Posts Tagged ‘Law’
Economic inequalities then—inequalities in freedom as producer and as consumer—are embodied in unequal legal rights. In assigning and enforcing legal rights to the fruits of transactions, the law is doing more than protect the winnings in the game of production and exchange. It is dealing unequal hands to the players. Further state intervention to alter the distribution of rights and liberties, to the advantage of those whose liberty is most restricted as a result, in part, of state action cannot be properly described as “statism” in any obnoxious sense. There may, however, be good reasons of policy against disturbing many of the present inequalities. But elucidation of this matter will require another chapter.
At the end of the Supreme Court’s term last year, I noted that when it came to the Affordable Care Act case, every justice agreed with the principle that the Constitution creates a system of enumerated powers at the federal level. But, when it came to the Arizona’s punitive immigration law, those same nine justices all agreed the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration.
As I said then, “both positions were consistent with past decisions”:
All this illustrates a point I’ve been trying to make–we have to distinguish between claims about what the Court does, from what it does, but both involve talk. Both are consequential, but neither are automatic. The key is not to ignore what the Court says or to take it as truth, but rather to focus on in what contexts certain things are taken for granted (and here we’re not just talking about the Court but also the larger legal community) and how it differs from other contexts.
This term brings a similar example, although this time it involves a smaller number of justices.
[Update: For a sense of legal landscape in the wake of the Supreme Court's decision, read The Way Forward After Shelby County by Joey Fishkin]
The Supreme Court has struck down Section 4 of the Voting Rights Act (pdf), rendering Section 5 inoperable until Congress changes Section 4 (assuming Congress can and there is anything Congress could pass that the Supreme Court would allow, which is unclear). I addressed the most fundamental conservative objection to the Voting Rights Act after oral arguments – that it is a “racial entitlement”.
Generally speaking, you should just read Justice Ginsburg’s dissent, which righteously shreds Chief Justice Roberts’, and Jessica Mason Pieklo.
I wanted to address something a little more abstract.
Roberts’ opinion repeatedly references ‘state sovereignty’ as an (unenumerated) constitutional principle that supposedly overrides the enumerated power of Congress to enforce the 15th Amendment through appropriate legislation. Let’s leave aside the issue of enumeration, and of the case law (Ginsburg dispatched that handily). The bigger problem with this is that it’s absurd.
The Constitution makes clear that sovereignty is not vested in governments. It is vested in the people. Neither the states nor the federal government are sovereign. (Yes, don’t miss that second part – and let’s not pretend that a war settles constitutional questions either). From the opening words of the preamble of the original Constitution to it’s final clause, from the beginning to the end of the Bill of Rights, the basic, most fundamental constitutional principle is popular sovereignty. The entire process of ratification, by conventions rather than by state governments, only makes sense if you begin with popular sovereignty.
Literally every other principle we associate with American constitutionalism–separation of powers, federalism, enumerated powers–flows from this basic principle. Read the rest of this entry »
The word ‘law,’ itself, is always a primary object of contention. People argue and fight over ‘what is law’ because the very term is a valuable resource in the enterprises that lead people to think and talk about law in the first place….On a political level, it connotes legitimacy in the exercise of coercion and in the organization of authority and privilege. On a philosophical plane it connotes universality and objectivity….The struggle over what is ‘law’ is then a struggle over which social patterns can plausibly be coated with a veneer which changes the very nature of that which it covers up. There is not automatic legitimation of an institution by calling it or what it produces ‘law,’ but the label itself is a move, the staking out of a position in the complex social game of legitimation. The jurisprudential inquiry into the question ‘what is law’ is an engagement at one remove in the struggle of what is legitimate.
Robert M. Cover, “The Folktales of Justice: Tales of Jurisdiction.” (pdf)
Instead of thinking of judicially asserted rights as accomplished social facts or moral imperatives, they must be thought of, on the one hand, as authoritatively articulated goals of public policy, and on the other, as political resources of unknown value in the hands of those who want to alter the course of public policy. Stuart Scheingold, The Politics of Rights