February 19, 2013

"I want to hear about the least plausible constitutional arguments that have ever been made."

Writes Orin Kerr. He's looking for the "weirdest, strangest constitutional arguments," saying "I’m sure most of them will be arguments that trial courts readily rejected, or even never bothered to analyze it on the merits."

I'd be more interested in the weirdest, strangest constitutional arguments that courts have accepted. It's harder to see them as weird when the authorities endorse them, and our whole concept of what is weird is affected by what we see respected figures accept. "I suspect that many of these claims will be made by pro se plaintiffs such as prisoners or tax protestors," says Kerr. Kooks will be kooks. Why assemble the ravings of madmen... unless the madmen are sitting on the courts?

79 comments:

Matthew Sablan said...

The Tax Protestor FAQ is the best FAQ for a lot of these arguments made by people wanting to not pay taxes.

Matthew Sablan said...

(That is not to say their arguments are RIGHT, just that they made them.)

mccullough said...

The law schools arguing that they had a free speech right to exclude military recruiters from campus was the oddest argument that actually made it to the Supreme Court in the last decade. Basically any argument Erwin Chemerinsky makes is an oddball loser.

Basil said...

No contest. Roe v. Wade. Emanations from penumbras. You can't make this stuff up.

Basil said...

No contest. Roe v. Wade. Emanations from penumbras. You can't make this stuff up.

edutcher said...

I'd say most of the prominent decisions of the last 50 years could fit that description since "the madmen are sitting on the courts".

Ann Althouse said...

"Emanations from penumbras"

That's Griswold.

Paul Zrimsek said...

Because encountering madmen who are not sitting on the courts is such a novelty?

gutless said...

Rowe v Wade hands down. This fiasco may still provoke a civil war in this country.

Basil said...

Ok. Griswold then. I now vote Griswold. I am from Cincinnati so I can vote multiple times while everyone else gets only one vote.

Nomennovum said...

An individual's right to privacy gives the individual the right to kill another human for no reason whatsoever.

Nomennovum said...

Griswold killed my baby.

Basil said...

Another candidate must surely be Romer. A state cannot amend its Constitution to control its own political subdivisions. To protect people who are NOT a protected class and who have NEVER suffered de jure segregation. Under the 14th Amendment passed by the most radical Puritans who have ever held the Congress. Who knew the Civil War was fought for homosexual marriage?

Nomennovum said...

Roe v. Wade: A woman may decide whether to let her baby live and whether some man will be obligated to support it for 22 years.

Nomennovum said...

The federal government may force you to buy a product or service.

Nomennovum said...

The government may force you off your land to benefit Donald Trump.

Nomennovum said...

Freed slaves have no Constitutional rights.

bagoh20 said...

People, especially lawyers, make all kinds of absurd arguments, and they usually don't even expect you to fall for them, but they throw them out there because it's all they got, and that's what they get paid for. Some of these become law, precedent, and the foundations of our culture. How freaking crazy is that?

Nomennovum said...

I doubt it's been sanctioned by our most high and wise Court, but no American may smoke a Cuban cigar while vacationing in the Bahamas.

Dante said...

Sáenz v. Roe:

"In 1992, the state of California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. At the time, California was paying the sixth-largest welfare benefits in the United States. In a move to reduce the state welfare budget, the California State Legislature enacted a statute (Cal. Welf. & Inst. Code Ann. §11450.03) to limit new residents, for the first year they live in the state, to the benefits they would have received in the state of their prior residence. "

The SUPREME court decided this violated the "Right to Travel," an invented right.

Proposition 187, Struck down as unconstitutional:

on, search

California Proposition 187 (also known as the Save Our State (SOS) initiative) was a 1994 ballot initiative to establish a state-run citizenship screening system and prohibit illegal aliens from using health care, public education, and other social services in the U.S. State of California. Voters passed the proposed law as a referendum in November 1994; it was the first time that a state had passed legislation related to immigration, customarily an issue for federal policies and programs.[1] The law was challenged in a legal suit and found unconstitutional by a federal court. In 1999, Governor Gray Davis halted state appeals against the ruling.


What's odd about this, is that the Federal government is not required to provide the programs. Only the states. Ninth District Judge Mariana Pfaelzer explains:

"California is powerless to enact its own legislative scheme to regulate immigration. It is likewise powerless to enact its own legislative scheme to regulate alien access to public benefits."

Thanks.


Dred Scott v. Sandford, 60 U.S. 393 (1857), also known as the Dred Scott Decision, was a landmark decision by the U.S. Supreme Court. It held that the federal government had no power to regulate slavery in the territories, and that people of African descent (both slave and free) were not protected by the Constitution and were not U.S. citizens. Since passage of the 14th Amendment to the U.S. Constitution, the decision has not been a precedent case, but retains historical significance as it is widely regarded as the worst decision ever made by the Supreme Court.

Wikipedia.

So even Michelle Obama's forbears were being boffed by a small number of fucked up Whities, and here we have the Supreme court fucking us all up forever. Funny how she thinks of herself as "Black" vs. "White." Maybe it's that big, beautiful, black ass.

BDNYC said...

Back in the day, when I came across many pro se petitions from inmates, I would occasionally see some meritless garbage about the yellow trim in the flag in the courtroom. I can't remember what the argument was, but it was clearly something some jailhouse lawyer thought up and put in all his clients' papers.

tim maguire said...

Roe v. Wade should stand out for the court's embracing of an argument they did not actually believe. And for a reason near treasonous--they thought it was the right thing to do (true legislation from the bench).

But for a weird argument that might really be believed by the justice embracing it, how about "it's not a penalty, it's a tax"?

Nomennovum said...

You can't discriminate against certain people but you can discriminate against others.

Nomennovum said...
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Nomennovum said...

A tomato is a vegetable, not a fruit.

m11_9 said...

Wheat grown for on-farm purposes is actually interstate commerce.

Revenant said...

Roe v. Wade may have been wrongly decided, but it doesn't even come close to being among the least plausible constitutional arguments made.

The concept of self-ownership is not a new thing.

Revenant said...

A tomato is a vegetable, not a fruit.

All fruits are vegetables. A tomato is both.

m11_9 said...

Wheat grown for on-farm purposes is actually interstate commerce.

Nomennovum said...
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Nomennovum said...
This comment has been removed by the author.
Nomennovum said...

All fruits are vegetables. A tomato is both.

Tell is to the Supreme Court, then. They say it is not a fruit as a matter of law. They don't care about silly botanists like you, who think that all furits are vegetables.

Aridog said...

Tim Maguire said ...

But for a weird argument that might really be believed by the justice embracing it, how about "it's not a penalty, it's a tax"?

I doubt Justice Roberts believes it, he just ruled that way because he caved in to threats...first at the SOTU 2011, then directly in the lead up to the decision where the administration suggested they'd go all Andrew Jackson on the court (you ruled, you enforce it, bitches)...just exactly like they have with the NLRB finding by the Federal District Court...they are ignoring it. Completely.

That autocracy for you.

Nomennovum said...

"Interstate commerce" means whatever we say it means.

Aridog said...

I'd be more interested in the weirdest, strangest constitutional arguments that courts have accepted.

I certainly agree with that. Such instances are why so many of us have almost no respect for the court what-so-ever.

Nomennovum said...

"The right to privacy" means "the right to contraception" and "a woman's right to abort a baby" and nothing more.

Virgil Hilts said...

korematsu. It was the one case I read at HLS that made me want to puke.

Revenant said...

"The right to privacy" means "the right to contraception" and "a woman's right to abort a baby" and nothing more.

Can you name a court case in which someone made that argument?

It certainly wasn't the argument (or the court's finding) in Roe v. Wade.

m11_9 said...

"korematsu. It was the one case I read at HLS that made me want to puke."

Yeah, Wickard makes me laugh, but Korematsu makes me cry.

Nomennovum said...

It certainly wasn't the argument (or the court's finding) in Roe v. Wade.

Sure it was. And in Griswold too. See? Even you suspected it.!

Michael K said...

I think you should read Conrad Black's book, "A Matter of Principle." Some of the prosecution arguments might make your list.

The US Supreme Court, for example, reversed all his remaining four (of 17 charges) convictions on appeal, then sent the case back to Richard Posner, the appellate judge, to correct his errors. He reinstated two of the convictions.

Black (and I) have a new appreciation for Kafka.

southcentralpa said...

Wickard v. Filburn. A legal crop grown on one's own land for consumption on that land is interstate commerce? Srsly??

Also, the arguments made by the District of Columbia in D.C. v. Heller is a target-rich environment, it's hard to pick one ...

Michael K said...

Prop 187 was passed with over 2/3 of the vote majority. Even Latino districts gave it a majority.

Then there is Prop 8, the marriage amendment. After a campaign by gay activists, including violence, a gay judge ruled it unconstitutional, then married his gay lover.

Revenant said...

Sure it was. And in Griswold too. See? Even you suspected it.!

I'm not sure if you're trolling or just dumb. Either way you're boring.

Moving on.

Nomennovum said...

Revenant,

You take yourself a little too seriously. Not a botanist. A lawyer

Henry said...

Griswold? How about Hepburn v. Griswold?

Nomennovum said...

Although, a lawyer unfamiliar with Griswold v. Connecticut, Roe v. Wade, or -- unbelievably -- Nix v. Hedden.. But a lawyer who is smart enough to call someone dumb without providing a lick of evidence. A lawyer so afflicted with tunnel vision he can only see the particulars of a case, not the larger effects. A lawyer I won't be hiring: Revenant.

drozz said...

Lionel Hutz one time tried citing finders v keepers.

it didn't go well.

Saint Croix said...

The least plausible constitutional argument was in Roe v. Wade, when the Supreme Court held that non-physicians had a constitutional right to do first trimester abortions.

Insanely stupid, and unanimously overruled when lower courts tried to follow it.

Indeed, the Court's holding that we could not pass health regulations for abortion in the first trimester was completely overruled by Casey. But Blackmun's opinion that states cannot require a doctor's license, boy that takes the cake. That argument is so stupid, not even feminists like it.

Runner up: Also Roe v. Wade. Citing Plato and Aristotle for the viability doctrine, while failing to note that Plato and Aristotle were talking about killing newborns.

And second runner up: It's still Roe v. Wade. "We need not resolve the difficult question of when life begins." Imagine the stupidity of defining the baby as property, holding the infanticide issue as legally irrelevant, and then being surprised when a pro-life movement would rise up in response.

Third runner up, I still like Roe v. Wade. How about finding a right to abortion after Jane Roe had already given birth? In fact, the "fetus" was already two years old, and could have sat in Blackmun's lap while he read about the constitutional right to terminate her.

Bender said...

Of course the most irrational and least plausible argument is that there is a fundamental right to kill innocent human life. Next least plausible is that the black man has no rights that the white man is bound to respect. Coming up behind them is that three generations of idiots is enough. And, of course, how can we forget the completely implausible argument that what the Congress and the President expressly say is not a tax and not an exercise of the taxing power is nevertheless a tax if it cannot be found to be constitutional in any other fashion.

Saint Croix said...

Planned Parenthood v. Casey has some whoppers, too. "(I)n some critical respects the abortion decision is of the same character as the decision to use contraception."

Basil said...

Hey, what about the Al Gore argument that the Florida Supreme Court bought - that it is ok to recount the counties that the Democrat Party would prefer to recount, but not the rest of the counties.

Basil said...

Another shout out for Sáenz v. Roe. I mean, a state cannot decline to provide (or even limit) welfare benefits to illegal immigrants, even after a Constitutional Amendment and referendum.

"There are three components of the right to travel:

The right to enter one state and leave another;
The right to be treated as a welcome visitor rather than a hostile stranger;
For those who want to become permanent residents, the right to be treated equally to native-born citizens."

The right to be treated as a visitor rather than a hostile stranger???? Wow!!!

Saint Croix said...

"I want to hear about the least plausible constitutional arguments that have ever been made."

But plausible has two meanings!

The first meaning is that an argument is reasonable or probable. Is it true?

But an argument might be true, and yet utterly unconvincing. Which is the second definition of plausible. Does the argument convince us?

For instance, the Supreme Court in Carhart makes this admission: "(O)ur discussion may seem clinically cold or callous to some, perhaps horrifying to others."

What you say is true! Your discussion does seem cold, callous, and horrifying to many people.

But now you're going to have trouble convincing anybody that our Constitution requires callous and horrifying medical procedures. Your very honesty marks your opinion as unconvincing.

Is it a Bill of Rights? Or is it a Bill of Callous and Horrifying Activities?

Justice Stevens screws the pooch, too. He refers to the Carhart abortions as "brutal."

I agree! But how do you then make the argument that our Constitution requires brutality?

Left Bank of the Charles said...

I would nominate the Court's acceptance of the defense arguments in Brewer v. Williams, the Christian burial speech case.

AlanKH said...

Roe v. Wade belongs on the list, for this quote:

"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

The court must not speculate on when life begins, so it hypocritically rules according to the assumption that it begins at birth. Also, SCOTUS essentially made a ruling on science, which to the best of my knowledge is not asserted in Marbury v. Madison.

Wickard v. Filburn assumes that the Commerce Clause empowers government to prohibit activity that reduces an individual's demand for goods and services - whether or not that activity constitutes actual commerce.

Kelo v. City of New London says a government can seize real property from one set of private citizens and give it to another.

Lawrence v. Texas recognizes foreign law as precedent; to the best of my knowledge, only the Magna Carta and English common law have held such status in the past. The case also rules on science - behavioral/psychological, in this case

(I still haven't figured out the majority's Due Process rationale. I had been long predicting it would take O'Connor's tack, and cite a different part of the 14th Amendment, the Equal Protection clause.)

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Revenant said...

It appears few people are capable of reading "least plausible argument" as meaning anything other than "SCOTUS ruling I like the least".

Saint Croix said...

Then there are arguments that seem utterly plausible, until you dig deeper. For instance, in Casey the Supreme Court writes, "No evolution of legal principle has left Roe’s doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking."

That seems plausible, right? That seems like a very strong argument.

Yet consider what the Casey Court is attempting to do. It's attempting to unite the country. So it's speaking to pro-lifers. And yet, as it speaks to pro-lifers, it continues to overlook the unborn baby's life! How plausible is that? How plausible is it that you're going to convince pro-lifers while you continue to ignore infanticide arguments?

Roe said, "We need not resolve the difficult question of when life begins." Casey accepts this argument, and insists that abortion has been resolved in our country. Another howler!

In fact, there was a massive change in our law since 1973. Every single state changed their rules in regard to when people die!

That's a rather fundamental change in the law, yes? So Casey's plausible-sounding argument is actually completely wrong. If the baby's life is important, than there has been a massive shift in the law in regard to the central issue in the case (at least for pro-lifers): whether or not abortion kills a baby.

Nomennovum said...

The plausibility of an argument can be measured by the conclusion reached.

Do you have a Constitutional right to privacy? Only when we say you do.

Is an unborn baby a living human having basic rights? No.

Can the federal government compel you to buy something? Yes.

Can the governemnt force you to give up your lawful property to enrich another person Yes.

Is a tomato a fruit? No.

Rusty said...

"I want to hear about the least plausible constitutional arguments that have ever been made."

Miller vs US

Saint Croix said...

It appears few people are capable of reading "least plausible argument" as meaning anything other than "SCOTUS ruling I like the least".

What's funny about this is that Rev invents a new argument in defense of the decision in Roe: "The concept of self-ownership is not a new thing."

You will not find this sentence in Roe v. Wade. Not only will you not find this sentence in Roe v. Wade, you won't find this argument in Roe v. Wade, either.

Pro-choice people are constantly rewriting Roe v. Wade, trying to improve it. In fact, there's an entire book with law professors trying to rewrite Roe v. Wade, and make it more plausible.

But why rewrite the opinion? Doesn't Justice Blackmun do a good job? The attempt to rewrite Roe v. Wade and make it say what it does not say is prima facie evidence that even pro-choice people are not impressed by the actual opinion.

They like the result. They like Justice Blackmun's politics. But his actual opinion? Not so much.

See also Planned Parenthood v. Casey, where the Supreme Court cites "stare decsis" while rewriting Roe and kicking out half the rules in the opinion.

As Justice Scalia writes mockingly in his dissent: "It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep what you want and throw away the rest version."

Nomennovum said...

Saint Croix makes a good point concerning the definition of plausibility. Perhaps Ann, who I suspect is quite mischievious, intended to inject this ambiguity into this conversation.

In actuality, no argument is too "implausible" for a lawyer to make. They throw all manner of shit on the wall and hope that enough sticks to win.

This is why lawyers should be prohibited from serving on the Supreme Court. I suggest we try plumbers.

Saint Croix said...

What about implausible pro-life arguments? Consider Justice Scalia's dissent in Carhart:

“The method of killing a human child--one cannot even accurately say an entirely unborn human child--proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.”

Since I'm a pro-lifer, I find this argument highly plausible. But wait! Six paragraphs later, Justice Scalia writes...

"While I am in an I-told-you-so-mood, I must recall my bemusement, in Casey...

You're describing the homicide of a child in paragraph one. And in paragraph six you're describing your own bemusement. That's a really odd emotional gear shift.

How do you expect pro-choice people to believe you, when you yourself don't seem to believe what you say?

And Scalia, like the rest of the Supreme Court, continues to define the baby as property. Isn't that incoherent? How can you expect us to believe that a child has been killed, when you yourself define that child as sub-human and beneath our concern?

Astro said...

Saint Croix,
Are you confusing the word bemusement with the word amusement? Completely different meanings.

Saint Croix said...

See also Scalia's Casey dissent. First he compares abortion to bigamy. His point (which he frequently makes), is that the Constitution says absolutely nothing about it.

Yet later in his opinion, Justice Scalia compares abortion to slavery. Well, the Constitution certainly says something about slavery. It's illegal!

Is abortion like bigamy, or is it like slavery?

What makes slavery an evil institution is that it involves the dehumanization of a human being. Has the Supreme Court done that, Justice Scalia? Has it dehumanized a baby?

Or would you rather go back to saying abortion is like bigamy, and does not involve a baby at all?

Saint Croix said...

hey Astro,

I was thinking of this definition:

to cause to have feelings of wry or tolerant amusement

But you're right, there is another possible definition:

To cause to be bewildered; confuse

In the context of Scalia's statement, however, I think he is using the word in the first sense, not the second.

Saint Croix said...

I think Scalia sees his job as giving a voice to the pro-life movement. So he makes pro-life arguments. And yet those arguments have not affected his own jurisprudence. They don't convince him! Indeed, all of Scalia's pro-life arguments seem to be, in his opinion, legally irrelevant. It's just a bunch of dicta Scalia is throwing out there. No need for anybody to pay attention to his slavery analogies, he doesn't mean it.

Saint Croix said...

How plausible is the pro-life argument that an unborn baby is a person entitled to the equal protection of the laws?

From an authoritarian perspective, it's not plausible at all. Not a single Supreme Court Justice has accepted this argument.

From a textual perspective, it's highly plausible. A person is a live human being. That's the common sense definition of the word, and the dictionary definition.

One might point out too that the pro-life movement is motivated by fears of infanticide. Since roughly half the country is pro-life, there seems to be some popular support for the idea that an unborn baby is a live human being.

And denying her humanity does not seem to have resolved the dispute at all!

And contrary to what Justice Blackmun said in Roe, recognizing the humanity of the unborn would not immediately outlaw all abortions. It would forbid abortions that qualify as homicides under state law. Thus our death statutes would be highly relevant, defining with specificity when people die.

And that is what equal protection is all about. Applying the same rules to other people that we apply to you or me.

furious_a said...

Not to change the subject from Roe v. Wade, but...

Jenkins v. State of Missouri

Wherein a federal district court ordered a property tax increase to:

``...draw nonminority students from the private schools...[as well as]...nonminority students from the suburbs.``

...because Article I, Sections 7 ("All Bills for raising Revenue shall originate in the House of Representatives;") and 8 ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,").

furious_a said...
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Revenant said...

It appears few people are capable of reading "least plausible argument" as meaning anything other than "SCOTUS ruling I like the least".

What's funny about this is that Rev invents a new argument in defense of the decision in Roe: "The concept of self-ownership is not a new thing."

What is perhaps funnier is that you still haven't figured out the difference between "constitutional argument" and "Supreme Court ruling". :)

In any event, my "defense of Roe" isn't new; it is, in fact, almost as old as I am. You should spend more time reading and less preaching, I guess?

Revenant said...

How plausible is the pro-life argument that an unborn baby is a person entitled to the equal protection of the laws?

As plausible as the argument that your toe is a person entitled to the equal protection of the laws.

gregq said...

Roe v. Wade, and the "emanation from a penumbra over the Bill of Rights".

Lawrence v. Texas, and whatever BS Kennedy came up with to justify his invention of a right to homosexual sex.

Revenant said...

Um, greg... Ann already pointed out that the emanations/penumbras line isn't FROM Roe v. Wade.

Saint Croix said...

you still haven't figured out the difference between "constitutional argument" and "Supreme Court ruling"

When the critics of Roe say that it is badly argued, and the defenders of Roe feel the need to create additional arguments that are not in the opinion, we can safely assume that the opinion of Roe, in and of itself, does not seem to be satisfying anybody.

Saint Croix said...
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Saint Croix said...

As plausible as the argument that your toe is a person entitled to the equal protection of the laws.

Not sure what a baby and my toe have in common, actually. Is this a reference to the size of the unborn? "She's as small as your toe."

Actually, she's smaller than my toe, and then she's about the same size as my toe, and then she's quite a bit bigger than my toe. This is why nobody in Carhart made analogies to my toe. That would seem rather stupid.

If size is the important biological factor, should women be defined as second class citizens, since they are on average smaller than men? That's the way the pagans decided these things. Okay with you, Rev?

And of course babies are even tinier than women. Is your size argument just a fascist observation that strong people make the rules, and weak people get the knife?

Or do you think that a baby who is bigger than my toe is a person entitled to the equal protection of the laws?

Justice Blackmun argued that babies don't vote or run for office, so they're not people. Do you believe that? Can we kill newborns, Rev?

Why is a tiny preemie in an incubator a person, while a seven-pound baby in a uterus is property?

The preemie is smaller, Rev.

Here's a picture of a preemie, next to a man's finger. Is she sub-human property?

Nathan Alexander said...

A toe does not have a unique genetic signature. A fetus does. A fetus is dependent on the mother for life, but separate from her genetically.

Just like a 1-year-old child, and exactly not like a toe.

Revenant, your arguments are based on incoherent premises, and developed using distinct logical fallacies.

Are you really a lawyer? If so, it is an unfortunate reflection n the lack of efficacy of legal education AND the bar system.