116. Fatuity watch

Last fall the Wisconsin Supreme Court issued one of those opinions, very faddish these days, in which the court declares that the state Constitution has some secret meaning perceptible only by those with the shining.   (Though I have to admit that just making this stuff up is a lot easier than the amendment process.  And you avoid all that distateful voting stuff, too.  All those plebes.)  The concurring opinion by Justice N. Patrick Crooks includes this paragraph:

¶88     "New federalism" is a concept embraced by both liberals and conservatives. "For the conservative, state constitutionalism represents the triumph of federalism; crucial decisions about the apportionment of rights and benefits are decided by state courts responsive to local needs, rather than by a distant United States Supreme Court. . . ."   Stanley Mosk, State Constitutionalism: Both Liberal and Conservative, 63 Tex. L. Rev. 1081 (1985).  Clearly, "new federalism" represents the intersection of "conservatives' concern over federalism and states' rights" with "the liberals' concern over safeguarding individual rights."  Id. at 1092.

This is vacuously, smugly, and unconsciously foolish on so many levels one hardly knows where to begin.   Conservatives are uninterested in safeguarding individual rights?  Tell that to the NRA, which is all about nothing else.  (“When the Second Amendment is only as good as your mayor or your police chief says it is, the NRA must take action.”)  Tell it to the Institute for Justice, whose Minnesota chapter has a website announcing:

IJ-Minnesota will litigate in courts in Minnesota and around the country to establish greater protection of liberties under State Constitutions and strengthen rights under the Federal Constitution.

IJ-Minnesota protects the foundational rights of the American Dream: property rights, free speech, educational choice and economic liberty.

In case those code words aren't clear enough for you, the IJ's main website spells it out.  It's a libertarian outfit, ideologically opposed to the regulatory state.   The whole stage-managed uproar about Kelo v. New London was all about protecting constitutional rights.  And which political party adopted this platform, oozing as it does with concern for individual rights?

We stand for social and economic justice, which, we believe can be guaranteed to all citizens only by a strict adherence to our Constitution and the avoidance of  any invasion or destruction of the constitutional rights of the states or individuals. ...  We unreservedly condemn the effort to establish in the United States a police nation that would destroy the last vestige of liberty enjoyed by a citizen.

And then are we seriously to believe Justice Crooks that conservatives, such as - oh, I dunno, Antonin Sclia - never write opinions championing individual rights?  (See post 55.)   How confident can we be in his assurance that those right-wingers will never write opinions like Kyllo, Crawford and Blakely, which are all about enforcing the constitutional rights of individuals?

On the other side of the ledger, to suggest, as Justice Crooks does, that state courts are "responsive to local needs" is almost insulting to the state courts.  Other members of the Wisconsin Supreme Court have been at pains to say that the judiciary's task is almost exactly the opposite - to refuse to respond to local conditions - as in this passage from a 2003 opinion (joined by Justice Crooks) quoting a speech at Wisconsin's constitutional convention, back when orators still knew how to orate:

"It is the vitality of the representative system that the representative should thus forever look back from his own judgment to the will of his people, and thus anxiously ascertaining should faithfully execute the delegated will of those who chose him for his power and inclination to obey them. But that which is the vitality of political representation will be the corruption of the judiciary. . . .   Elect the judges by the people, for short terms, with the hope of reelection or promotion--sir, the judge will cease to be the representative of truth and right and justice alone; he will be the representative of the people and will represent the popular judgment, when there is one, not his own."

Besides, it's just not true that state courts can "respond to local conditions" by deciphering the messages hidden in the texts of their state constitutions.  The ratchet turns only one way.  They can further reduce the flow of truthful information to the jury, but they can't increase it.

Stanley Mosk, who wrote the original law review article, had the excuse that he was writing 21 years ago.  Crooks' only excuse is that he (or his clerk) was writing without thinking.  But how to explain the other justices joining his concurrence?