Big Government Revisited

A while ago I announced on this blog that I Hate "Big Government." Specifically, in that post I argued against the usage of the phrase "big government" to refer to a government specifically defined as having a large budget, compared to its country's economy, e.g. when Medicare, a large federal spending program financed by ordinary taxes, is attacked as being a form of "big government." To me, the phrase is meant to conjure up visions of George Orwell's 1984 and a big surveillance state that has infringed the liberties of its subjects, but general taxes, I argued, don't really infringe on people's liberty very much (setting aside the question of whether they're economically desirable) and once the government has its hands on the money, well, it can spend it however it wants without violating anyone's liberties. And I still think that's basically correct, but I recently gained a deeper appreciation of what the "big government (a.k.a. big budget)" complaint is. The thing is, it's not about the tax side of the equation, it's about the spending side.

Regarding the Braves

The Atlanta Braves had a rather dramatic off-season, and it laid the team's priorities bare: they don't care at all about putting a good team on the field in the 2015 season, or in the 2016 season. They do care about putting a good team on the field in 2017, and thereafter. And honestly, many of their moves have been savvy ones, within that framework: they've shed a lot of talent for the 2015-16 seasons (Jason Heyward, Justin Upton, Evan Gattis, and now Craig Kimbrel) while stockpiling a lot of future value and increasing their flexibility going forward. (They also signed Nick Markakis to a four-year deal, which is a little weird but shouldn't be any crippling difficulty in 2017-18 anyway.) One possible criticism of their off-season would be that they didn't get good enough value out of their deals; for instance, many thought the return in the Jason Heyward trade was just too light. Another possible criticism would be this kind of rebuild is just generally improper: that it's a betrayal of the fans and/or the players to deliberately spend a couple of years slashing payroll below capacity and, therefore, sucking. I'm not especially interested in either of those criticisms, honestly: as to the former, who can say?, and as to the latter, I think a genuine, Andrew Mellon-style, liquidationist rebuild, wherein the team accepts being truly terrible for a few seasons while trying to build a strong organization for the future, can be the right thing to do in certain circumstances. So, especially since it results in the Mets' chief rival over the course of my lifetime being terrible for the next couple of years, I would normally not have any great problem with what the Braves are doing.

Except that it's so racist.

Because, you see, the Braves were not forced into this rebuild. This wasn't a situation where the team had drained its farm system and saddled itself with bad contracts to aging veterans and was on a path that would lead to perpetual awfulness without a rebuild. The Braves weren't great last year, tying for second place with the Mets with 79 wins, and their farm system, even prior to the supplementation it's received over the off-season, was not what you'd call barren, though also perhaps not one of the top systems in the league. Certainly the team had some problems, but going into this off-season they could quite plausibly have done the usual thing and tried to make their 2015 team a potential contender without harming the organization's long-term prospects. The thinking was that they would probably pick one of Upton or Heyward to extend long-term and trade the other, striking that delicate balance between preserving current assets and using some of those assets to replenish the pipeline. That would've been a conventional off-season for the Atlanta Braves. In other words, nothing about the baseball end of things forced them to decide that 2015 wins and 2016 wins don't matter.

No, the reason why 2015 and 2016 wins don't matter is that for those years, they'll still be stuck in their current stadium, Turner Field. It opened in 1997 (I'm practically old enough to remember!), but will be replaced before it can reach 20 years of age, and the team will move from the city proper of Atlanta to the Cobb County suburbs. A little thing about Atlanta proper versus Cobb County: the former has way more black people in it. The decision to get this new stadium build has been subject to enough criticism along racial grounds as is. I can't help but feeling like that is just compounded by their really quite flagrant declaration that they don't care about their two remaining years in the city, that they have made the completely discretionary decision to sacrifice those years that they may be better in their debut season before their new rich, white audience.

It's hard not to root for their scheme to fail--even if I weren't a Mets fan.

State Judges Should Ground Their Rulings in Their State's Constitution

It always feels a bit weird to me when a state Supreme Court has held that some law or practice of that state is unconstitutional, and then the U.S. Supreme Court reverses. Like, I dunno. If a state legislature refrained from passing a law because it thought the law violated the federal Constitution, but the federal courts disagreed with this conclusion, they wouldn't be able to force the state into passing the law. Why, from the federal government's perspective, should it matter which officials within the state government decide that the state is not going to have a certain law, because they erroneously believe it to be unconstitutional? It feels like forcing the state to do something it doesn't want to do, which is just weird. Of course, I get that this logic doesn't really hold, among other things because someone will have appealed the case to the Supreme Court, either the state government itself (in which case it's not quite right to say that, as far as the feds are concerned, the state doesn't want to enforce the law) or a private party whose success in some lawsuit depends upon that state law's being valid. That person is entitled to their judgment unless the federal Constitution says otherwise. So, I get it. The federal courts are allowed to reverse state court decisions interpreting the federal Constitution, even when that means vacating a judgment voiding a law of their own state.

But... why would a state court ever allow one of its judgments to suffer this fate? Because the thing is, just as state courts have no authority to interpret the federal Constitution contrary to how the federal courts interpret it, so too do the federal courts have no authority to interpret state constitutions contrary to how the state courts have interpreted them. And I believe that almost every state constitution has general language in it similar to the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which are responsible for the overwhelming majority of the unconstitutionality of state laws. (Technically much of that burden should fall on the Privileges or Immunities Clause, but as a doctrinal matter it doesn't so that's beside the point for this purpose.) So, therefore, if I were a state supreme court and I were drafting an opinion striking down some state law because I thought it contrary to the federal Constitution, I know what I'd do, every single time: I would include a bit of language saying that, oh yeah, the analogous language in my state's own constitution commands the same result. Because, you see, the federal courts can't touch that holding. So even if they think I'm wrong about the federal constitutional issues, they can't actually reverse my judgment and reinstate the law. Hell, if I include one paragraph making clear that I've read my holding into the state constitution as well, the government (or whoever) can't even appeal to the federal courts, because the case would be moot! It would totally immunize my judgments (of this sort) against federal reversal.

I'm reminded of this by seeing a dissenting judge in a Georgia case about racially discriminatory peremptory strikes in the selection of juries argue for a similar tactic. Except there, the federal law had already been established, so the court would just have been saying, "well, yes, the federal Constitution doesn't require this, the Supreme Court has said so and we're bound by that, but we think the Georgia Constitution does." Quite rightly, he admits that Supreme Court doctrine limiting the application of the rule against such discriminatory strikes is binding on the Georgia court, but as he points out, there is absolutely nothing wrong with interpreting the state's own constitutional guarantees to go beyond the federally-mandated "floor." Just so: when the federal courts decide that a certain state practice is unconstitutional, that's the end of things, but when they decide a practice is constitutional, state courts are still allowed to have their own say, and they may do so in ways that no federal court can touch. Even of nothing more motivates the state judges than a belief that the federal courts are wrong, and should be interpreting the federal Constitution differently! State judges have essentially plenary power to effectively nullify any federal constitutional decision upholding state practice. And that's good--this isn't like ordinary nullification, where a state tries to nullify a federal law or do something that the federal courts say does violate the federal Constitution, because there's nothing in federal law requiring the states to do things the Supreme Court says aren't unconstitutional.

So why don't we see state courts using this tactic more often?

Executive Agreements, Iran, and Missouri v. Holland

So. A bunch of Republican Senators have apparently written an "open letter" to the government of Iran regarding negotiations currently taking place between Iran and various Western countries, including the United States. This is, shall we say, highly improper. It would rather easily answer to the description "unconstitutional," in a vague, amorphous sense (obviously there's nothing for a court to review or invalidate, but the letter is pretty clearly inconsistent with an overall constitutional structure in which the President is given primary responsibility for diplomacy, out of a felt need for the nation to speak with one voice in foreign affairs). Arguably it also at least skirts the line of being illegal, under the Logan Act of 1799, which bans unauthorized citizens from corresponding with foreign governments to try to influence their behavior toward the U.S. (Although obviously the Obama Administration is not going to prosecute these Republican Senators for this offense, even if they're guilty of it: prosecuting your political opponents, generally not great politics. Also the law is of dubious constitutionality (and they could easily have mooted the whole issue by just reading their "open letter" into the Congressional record, invoking the Speech and Debate privilege, which is absolute).)

But that's not the point, of this blog post at least. Rather, what interests me about the letter is the way it helps tie together some thoughts I've been having of late about "executive agreements." Because that's the main thrust of the letter, which purports to explain certain "features of our constitution" which Iran should keep in mind while negotiating. By this they mean the esoteric fact, which surely the leaders of Iran have never encountered before, that the United States has the world's worst treaty ratification system, requiring a two-thirds vote in the Senate that is basically impossible to obtain even on totally uncontroversial things. This means, the Senators accurately note, that any agreement reached in the present negotiations will be a mere "executive agreement," which, they note, a new President could revoke unilaterally. This is, if you take it on its face, a pretty majestic display of concern-trolling: it's not that the Senate Republicans are opposed to the deal (which would make it a little tougher to deny the Logan Act violation), they're just concerned for the poor Iranian government, which might find itself being misled by that nasty Obama into thinking it has a binding agreement, and might do something like act in reliance on that belief, only to find that, in fact, the next President pulls the rug out from under them. We wouldn't want that, now would we.

But of course, they are right: the deal would only be an executive agreement (because we all know that these same 47 Republicans would vote against ratifying the treaty that will never be drafted, let alone presented to the Senate, before they even read its language (which is why it will never be drafted)). So... what? What exactly are executive agreements, in the constitutional structure? How are they different from treaties? Are those differences relevant from Iran's standpoint? (Spoiler alert: the answer to that last one is "no.") Like probably most people who've ever heard the phrase, I first learned about "executive agreements" in my high school civics class (okay, it was AP U.S. Government, which might explain why we learned about executive agreements...), and have always had the general sense that they're just this thing, this informal treaty-like thing, that doesn't require Senate ratification but also therefore in some vague way doesn't have the same kind of force of law. That way of discussing them leads to the feeling that there's something vaguely unsettling or illegitimate about them. But there isn't, and seeing why requires merging the great big lesson of a class I'm taking this semester, Administrative Law, with the great case Missouri v. Holland.

Sometimes the Easy Thing is Also the Right Thing

This semester I'm taking a class called "Capital Punishment: Race, Poverty, and Disadvantage." It is shaping up to be a rather unsettling class, though obviously in ways that are a feature and not a bug. In any event, our reading for this week is Furman v. Georgia, the 1972 case in which the Court briefly declared the death penalty unconstitutional. This is what I like to call a "seriatim" case, one in which every single Justice wrote an opinion of his own (in addition to a per curiam announcing the judgment of the Court but not the reasoning); the word is used to describe the British practice, also followed during the first decade of our Constitution, in which there was no single opinion of the Court and each judge would always deliver his own opinion. Chief Justice John Marshall abolished seriatim decision-making to promote Court solidarity and enhance its power and prestige, but every so often (especially during the Burger Court, I've found) things break down and most or all of the Justices need to have their say.

Anyway, one of the opinions was of course by Justice Blackmun. Here's how it opened:

Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood’s training and life’s experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of “reverence for life.”

This was a dissenting opinion. Because, Blackmun says, his sentiments against the death penalty are purely those that should characterize legislative or perhaps executive decision-making, not the judicial disposition of cases. A little later on he says that:

To reverse the judgments in these cases is, of course, the easy choice. It is easier to strike the balance in favor of life and against death.

The implication is that, while it would be easy, it would not be correct, and it would not be correct because this is not a decision for judges to make. This is a pretty common trope, employed perhaps most often by Justice Felix Frankfurter, although Blackmun's opinion is unusual in a way. The typical Frankfurter line is that "whatever we may think of the merits of this policy," it is not unconstitutional and therefore the judiciary is powerless to stop it. Blackmun, on the other hand, tells us in no uncertain terms what he thinks of the policy; he goes into considerable depth about how it is contrary to all of his deepest values.  Blackmun closed by saying that:

Although personally I may rejoice at the Court’s result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end.

Of course, some several decades later Blackmun famously declared that he would "no longer tinker with the machinery of death." That is to say, he had become convinced not that capital punishment was inherently unconstitutional but that it could not be imposed through a system that was anything other than arbitrary and capricious, contrary to the Constitution's requirements.

There's a lesson in that, I think. From his childhood through his retirement from the Court and his death, Harry Blackmun felt nothing but revulsion toward the death penalty. When he joined the Court, he felt however compelled to ignore his own moral impulses and instead apply "the law," operating of course under the assumption that those were two disjoint categories. Justice Blackmun would not do the "easy" thing and strike down those laws he found so morally repugnant; no, he would follow the law. But the older, wiser Justice Blackmun eventually became convinced that the "hard" thing simply could not be done lawfully. He never took the position Justice Brennan forcefully (and, in my opinion, masterfully) espoused in Furman, that death was an inherently unconstitutional punishment. Rather he realized that judicial attempts to craft a system of procedural safeguards that would cabin the evils of the punishment, to "tinker with the machinery of death," were futile, that the system could never be good enough. That was the voice of experience, not naive idealism. It was rather naive when he once thought that such tinkering was worthwhile, that we could in fact build a good enough machine of death.* Experience taught him to follow his heart.

Yes, it is easy to strike the balance in favor of life and against death. There's a reason for that, and it's not just that it's the right thing to do, morally speaking (though it does follow from this basic fact). It's because a wrongful decision striking down these laws would have been no worse than any other decision wrongly denying legislative authority to the American people on some purported constitutional grounds, while a wrongful decision upholding them would have been far worse than any other decision wrongly permitting to them such legislative power, for it would have led the American government to kill people, human beings in its custody, in violation of the Constitution--perhaps the worst legal atrocity imaginable. Therefore, had I been in Blackmun's situation, I would not have voted to uphold the death penalty unless I was absolutely convinced that there was no possible legitimate constitutional argument for striking them down. This is ultimately the key point of Philip Bobbitt's theory of constitutional law: that the law is ultimately indeterminate, that there are different ways of making valid legal arguments and that these modalities can conflict, and that this is an acceptable, nay, indispensable part of our legal system because it allows us to choose. And that choice, between different possible legitimate ways of resolving a case, cannot help but be a place where conscience enters the legal system. For Bobbitt, this is the whole point.

In 1972, Harry Blackmun thought he didn't have a choice--or rather, he thought he had one choice that was easy and another one that was correct. But, fortunately, we live in a constitutional system that does make some room for conscience and for moral choice. And when we make those moral choices, when we follow our conscience in choosing between two visions of the law, of course those choices will feel easy. It should always feel easier to follow conscience than to disregard it. But just because it is easy doesn't mean it isn't also right.

Just ask Justice Blackmun.


*No, not that kind.

For the Record

Mike Piazza made his MLB debut in 1992, and played in 1912 games until his retirement after the 2007 season. Over his 7745 plate appearances, he had 2127 hits, including 344 doubles and 427 home runs, and drew 759 walks against 1113 strikeouts, good for a batting line of .308/.377/.545. That gives him a wRC+ of 140. He drove in 1335 runs and scored 1048. Piazza was a catcher for at least part of 1630 of those games, 1602 of which as the starting catcher (the rest of his time split between first base and the designated hitter role), and while his 23% caught stealing mark was well below the league average of 31% and he wasn't the world's best pitch-blocker either, he is thought to have been one of the best catchers at history in framing pitches to produce extra called strikes, and his pitchers loved throwing to him. Add it all up and Piazza was worth 59.4 bWAR and 63.5 fWAR, the sixth- and fifth-highest marks all-time for a catcher, respectively (in both cases virtually tied with Yogi Berra). Versus a more stringent baseline, Piazza put up 35.7 bWAA and 38.4 fWAA*, and during the productive portion of his career, from 1993 through 2003, he accumulated 38 bWAA and 41.2 fWAA. Piazza also hit .242/.301/.458 over 133 post-season plate appearances, hitting six home runs and eight doubles and racking up 15 RBIs and 14 runs scored, and leading the New York Mets to the 2000 World Series with a monstrous .412/.545/.941 batting line in the NLCS and put up a .636 slugging percentage against the Yankees. Earlier today, in his third year on the ballot, Piazza received votes from 69.9% of Hall of Fame voters, just shy of the 75% necessary for enshrinement.

Craig Biggio made his MLB debut in 1988, and played in 2850 games until his retirement after the 2007 season. Over his 12504 plate appearances, he had 3060 hits, including 668 doubles and 291 home runs, and drew 1160 walks against 1753 strikeouts, good for a batting line of .281/.363/.433. That give shim a wRC+ of 115. He drove in 1175 runs and scored 1844. He also stole 414 bases, and was caught stealing 124 times. Like Piazza he came up as a catcher and caught in 428 games, but moved off the position. Biggio spent 363 games in the outfield but the vast bulk of his time at second base, appearing there in 1989 games. Though he won four Gold Gloves at second base from 1994 through 1997, available defensive metrics view him as having been mediocre at every position he played. Add it all up and Biggio was worth 65.1 WAR (per both sources), the twelfth- and tenth-highest totals for a second baseman ever, respectively. He accrued 28.7 bWAA and 24.3 fWAA, and during the productive portion of his career, from 1989 through 2001, he accumulated 35.6 bWAA and 30.0 fWAA. He also hit .234/.295/.323 over 185 post-season plate appearances, hitting two home runs and nine doubles with 11 RBIs and 23 runs scored, and was part of the 2005 Houston Astros team that made it to the World Series. (Biggio hit .295/.343/.377 in that post-season.) Earlier today, in his third year on the ballot, Biggio received the votes of 82.7% of the voters, and will therefore be inducted into the Hall of Fame later this year.

Mike Piazza was a better baseball player than Craig Biggio. This is, I think, incontrovertible. Piazza was the undisputed best-hitting catcher of all time. Biggio was a decent hitter and a decent baserunner, and maybe a decent fielder if we believe the people voting on Gold Gloves (though not if we believe the admittedly fairly primitive defensive metrics--in fact, both FanGraphs and Baseball-Reference have Biggio with more negative defensive value at his positions, and at less valuable positions), but nothing special in any regard. But Biggio wasn't a catcher (or at least, unlike Piazza, he had to stop being one early in his career), and so he played a lot more games than Piazza and stuck around long enough after he was still good to get 3000 hits. Also, because he wasn't renowned for his power, he manages to escape the pall of the Steroid Era, which Piazza apparently doesn't despite the abject lack of anything remotely resembling evidence that he cheated. There is a cogent argument that Craig Biggio should not be a Hall of Famer. There is no cogent argument that Mike Piazza should not be a Hall of Famer. For at least a year, Biggio but not Piazza will be in the Hall. That's absurd, and the writers had better not make the travesty last any further years.

Piazza 2016!



*FanGraphs does not actually give a Wins Above Average statistic, but it gives Runs Above Average statistics for the four major components of WAR (hitting, baserunning, fielding, and position), and I calculated the listed figures from those.

The Civil War Continues

In 1866, Congress proposed the Fourteenth Amendment, Section 1 of which was designed to force the states, and in particular the Southern states, to recognize equal civil rights for all, and in particular for the newly freed slaves. That Section, which is unambiguously the most important part of the current Constitution, has four operative provisions. The first overturns Dred Scott v. Sandford and declares that, yes, African-Americans are citizens of the United States. The second prohibits states from violating the privileges or immunities of American citizens. The third prevents them from depriving anyone of life, liberty, or property without due process of law, and the last requires them to provide the equal protection of their laws. These four provisions are, in essence, the terms of settlement of the Civil War.

And in that settlement, as it was originally supposed to work, it was the first two Clauses that were supposed to do most of the work of guaranteeing substantive legal equality. After all, if blacks are citizens and you can't violate the rights of citizens, well, that sounds like black people have rights. Alas the Court has basically pretended that the second provision doesn't exist and that the first one has only a narrow technical meaning rather than a richer substantive one. As a result, the last two provisions are carrying a lot of weight they weren't originally meant to; the Equal Protection Clause in particular is the central doctrinal lynch-pin for just about all of the Court's equality jurisprudence. But the reason why it's there at all, back when they thought the Privileges or Immunities Clause was a thing, was because the Privileges or Immunities Clause addressed itself only to legislatures. But everyone knew that a Southern state could write the world's most even-handed, non-discriminatory legal code and yet legally entrench massive racial oppression, by the simple device of not enforcing those equal laws equally. The paradigm example of this would be a Southern state simply not punishing people who murdered black people.

Hmmm, where have I heard that before? Or, rather, where have I heard that since?

The thing about the Civil War is that it never really ended. We stopped having battles with armies but the central question that the Fourteenth Amendment was meant to settle as the terms of the peace, the question of whether black people are full and equal members of American society, has never quite been resolved. And not just legally: Michael Brown and Eric Garner are just among the latest Civil War casualties. And the failure to punish their killers isn't just racism, it isn't just institutionalized racism, it is quite literally unreconstructed institutional racism, in the very precise sense of being the exact problem that the key Reconstruction Amendment was meant to eradicate. Having this not happen is what we fought that war over. And that means we're still fighting.