There has been much attention recently on the Republican decision to block President Obama’s nomination of law professor Goodwin Liu for the United States Court of Appeals for the Ninth Circuit. Attention is focused on his allegedly out-of-the-mainstream legal views.
But to this ex-law professor, Liu doesn’t look that unusual. He looks like just another of the dreary succession of tenured law professors who waste their considerable talents spinning “interpretive theories” to justify ever more federal power—particularly in areas outside the federal government’s constitutional responsibility. If you have ever studied Roman law, you will recognize their predecessors in second and third century imperial jurists who tortured the law in their efforts to explain why the Emperor should be all-powerful.
Liu has a long string of publications in prestige law journals, and he writes with the sort of obscurantist left-speak the students who edit those journals love. Here’s sentence chosen pretty much at random from his 2008 Stanford Law Review article, Rethinking Constitutional Welfare Rights:
“My thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcendent moral principles for an ideal society, but to the culturally and historically contingent meanings of particular social goods in our own society.”
Content aside, that sort of muck should disqualify anyone applying for a job, such as a judgeship, where you have to do a lot of writing.
By the way, here’s a translation of Liu’s sentence into English: “I think judges should make up welfare rights as they go along.”
I agree it is "muck." I actually found the article and read about a third of it. It, like most Law Review articles, employs about 2-3 times the verbiage necessary to make the author's point.
Nonetheless, he is referring to a normative view of welfare and how that view ought to be used in cases where welfare issues are under review. There is no doubt that some (but not all) of these issues are Constitutionally legitimate in the aftermath of the 14th Amendment.
If no state can deny people within its jurisdiction the equal protection of the laws, we have to get down to some nitty-gritty to see what that means. I know it's just a hunch, but I bet it has something to do with allowing freed slaves to have equal dignity with their former owners. Yet, the way the rule was written was to make it apply in a more general sense – a non-discriminatory one. We can't have one law that says, "Asians must be residents for one year before they can run for office" and another that says, "Non-Asians must be residents for six months before they can run for office."
I have seen arguments that "protection" does not mean an affirmative right to be free of discrimination, but I don't see support for that argument. The hypothetical above illuminates my point. I don't know of many people who would argue that the two laws in my example are Constitutional (maybe there are a few out there). If laws like those could stand, then, all we would need to do is have laws that said, "No negro may use public roads." It would be rather easy to thwart the entire purpose of the Emancipation, and any good Originalist would recognize that those who originally ratified the 14th did not do so in order to leave it capable of being rendered practically meaningless at a few strokes of some pens.
So, could the laws in the example be stricken as violative of privileges and immunities of US Citizens? How so? Where else would these P & I's come from, if not the equal protection clause? What about denial of due process? I suppose you could argue it violates due process if your belief is that due process precludes the right of legislators to act discriminatorily – as it would not be "due" process, but purely arbitrary. Even here, it opens the door to federal oversight, as we have seen time and again.
So, if the state cannot discriminate in that way, that leads us to those examples where states place residency requirements on people to qualify for state welfare benefits. That necessarily leads us down that slippery road of which benefits more clearly fit the category of necessities versus niceties – such as food stamps and medical care vs. primary education and college in-state tuition rates.
There is no doubt in my mind how we wound up where we are. It's because life is complex and no "abstract" principle will ever fit it. The basis of laws is to discriminate. That's what laws do. The question is really, "Which forms of discrimination are permissible?" Once you head down that road, it's a long, winding journey.
So, aside from welfare issues that stem from a federal welfare system, these issues still arise in the context of state-funded programs and how they are managed under the scrutiny of the 14th Amendment.
It kind of sucks that it has to be that way, but that's what happens when somebody claims authority to tell somebody else how to exercise justice. We Southern states lost the war and acceded to that authority. So, now, we have to live with it. It goes far, far beyond slavery, as I have shown in the examples. That is the problem. It is not as simple as turning back the clock and promising not to retreat to slavery. Having signed up for the 14th, we have a whole new set of issues.
And yes…. the feds need to stay the heck out of funding welfare. It's one thing to regulate state programs with some minimal oversight, but quite another to tax, fund, re-distribute and so on….
I find these issues very interesting. I don't claim to know "the" answer. In fact, I don't think there really is one. But if anyone believes the feds don't have authority to oversee state welfare programs pursuant to the 14th, I'd like to know why they think that.
Read Raoul Berger's Government by Judiciary…it explains the intent of the 14th Amendment and how it has been twisted by the 20th and 21st century courts.
There are only so many hours I can dedicate to searching things where somebody says lies the answer. Briefly, what about the 14th would allow a state to enact 2 laws: (1) "Asians must reside in this state for one year before becoming eligible to run for a public office in this state." (2) "Non-Asians must reside in this state for six months before becoming eligible to run for a public office in this state."
I suppose the article/book you reference will provide the answer and you know where. Rather than me reading it to find where it might be, just point me to where it is.