Logic and Empathy

I might have commented on Ed Fallone’s post regarding the role of logic in Supreme Court decisions, but there is nothing in the post with which I disagree. But I do think that it raises two additional issues, one of which has been the subject of much recent popular conversation.

President Obama’s stated preference for judges with “empathy” has been a jumping-off point for a variety of conservative versus liberal debates on constitutional interpretation. Folks who tend to think like I do on these matters have roundly criticized the President for suggesting that judges ought to abandon the rule of law in favor of preferred results.

But the real debate, in my view, is not about whether empathy is a desirable quality in people and judges, but what role empathy ought to play in, to borrow from Ed, seeking “the logical consequence of undisputed first principles, the overall structure of the document, and prior interpretations.”

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Why Judges Aren’t Legislators

I have not yet had a chance to blog on Judge Sarah Evans Barker’s intriguing Hallows lecture, but I have always been a bit uneasy about judges advocating abandonment of the traditional tools of the trade when they lead to a result that does not “make sense” or is “unworkable.” I don’t say that it can never be done (as Justice Scalia has said, “I, too, am a sinner”), but it is a principle with no readily defined stopping point.

So what, you may ask, does this have to do with Attorney General Van Hollen’s Advisory Memorandum stating that there is a constitutional right to openly carry firearms?  Well, there is a history.  In 1998, the voters amended the Wisconsin Constitution to create an very broad right to “keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”  This is, to put it mildly, in tension with Wisconsin’s extraordinarily broad prohibition of concealed carry.  There are virtually no exceptions, and there is no provision for the issuance of permits.

When first faced with this conflict, the Wisconsin Supreme Court observed that it was “anomalous.” One might have expected that the anomaly would have been eliminated by declaring the statute to be unconstitutional in its overbreadth and placing the onus on the legislature to draft a more carefully tailored law. But the court, apparently concerned about unlimited concealed carry, did not do so.

Rather, it decided to proceed on a case-by-case basis, deciding when the need for security was compelling enough to result in constitutional protection for concealed carry. Briefly (and at the risk of some oversimplification), you can conceal your weapon if you run a store in a high-crime area, but not if you transport money to the bank in a small town and not if you simply live and travel in a high crime area.

In so holding, the court emphasized the particular problems associated with concealment and noted that a gun owner has other options.

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A Broader Question From a Questionable Case

I am not sure just what it is with the Thomas More Law Center, but since Ed Thompson left, they’ve done some strange things. First was a silly law suit challenging the TARP act because some of the recipients had shariah-compliant lending programs. Now, it has filed suit complaining that the Department of Homeland Security report on the “dangers” presumably presented by some ill-defined assembly of right-wing groups violates their First and Fifth Amendment rights.

To be sure, the report is an embarrassing piece of work, essentially saying that there are right-wing groups who feel very strongly about a number of issues and, even thought there is no evidence that any of them are planning any violent or unlawful activity, . . . you know, they could because there has been domestic terror associated with the right wing in the past. What is particularly disturbing about the report is the broad brush with which it treats “right-wing” groups. It takes little or no care to distinguish groups that are seen to be, in the report’s words “anti-government” or opposed to “abortion” or “immigration” from those unnamed and, apparently, so far nonviolent groups that might suddenly become terrorists. There is little guidance for law enforcement agencies receiving the report. It conveys little information other than the supposed need to monitor “right-wing” political groups. It certainly could move some official somewhere to questionable conduct, as it apparently already has.

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