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A Supreme Court Conversation

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from: Walter Dellinger
to: Dahlia Lithwick

The Constitution: The Juicy Bits

Posted Friday, June 22, 2007, at 6:28 PM ET

Dear Dahlia,

I am so glad you asked. As you may remember, in 2005 the president nominated for the Supreme Court a distinguished lawyer who had not previously been a judge or a scholar. The chairman of the Senate judiciary committee suggested at the time that such a nominee would need a "two-week crash course" in constitutional law before testifying at the hearings. A national newspaper asked me to write an essay on what the content of such a two-week crash course should be. Before my response could be published, however, the nomination was withdrawn.

My surprising conclusion at that time was that it actually takes only minutes, not weeks, to master the essence of all American constitutional law. So as background to this year's discussion of this term's cases, and for the benefit of those busy readers who would like to be constitutional scholars but have only a few minutes to spare, I am delighted to provide "Professor Dellinger's Unpublished Short Course in Constitutional Law."

Constitutional law: the five-minute crash course

The basic rule of American constitutionalism is this: Before the government can forbid you from doing anything, it has to provide a reason. "Because we say so" does not count as a reason. To limit ordinary liberties (like selling eyeglasses), most any reason is good enough. To restrict fundamental liberties (like using birth control while having sex), however, the government must have a really important reason. (Getting to decide which liberties are "fundamental" is one of the cooler parts of being a justice.) Under the equal protection clause, even if the government has a plausible reason for putting a burden on you, it also has to explain why it treats other people better. If the justices suspect that the government may simply dislike people like you, they will demand an especially convincing explanation for the different treatment. And if the government wants to interfere with your liberty by actually taking your house or property, it has to pay you "just compensation"; and even if it's ready to fork over compensation, the town can't take your stuff at all unless it's going to use it for a "public purpose." (Current hot topic: Is forcibly taking old people's homes to make way for a spiffy new Wal-Mart really a "public" purpose?)

Establishment of religion is really simple: government prayer, bad; private prayer, good. (The only hard cases come when a citizen uses government property or public funds for religious purposes, and the facts make it difficult to tell whether it's the government or the private citizen actually making the religious choice.) As for speech, you can generally say whatever you want, but not necessarily where, when, or how you want. It's also OK for the government to regulate "expressive conduct," as long as the government is going after the "conduct" part and not the "expressive" part. Also, you have no right to dance naked unless you are a really, really good dancer, in which case it becomes art. As for the First Amendment's so-called "reporter's privilege" to protect confidential sources, you can skip that—it's taught with reverence in journalism schools, but judges never heard of it.

Congress has the power to ban anything from crossing a state line for any reason. And Congress can regulate any activity that's economic even if it's wholly within one state. But if it's not economic, and it doesn't cross state lines, then Congress cannot regulate it—unless five justices think the regulation in question is a really, really good one. This national power is limited to some extent by state sovereignty, a doctrine traditionally invoked by those on the right to insulate conservative red-state practices from federal regulation. This doctrine is now eyed fondly (but warily) by liberals seeking to protect blue state positions on gay marriage and medical marijuana. Rule of thumb: State sovereignty claims are more likely to be upheld by the current court when advanced by Alabama than when put forward by Oregon.

Finally, one needs to understand judicial restraint, the doctrine that a judge should avoid "legislating from the bench" and should instead strictly apply the text of the Constitution "exactly as written." This approach is very appealing to those who have never read the Constitution. But see, e.g., the 14th Amendment, which requires judges to protect (without any further elaboration) "privileges or immunities of citizenship" and "liberty" and "equal protection"—phrases so open-textured that they make the "apply exactly as written" mandate somewhat unhelpful.

Senators especially like it when a nominee says a judge's role is just to be an "umpire." But broad constitutional phrases are different from sports rules, so a judge would be like an umpire only if the game—instead of having a strike zone and a set number of balls, strikes, and outs—provided instead that "each batter shall have a fair chance to hit the ball" and "each team shall have a reasonably equal opportunity to score runs." Key language of the Constitution is that broad, meaning that men and women appointed to the bench must necessarily exercise judgment. Which is, of course, why they are called judges, and not umpires.

Best,
Walter

the breakfast table
entries
123456789101112131415161718
from: Walter Dellinger
to: Dahlia Lithwick

The Constitution: The Juicy Bits

Posted Friday, June 22, 2007, at 6:28 PM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor. Stuart Taylor, a New York Times reporter from 1980-88, writes for National Journal and Newsweek.
Illustration by Rob Donnelly. Photograph of Justice Antonin Scalia on Slate's home page by Alex Wong/Getty Images.
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Remarks from the Fray:

This decision is a disappointment. Not in its result, because I strongly believe this is the correct decision. What is disappointing is that the Supremes chose to issue another decision that doesn't announce a guiding principle, and which applies only the present case. This reminds me of a classic Calvin & Hobbes cartoon, in which our heroes created an army of Snow Goons to battle the evil Susie Derkins. But the Snow Goons eventually turn on Calvin & Hobbes. After finally defeating the Snow Goons, Calvin says to Hobbes, "Well, we sure learned a valuable lesson today. And that lesson is this: Snow Goons are bad news!" To which Hobbes replies, "That's a lesson that ought not to have any applicability elsewhere in life."

This is a Snow Goons decision. It stands for the extremely narrow proposition that school districts can forbid expressions that appear to advocate recreational drug use. What about other messages that are contrary to the educational mission of the school? We don't know, because the Supreme Court is only interested in resolving for us the extremely pressing issue of whether "BONG HiTS 4 JESUS" is acceptable speech in an educational environment. Heaven help any school administrator who looks to this decision for guidance. […] Next year's landmark decision: "METH 4 MOSES"

--CaLawyer

(To reply, click here.)

I'm not a constitutional scholar, but how can Dellinger say that there is no harm to the taxpayers in Hein, and so no standing? Isn't the precedent, upheld by the FEC ruling, that spending money is a form of speech? And so isn't saying it's okay to spend my tax money on something sort of a tacit way of saying I agree with or I approve of what it is being spent on? So if my tax money is being spent to support religious institutions that I don't support or agree with, isn't that a violation of my first amendment rights? I mean isn't the harm that the government is essentially forcing me to support particular religious institutions that I might not agree with? Or by Dellinger's argument, would my case only have merit if I argued that having to support a specific religious institution with my tax money was violating my freedom to practice religion (or not) in the way I want.

I realize that there's a potential problem with the argument I've laid out b/c it opens the door to saying that spending tax dollars on anything that I don't approve of is a violation of my right to free speech. But I would think that there's probably a fairly clear way to distinguish between spending in general and spending that targets only specific religious institutions. Also, my argument isn't that the court should necessarily find for the taxpayer group in this case, but that I think that if the legislature or the executive branch is going to ask me to contribute money to religious groups...then I should at least be able to have the judiciary decide if they're doing it in a constitutional way.

--SlateSurfer

(To reply, click here.)

It looks like the student made a minor mistake. Instead of unfolding the banner at or near the school grounds, he should have purchased 15 seconds of add time on the local TV station, with video showing the banner and a somber voice advising viewers to call the school principal and ask why he opposes the banner.

--rrfan

(To reply, click here.)

With regard to the 1st Amendment's Establishment Clause, Dellinger writes, "Government prayer, bad . . . private prayer, good." Where, pray tell, does Dellinger find a prohibition on "government" in the 1st Amendment? Of course "the government" can be petitioned for a redress of grievances, but the key word in the text is "Congress" -- not "the state" and not "the government". The amendment places a limit on the actions of Congress, not on "government" in general. And "Congress" means "Congress" -- it doesn't mean "the Executive branch" or anything else that isn't Congress.

--Tori_Fox-Hunter

(To reply, click here.)

The courts always have trouble with humor. They're serious places filled with serious people in serious clothes doing serious things. Judges demand - and expect -respect, and don't tolerate jokes. Even when they talk about humor, they fall back on Important Satirists like Jonathan Swift, and don't discuss the equally subversive, but much funnier, Moliere.

So Lenny Bruce gets convicted of obscenity and George Carlin gets banned from the airwaves, but the American Nazi Party can march in Skokie and Saving Private Ryan can go on network TV. And if you want to convince a court that your speech deserves protection, you're much better off if there's a serious purpose, no matter how odious, than if you're trying to be funny.

The thing is, the First Amendment doesn't say "Congress shall make no law . . . abridging the freedom of serious speech," or "core political speech" or anything like that. Still, just as Chief Justice Roberts interpolated a pro-drug message into a nonsense phrase, judges seem to interpolate seriousness language into the First Amendment. It makes me think that maybe, just maybe, we would have been better off if Ben Franklin had been involved in the drafting of the Bill of Rights, rather than the other, very serious Founding Fathers. He, at least, understood the value of a good joke.

--randy-khan

(To reply, click here.)

Both Walter and Dahlia are taking the position that it isn't at all clear that "Bong hits 4 Jesus" advocates for illegal drug use. Perhaps I'm being naive, but I personally can't think of anything that "bong hits" could be referring to except smoking marijuana. What else would a high school student possibly mean by that phrase? If Walter and Dahlia were right, it would mean that school administrators would be prohibited from making reasonable inferences about colloquial phrases, and only the most explicit endorsements of illegal activity could be prohibited. To take an example almost anyone would find offensive, what if a student wore a T-shirt depicting a hooded figure holding a noose with the phrase "string em up high", and claimed that its referring to a pinata; could that be prohibited pursuant to Walter and Dahlia's interpretation of the law?

--Aagcobb

(To reply, click here.)

Dellinger's argument that the other branches should have a coequal or similar authority to interpret the Constitution as the judiciary is a very bad argument. […] This presents a slippery slope to all sorts of bad consequences, including Executive officials feeling they have the right to disobey judicial interpretations of the Constitution as well as laws of Congress that they don't agree with-- even if the President signed those laws rather than vetoing them!

The Bush Administration has effectively demonstrated these problems to a greater extent than could ever be imagined. Attempts are made to rely on standing and jurisdiction doctrines to keep matters out of court, and then the Executive Branch comes up with completely unreasonable and ridiculous interpretations of the law that are insulated from challenge. Signing statements are used to neuter statutes that are signed into law by the President.

Chief Justice Marshall in Marbury v. Madison had it right. It is entirely the province of the judiciary to say what the law is. Any other approach leads to a potential dictatorship.

--Dilan Esper

(To reply, click here.)

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