical. With mandatary minimum sentencing, prosecutorial decisions effectively determine the outcome. Federal substantive criminal law is chaotic -- with overlapping offense categories that can apply to the same charged conduct, some with mandatory minimums and some without. And those decisions, unlike the decisions of judges that are regularly reviewed and criticized, are not transparent; they are the classic low visibility decisions, accountable for the most part only to the hierarchy within the local office and no further. Given that power, and lack of transparency, every effort must be made to keep the process from becoming politicized either to beef up statistics -- the allegation here -- or to go after political enemies --as was claimed in connection with the U.S. attorney firings.

Justice Scalia said it best dissenting in Morrison v. Olson, the case in which the Supreme Court upheld the independent counsel statute, the statute that later allowed Ken Starr to investigate President Clinton. "Law enforcement", he noted, "is not blind." No one can investigate everything, so the prosecutor has to pick his cases. And if he can choose his cases, he can choose his defendants, the "most dangerous power" of all. The risk is that the prosecutor will go after the people he thinks he should get, not the cases that need to be prosecuted. The "who" before the "what"."

But another, perhaps even more important issue, is whether federal court is the appropriate place for the "relatively insignificant criminal" cases. There is certainly an important role for federal law enforcement. But, this effort must be done carefully. If not, it will only deepen the perceived inequities in the criminal justice system, inequities that lead one person to get a long federal sentence, while another is prosecuted in state court facing a lesser penalty for the same conduct, while one person faces a federal jury which may well be far less diverse than the state juries, etc. Moreover, too much reliance on federal prosecutions can undermine over the long haul the critical role of local law enforcement, which has the best intelligence and the closest ties to the community. And federal resources, as a colleague on my court has noted, are often best saved for more complex cases.

So whatever the facts in this case -- and we only know the accusations -- federal prosecution decisions are simply too important to the public, to the defendants, to be subject to in appropriate, external pressures.