28 May 2017

Rights Said, Fred

Context matters to meaning. Pretending otherwise leaves one no better off than Fred Korematsu… or Right Said Fred.

The Trump travel restrictions implicate a difficult — and historically ugly — aspect of jurisprudence that our appellate courts (and our Supreme Court in particular) have gotten wrong approximately 80% of the time that they have confronted it. It breaks down into two parts, both of which can create difficult decisions that appellate courts would just rather not deal with.

What part of the nonofficial context of an official action is admissible evidence, preserved for appeal, of the intent behind that action?
How much evidence (of any kind) does it take to overcome the presumption that policies adopted by elected officials were adopted in sufficiently good faith that the courts may reject the policies on rights-based grounds?

The Fourth Circuit's decision Thursday in IPAR just makes this two-step inquiry more obvious than most… if far from explicit. Or clear. Or easy.

There are several sources of this problem. One is that judges (and, more broadly, the legal profession) don't understand — or care — about the distinctions among "fact-gathering process," "fact," and "proof." I realize that's a pretty broad smackdown, and that there are a few exceptions… but it makes a difference even when "fundamental rights" are not directly at issue. The judiciary and the profession have so little personal experience with the process of rigorous fact-gathering that they overly discount lab technique, contaminated samples, poor recordkeeping, confirmation bias, and overt fraud — except, perhaps when some combination of the above rises to a level that would shame a Bond villain, such as overt insertion of religious doctrine into public schools in an overt effort to ensure conformity of thought. But these rare exceptions occur almost entirely at the trial-court level when they do at all. Even when it's excrutiatingly obvious — that there is no possible explanation but for Bondesque villainy — appellate courts just won't go there, such as Santa Fe Ind. Sch. Dist. v. Doe (<SARCASM> it was entirely the kids' decisions, untainted by any parental pressure to conform to majority religious belief in the community </SARCASM>) and darker self-inflicted wounds like Korematsu, Plessy, and Dred Scott.

The inquiry noted above is also one way to understand the late Justice Scalia's disdain for so-called "legislative history." He answered the first question "none" so that he never had to even ask the second question. The nicest thing that I can say about this is that it respects the limits on judicial review too much by presuming not just that elected officials tend to act in good faith and therefore should not be second-guessed, but by presuming that they always do so and therefore are never subject to second-guessing. (Except, that is, when the "elected officials" in question are state prosecutors — the one class of government actors Justice Scalia consistently did subject to substantive review for their good faith.) I reject this view because, thanks in part to that tour as a Protocol Officer, I know too many of Those People: Elected officials, appointed-and-confirmed-by-the-Senate officials, and apparatchiks. Far too many to accept a blind, or even broad, presumption of "good faith without improper pretext." And that's primarily because they're human (most of them, anyway), not just because I agree/disagree with the particular pretexts.

This refusal to examine legislative (or executive) motivation matters to authors and others in the arts in a very direct manner. Consider, for example, the foolishness and invidiousness of 17 U.S.C. § 201(b):

Works Made for Hire.— In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

Now combine this with the definition of WFH found in § 101, and the actual legislative history of this clause. The constitution grants Congress the power to protect authors (Art. I, § 8, cl. 8), but § 201(b) redefines "author" to mean something that no native speaker of English would recognize as an "author": The patron. We recognize "Leonardo da Vinci" instead of "Ludovico Sforza" for good reason. Congress chose to do otherwise — under immense pressure from, well, patrons — but its "good faith" in doing so has remained largely unquestioned.

What these disparate examples demonstrate is that these are hard questions. Unfortunately, since Justice Warren left the bench there has been an increasing tendency for the courts to evade hard questions, usually on the premise that those questions are for the elective branches. Sometimes, though, there really isn't an opportunity to discern elective anything. "True foreigners" were breathtakingly rare in the US of the 1860s more than a mile or two from a seaport or clearly delineated border. Just why, then, does the Fourteenth Amendment's Equal Protection Clause limit itself to United States citizens? It probably has at least somewhat to do with the occupants of this continent who preceded the Northwest Europeans… but one can't discern that from what passed for an official record in the mid-nineteenth century. And that's wrong, but by burying it elsewhere so it's harder to get into evidence, it's not a clear concern.