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The D.C. Circuit reversed Judge Lamberth’s preliminary injunction, which effectively barred taxpayer-funded stem cell research. The majority opinion by Judge Ginsburg found that the challengers are not likely to succeed on the merits, and denied the preliminary injunction. Judge Henderson disagreed in dissent with very strong language:

The majority opinion has taken a straightforward case of statutory construction and produced a result that would make Rube Goldberg tip his hat. Breaking the simple noun “research”into “temporal” bits, Maj. Op. at 5, 6, 16, narrowing the verbphrase “are destroyed” to an unintended scope, id. at 11,dismissing the definition section of implementing regulationspromulgated by the Department of Health and Human Services(HHS) (in case the plain meaning of “research” were not plainenough), id. at 11 n.*, my colleagues perform linguistic jujitsu. I must therefore respectfully dissent.

I’ve used the phrase “judicial jujitsu.” Linguistic jujitsu works well also.

H/T How Appealing

Michael Dorf writes about AT&T v. Concepion (which I blogged about here and here) and notes that the “Court’s ruling runs away from principles that conservatives purport to value in other contexts” to issue a “pro-business” ruling. In short, Justice Scalia tries to discern the purpose of the Federal Arbitration Act where the text is silent. This, Dorf says, is contrary to conservative dogma, and belies their aim to issue a pro-business ruling.

In other contexts, the conservatives, led by Justice Scalia, have been very hostile to the notion that a statute should be interpreted according to its purpose, where that purpose is not clearly expressed in the text.  As Justice Scalia, Judge Easterbrook, and other textualists in the sway of public choice theory like to say, statutes are compromises among legislators serving multiple purposes, and part of the legislative deal is a decision not to pursue all purposes at all costs.  Thus, they say, courts should stick to the text. . .  . Conservatives espouse formalism even after they have been confirmed, and also claim that their methodological druthers, unlike the liberals’ methodological druthers, don’t leave substantial room for the imposition of their values.  That claim is not worth very much when the people making it abandon their preferred methodology to reach results that match their normative commitments.

I’m not too persuaded by this argument. Nino’s beef is not with intent, generally, but with discerning intent through legislative history, which he scorns. The line between the meaning of a statute, and its purpose, is very fine. Scalia wanted to see what is in the mind of the enactors. Justice Breyer, in contrast, relied on statements made by Secretary of Commerce Herbert Hoover and random witnesses. Dorf notes that this OK for Progressives, as they “generally acknowledge the fact that a judge’s values influence how she decides a case, except during their confirmation hearings, when they become formalists.”

I’m not willing to say Nino looked to purpose here solely to issue a ruling that “matches [his] normative commitments.” In a number of cases this term, the so-called pro-business Roberts Court issued rulings that were not really pro-business. (see here, here, and here).

In my instant analysis of the AT&T case, I wrote:

The pro-business Roberts Court is no doubt back, I predict detractors will broadly proclaim, ignoring all those other cases this term where it was on vacation. (see here, here, and here).

Dorf does mention FCC v. AT&T.

In FCC v. AT&T Inc. Chief Justice Roberts, the great illusionist, wrote for a unanimous Court that corporations do not possess personal privacy rights under FOIA.

In Henderson v. Shinseki, Justice Alito writing for a unanimous Court found that a statute of limitations applied to veterans filing appeals is not jurisdictional, thus leaving open such options as “equitable tolling.”

In Staub v. Proctor Hospital, Justice Scalia writing for 6 members expanded the ability of employees to sue their employers under USERRA under the “cat’s paw” theory. Justice Alito, joined by Justice Thomas, concurred in judgment, and would have reached the same result through reference to the statutory text, rather than to principles of agency law.

Last week in Williamson v. Mazda Motor of America, Inc., the Court unanimously found that a California car-safety law was not pre-empted.

In January in Thompson v. North American Stainless, LP, Justice Scalia wrote for a unanimous Court, and found that Title VII’s ban on workplace retaliation against an employee who challenges discrimination also protects a co-worker who is a relative or close associate of the targeted employee.

I would have to read closely, but I’m fairly certain a number of these cases, which Justice Scalia joined, relied on some purposivist inquiry. Rather, Dorf argues “The basically legal realist claim I am making here is more subtle: That the conservatives frequently (not always) abandon the jurisprudential principles they otherwise espouse because of their ideological commitments.”

I’m not quite sure how to quantify that. I could also argue, on the flip side, that liberals tend not to have jurisrpudential principles, or they are much less rigid, so liberal abandonment is quite rare (and thus, in comparison to conservatives, less). I’m not sure where that gets us.

Dorf raises another point, beyond purposivism that is more interesting.

In the AT&T case, moreover, the majority opinion exhibits tension with another jurisprudential principle favored by Justice Scalia and other conservatives.  In cases under the Equal Protection Clause and the Free Exercise Clause, Justice Scalia and his fellow travelers have repeatedly argued against disparate impact tests.  To discriminate, they say, is to use a criterion that on its face draws an impermissible distinction or, in rare circumstances, to use a formally neutral criterion that was adopted for the purpose of discriminating and has a disparate impact.

Yet in the AT&T case, the majority is willing to find that California’s no-class-waiver rule does not apply to “any contract” because, even though it does apply to any contract, it impedes what Justice Scalia deems to be the purpose of the FAA.  It is possible to make this argument for the hypothetical no-jury-waiver and no-discovery-waiver rules, because then the state rule, while formally applying to any contract, would really apply only to arbitration contracts.  But the existence of arbitration class actions means that it’s very hard to say that the California law’s (supposed) disparate effect on arbitration must be evidence that the California no-class-waiver rule was adopted for the purpose of singling out arbitration.  Consequently, it appears that the Court’s conservatives are betraying their general hostility to disparate impact for its own sake.

I’ll admit, I don’t quite follow (except for the last sentence, that is quite clear). I think comparing “disparate impact” in the employment labor context seems different from “disparate impact” in this context. Further, there is also the equal protection element of “disparate impact,” as discussed in Scalia’s concurrence in Ricci v. DeStefano.

 

Why did Westlaw ask my permission? I have published 9 other law review articles, all of which are in JLR (Journals & Law Review Database). I have never received a similar correspondence before. Perhaps the journal I published in (Loyola Law Review) does not grant full permission? Somehow Westlaw got my home address. The journal must have provided that info. Has anyone else received such a letter? I signed the license agreement, and included a note asking why they need this release. I’ll let you know if they reply.

I just finished reading the excellent book 1491, which tells about the evolution of American Indians (that is the term the book uses, and the term most Native Americans use to describe themselves, so I will use that term here) before Columbus arrived in 1492. Fascinating history. One chapter in particular focuses on the Haudenosaunee (commonly known as the Iroquois), a tribe in upstate New York.

Their contributions to liberty and individual autonomy are vast. Many of the doctrines they developed were largely unknown in the world till the Enlightenment.  I will quote at length from the book to do it justice.

To be sure, apostles of Freedom have risen in many places. but an overwhelming number have been inspired by the American example–or as it should perhaps be called, the Native American culture, especially that of the Haudenosaunee.

…

Historians have been puzzingly reluctant to acknowledge this contribution to the end of tyranny worldwide. Think of I. Bernard Cohen claiming that Enlightenment philosophers derived their ideas of freedom from Newtonian physics, when a plain reading of their texts shows that Locke, Hume, Rosseau, and Thomas Paine took many of their illustrations of liberty from native examples. So did the Boston colonists who held their anti-British Tea Party dressed as “Mohawks.” When others took up European intellectuals’ books and histories, image of Indian freedom exerted an impact far removed in time and space from the sixteenth-century Northeast. For much the same reason as their confreres in Boston, protestors in South Korea, China, and Ukraine wore “Naive American” makeup, in, respectively the 1980s, 1990s, and the first years of this century.

So accepted now around the world is the idea of the implicit equality and liberty of all people that it is hard to grasp what a profound change in human society it represented. But it is only a little exaggeration to claim that everywhere is cherished–Britain to Bangladesh, Sweden to Soweto–people are children of the Haudenosaunee and their neighbors.

Consent by the Governed, Checks & Balances, & a Libertarian Dream

The tribe created a Constitution of sorts, known as the codicils, that delineated certain checks and balances, and was premised on rule by consent of the governed, rather than by divine right of king (the fashionable form of government in Europe).

Striking to the contemporary eye, the 117 codicils of the Great Law were concerned as much with establishing the limits of the great council’s power as on granting them. Its jurisdiction was strictly limited to relations among the nations and outside groups; internal affairs were the province of the individual nations. Although the council negotiated peace treaties, it could not declare war–that was left to the initiatives of the leaders of each of Haudenosauenee’s constituent nations. According to the Great Law, when the council of sachems was deciding upon an “especially important matter or a great emergency,” its members had to “submit the matter to the decision of their people” in a kind of referendum.

In creating such checks on authority, the legal was just the formal expression of a region-wide tradition. The sachems of Indian groups on the eastern seaboard were absolute monarchs in theory. In practice, wrote colonial leader Roger Williams, “they will not conclude of ought . . .  unto which the people are averse.” The league was predicated, in short, on the consent of the governed, without which the entire enterprise would collapse. Compared to the despotive societies that were the norm in Europe and Asia, Haudenosaunee was a libertarian dream.

Social Equality

Additionally, the society was structured on social equality, and eschewed the de jure class system all too common in Europe. It was, pleasantly, grounded on notions of equality.

As [Benjamin] Franklin and many others noted, Indian life–not only among the Haudenosaunee, but throughout the Northeast–was characterized by a level of personal autonomy unknown in Europe. Franklin’s ancestors may have emigrated from Europe to escape oppressive rules, but colonial societies were still vastly more coercive and class-ridden than indigenous villages. “Ever man is free,” the frontiersman Robert Rogers told a disbelieving British audience, referring to Indian villages. In these places, he said, no other person, white or Indian, sachem or slave, “has any right to deprive [anyone] of his freedom.” As for the Haudenosaunee, colonial administrator Cadwalader Colden declared in 1749, they had “such absolute Notions of Liberty that they allowed of no kind of superiority of one over another, and banish all servitude from their territories.”

…

Indian insistence on personal liberty was accompanied by an equal insistence on social equality. Northeastern Indians were appalled by the European propensity to divide themselves into social classes, with those on the lower rungs of the hierarchy compelled to defer to those on the upper.

Gender Equality

Women achieved near-quality with men in this tribe. Very interesting that leading suffragists looked to these tribes for inspiration.

In the same sense, it was also a feminist dream: the Five Nations were largely governed internally by the female clan heads, and the Great Law explicitly ordered council members to heed “the warnings of your women relatives.” Failure to do so would lead to their removal. . . .  Women, who held title to all the land and its produce, could vote down decisions by hte male leaders of the League and demand that an issue be reconsidered

Under this regime were so much better off than their counterparts in Europe that nineteenth-century U.S. feminists like Lucretia Mott, Elizabeth Cady Stanton, and Matilda Joslyn Gage, all of whom lived in Haudenosaunee country, drew inspiration from their lot.

“Men are all made of the same clay”

A French explorer’s account of explaining the European class system to a Huron Indian produced this gem of a quote:

“[Individual Indians] value themselves above anything you can imagine, and this is the reason that they always give for’t, That one’s as much Master as another, and since Men are all made of the same clay there should be no distinction or superiority among them.

Sounds quite Jeffersonian (All men are made of the same clay = All men are created equal)

Federalism and Voting with their Feet

I did not realize the extent to which colonists left their villages and joined Indian tribes, largely because they were more free. This may be one of the first instances of “voting with your feet” to obtain more liberty. Somewhere Ilya Somin is grinning. Sadly, nothing about rational ignorance.

Influenced by their proximity to Indians–by being around living, breathing role models of human liberty–European colonists adopted their insubordinate attitudes, which “troubled the power elite of France,” the historian Cornelius J. Jaenen observed. . . .

In the most direct ways, Indian liberty made indigenous villages into competitors for colonists’ allegiance. Colonial societies could not become too oppressive because their members–surrounded by examples of free life–always had the option to vote with their feet. It is likely that the first British village in North America, thousands of miles from the House of Lords, would have lost some of the brutally graded social hierarchy that characterized European life. But it is also clear that they were infused by the democratic informal brashness of Native American culture. That spirit alarmed and discomfited many EUropeans, toff and peasant alike. But it is also clear that many others found it a deeply attractive vision of human possibility.

What makes these passages even more ironic is how the Enlightenment philosophers characterized American Indians–as savage, uneducated, uncultured, uncivilized brutes. The Haudenosaunee tribe in particular created a society that these jurists would have envied.

In Part I of Rousseau’s Discourse on the Moral Effects of the Arts and Sciences, Jean Jacques wrote:

I dare not speak of those happy nations, who did not even know the name of many vices, which we find it difficult to suppress; the savages of America, whose simple and natural mode of government Montaigne preferred, without hesitation, not only to the laws of Plato, but to the most perfect visions of government philosophy can ever suggest. He cites many examples, striking for those who are capable of appreciating them. But, what of all that, says he, they can’t run to a pair of breeches!I dare not speak of those happy nations, who did not even know the name of many vices, which we find it difficult to suppress; the savages of America, whose simple and natural mode of government Montaigne preferred, without hesitation, not only to the laws of Plato, but to the most perfect visions of government philosophy can ever suggest. He cites many examples, striking for those who are capable of appreciating them. But, what of all that, says he, they can’t run to a pair of breeches!

In Locke’s Second Treatise, (Chapter V) Locke writes about the Indian society as if it were still in the state of nature to illustrate how property rights work in the absence of positive government.

26. God, who hath given the World to Men in common, hath also given them reason to make use of it to the best advantage of Life, and convenience. The Earth, and all that is therein, is given to Men for the Support and Comfort of their being. And though all the Fruits it naturally produces, and Beasts it feeds, belong to Mankind in common, as they are produced by the spontaneous hand of Nature; and no body has originally a private Dominion, exclusive of the rest of Mankind, in any of them, as they are thus in their natural state: yet being given for the use of Men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial to any particular Man. The Fruit, or Venison, which nourishes the wild Indian, who knows no Inclosure, and is still a Tenant in common, must be his and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his Life.

Although, many critics of Locke’s theories contend that his philosophy justified displacing the indigenous people in the Americas.

Let us not forget Chief Justice Marshall’s seemingly Locke-esque ode to the superiority of Christendom over Indians in Johnson v. M’INtosh, which considered “the power of Indians to give, and of private individuals to receive, a title [of property] which can be sustained in the courts of this country”:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence. But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession.

The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented.

Not quite. Locke’s writing would not support Marshall’s opinion. In Chapter XVI (Of Conquest), Locke wrote:

the inhabitants of any country, who are descended, and derive a title to their estates from those who are subdued, and had a government forced upon them against their free consents, retain a right to the possession of their ancestors, though they consent not freely to the government, whose hard conditions were by force imposed on the possessors of that country: for the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves from the usurpation or tyranny which the sword hath brought in upon them, till their rulers put them under such a frame of government as they willingly and of choice consent to. Who

I am fascinated by the notion of liberty throughout human development. From the Ama-gi to the Haudenosaunee to $

Continuing a modern-day reawakening in the legal literature about constitutional-based economic liberty, James Ely has a new contribution, titled The Constitution and Economic Liberty. Here is the abstract:

This essay addresses the relationship between the Constitution and Bill of Rights and the concept of economic liberty. It calls into question the famous quip of Justice Holmes in Lochner v. New York (1905) that the Constitution was not intended “to embody a particular economic theory.” The essay contends that the framers of the Constitution clearly envisioned a constitutional order grounded on private property and a market economy. To this end, many provisions of the Constitution pertain to property interests and economic activity. It concludes that, although the Constitution does not endorse a laissez-faire regime, Holmes was wrong to suggest that the Constitution was entirely neutral with respect to economic policy. In fact, the framers favored a free market and sought to protect property and contractual rights.

More on the “Delphic” Holmes dissent:

Yet the central premises – that the Constitution does not endorse any particular economic theory – seems clear and warrants exploration. In common with other remarks in the Lochner dissent,3 this point is more asserted than demonstrated. There is a threshold question – is Holmes referring to the United States constitution or some theory of what constitutions should contain? Constitutions can serve different purposes in different societies.4 Moreover, Holmes has curiously framed the debate by setting up polar opposites. This is arguably a false dichotomy. In fact, the United States has never pursued a strict laissez- faire policy,5 and even as he wrote lawmakers were enacting a host of economic regulations. The reference to “paternalism and the organic relation of the citizen to the State,” although somewhat opaque, likely points toward the attacks on individualism and claims of economic rights that characterized the Progressive era.6 Of course, Holmes could be partly correct and partly wrong. The fact that the Constitution does not affirm either paternalism or laissez faire fails to establish the broader proposition that the Constitution has no relevance for economic policy.

Ely focuses heavily on capitalist sentiments in the late 18th century around the ratification of our Constitution. However, Ely does not even mention the development of economic liberty leading up to the ratification of the 14th amendment. It’s a quick read, worth it.

In my JoshCast with David Bernstein about his new book, Rehabilitating Lochner, David mentioned that any future resurrection of constitutionally protected economic liberty would come not from the academy, but from popular sentiments; though, articles do play an important part in laying the intellectual foundation of that movement.