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Check out Reason.TV’s next installment of Ayn Rand’s, Radicals for Capitalism

[youtube=http://www.youtube.com/watch?v=8rY8Zt3VIdY&feature=player_embedded]

I have an interview forthcoming with Anne C. Heller, author of Ayn Rand and the World She Made sometime next week.

Check out this interesting panel at Georgetown Law next week. I will be attending the Federalist Society National Lawyers Convention, but may duck out to attend this fascinating panel. If I do, I will liveblog here.

At PrawsBlawg, Professor Baude discusses the potential constitutional problems of the Military Spouse Residency Relief Act:

Congress has passed a bill that would allow those married to members of the military to assert that they are residents of the same state as their spouse, regardless of the state they actually reside in.  The first thing I found myself wondering is how this interacts with the Fourteenth Amendment’s residency clause, which provides, that U.S. Citizens are “citizens . . . of the state wherein they reside.”  Presumably Congress lacks the power to change this clause, and allowing it to redefine the meaning of the word “reside” would allow it to do so.

The second thing I found myself wondering is what enumerated power allowed Congress to do this anyway.  Its power to enforce the Fourteenth Amendment?  But Congress cannot “rewrite the Fourteenth amendment” in the guise of enforcing it.  Its power over the armed forces?  But military spouses– however difficult their lives may be– are not themselves members of the military, as the Court pointed out when holding that they could not be subjected to military justice.  The commerce power?  Only in the sense in which all interstate activity is interstate commerce, which would render the word “commerce” meaningless.

Would this bill fit into Section I of the Fourteenth Amendment? Could Congress claim this is part of their Section V enforcement power?

Jeff Rowes has a fantastic new Post on Volokh: IJ’s Bone Marrow Case: Judical Engagement, Not Activism.

Judicial engagement provides meaningful rational basis review (call it rational basis with “bite,” if you’d like) without opening the door to activism, amorphous “privacy”-type rights, or any other personal preferences of judges.

The constitutional interest at stake in the bone marrow case is rooted bothin the natural liberty the people retained in ratifying the Constitution and in the longstanding historical practices of Americans.  Until 1984, it had never been illegal to participate in safe, accepted, lifesaving medical treatment just because someone involved received compensation.  No one has to squint at penumbras cast by, or emanations from, the various enumerated rights to identify the right our clients are asserting in the bone marrow case.  Not only is there a substantial historical basis for this very specific constitutional interest (as opposed to nebulous “rights” that could lead to anything), its existence is consistent with the intuitions of most people about what legitimate constitutional interests look like.  As I said yesterday, most of us would surely agree that there would be a constitutional aspect to a law criminalizing safe, effective, lifesaving medical treatment for the aged or the seriously ill as part of an effort by government-run healthcare to cut costs.

IJ’s win in Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) illustrates judicial engagement.  Tennessee violated the right of our clients to earn an honest living (an unenumerated right long recognized by the Supreme Court and protected by the Privileges or Immunities Clause of the Fourteenth Amendment) by restricting casket sales to licensed funeral directors.  The state proffered a host of purported health and safety interests this restriction might serve.  But the facts showed that the law didn’t plausibly advance any of those and all the law accomplished was protecting a cartel of funeral directors from competition.  Public power for purely private gain isn’t a legitimate government interest and that law was rightly invalidated.  Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), is similar in that the facts showed that the government’s pretextual prohibition of a permit for a group home for the mentally handicapped did not credibly advance any legitimate government interests the city proffered.

Let’s apply judicial engagement to the bone marrow case.  We should begin with a strong presumption of constitutionality, but that should be tempered by a willingness to look at the facts and measure the government’s justifications against a standard of at least basic plausibility.  What are the legitimate government interests NOTA is trying to advance?  We know a few for sure.  Congress didn’t want living donors getting compensated for invasive organ surgery because doing so puts people at what Congress decided is too much risk.  Congress also didn’t like that organs don’t regenerate.  Finally, Congress didn’t want organ markets.

 

I discuss applications of rational basis with bite in my forthcoming article, titled Equal Protection from Eminent Domain. IJ has been promoting the notion of judicial engagement, as opposed to the pejorative judicial activism. I buy the distinction.

Lyle Denniston at SCOTUSBlog Reports NAMUDNO case is over

A three-judge U.S. District Court this week approved an agreement to end a broad constitutional challenge to the Voting Rights Act’s Section 5 — a challenge that at one time had appeared likely to succeed in the Supreme Court.  By attaching their signatures to a proposed consent decree on Tuesday, the three judges put into effect an agreement that allows a small Texas utility district to come out from under Section 5 coverage, and scuttles, for now at least, its constitutional arguments against that provision.  No objections to the agreement had been filed since it was put before the District Court Oct. 7.

A post discussing the consent agreement is here. In U.S. District Court, the case is Northwest Austin Municpal Utility District No. One v. Holder (06-1384).

Section 5 requires state and local government units that had a priority history of racial discriminaton in voting to get clearance in Washington to make any changes in their election laws or procedures.  The Texas utility district (sometimes known as “NAMUDNO,” took its constitutional challenge to the Supreme Court last Term; the Court decided it by giving a broader reading to the provision that allows some government units to “bail out” from Section 5.  That is what NAMUDNO has now been allowed to do, after government findings that it has not discriminated in voting at least for the past ten years.

The three-judge Court was composed of Circuit Judge David S. Tatel and District Judges Paul L. Friedman and Emmet G. Sullivan.   That Court had rejected the constitutional challenge to Section 5; the case then went on to the Supreme Court, ending without a constitutional ruling.

I suppose we will have to wait until the Supreme Court actually takes on this issue, rather than punting it on avoidance grounds.