Tuesday, October 28, 2008

Warren's redistribution

This interview, given by Barack Obama in 2001, is generating a lot of chatter the past several days. Commenting on the Warren Court, the Senator said:

"But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties."

Sorry, I'm not going to use this essay to blast Obama as a socialist; you can find that elsewhere online if you wish. Let me just parenthetically say that people have a tendency to get worked up over policies that they believe are extreme without really understanding that it can be just as extreme to go too far the other way. I keep hearing pundits on the right decry "redistribution of wealth." Well frankly, I don't want the government taking my hard earned money, either; on the other hand, I don't want the poster child for American democracy to be Oliver Twist.

No, what I disagree with Senator Obama on is this implication that it would have been agreeable for the Warren Court to have established wealth redistribution as a touchstone of their decisions. You can easily see why if you consider the Warren Court's most famous case, Brown v. Board of Education, 347 U.S. 483 (1954).

Thurgood Marshall was the attorney for Briggs v. Elliott, another school segregation case lumped with Brown. The Briggs case originated in Clarendon County, South Carolina. The county had 276 white children attending its public schools and 808 black children doing likewise--in segregated schools, of course. Clarendon County spent $395,329 on education at the white schools, but only $282,960 on education at the black schools (Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall, 1993, p. 13). That rounds off to $1,432 per white child and $350 per black child, so that unit of the Palmetto State was spending better than four times as much money on each white student as each black one.

Once Warren and his colleagues agreed that this was unacceptable, as it obviously was, there are two things they could have done. They could have said school segregation is unconstitutional and must cease. That's what they did.

Or, they could have taken a redistribution of wealth position and said that it was okay to have segregated schools, but South Carolina would henceforth have to fund its black schools to match the white ones. That would be saying that separate schools were fine, South Carolina's error was in not having equal funding.

In other words, while the Warren Court held that segregation itself was the evil, the redistributionist principle would hold that the lack of true equality was the evil. This second position, believe it or not, is more or less what Derrick Bell, a professor of Obama's at Harvard Law School, has argued. In the book What Brown v. Board of Education Should Have Said (Balkin, ed., 2001), nine constitutional scholars were asked to write opinions in Brown as though they had been on the Supreme Court back in 1954 when the case was decided. The actual Brown opinion was unanimous, but in this mock exercise the vote was eight to one--with Bell the one scholar dissenting. Essentially he argued that instead of ordering an end to school segregation, the majority should have mandated a complex framework to insure equal allocation of resources for all schools--that is, engage in redistribution of funds. I think it's arguable that Bell's position is actually a concurrence rather than a dissent, but that's what he calls it (p. 185) so who am I to argue?

The problem with focusing on the unacceptability of unequal funding of schools, instead of the more general point that segregation itself has no place in America, is obvious when you consider the matter in other contexts. Dr. Martin Luther King, Jr., in his famous "I Have a Dream" speech, exclaimed:

"We can never be satisfied as long as our bodies, heavy with fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities."

If you take the attitude that the chief evil of "separate but equal" isn't the "separate" part, but rather that "equal" wasn't scrupulously observed, then it would be perfectly acceptable to have a motel refusing to give African-Americans a room for the night as long as there was a motel across the street just as good that catered to people of color. Fortunately, people came to see that "separate" was the bigger problem. Segregation is per se wrong and inconsistent with the Fourteenth Amendment in the sense that Americans by the sixties understood it. The year after King's famous speech, Congress passed the Civil Rights Act and King's children don't have to worry about being denied lodging when their bodies are heavy with fatigue of travel.

Whatever points Senator Obama may make on the Warren Court in general, I think we're fortunate they took the stand in Brown against segregation rather than for redistribution. Professor Bell argues that if South Carolina had been forced to spend as much money on each black student as each white one, the segregated system would have died out due to the state's unwillingness to spend that much--in other words, economic factors would lead to one school system for all children instead of two based on skin color.

Of course, one hundred sixty years before Brown "(M)any believed--or hoped--that slavery would die a natural death as free labor demonstrated its economic advantages." (Tushnet, Slave Law in the American South, 2003, p. 12.) How'd that work out?

Sunday, October 26, 2008

Just the initials, please

Anybody getting tired of the presidential campaign? I have an idea: for the final week of this affair, since we all know who the two candidates are, instead of using their full names let's just call them by their initials.

That way, when we talk about the political leanings of the ladies on "The View," we can say "Elisabeth Hasselbeck is voting for J.M.!"

And on the other hand, we can also say "Joy Behar clearly supports B.O.!"

Wednesday, October 22, 2008

State of the state constitutions

Earlier this week I was in Chicago, and the political talk, besides the Presidential election, centered around whether or not Illinois voters should approve forming a new constitutional convention. That got me to pondering how it is that I think of the U.S. Constitution a lot, but I almost never think of the state ones.

I'm not alone. Writes Professor Lawrence M. Friedman, "(L)egal scholarship does not pay much attention to the state constitutions. Legal education ignores them almost entirely. So does the public" (American Law in the 20th Century, 2002, p. 344.) Small wonder, because as Friedman goes on to note, "(State constitutions) lack the magic of the federal Constitution. They symbolize nothing in particular. Nobody gets choked up at the thought of these documents. Nobody preserves them in shrines under glass" (p. 345).

The most interesting thing I've ever seen on state constitutions is actually a table appended to an essay by Donald S. Lutz contained in the book Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995) edited by Sanford Levinson. This table, on pages 248-249, provides seven bits of information on each state's constitution. The three data sets of most interest to me are the number of constitutions each state has had in its history, the year each state's current constitution took effect, and the length of each constitution prior to amendment. (The information was current at it's compilation in 1991).

Let me briefly make a point about Illinois, since it is their consideration of a constitutional convention that got me started on this. The present constitution in that state went into effect in 1971, and it's rather remarkable that Illinois voters gave it a thumbs up. I say that because according to Friedman (pp. 344-345), seven states held constitutional conventions at about the same time as Illinois, and in five of those seven the voters shot the finished work down. (The states besides Illinois were Rhode Island, New York, Maryland, Hawaii, New Mexico, and Arkansas. Friedman states that Hawaii was the other state in which a new constitution drafted in the 1960s was approved, but that doesn't match the data in the Lutz table, and the Hawaii Legislative Reference Bureau website indicates the fiftieth state has had only one constitution, subsequently amended, which went into effect in 1959.) So before Illinois voters authorize a new constitutional convention, they should reflect on how likely it is--based on the experiences of other states--that a convention's hard work could be rendered fruitless by voter disapproval.

If you had to guess which states have had the most constitutions, I'll bet you'd say they were in the South, because the southern states had to draft new constitutions after the Civil War. Well you'd be right--there are nine states that have had five or more constitutions and all are in Dixie except Pennsylvania. Louisiana leads with eleven constitutions; my Georgia is second with ten of them.

At the other end of the spectrum, nineteen states figured they got it right the first time, including Massachusetts with its 1780 document still holding court. (And yes, it's a bit archaic: check out this provision from Chapter II, Article 1: "There shall be a supreme executive magistrate, who shall be styled, The Governor of the Commonwealth of Massachusetts; and whose title shall be -- His Excellency." Can you imagine a Boston Globe reporter calling Mitt Romney that when he held the office?)

I was most interested, however, in the line in Lutz's table that has the number of words in each state's current constitution, prior to amendment. The original articles of the U.S. Constitution, contain 4,300 words; even with amendments it still contains fewer than eight thousand words (Amar, America's Constitution: A Biography, 2005, p. xi.). Amar calls that "notable brevity," but the state constitutions are far from that. The average one has 18,300 words.

Okay, so here's another quiz: which states do you think have the longest constitutions? If you'd asked me before I looked this up, I'd have guessed the biggest states have the most bombastic constitutions. It would make sense that a New York or a California would need the most lengthy documents to cover all contingencies among such vast populations, right?

Or not. Actually, the four states that have constitutions of over thirty thousand words are not population giants: Alabama, Louisiana, Missouri, and Oklahoma. Alabama has the most lengthy constitution, 65,400 words--three and a half times longer than the average such document!

As to why Alabama's constitution is so blasted long, it doesn't take too much nosing around in it to see that this is because it contains a lot of minutiae other states would just put in their regular legislative code. Check out section 86 of the Alabama Constitution:

"The legislature shall pass such penal laws as it may deem expedient to suppress the evil practice of dueling."

Or section 267:

"The legislature shall not have power to change the location of the state university, or the Alabama Polytechnic Institute, or the Alabama Schools for the Deaf and Blind, or the Alabama Girls' Industrial School, as now established by law, except upon a vote of two-thirds of the legislature taken by yeas and nays and entered upon the journals."

Riveting stuff, huh? In fairness to the folks just west of me, their constitution is now better than a century old; I doubt if Alabama had a constitutional convention today the delegates would produce something longer than could reasonably be read during halftime of the Alabama-Auburn football game, an annual event which now basically takes the place of dueling in the Yellowhammer State.

Vermont has the shortest constitution; the unamended document is a quick 5,200 words. I didn't see anything there about moving schools or dueling. Or even about maple syrup.

Wednesday, October 8, 2008

On a clear night, you can cross state lines to see Uranus

"He (Obama) voted for nearly a billion dollars in pork barrel earmark projects, including, by the way, $3 million for an overhead projector at a planetarium in Chicago, Illinois. My friends, do we need to spend that kind of money? --John McCain at last night's debate.

At least that's what I think he said. I was playing that drinking game where you take a swig every time McCain says "my friends" so I may have been a bit out of my head by the time this matter came up.

If McCain and Obama had been debating purely for my benefit, the Arizona Senator would have, at this point, turned to the Chicagoan and said, "Senator Obama, you taught Constitutional law at an elite law school. Could you please tell us where, in your opinion, the Constitution--which only grants the federal government enumerated powers--gives you or anyone in Congress authority to dedicate funds to a local planetarium?"

I would have been fascinated, but I imagine the folks who have called it the dullest debate ever would have been even more nonplussed. (Here, by the way, is some background on the Adler Planetarium projector.)

And I don't have to do a lot of research to figure out what part of the Constitution Obama would have pointed to. Any time there is anything done by Congress that seems out of the realm of what they are technically allowed to do, it is a manifestation of the Commerce Clause, Article I, section 8:

"The Congress shall have Power *** To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

There is a long and somewhat acrimonious history concerning this provision, which I'll try to sum up in a couple of sentences. For years, the Supreme Court construed this clause quite narrowly, even striking down efforts by Congress to end child labor and establish a minimum wage, see Hammer v. Dagenhart, 247 U.S. 251 (1918) and Adkins v. Children's Hospital, 261 U.S. 525 (1923). This type of judicial activism didn't go over well with Franklin Roosevelt, and when he was elected President he replaced Justices as they retired with men more friendly to New Deal ideals. The decisive victory in this battle came in 1942, when in Wickard v. Filburn (317 U.S. 111) the Court ruled that the contours of the Commerce Clause could even extend to corn grown by a farmer for his own use since the cumulative effects if lots of farmers did that would have a broad effect on interstate commerce. Although there have been a few cases since then where the Court has tried to pull in the reins a little, that's basically where we stand now, Congress can pass legislation under the authority of its power to regulate commerce "among the several states" even if the interstate commerce aspects are pretty remote.

I should mention that one obvious benefit to a broad interpretation of the Commerce Clause is that it was this provision of the Constitution--rather than the Fourteenth Amendment's guarantee of equal protection--that Congress leaned on in the sixties when it passed the Civil Rights Act. Thus, when the bigots who ran the now gone Heart of Atlanta Motel--just a couple of miles from where I write this--argued that it was their business and they could so decline to give rooms to African-American travelers, the Supreme Court pointed out that lodgings in downtown Atlanta adjacent to a pair of Interstate highways obviously serve mostly people from outside Georgia. And so in 1964, Heart of Atlanta Motel v. United States (379 U.S. 241) put one more deserved nail into the coffin of American segregation. (A great book to read on this is Richard C. Cortner's Civil Rights and Public Accommodations: The Heart of Atlanta Motel and McClung Cases, 2001).

Which brings us back to the Adler Planetarium. Obviously it gets a lot of visitors from other states. I went to their website to see if there happened to be any figures on just how many folks from the other forty-nine states visit, and while I didn't find that, I found that they already have up a statement about McCain's comments. (May I just add as someone who was born and raised in the great City of Chicago that the Republican did not lose any votes over this? Never mind simply voting for Obama, the staff at Adler is probably preparing to name a constellation after him.)

Anyway, if you think that it's a bit absurd that the power of Congress can be argued to extend over a projector at a planetarium just because the place gets out of state visitors, I have a little story to tell you. Not long ago at my petting zoo, the USDA inspector paid her annual visit. She's a delightful woman, not one of those dreaded big, bad bureaucrats. We got to chatting about how my little place, which has only friendly domestic animals, is required to have a regular USDA inspection, while over in South Carolina, where the state laws concerning keeping exotic wild animals are rather lax, people literally have ferocious lions on their property and are not subject to any federal oversight. Why not? It's because my petting zoo is open to the public and people visit from around the country, while the South Carolina lion keepers are private landowners who don't open their premises to admission paying guests.

So if you have a petting zoo open for business with friendly goats, you get visited by the USDA, but if you keep a nasty lion on your private property, you don't see the feds. And this is all because of the Commerce Clause. (This assumes, of course, that the lion owner isn't in violation of any other U.S. law in keeping his cat.)

Let me close by mentioning another thing that occurred to me when McCain made his comment. You know the phrase everything old is new again? Would you believe the matter of whether federal money should be used for something like the Adler Planetarium's mission has actually come up before? A former colleague of Obama's on the law faculty of the University of Chicago, the late, great, David P. Currie, told briefly in The Constitution in Congress: The Jeffersonians 1801-1829 the story of how early in the nineteenth century Congress considered a proposal for the federal government to build an observatory. Citing a House committee's 1813 report, Currie mused, "The United States, if the committee had its way, were going into the business of astronomy" (p. 310). Currie goes on to ponder whether this could be sanctioned under the Commerce Clause--after all, using an observatory to establish the positions of heavenly bodies could be a help to navigation, which is directly related to commerce--but he also suggests that perhaps the power of Congress "to fix the Standard of Weights and Measures" (Art. I Sec. 8) might come into play. Currie somewhat cops out on the matter, ending his discussion with "Would it have been constitutional? Figure it out for yourself" (p. 312).

Oh those wacky University of Chicago law school professors. They're either asking you for help to figure out if an observatory is constitutional, or asking for your vote so they can, through their legislative or executive efforts, assert that it is.

Tuesday, October 7, 2008


I'm reading Decision in Philadelphia: The Constitutional Convention of 1787 by Christopher Collier and James Lincoln Collier. It was published over twenty years ago (1986) and I'd thought about reading it before, but I always opted not to because I'd already read two other popular books about the framing of the Constitution: Miracle at Philadelphia by Catherine Drinker Bowen (1966) and A Brilliant Solution by Carol Berkin (2002).

Well I'm certainly glad I finally picked up the Collier Brothers volume, because it's a whole lot better than either of those other books. Sure, all three works discuss the debating and compromises that led to the adoption of this clause or that clause, but the Collier's book stands out because of the breadth of the biographical information. On page 212, they call William Blount, a North Carolina delegate, "a liar, a cheater, and a thief, and... the subject of the first impeachment trial ever held by the United States government." There follow a couple of fascinating pages on what a tool this guy really was. Bowen and Berkin, on the other hand, hardly mention Blount.

But there is an even better example of the Collier Brothers superiority in this regard. Discussing delegate Elbridge Gerry of Massachusetts, they report that his last name "is pronounced with a hard G, as in Gary" (p. 318). That sent me scurrying to the indices of the Bowen and Berkin volumes to locate their background details on the man. And guess what? The proper pronounciation of his surname isn't mentioned, which is partly why all these years I thought his name was pronounced "Jerry."

And that led to another revelation. I already knew that Gerry was the source of the term "gerrymander;" this the Collier's mention just a few lines before enlightening me on how to say his name. So why, I wondered, do we say "a jerry-mandered district" instead of "a gary-mandered district"? Off hand, can you think of any examples where mispronounciation of someone's name has stuck in a new word? I can't.

But then I thought I'd better double check and make certain I hadn't been mispronouncing "gerrymander" all these years. And lo and behold, I discovered that BOTH pronounciations of gerrymander are acceptable! You will note at the cited link that the term comes from a combination of Gerry's surname and salamander "from the shape of an election district formed during Gerry's governorship of Massachusetts." Well a lot of politicians have been compared to reptiles; it seems only fair that their misshapen districts be compared to amphibians.

Personally, now that I know it's "Elbridge Gary" and not "Elbridge Jerry" I'll endeavor to never again say "jerry-mander" instead of "gary-mander." Thanks, Collier Brothers!