Commentary Questions for Kavanaugh

Senate Republicans and Democrats are at daggers drawn over confirmation of Brett Kavanaugh to the Supreme Court. Instead, they should unsheathe some questions designed to illuminate the excitement of constitutional reasoning.

The Constitution vests in Congress the power to tax. Presidents, however, unilaterally impose taxes (tariffs) because Congress has delegated to presidents vast discretion in imposing protectionism. Should the court protect the separation of powers by enforcing on Congress a non-delegation doctrine?

In the 1905 Lochner case, the court struck down a state law limiting bakers’ work hours because it infringed workers’ and employers’ liberty interest in making consensual contracts. Assuming, as is patent, that this law was rent-seeking by unionized bakers and bakeries -- that it was written to protect their interests, not public health and safety -- was Lochner correctly decided?

Dissenting in Lochner, Oliver Wendell Holmes said the Constitution “does not enact Mr. Herbert Spencer’s ‘Social Statics,’” a book advocating laissez faire economic policies. However, because laissez faire is what freedom looks like in economic life, is there some sense in which the Constitution, the purpose of which is to enable a free society, does foster it?

In 1958, the court invalidated, as an infringement of freedom of association, an Alabama law targeting the NAACP by requiring disclosure of organizations’ membership lists. The court said anonymity was necessary to shield NAACP supporters from dangers. Given today’s instances of individuals injured because of their political affiliations, are mandatory disclosure laws problematic?

Are there constitutional limits on the admissions policies that public colleges and universities can use to ensure “diverse” student bodies?

The 1978 Bakke case involving racial preferences in admissions said that race can be a “plus” factor for certain government-preferred minorities. Are there constitutional principles controlling decisions about which groups are to be preferred and about tailoring preferences?

In 2003, when the court affirmed the constitutionality of racial preferences in university admissions, Sandra Day O’Connor, writing for the majority, hoped such preferences would be unnecessary in 25 years. So, do they become unconstitutional in 2028?

William Rehnquist was an early and vehement critic of the court’s 1966 Miranda decision that created the right of arrested persons to be notified of their right to counsel and their right to remain silent. He said the Constitution does not require this, which impedes effective policing. But when a 2000 case gave the court an opportunity to reverse Miranda, Rehnquist wrote for the majority in upholding it, 7-2: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, we do not believe that this has happened to the Miranda decision.” Does similar reasoning apply to Roe v. Wade?

In Roe, the court distinguished different degrees of abortion rights in the three trimesters of pregnancy. What would the constitutional law of abortion be if the number of months in the gestation of a human infant were a prime number (e.g., 7 or 11)?

What principles should limit stare decisis (“to stand by things decided” -- respect for precedents)? In its 2005 Kelo decision concerning the Takings Clause (“nor shall private property be taken for public use without just compensation”), the court said government can seize property for the “public use” of transferring it to wealthier private interests who will pay more taxes to the government. Does this precedent merit much respect? Is it pertinent that Kelo was decided 5-4?

In 1995, the court ruled, 5-4, that a state cannot limit by statute the number of terms members of the U.S. House of Representatives or Senate from the state can serve because such term limits create “additional qualifications” for such offices beyond those enumerated in the Constitution. Clarence Thomas, dissenting, said: The Constitution, which only sets minimum eligibility requirements, is silent about the state’s power to set term limits, and its silence is no bar to actions by the states or people. Given the states’ reserved powers affirmed by the 10th Amendment, they “can exercise all powers that the Constitution does not withhold from them.” Was Thomas correct?

Finally, to serve the government’s interest in a healthy workforce, and its interest in minimizing the substantial effect of health care costs on the nation’s commercial vitality, could Congress, under its power to regulate interstate commerce, require Americans to eat their broccoli? If not, what principle limits Congress’ Commerce Clause power?