Judicial Review As Legitimation In Action!

One of my favorite arguments that's presented in my grandfather's book The People and the Court, which is a defense of the legitimacy of judicial constitutional review in a democracy, is about the way courts can serve a legitimating function. That is, if there's a law whose constitutionality, and thus legitimacy, is in controversy, having it subjected to rigorous judicial review and then get upheld can settle a lot of doubts about its constitutionality and thus legitimacy. The institution of judicial review, then, should significantly increase the confidence of the people that those laws which are being implemented are in fact constitutional and legitimate. It's a really cool theory. It's also the kind of thing you can imagine not happening in practice. (For example, I don't think very many Republicans were convinced by NFIB that the Affordable Care Act is in fact constitutional, although I know of only one Republican type who has anything particularly clever to say about why John Roberts' tax argument is wrong.)

Well, here's an example of it happening in practice. From Kevin Drum's latest piece about how using the Authorization for the Use of Military Force from just after 9/11 as the legal justification for various War on Terror-related activities isn't really okay anymore:

If Congress wants to give the president that power [of targeted killings of American citizens like al-Awlaki], it should debate and pass a law and the courts should rule on its constitutionality. That's the rule of law. And regardless of whether I liked the law, I'd accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional.

Just like that! That's exactly what's supposed to happen. The Court declares it unconstitutional, and people accept it as legitimate. Even if they don't like it, they accept it. Just so!

What First Amendment Absolutism Gets You

Hugo Black was known to go around underlining the words "no law" in the First Amendment: "Congress shall make no law respecting an establishment..." This was meant as a critique of the trend in First Amendment jurisprudence of "balancing tests" which weigh the state's supposed interest in suppressing some speech against how important the free speech interest at stake is. The rule wasn't "Congress shall make no law...abridging the freedom of speech, unless it's sufficiently important or the speech isn't that important," it was just, "Congress shall make no law." Throughout their tenure on the Court he and William O. Douglas would routinely write a joint concurrence or dissent in just about every First Amendment case saying, "hey by the way guys, we're First Amendment absolutists!"

But of course, people respond, you can't really be an absolutist. If you take the free speech clause both absolutely and literally, then any law or regulation which in any way restricted what people could say would be unconstitutional. Libels, threats of murder, incitements to violence, even criminal conspiracies could be protected. Combine that approach with a non-literal interpretation of the word "speech," so as to encompass non-verbal expression, and, well, you're in trouble: almost nothing doesn't have some expressive content. Murder is typically very expressive. So, people said, what Black and Douglas were really doing was shifting the problem. It was all very well and good to underline the words "no law," but that just meant you needed to come up with a definition of "the freedom of speech" that ended up excluding most of the stuff everyone else was excluding with their balancing tests, and for approximately the same reasons.

That's not quite what Black and Douglas actually did. Justice Douglas's concurring opinion in Brandenburg v. Ohio, which reshaped free speech law, outlined the absolutist position in some detail. In doing so it addressed why you can prosecute the man who, in the classic example, falsely shouts fire in a crowded theater, even under the absolutist approach: there, speech is "brigaded with action." You suppress the action, even though you do so by suppressing speech. That saves our murder laws right away, for one thing. But, like most things, it doesn't solve the whole problem. Every expression has some effects, and some intended effects, so we need some sort of theory for when those effects rise to the level of "brigaded with action." And we still haven't gotten anywhere, right?

No. Because the one key thing you get out of the Black/Douglas absolutist position, combined with the "brigaded with action" exception, is that a whole host of cases become easy. Because any time the case for the suppression of speech, or other expression, is based in how terrible and worthless that speech is, you know you're not dealing with a "brigaded with action" situation. In other words, what the government absolutely may not do is suppress speech for the sake of suppressing that speech and its expressive content, and in some cases it's just clear that that's what they're doing. Take obscenity, for instance. The way the Court justifies upholding anti-obscenity laws is that obscenity has no redeeming social value whatsoever. Not only does that flunk the absolutist test, it's not even a close question. There is no question! It doesn't present a remotely viable case for passing that test. The whole point is that we really really hate obscenity, and so we want to suppress it because we think it's terrible. And there's just no reason to think the Constitution allows for that. It doesn't matter how much we think the speech in question is worthless and devoid of any social value whatsoever: it is speech, and Congress shall make no law abridging the freedom of speech.

Interestingly, there would still be a path to cracking down pretty hard on pornography, on the grounds that its production involves various bad things like prostitution or sexual exploitation or whatever. You can make creative arguments along those lines, even within an absolutist framework, because we're all agreed that sometimes laws which very plainly do suppress speech are nonetheless constitutional. But right off the bat you can just eliminate any argument for suppression which depends on the idea that the speech being assailed is of particularly low value. That's just not a factor the Constitution makes relevant.

How Doesn't the No Fly List Violate Due Process?

I happened to read a blog post by Kevin Drum just now about the no-fly list, the thing where the U.S. government gets to decide that so-and-so isn't allowed to fly on planes, at least not for flights that involve U.S. airports or something. This specific story is about a person who was put on the no-fly list completely by mistake. The government discovered that mistake. But it did not fix that mistake, for nine years. It kept the person on the no-fly list, and thereby effectively banned from the country (because the last flight they let her take was from San Francisco to Malaysia), for nine years, knowing that she was not a terrorist for almost all of that time. Yeah. U! S! A!

And I wonder, not for the first time, how the hell the no-fly list doesn't violate the Due Process Clause. There is, as I understand it, no way to challenge being placed on the no-fly list. You can't even bring a habeas motion, 'cause you're not imprisoned. Now, apparently the woman involved in this story did sue the government, and got herself removed from the no-fly list by court order. But due process is not a question of mistake. People are deprived of their right to air travel by the effectively arbitrary decision of some minor executive official, with no notice and no opportunity to be heard. That sounds like the epitome of a due process violation. The only possible argument to the contrary, it seems to me, would be that getting to fly on airplanes is not a "liberty" within the scope of the Due Process Clause. But I really doubt that argument would actually fly in court, especially since we've got this whole thing called "substantive due process" that reads the word "liberty" to include things like the right to use contraception. Is there a reason why no one's brought a suit alleging that the entire practice of the no-fly list is just flatly unconstitutional, mistake aside? And if not, well, someone should do that.

The Tea Party Are Not Civil Libertarians, Okay?

Toward the end of a blog post about an apparently-dead-or-at-least-comatose NSA proposal to, I dunno, surveil the Internet more than the government already does, Kevin Drum tosses this line into an attempt to analyze the partisan breakdown of the issue:

Obviously the GOP base is inclined to think that anything Obama opposes must be good, and they certainly supported the increased surveillance powers that George Bush gave to NSA. On the other hand, tea partiers tend to be suspicious of this kind of Big Brotherish monitoring.

But the problem is, there's just no truth to this! At no point has the Tea Party in any noticeable way made any sign that it opposes the security state! They love the security state, as well they should, as they're just the very most conservative of conservative Republicans. Because if you're against surveillance, you must be for the people we want to surveil, which means you support the Islamofascists in their efforts to take over America and impose Sharia law here. Of all the many, many things to mind about the mainstream media over the past few years, perhaps the one I mind the most is the way absolutely no one challenges the assertion that the Tea Party is about libertarianism. It just is not. True, the movement is in some ways inspired by Ron Paul's quasi-libertarian campaign from 2008, but they've taken all of the least libertarian parts of his platform and ditched the parts that make one kind of almost admit that he's an actual civil libertarian. It's just one great big lie that the Tea Party opposes "Big Brother" government surveillance programs. It's just a lie.