Archive for category Constitutional Law

The death of Antonin Scalia should remind us of the perils of an aging Supreme Court bench

(Originally posted on OxPol, the Oxford University Politics Blog)

Since last Sunday, plenty of ink has already been spilled following the death of Justice Antonin Scalia, who had served on the United States Supreme Court since 1986. Following the obituaries, newspapers, law journals and political commentaries will be filled for the next few weeks with evaluations of his judicial legacy, the consequences of his death for the court, and its impact on the current presidential election in the United States. Already the New York Times and the Washington Post are filled with speculation about the latter two and editorials about the first.

The easy, obvious point to be made is that he was one of the most influential jurists of his age, emphasizing a form of originalist interpretation of the US Constitution that has gained prominence, particularly among conservative jurists in the US, but which has become an accepted approach for progressives, as well.

The other parts are a matter of greater speculation.

Let’s start with the legal implications.

During the interim, before Justice Scalia’s vacancy is filled, there will be only eight justices on the court. While it will now be more likely that the justices will divide evenly on difficult cases, Justice Kennedy will remain the swing vote, providing a fifth vote for a majority of progressive justices (Ginsburg, Breyer, Sotomayor and Kagan), and remaining with the conservatives (Thomas, Roberts and Alito) in tie votes, which will leave the lower court’s judgment in place and will not operate as binding precedent on lower courts. In effect, there is no longer a conservative majority, although there can be a progressive one, if Kennedy decides to join in.

The court is hearing a number of high-profile cases this term, and the political implications for those decisions depend on the status of the case coming from the lower court. Whole Women’s Health v. Hellerstedt (No.15-274) involves a Fifth Circuit decision approving a state law that virtually eliminated abortions in Texas. Unless Justice Kennedy can be convinced that Texas has effectively outlawed abortion by imposing onerous regulatory requirements (thereby violating the Fourteenth Amendment), he will stick with the conservatives, and the Fifth Circuit’s decision will remain in place: a conservative win, but one of no precedential value. In Tyson Foods v. Bouaphakeo (No. 14-1146) a different court of appeal agreed that a class of workers could be certified as a group to pursue their members’ claim that they should have been paid for the time when they were putting on safety equipment. A tie vote would leave the plaintiffs’ damage award in place: a victory for the progressives. One possibility is that cases that are close will be held over for re-argument in the court’s October 2016 term. That option carries uncertainty for both sides, as it depends both on who is elected, on whom they nominate and on whom the Senate approves.

Meanwhile, the politics is even more unpredictable.

In terms of the presidential election, the justice’s death has already brought about a re-focus on the importance of the president’s role in appointments to the court. This aspect of the president’s job had been all but ignored in the primaries, although it was certain to become an issue in the general election. Following a brief waffle by Jeb Bush on Sunday night, all of the Republican candidates have followed Senate Majority Leader Mitch McConnell, who has said that the Senate will not approve a nominee until after the next president takes office. In the past, the Senate deferred to the president’s choice of justices, as well as other federal judicial officers, but since the Nixon administration that deference has declined and appointments have been seen as more political, particularly following the Senate Judiciary Committee’s hearings on the appointment of Clarence Thomas. This means that Republican senators who could face a primary challenge (from the right) have a strong incentive not to cooperate and approve a nominee before next year. Moreover, when the Senate changed its filibuster rules in 2013, so that judicial nominees were exempt, the change did not extend to Supreme Court nominees. Those nominations still require 60 senators before they can move to a floor vote.

But more importantly, Justice Scalia’s death concentrates the minds of both Democrats and Republicans on the fact that the justices are relatively old. The median age of those on the court (before Justice Scalia’s death) was 67 years, 7 months (Justice Thomas), and two other justices (Ginsburg and Kennedy) are close to Justice Scalia’s age (82 years, eleven months and 79 years, six months, respectively). Only three (Sotomayor, Roberts and Kagan) are under the traditional retirement age of 65.

In the past few days, a few trial balloons have been sent up about how odd it is to wait for justices to die before replacing them. Mutterings can be heard (of varying levels of seriousness) that the United States should move to extended, fixed terms for Supreme Court justices, of 18 years, staggered so that each president would be entitled to appoint two per term. Unlikely as this seems, it might make sense both in terms of reducing the partisanship of the court’s judges and in terms of depoliticizing the process of selecting them.

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Same-Sex Marriage, National Churches and the Labour Party

Wales

The following was cross-posted on Politics in Spires and Law & Religion UK

A quick chronology

On 11 December, the government announced its response to the consultation on same-sex marriage that took place from 15 March through 14 June 2012. The initial consultation concerned how (not whether) to proceed with same-sex civil marriage. In its response to the initial consultation, the Church of England failed to respond to the question that the government had asked. It took the position that all marriage (civil or religious) was the same and that same-sex marriage should not be offered by the state. The church failed entirely to say how it could be offered, arguing that same-sex marriage should not be offered at all, even by the government in non-religious ceremonies. Unfortunately, the bishops of the Church in Wales said, in their response to the consultation, ‘The Church in Wales is in an almost identical position to the Church of England with regard to the solemnisation of marriages.’

In the course of the consultation, certain religious groups argued that they should be allowed to perform religious same-sex weddings, based on their right to religious freedom. In response to those demands, the government response included provision for same-sex religious marriage, including what has become known as the ‘quadruple lock’:

  • Ensuring that no religious organization would be required to perform same-sex weddings;
  • Allowing religious organizations to opt in and perform same-sex weddings;
  • Amending the Equality Act 2010 to protect religious organizations and ministers from being sued for refusing to perform same-sex weddings; and
  • Denying the Church of England and the Church in Wales power to opt in on the same basis as other organizations without additional primary legislation.

The debate about the fourth lock has now deteriorated into a he-said/she-said factual dispute in the court of public opinion. However, given the recent decision on women bishops and the Church of England’s continuing claims that it has consistently supported same-sex civil partnerships, which have been falisified here, the credibility of the Church of England is at a low ebb, and its testimony carries little weight.

Why this is not so bad for the Church of England

A change in internal Church policy involving a change in the canons, which currently provide ‘[M]arriage is in its nature a union permanent and lifelong, for better for worse, till death them do part, of one man with one woman …’, would likely require a change in statute law, which requires a church measure. Since 1919, the church has enjoyed the privilege of being able to pass primary legislation, subject only to parliamentary ratification in a single vote, which cannot amend the legislation. It seems likely that exercising the ‘opt-in’ option under the proposed legislation on same-sex marriage would have involved that extra step for the established church. Thus, as the church says in its original statement, the fourth lock simply preserves the status quo.

At the same time, if the doctrine of parliamentary sovereignty means anything at all, it means, ‘What the Queen in Parliament enacts is law.’ That principle, combined with its companion doctrine of implied repeal, means that the government of the day cannot get it wrong. If a law passed by the House of Commons is inconsistent with a previous law, then the previous law is repealed, except in unusual cases like the European Communities Act 1972 or the Human Rights Act 1998. Had the government simply permitted religious same-sex marriage with only the first and second locks, the courts would have had to sort out the consequences. That means the third lock is important, because it prevents heavy handed (but well intentioned and progressive) judges from forcing clergy to marry same-sex couples. Viewed in this light, however, the fourth lock is entirely unnecessary.

At bottom, however, the proposals do what they say they do and what the Church of England said it needed. They preserve the status quo, and if a sufficient number of members of General Synod decide that it is better to permit same-sex marriage, then their proposal will undoubtedly be ratified by the House of Commons without much debate. Little or no harm done.

Why this is really bad for the Church in Wales

Unlike the Church of England, the Church in Wales does not have the power to pass primary legislation in its Governing Body, as the Church of England can in its General Synod. The means through which Wales’ marriage law was retained after disestablishment is described in an excellent article by Nicholas Roberts, published last year. The retention of the civil law of marriage for the Church in Wales was not a product of the Church in Wales Act 1914, which designated Church in Wales churches as places of worship, like other non-established churches, where marriages could be solemnized and designated its clergy as persons who could be authorised to solemnize them. Rather, it was a product of the Church in Wales (Temporalities) Act 1919, which restored a number of privileges (and a lot of money) to the church.

The 1919 bill was highly politicized, and its history was deliberately kept obscure. The Home Secretary, Edward Shortt (a Liberal) was opposed to being too generous to the church, and he resisted the church’s successful efforts for re-endowment. The 1919 bill was drafted quickly over the weekend of 25–27 July 1919, just before the end of the parliamentary session and was approved while most Welsh Liberals were away at the Eisteddfod. Shortt’s obscurity about its marriage provisions, referred to in Roberts’ article, was understandable. Bishop Alfred Edwards of St Asaph wrote that the drafter of the bill was ‘a genius at wrapping up and concealing our gems’.[1] The restoration of the civil marriage laws may have been one of those gems. Shortt was probably as unhappy with it as he was with the financial parts of the bill.

But it’s come back to haunt the church. By arguing that its position was ‘almost identical’ to that of the Church of England, the Welsh Church implicitly sought the same legal protection granted to the English church, despite the fact that the Welsh Church is disestablished. However, although the pre-disestablishment marriage law has been retained for the Welsh Church, including the putative right to be married in one’s parish church, that right is abrogated by the third lock, which grants a conscience clause (and immunity from suit) to clergy who refuse to perform same-sex marriages. Lock 4 imposes an unnecessary burden on the Welsh Church, and it should be removed as far as it includes that church. In this case, the doctrine of implied repeal should be allowed to do the work it normally does.

Why this should not be an opportunity for the Labour Party

Labour overreaches itself when it refers to these provisions in the bill as an omnishambles; the government could not have done much better  while trying to modify complex marriage laws, to balance equality laws and religious freedom and at the same time to reconcile irreconcilable, opposing interests. To claim otherwise is opportunistic. It seems clear that the constitutional, political and legal complexities of the law of marriage in Wales surprised the government. But good, sensible argument, not a generalized attack on the government’s competence is needed. And extending the omnishambles argument to the Church of England is entirely unfair given that church’s general, public refusal to cooperate with the consultation in the first place. The Church in Wales may have received a temporary scare, which will make it think twice in the future about trying to ride on the coat-tails of its established equivalent in the east. The Church of England may have received its just deserts for being obstinate. But the government should not be the target of general criticism for an honest mistake on an obscure point of law, which was unforeseeable when the Church in Wales did not address this point, or any other, in its response to the consultation.

The problems in this bill can easily be corrected. Labour shouldn’t be diverted into a general attack, which may make it look like a dog in the manger, disappointed not to have been able to introduce its own amendments to allow religious same-sex marriage. Such an amendment surely would have run afoul of even more niceties in the religious law of marriage in the UK than the government’s carefully considered bill has done. This is a cross-party question of policy that addresses a felt need by LGBT people and religious freedom for minorities like Quakers, Unitarians and Liberal Jews, as well as for those, like the Roman Catholic Church and the Church of England, who disagree. It should not be turned into a political football.


[1] Letter from Edwards to Frank Morgan dated 28 July 1919, National Archives of Wales, RB/Admin/Corr 8.

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Zac Goldsmith, the Election Finance Laws and Gaming

Channel 4 News has run an expose on campaign spending by MPs in May’s general election. Zac Goldsmith (Con, Richmond Park) did not acquit himself well during an interview with Jon Snow, and now the Electoral Commission has announced that it will investigate his expenses. Channel 4’s expose seems like an effort to replicate the Telegraph’s exposure of MPs improper expense claims. And there are similarities between the two: unrealistic caps on payment (in MPs’ salaries and for election advertising) led MPs and candidates to game the system by finding ways around the caps. Both were a fertile ground for legalistic interpretations of rules. And once legalistic interpretations had become commonplace, as they seem to have done, it became easy to use them to explain increasing deviations from the ‘spirit’ of the law–as difficult as such a spirit is to define in any meaningful sense.

The problem with the election funding scandal is that it’s nearly impossible to articulate administrable rules about election spending that can be both predictable and fair. Less experienced candidates (with fewer advisers willing to help them find loopholes) will inevitably suffer, and more experienced candidates (with resources to spend on coming up with creative interpretations of the rules) will benefit. The real winners are election lawyers.

One solution is the one followed by the United States, where election spending cannot be limited because of principles of Free Speech in the First Amendment but where elections are very expensive. That leads to its own problems in terms of rent seeking by candidates’ donors, who ask for political favours (or at least face time) in exchange for their contributions of money (as well as time and influence). Some political scientists speculate that the entire political economy of the United States may be broken because of this problem. But there are other ways of dealing with these issues.

Bruce Ackerman and Ian Ayres have made two neat proposals. The first, as a response to the US Supreme Court’s decision in Citizens United v. FEC, would prohibit all companies with federal contracts from making any donations to political campaigns. Since most large corporations have some contracts with the federal government, it would force all or them to make a decision about whether to eliminate the appearance of impropriety by foregoing either the donations or the profits from the contracts. The second (even neater) proposal would allocate $50 in patriot dollars to each voter, which would be contributed to a campaign anonymously through an ATM. Voters could also contribute their own money in addition to the amount allocated, but they would have to contribute that money anonymously as well. Thus, there would be no way for a candidate to know who had contributed to his/her campaign, and the adverse influence or campaign contributions on the political process would be limited, if not eliminated entirely. Corporate and other large contributions would be diluted with (substantial) federal funding, and it would be impossible for a legislator to grant any political favours to large contributors, as no contributors could prove that they had contributed.

The application to the British problem is not entirely clear, but there is one. First, the system in the United States emphasizes the provision of information (including advertising); the system in the United Kingdom emphasizes the need for candidates to have an equal opportunity to gain office. But that equality seems illusory when wealthy people, with access to legal advice and the ability to spend a great deal of money on durable goods (like Goldsmith’s famous tricycles and coats) can find ways around necessarily brittle rules on expenditures. One important question, which should be asked, is whether there is more demand for information during campaigns, or whether the market for information is currently saturated. That, of course, depends on the quality of the information being provided and on other largely indeterminate factors. But it seems like there ought to be a place for more debate, unconstrained by artificial campaign finance limits. Government funding is one way around the problem, which is frequently adopted in European countries; a market system (financed by the government) is another one, and that might be more administrable than any of the alternatives.

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The New Fixed Terms

A.V. Dicey wrote, ‘Parliament… has… the right to make or unmake any law whatever . . . Parliament is not bound by its predecessor.’ The outline of the coalition agreement between the Conservatives and the Liberal Democrats provides,

The parties agree to the establishment of five year fixed-term parliaments. A Conservative-Liberal Democrat coalition government will put a binding motion before the House of Commons in the first days following this agreement stating that the next general election will be held on the first Thursday of May 2015. Following this motion, legislation will be brought forward to make provision for fixed term parliaments of five years. This legislation will also provide for dissolution if 55% or more of the House votes in favour.

 A ‘Parliament’ as the term is used here, exists between general elections. It can, but need not, be dissolved on a vote of no confidence in the government. Parliament cannot bind its successors, but it can bind itself for its own duration, even under Dicey’s rule. Assume also that the 55% rule applies to the current Parliament (which it may not!).

In the current Parliament, this means that David Cameron cannot go to her majesty and request a dissolution until May, 2015. That ties his hands. It also withdraws the royal prerogative to grant such a request for at least five years. However, if there is a vote of no confidence, that does not mean that there will be a general election. The Liberal Democrats will preserve their position as the pivot in the House of Commons for the full five years until May 2015. Assume that the 55% requirement will apply in the current parliament as well as in future ones. The Conservatives lack the ability by themselves to dissolve Parliament (55% = approximately 358 votes, depending on how one counts). Thus, if the Liberal Democrats leave the coalition and the Conservatives cannot pass supply or other important legislation, her majesty will call on the next largest party to form a government. That will be Labour. This strengthens the Lib Dems’ hand when they are negotiating with the Conservatives. It, too, preserves their position as a pivot in the House of Commons. This takes power from (a) the queen; (b) the executive; (c) a party in the House of Commons that has less than 55%. It gives power to everyone else. If you’re trying to force people to get along, that’s a good thing. If you want an elected dictatorship, it’s a bad thing.

No matter what, it’s another stake in Dicey’s heart if the legislation is passed, presumably with a supermajority requirement on its repeal, which limits every future government’s ability to dissolve but also narrows the royal prerogative. At the same time, it’s all in the details. Will there be a super-quorum requirement? How will the 55% be counted? Will the speaker and deputy speaker and Sinn Fein be part of the requirement?

This historical background just in: Constitution Unit Briefing Paper on 55% dissolution requirement.

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The House of Lords and Autonomy in the Church of England

The debate and division on Lord Alli’s amendment to the British Equality Bill reflect a number of really interesting things about the British government. First, the House of Lords is sometimes not as ridiculous as it would appear to be to someone who is not British. As with the (elected) United States Senate and the (unelected) United States Supreme Court, the House of Lords is a veto player that can drive policy closer to the status quo (especially in the run-up to a general election) and can even introduce new ideas into the political debate.

The news is not as positive for the Church of England. While a group of senior clergy (bishops and dignitaries in Anglo-speak) supported the amendment to allow non-Anglicans to hold religious ceremonies in connection with civil partnerships on religious premises, others like the Bishop of Winchester seek continuing protection of the church. Only the most attenuated arguments support a threat from outside the Church of England based on hypothetical application of EU anti-discrimination laws. More likely are the possibility that (1) the Church of England will be forced to debate whether to allow such ceremonies to take place in its churches or (2) a renegade rector will conduct ceremonies in a church, where he holds a parson’s freehold. The strict hierarchical structure of the Church of England is not always as strong as it appears, and traditionally local clergy have had a great deal of power. S.J. Brown has referred to the nineteenth century financial provision for local churches as creating local establishments in each parish; his point is illustrative.

What we can hope for is rational debate. As long as people of differing opinions can argue about principles, then there is hope for a reasoned outcome. My fear is that fuzzy thinking and slippery slope arguments will be emotionally persuasive and will carry the day.

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Campaign Finance and Free Speech

Citizens United v. Federal Election Commission will remain the subject of debate for a long time. Despite the fact that I recognize the need to control expenditure on campaigns and on the influence of entrenched corporate interests, I am sensitive to the dangers to free speech when regulation may subject corporations to criminal penalties for expressing political views. I live in a country that is about to have a general election, and much of what we know will come either from print media or from ‘party political’ advertisements that many will not watch. Public debate is damped down at the expense of the kind of deliberation that makes for good government.

With all that said, we should welcome the efforts of Senator Charles Schumer (N.Y.) and Representative Chris Van Hollen (Md.) to impose further requirements on corporate campaign expenditures. I oppose efforts to limit speech (except in carefully limited, necessary cases), but I wholeheartedly support disclosure requirements, including forcing CEOs to appear personally in advertisements that their companies pay for. Indeed, I have a difficult time imagining any disclosure requirement, however onerous, that would not be perfectly legitimate. And failure to disclose or inaccurate statements in the context of disclosure can be punished as a crime. Lawyers know that there’s always more than one way to skin a cat, and Congress is finding a better, more efficient and less dangerous way to regulate indirect campaign finance because of the decision by the Supreme Court in Citizens United.

This puts me in what Stanley Fish calls the principled camp of First Amendment jurisprudence, along with Justice Brandeis and perhaps Justice Holmes (as well as the Citizens United majority). I do not see my support for disclosure requirements as inconsistent with that view, however. With the power of speech comes responsibility. And disclosure insures that speakers can be held accountable for their statements. It seems reductionist to me to argue that freedom of speech necessarily implies that disclosure cannot be required, and even those of us who supported the majority decision in Citizens United (with reservations) should applaud a requirement that political speakers be honest about who they are.

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The House of Lords and Religious Freedom

On 25 January the House of Lords defeated an amendment (119A) to the Equality Bill, which would have permitted religious organizations to hold civil partnership ceremonies in religious buildings. The amendment, sought by Liberal Jews, Quakers and Unitarians, was defeated following a speech in which the Bishop of Winchester argued that the amendment ‘would blur the distinction between civil and religious marriage’ and would ‘blur the characteristics of the civil partnership as distinct from marriage’. (Hansard 25 Jan 2010 col. 1202) He went on to hold up the parade of horribles that would result if the pressure group Stonewall should put ‘steady and continuing pressure on, if not forcing of, the churches, the Church of England among them, to compromise on our convictions that marriage has a character that is distinct from that of a civil partnership. Churches of all sorts really should not reduce or fudge, let alone deny, that distinction.’ In a vote that followed, on a definition that the bishops opposed, the government was defeated 177-172 with eight bishops voting and therefore being decisive.

In 1927 and 1928 the House of Commons rejected a proposed revised Church of England Prayer Book, by votes of 238-205 and 266-220. Nevertheless, the Church of England was able to resist this ‘continuing pressure on, if not forcing of’ the Church of England to continue to use the same religious services in the face of actual Parliamentary pressure to do so.  In the past the church has been able to resist pressure, even when it came directly from parliament. It is perfectly capable of doing so now and should stop adopting a stance against the potential for victimisation by Stonewall.

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