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Like a fair number of other people, I'm completely captivated by Bryan Garner's videotaped interviews with Supreme Court justices on effective brief-writing. There's no shortage of insights to be gleaned from these discussions -- particularly from the Chief Justice. Of all of the interviews, however, Justice Scalia best summarized what's at stake in brief-writing with an anecdote from his D.C. Circuit days (roughly three and a half minutes into his first interview segment):
Let me say first of all how important lawyers' briefs are. One of the happiest events of my life was when I was sitting on the Court of Appeals for the D.C. Circuit, we had a lot of administrative law cases, which tended to be long cases with many briefs, and I remember one case we had, involving standards for automobiles. And there were a lot of intervenors and amici and what-not, and I read brief after brief, and I was really getting pretty punchy.
And I picked up this one brief, and all of a sudden it really captured my attention: Everything was so felicitously put, it was elegant, it was crisp, you could see where the writer was going.
And I said, who wrote this brief? And I turned over the front and it made me so happy to see that it was one of the best lawyers in Washington. And it made me very happy to know that you can tell the difference, you can really tell the difference.
(From what I can tell, he's referring to Center for Auto Safety v. Peck, 751 F.2d 1336 (D.C. Cir. 1985). I won't try to guess which brief was his favorite.)
Brief-writing is the most-enjoyable part of my enjoyable job. What I wouldn't give to someday write briefs that impress judges as much as the unnamed intervenor's brief impressed then-Judge Scalia.
A Side Note: Justice Scalia and his interrogator, Bryan Garner, are collaborating on a book on effective advocacy: Making Your Case.
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On Monday, Treasury Secretary Hank Paulson unveiled the Bush administration's "Blueprint for Stronger Regulatory Structure," its latest response to the sub-prime mortgage crisis and severe case of influenza affecting America's financial markets. No surprise, the plan calls for some fairly sweeping changes in the way the SEC, Federal Reserve, and other agencies regulate America's financial markets. According to the Post:
. . . Treasury Secretary Henry M. Paulson Jr. said he also plans to ask Congress this year to set up a new agency to oversee mortgage lending and take action to enhance his department's role as the chief regulator of financial markets.
The Treasury's initiatives seek to sweep away the current patchwork of regulation over the coming decade in favor of three more powerful agencies to oversee banking, market stability, and consumer and investor protection. The plan's authors have argued that such changes are needed because government oversight has not kept up with the pace of financial innovation.
Paulson acknowledged that the recommendations would not prevent future crises but said that they would make government more nimble in addressing them. "We should and can have a structure that is designed for the world we live in," he said in a speech at the Treasury.
Uh huh. So, let me make sure I have this right. The administration embraced deregulation and free market theory as if it were handed down from Mt. Sinai. It then sat idly by while the sub-prime mortgage market imploded, and watched as that market's failure trickled up into other sectors of the economy. All the while, this admistration spent taxpayer money like a drunken sailor (to use Sen. John McCain's memorable phrase), running up the federal debt and mortgaging our grandchildren's future. And the administration pursued wars in Iraq and Afghanistan likely to cost the country $3 trillion. And now, they want the people trust the Bush administraiton by giving it more power over the American economy?
Wall Street, meet the unitary executive. Another day, another crisis, another power grab.
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DealBreaker offers possible reasons underlying disparate reactions to the Treasury Department's well-publicized new reorganization proposal.
Pure conjecture? Surely. But entertaining conjecture nonetheless.
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When law firms institute family-friendly policies (flex hours, reasonable work loads), who benefits? That depends how you measure it. Mothers at these firms are neither more nor less productive than mothers at other firms, as measured by billable hours, according to a new study of 670 lawyers in Alberta, Canada, by sociologists Jean Wallace and Marisa Young. But fathers at family-friendly firms are less productive than fathers at old-style firms. At the same time, fathers with help at home, like stay-at-home wives and weekly cleaning services, increase their productivity at work, whereas women with stay-at-home husbands and cleaning aren't more productive.
What's going on here? Wallace and Young argue that fathers tend to consider breadwinning an all-important family contribution, so when they have more help at home, they respond by working harder. Also, men are far more likely to have a stay-at-home spouses than women are. Women, on the other hand, seem to sink more time into their kids, if they have it.
The happy spin from the authors is that the family-friendly policies aren't hurting the firms vis-à-vis their women employees, which makes the policies seem less costly. (Their original hypotheis was that the family-friendly firms would find that mothers were less productive, since these policies are often seen as the path to mommy tracking.) The finding about the men working less, though, throws a wrench into the discussion, doesn't it? Mothers are soldiering on for the firm, in gratitude for the break from crazy expectations or for whatever reason. Men are not. The authors ask, "How are men using their free time as a result of working fewer hours?" and then cite other evidence that men may plow their time into more leisure activities. Is that perfectly understandable, or is it shirking? Who's modeling the good behavior here?Given how hard law-firm lawyers often work, are fewer billable hours, whatever the equities, a reason to celebrate? It's hard to tell, but the gender split is there to be mulled over.
Over at Legal Blog Watch, Carolyn Elefant argues that billable hours are a bad measure of productivity. That makes sense to me as a reason that this study may not translate to other professions in which parents can argue they work more efficiently, squeezing more work into less time. But it doesn't seem like a salient criticism of these findings, since hours are firms' explicit measure of productivity.
I posted a version of this earlier over at XX factor, and now I'm curious about the reception to these findings in this neck of the woods.
Read more about the billable hour and family-friendly practices on Convictions, and a discussion on the same topic at our women's blog, XX Factor.
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The new issue of the Legal Times ($) includes several Washington law offices' explanations of their respective efforts to "go green." The firms' solutions are laudable if, often, commonplace: more recycled paper and double-sided printing, shifting communications from hard copy to electronic copy; energy-optimized computers; even encouraging "voluntary 'green pledge[s]'" from attorneys and staff.
Still, when it comes to going green, large law firms are at a distinct disadvantage to new solo practices. While most large law firms, by tradition or force of habit, rely on endless volumes of paper records and archives, tech-savvy solo practices may well go virtually paperless.
Of the many competitive advantages that large law firms boast over their solo counterparts, going green almost surely is not one of them. Getting a "biglaw" firm going as green as these solo shops strikes me as something akin to teaching an elephant to dance -- possible, but requiring a fanatical degree of commitment.
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In his new book, Eric Lichtblau accuses Rep. Jane Harman of having supported the NSA wiretapping program until it was revealed, and then hypocritically opposing it thereafter. In defense, Harman gives this story, which sounds plausible:
1. She and seven other members of Congress were told the basic outlines of the program.
2. They were instructed that they could not tell anyone else -- including their staffs and other members of Congress.
3. They were assured by the Administration that the program "complied with the law and that the senior-most officials in
the Justice Department conducted a full legal review every 45-60 days."
4. "The Gang of Eight was not told – nor did it occur to me – that the
Administration was violating FISA, despite Congress’ clear legislative
intent when FISA was passed that it was the 'exclusive means' for
monitoring the communications of Americans connected to foreign
intelligence."
5. When the New York Times broke the story, Harman "was finally free to consult constitutional experts on the legal issues
it raised. My call to a former CIA general counsel that Saturday
provided the first inkling that the program was in not compliance with
FISA but was conducted pursuant to claims of 'inherent' executive
power. To this day, I have not been shown the memoranda produced by the
Office of Legal Counsel to support the basis for the program!"
6. Once she learned that the program was a violation of FISA, she opposed it.
This is basically the exact, same sequence of events that occurred when Harman learned of the CIA interrogation program: The problem is systemic. (Really, the parallels are uncanny. Go back and read that post.)
Actually, there are at least two very basic, huge problems here:
First, Harman and the other seven members of the Gang of Eight themselves are not only far, far too cozy with the intelligence community they are overseeing, and far too credulous of what they are told (even after repeated incidents such as this one), but, more to the point, they know far, far less about the law they are overseeing than do the officials in the Executive branch who are implementing those laws. As soon as the NSA program was publicly revealed, literally hundreds (if not more) lawyers and others realized that its legality was highly questionable -- and we all presumably had far less knowledge of the details than Harman did. But for some reason, it did not even occur to Harman that the program described to her might be legally tenuous. She took DOJ's word for it.
Second, and more importantly, even if Harman had had doubts about the legality of the program, what could she have done about it? She couldn't speak to her staff, to her colleagues, or to anyone else well-versed in FISA or the law generally. If she had insisted on seeing the OLC memoranda -- which she certainly should have done -- what could she have done when the Administration refused to provide them (as it has continued to do to this day)? If she had told her staff and colleagues, the Administration would have ceased to brief her on classified matters (notwithstanding that that would be unlawful) -- and then the whole point of the oversight enterprise would have been defeated.
As I've previously written, t
Continue reading at Balkinization . .
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Paying due respect to John Adams, Esq., the founder now coming to life in a teleseries, Adam rues the absence today of more than a "lucky few" capable of "deep political, philosophical, and legal argument." An HBO subscription's outside my monthly budget; nonetheless, I've listened to the David McCullough book on which the series is based, to the Ron Chernow work on Alexander Hamilton that Adam also cites, to a work on Thomas Jefferson, on whom Orin chimes in, and to a number of other founders' biographies. Thus I add to their thoughts my own "modest contribution."
It's an understatement to say that the achievements of these fellows were awe-some, in the deep meaning of that word. In so doing, however, we ought not to discount our generation of attorneys. Many of us came to law school broadly schooled in the arts and sciences of human endeavors like politics, literature, logic, biology. Perhaps it is only a lucky few of us who've studied Latin, as the founders typically did. (I thank my father for my own good luck in that regard.) But many of us have far more than a passing acquaintance with still-spoken languages other than English -- and that is more, McCullough's book revealed, than Tout Paris would've said of John Adams or, for that matter, of Ben Franklin.
So why the dearth of depth in legal argument and practice?
Surely some blame may be cast on contemporary legal culture. 1st, there's the way that we learn and practice. Endeavoring to extract precise "holdings," law today tends not to privilege deep thoughts that may lie in the text, subtext, or context of prolix judgments. That, in turn, tends to give little cause for consulting any dog-eared schoolbook we might've carted with us from one move to another. 2d, as Adam notes, there's the time that we're expected to devote to this narrower-scoped legal practice. Electronic gadgets have made our work truly 24/7. It's hard to keep up on Aeschylus -- check out Robert F. Kennedy's off-the-cuff quote of that ancient Greek the night that Martin Luther King Jr. was killed -- when the BlackBerry's beeping.
But let's not forget some important caveats. 1st, Adams, Hamilton et al. were the "lucky few" of their times; far more early Americans lived out lives of far less achievement. 2d, many of these men owed to others their leisure to think as well as act, to pen prose even as they practiced law. John Adams owed much to Abigail Adams, who, McCullough wrote, well managed the farm and household in Braintree in order that her husband might focus his energies elsewhere; in turn, all the Adamses owed much to domestic servants. Abigail's father kept slaves, and of course slaves were forced laborers on the lands of many other founders. Theirs was an economic arrangement this country did well to abandon.
Even as we hold our founders' achievements in awe, then, we must remember their full, complex, and not always laudable stories. And we should not sell ourselves short. Sure, we should make more use of our own breadth and depth of knowledge. At the same time, we should take much comfort in the rich diversity, in class, sex, age, ancestry, and experience, of all of us who today think about, write on, and practice the law.
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continue reading at Balkinization . . .
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In this bloggingheads.tv episode involving my co-bloggers Dahlia Lithwick and Richard Ford (I checked it out because I wanted to confirm that they have corporeal existences and are not merely algorithms invented by Slate's IT staff), Dahlia accuses the Bush administration of hypocrisy for claiming, in the Omar and Munaf case, to be concerned about respecting the sovereignty of foreign countries. The Bush administration, after all, did not care so much about the sovereignty of Iraq as to refrain from invading that country. Iraq aside, is it hypocrisy for a nation to profess respect for international law but then to violate international law whenever doing so is in its self-interest, when all other nations are doing the same thing?
Hypocrisy is something more than dishonesty: not all liars are hypocrites. It seems to have more to do with lying about one's character. A hypocrite holds himself out to be sincere, courageous, respectful, honorable, and in all other respects virtuous, when he or she is none of those things. However, often hypocrisy is a socially necessary trait, and we frequently observe groups of people profess respect for norms, ideals, or aspirations that no one obeys. In such cases, you will often find a few individuals who refuse to go along with the game and pronounce themselves outraged that people are not acting consistently with their words. We need a new word to describe these critics-people who confuse ordinary hypocrisy (which is bad) and social hypocrisy (which is necessary and unavoidable), and accuse everyone of hypocrisy because they act like human beings. Let me propose a new word for this trait: literocrisy. The literocrite condemns people for uttering social lies that no one believes.
When Captain Renault, says "I'm shocked, shocked to find that gambling is going on in here!", he's not being a hypocrite, he is satirizing the literocrite. When everyone understands that gambling is going on, even though everyone professes not to believe that gambling is going on, only the literocrite is outraged. The literocrite believes that people should always be candid about their motives, even when there are good social or political reasons not to be.
Governments understand that they cannot always act consistently with public opinion, in their own countries and elsewhere. And so governments rarely give candid explanations for their actions. This is driven by political necessity: if your support is derived from a coalition of diverse groups, you want each group within the coalition to believe, as long as possible, that the government serves their interests. And so when the groups' interests converge in favor of a particular policy, but are based on different ideological commitments, the government wants to act consistently with the overlapping interest without risking controversy by taking a position on which of the ideological commitments it cares about--hoping to put that off till a later day when no such ambiguity remains possible. When critics detect inconsistencies between the words and the behavior of governments, one can imagine the government officials saying to each other: "What literocrites! Do they really believe that a functioning government can always be honest about its motivations?" And, indeed, because some journalists are not literocrites, but understand exactly what is going on, while realizing that there is good copy in pointing out government hypocrisy, we should recognize that these literocrites are also hypocrites-professing to be literocritic when they really are not.
To be sure, some people are fooled by these governmental statements. The hard case arises when insiders understand the lie and outsiders do not, but most observers would agree that the lie is socially necessary and probably harmless. Here, there is a narrow line between literocrisy and mere truth-telling.
One of the great sources of literocritic confusion is the law. Law professors (or most of them) have believed since the legal realist movement of the 1920s, that when judges decide cases according to the "law," they are in fact smuggling in personal and political biases, whether they know it or not. Judges virtually never admit that this occurs. Many judges may not believe it, statistical evidence notwithstanding; others probably believe that admitting that their biases might influence their decisionmaking would weaken the legitimacy of the courts, even though bias is unavoidable and there is no realistic solution to the problem, and even though most (?) people suspect that judges have biases. When journalists detect biases in judicial opinions, and express outrage, and accuse the judges of hypocrisy, they sound like literocrites to jaded law professors like me and Jack-who says that he was not "shocked, shocked" to hear from Dahlia that Supreme Court justices' political biases were on display during oral argument.
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Courage, Orin! Your question was a good one and Jack did not answer it. He draws an artificial distinction between questions of constitutional legitimacy ("Rather, living constitutionalism is primarily a theory about the legitimacy of the constitutional system taken as a whole: how and why constitutional doctrine changes in a way that preserves its legitimacy over time.") and questions about how justices should decide cases. He insists the questions are separate, but they are not--at least, not if the justices care about the legitimacy of the constitutional system, as they most certainly do. Here's Justice O'Connor (Planned Parenthood v. Casey), who even uses the word "legitimacy" over and over again.
The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States, and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money, and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means, and to declare what it demands.
The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is [505 U.S. 833, 866] obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.
... However upsetting it may be to those most directly affected when one judicially derived rule replaces another, the country can accept some correction of error without necessarily questioning the legitimacy of the Court.
... That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its [505 U.S. 833, 867] decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
... So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. ...
... It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.
Jack himself has subterranean doubts about this distinction, which keep bubbling to the surface. "Giving advice to judges is not really the goal of the theory." "It is probably best not understood as a theory advising judges...." "It may not be advice directed to individual judges, or, if it is, it must be far more than that." It might not be intended as advice, but Jack's theory certainly has implications for judicial decisionmaking--not necessarily that justices should do the politics of the president that appoints them, but that they should do whatever is necessary to maintain the legitimacy of the system. Why he denies, or may deny this, I don't understand, either. And if the implications are odd or don't seem right, that will cast doubt on the theory, even though the theory itself is intended to answer an entirely different question, and even if Jack himself is not interested in the judicial advice question.
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Eric Lichtblau, in an excerpt
from his forthcoming book, confirms that the NSA wiretapping program
was operated beneath an unprecedented and remarkable veil of secrecy.
He confirms Jack Goldsmith's earlier testimony
that the Deputy Attorneys General (Larry Thompson and then Jim Comey)
were not permitted to be read into the program and, more astonishingly
still, that the lawyers at the NSA itself were not permitted to see the
John Yoo-penned legal opinions that provided the basis for the program
the NSA was operating! (I can't even imagine what those meetings looked
like: "No, really -- you guys do
have the legal authority to secretly violate FISA; but we can't show
you the legal theory why that's the case. Just trust us." And the NSA
responded: "Oh, in that case, ok, we'll get right on it." Huh?)
The
story also appears to confirm that the original Yoo legal theory was in
effect that the President could disregard any laws he wished in
deciding how to surveille al Qaeda. How often have we heard this?: "[Yoo's Opinion] was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers."
I
don't think there's much more to be said about this that many of us
have not already said multiple times over -- except that it remains
scandalous that the Congress would even consider the Administration's
requests for new legislation until the Administration has made public
the entire set of OLC opinions on this issue and interrogation
techniques, etc. (redacted, of course, to protect secret NSA
technological capabilities). Congress has quite a bit of leverage here;
they simply seem unwilling to use it.
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Jack, my apologies for not understanding your earlier posts. Reading over your latest post, I now understand that your view is that each Justice should do his or her thing; as long as the decisions are drawn from shared legal norms, the system will work out pretty well over time. I appreciate the clarification, and I'll just repeat that I do think this is really quite similar to Justice Kennedy's view of the Constitution and constitutional change.
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continue reading at Balkinization . . .
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If I understand Jack's account of "Living Constitutionalism" correctly, the basic idea is that (a) Justices will naturally pull the Constitution in the direction of what they see as sound public policy, and that (b) this is a good thing, as we end up with an updated Constitution over time that balances traditional Constitutional values (the rule of law, etc.) with modern needs. In other words, the system actually works pretty well without any fancy theory at all.
Assuming I'm correct about Jack's approach, here are two quick responses:
First, it is quite similar to that of my former boss, Justice Kennedy. As Justice Kennedy explained most clearly in his Academy of Achievement video interviews, his solution to the countermajoritarian difficulty is that the people want the Court to play a modest but important updating role. They want the Justices to use their insight to reinterpret the Constitution so that "every generation can invoke its
principles in their own search for greater freedom." The idea is basically the same as Jack's: The Court both enforces the Constitution against some majorities and yet also updates it slightly in response to changing majority views.
Second, I'm curious about how Jack would advise Justices tasked with deciding cases who need a bit more guidance than Jack's instruction to decide cases "the best way they can." Take the case of Justice Frankfurter, put on the Court by Roosevelt in 1939 back when judicial restraint was considered a liberal position. By the time Frankfurter left the Court in 1962, the Supreme Court's changing caseload had reversed the political valence of Frankfurter's model of the judicial role. Deference to the elected branches had become a conservative position rather than a liberal one. Would Jack have instructed Frankfurter that "times have changed," and that he needed to abandon his deferential approach? If so, why -- because Frankfurter was put on the bench to be a liberal, because new social movements were afoot, or both?
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If we're going to be admiring the Framers for their many diverse talents, as Adam White ably does below in his post on John Adams, then don't forget ol' Tommy Jefferson. Sure, he was a political philosopher, principle author of the Declaration of Independence, State Governor, and the third President But he was also a world class architect, scientist, cryptographer, and inventor. President Kennedy put it well in 1962 when he introduced a roomful of Nobel Prize winners at the White House by saying, "I think this is the most extraordinary
collection of talent and of human knowledge that has ever been gathered
together at the White House -- with the possible exception of when Thomas
Jefferson dined alone."
He was hardly a perfect man, of course, but his range of talents was truly astonishing.
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Tonight, HBO offers Episode Four in the gripping seven-part mini-series, John Adams. No doubt, each viewer takes something different away from the series; here is my modest contribution.
What I enjoyed in the early episodes was seeing such deep political, philosophical, and legal argument coming from a practicing attorney.
Today, of course, our world is much more stratified: the lawyers practice law, the professors engage in abstract legal/philosophical debates, and the politicians debate in the arena of government. Rarely do players cross from one sphere to another, and even less commonly do they occupy multiple spheres at once.
What a far cry from the founding era! John Adams not only entered the political arena while practicing law full-time, he even maintained his practice until December 1777, when he participated in his last case at the bar. (According to The Legal Papers of John Adams, his last case was Penhallow v. The Lusanna, a prize cause in the Court Maritime of the State of New Hampshire. Unbelievably, that case reached the U.S. Supreme Court in 1795.) According to the preface to his collected Legal Papers, he briefly considered returning to full-time practice after his presidential term ended, but never did.
The best example of the founding-era lawyer-writer is, of course, Alexander Hamilton, who despite a full-time practice found the time to write his Federalist Papers -- his contribution to one of the most cogent arguments of political theory in modern times -- on the side! (As biographer Ron Chernow once said at a book fair, "he was moonlighting the Federalist Papers!")
No doubt, both legal practice and the legal academy have changed since the founding era, and it's far-fetched to think that an Adams or Hamilton could have nearly the same impact on legal debate from a full-time practice as they did in their respective moments of achievement. Legal practice is perhaps too time-consuming and lucrative; legal teaching and writing is perhaps too stove-piped and insulated and segregated. The lucky few who exist in both worlds are the exceptions, not the rule.
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Interesting as the debate over FISA has been, I think this report is important -- the first really serious empirical study of inclusionary zoning, the mechanism whereby localities try to use their zoning powers not to exclude low income housing but to ensure its production. The study suggests that a standard line against inclusionary zoning measures is wrong; the evidence indicates that efforts to create affordable housing through regulation do not ironically impede its production, anymore than minimum wage laws invariably reduce emploment opportuinties. In any event, you can read it here.
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Jack defines living constitutionalism as follows (critique to follow):
Under this model of living constitutionalism, successive generations may not reject the Constitution's text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations. ...
This model produces a system of judicial interpretation that is responsive to democratic politics in the long run but not directly controlled by it in the short run. It preserves constitutional law's relative autonomy from politics in the short run while making it responsive to constitutional politics in the long run.
It also involves a system of judicial review but not a system of judicial supremacy. This distinction is crucial: Courts act as a stabilizing force, and hold officials (and especially executive officials) accountable to law, but they never have the last word. The purpose of judicial review in this model is to represent and protect (in as legally principled a way as possible) the constitutional values of temporally extended majorities, and to prevent quick and drastic changes in those constitutional values unless there has been extended and sustained support for change that is reflected in long term changes in constitutional culture.
Moreover, in this model judges do not have to do anything special or out of the ordinary to participate in the process of living constitutionalism. They don't have to be politicians or moral theorists or divinities like Dworkin's Hercules or philosopher kings. They don't have to be smarter, or wiser, or more moral or more farsighted than anyone else. All they have to do, once they get appointed, is to try to decide the cases according to law, in the best way they can. If they just go about doing their jobs, they will, in spite of themselves, participate in the gradual translation of changing constitutional politics into constitutional law. Meanwhile the job of people like me, and Dahlia, and Eric, and everyone else, is to criticize how they interpret the law and to try to persuade other people, and them, that our interpretations of the Constitution are the best ones and that they should agree with us.
I emphasized three features of this theory in the passage. (1) The purpose of judicial review is to protect the values of temporally extended majorities. (2) All judges do is decide cases according to the law. (3) Observers can criticize them for failing to decide cases according to the law.
If I understand Jack correctly, the first feature is the structural aspect of living constitutionalism, while the second and third features are something like normal judging and criticism that occurs within that structure. The lynchpin of the system is that "political" appointment to the judiciary of people with (unavoidable human, partisan) biases that are appealing to the elected officials who select them, plus lifetime appointment, result in the protection of the values of the temporally extended majorities; but the judges themselves just decide cases in what seem to them in the appropriate manner, and the rest of us criticize those judges for violating legal craft values when they do. This system as a whole provides stability while also "changing with the times" in a manner that approximates public values: hence it maintains its legitimacy for the public, which wants just those things.
Jack warms my heart by comparing constitutionalism to markets:
Suppose for example, that we want to design an efficient market. We ask how its design and incentives produce certain types of results, and if it does not, we redesign the market and shape the incentives. We do not spend very much time giving advice to people in the market about how to behave so as to produce efficiency; rather we assume that efficiency arises from the sum of their interactions, and not from each of them following our advice about how to behave. In fact, it may be a mistake to focus primarily on advising individual people about how to behave in the market, although educating people about costs and benefits, might be a good idea; so too much be educational campaigns to shape people's values and preferences. Another example of a focus on systems is our Constitution's separation of powers. It tries to preserve republican government by balancing contrasting interests, under the assumption, as Madison put it, that enlightened statesmen (the sort who would respond to good advice) will not always be at the helm.
I take Jack to be saying that we should distinguish between constitutional design (designing an efficient market) and individual case outcomes (advising someone to charge a certain price). We should recognize that a market may be efficiently designed even if some individuals make bad pricing or purchasing decisions; we should recognize that a constitution may be legitimate even if some judges make bad decisions.
Alas, I don't think the analogy works. If a business sets prices too high, it loses its customers and folds; if it sets prices too low, it loses its shareholders and folds. When it vanishes, another firm takes its place. The business's bad decision doesn't have any effect on the overall structure of the market-the system of property and contract rights that are enforced by courts-or even the market's output.
When a Supreme Court justice makes a decision, however, that justice does affect the system. Jack wants courts to protect the values of temporally extended majorities: that's part of the "structure." But justices can change this structure if they want to. They can, for example, make it harder or easier for Congress to pass laws (for example, by adopting narrow constructions of statutes, inventing new rights, etc.), in this way making it harder or easier for the temporally extended majority to have its way.
Or, to go way back to the beginning of the discussion, when Dahlia was criticizing the Supreme Court for (presumably) making a bad decision in Heller, and Jack wrote a response describing how living constitutionalism works, I (and Dahlia) thought that Jack meant that Dahlia shouldn't bother criticizing the Supreme Court for allowing political biases to influence decisionmaking. If she doesn't like the way judges decide cases in a manner that reflects their political biases, she should join a social movement and effect political change through politics. Now it is clear that Jack didn't mean that Dahlia should stop criticizing the justices. Jack says that Dahlia should go ahead and criticize the opinions; perhaps she'll persuade the justices to change their minds. But Dahlia should recognize that the system as a whole remains legitimate, and that she'll get her day when her political views prevail at the polls.
I think, however, that Jack's theory has more radical implications for Dahlia's job than he says.
To see why, suppose that our system is legitimate precisely because, as Jack says, it allows temporally extended majorities to entrench their political preferences beyond their time in power. And let's say that such a system is not just legitimate; it's actually best or as good as one can hope for (perhaps that's why its legitimate).
Now consider Dahlia's worry that the (future) Heller decision will entrench a politically conservative outcome, one that we won't be able to eliminate until many decades of liberal hegemony occur-long enough to build up a liberal majority in the Supreme Court, while maintaining liberal domination in the political branches.
And suppose that the current conservative majority reads Dahlia's critique and says, by golly, she's right. Let's not find a gun right. Let's instead exercise judicial modesty and allow contemporary political majorities to craft gun control policy on their own.
If Jack is right, then these judges are doing poorly-not at the case-outcome level, but at the systemic, living constitution level-by following Dahlia's advice. After all, if they forsake their opportunity to entrench current conservative opinion, then it will be much easier, than it would otherwise be, for the next generation of liberals to implement their liberal agenda. The justices will be thwarting the political agenda of the currently entrenched majority, and in this way undermining the system of living constitutionalism that Jack celebrates-the system in which parties take turns in power and stability is maintained because parties can partially entrench their policies through the judiciary. They will be failing to serve their political role of "stabilizing force," which is so necessary for maintaining constitutional legitimacy. It would be as though Republican elected officials all started voting Democratic: they've had a change of heart and they don't give a damn for the opinions of the people who elected them. Democrats would be happy in the short run but everyone would feel uneasy about such an outcome. Dahlia shouldn't want to give justices bad advice; she shouldn't want them to act like my imaginary elected officials; she should want the justices to maintain the legitimacy of the constitutional system by serving as a "stabilizing force."
Dahlia (Dahlia!, are you paying attention?), who may, like the rest of us, have partisan views, but also is public spirited, and surely wouldn't want to undermine the legitimacy of our living constitution, should give the justices good rather than bad advice. She should praise conservative justices for entrenching conservative political opinion; praise liberal justices for entrenching liberal political opinion (should we live long enough to witness this happy eventuality); and criticize mavericks who cross party lines. Dahlia, you have been doing everything backwards!
Such a conclusion is not as crazy as it might seem (though it is crazy). In fact, an academic paper proves that, if you accept certain (apparently reasonable) assumptions, the best supreme court is one in which justices engage in partisan activism (to hit you between the eyes with this point, the authors call their paper a defense of "unprincipled judicial activism"). (See here; and for some criticisms by me, here.) The ingenious point of the authors, James Rogers and Georg Vanberg, is that activist supreme court justices, in effect, merely elevate the level of supermajoritarianism in our law-making system. A high level of supermajoritarianism prevents mere majorities from passing laws that transfer resources from minorities to majorities, while allowing laws to go through that benefit everyone (an old Buchanan & Tullock argument). The authors don't acknowledge the implications of their paper for public-spirited journalists and critics, but they are exactly as I state above. If the legitimacy of our system depends on justices acting on their political biases because they were appointed just because they have those biases, then we should encourage justices to act on their biases rather than say "gotcha!" whenever they do. It would be a terrible thing if they rose above partisanship, a real mistake for them to assume the mantle of impartiality. Any justice who got religion would need to be subjected to immediate deprogramming.
Does Jack believe this? He does hedge his bets by saying that even as justices work to protect the values of temporally extended majorities, they should do so in "as legally principled way as possible," but the very fact of hedging in this way indicates that he is aware that the implications of his theory for judicial decisionmaking are radical rather than modest.
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David asks an interesting question (which I overlooked before--apologies):
But the plain fact is that the President could have sought an injunction. And the simple fact is that our elected president did not seek an injunction in this case. So the reason no judge weighed in here on whether this should have been published is that no president asked a judge to do so. So, on Eric's own reasoning, the truly irresponsible actor here is none other than President Bush, right? So why take on Mr. Lichtblau?
There is a funny notion embedded in this question that I have to choose between Bush and Lichtblau, that if I criticize Lichtblau, I must be defending Bush. However, the question is a good one. And the answer is probably not, or not just, that courts are extremely reluctant to enjoin media from publishing stories, so such an effort would have been futile and politically embarrassing. The most plausible answer is that The Times gave Bush no choice. In Lichtblau's words:
Th[e] decision was helped along by a chance conversation I had soon after our White House meeting. The administration, I was told, had considered seeking a Pentagon Papers-type injunction to block publication of the story. The tidbit was a bombshell. Few episodes in the history of the Times-or, for that matter, in all of journalism-had left as indelible a mark as the courtroom battle over the Pentagon Papers, and now we were learning that the Bush White House had dusted off a Nixon-era relic to consider coming after us again. The editors in New York had already decided they would probably print the story in the newspaper for that Friday, Dec. 16, 2005, but when word of the Pentagon Papers tip reached them, they decided they would also post it on the Internet the night before. That wasn't routinely done at that time on "exclusive" stories because we would risk losing the scoop to our competitors, but the editors felt it was worth the risk. The administration might be able to stop the presses with an injunction, but they couldn't stop the Internet.
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For your latest entry in the seemingly non-stop barrage of fawning Barack Obama major-media coverage, look no further than Newsweek's latest cover, which offers "When Barry Became Barack."
All very interesting, I suppose. But while Newsweek's on the subject, I'd be interested to learn about "Baruch Obama." That's the version that Eleanor Kerlow repeatedly used in Poisoned Ivy, her 1994 review of Harvard Law School's troubled late-1980s, early-1990s days.
Perhaps one of my Convictions colleagues -- or one of our readers -- can clear this up for me: Did Barack actually go by "Baruch" at some point in time? If so, why did he change it to "Barack"? The Newsweek piece never mentions "Baruch."
I suspect that, in fact, he never used the name "Baruch," and that Kerlow made a mistake. (In the 1990 volume of the Harvard Law Review, for example, he's listed as "Barack Obama.") Then again, I've long thought that Kerlow's entire book was a mistake.
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AP reports that in a recent speech Justice Scalia criticized press reporting on the Supreme Court:
Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.
He singled out for criticism a New York Times editorial on the case headlined "No Recourse for the Injured."
The media often make it appear as though the court is reaching policy judgments on its own rather than basing its decisions on the text of the law at issue in a case, Scalia said.
The decision in question is Riegel v. Medtronic. I looked at the stories in the New York Times, the Washington Post, and the L.A. Times. The N.Y. Times and Post stories say accurately that the Court held against the plaintiff because it found that a 1976 federal law preempted state common-law tort claims. The Post quotes a professor who says that the court engaged in a "narrow, textual interpretation" of a federal statute. Neither of the stories says that the Court decided on policy grounds that federal regulation is superior to state regulation, though both gave a flavor of the political background of the rulings (accurately, I think).
The L.A. Times story is fully consistent with Scalia's charge. It's dreadful. It says nothing about the law except: "the court read federal law broadly to protect companies from juries and state regulators." The reporter provides no evidence that this is true.
However, the NYT editorial is not as bad as Scalia says. Although certainly not a model of careful legal analysis, it correctly says: "The court's decision hinged on whether the Medical Device Amendments of 1976 - which gave the F.D.A. the prime responsibility for regulating medical devices - pre-empted the right of injured patients to sue for damages in state courts."
The offending language seems to be:
The court's majority opinion, written by Justice Antonin Scalia, stressed that intricate medical devices go through a rigorous assessment process in which F.D.A. experts balance their potential risks and benefits while a lay jury simply looks at the possible damage done to a patient by a device and is not concerned with its benefits to other patients.
Justice Scalia's faith in the F.D.A. far outstrips our own. The supposedly expert and rigorous reviewers at the F.D.A. are hardly infallible. They may approve marketing of a device based on questionable evidence and they are notoriously derelict about removing dangerous products once they are on the market.
This does sound as though the Times is accusing Scalia of making a policy judgment, namely, that national regulation by the FDA is superior to state common law regulation, and one can understand Scalia's irritation -- how does the Times know that Scalia has "faith" in the FDA (I suspect that, in fact, he doesn't have much faith in the FDA)? Scalia would reply that preemption is plain on the face of the text.
But how one reads the text of a statute depends on what one thinks Congress was trying to accomplish, and it is hard for an interpreter to avoid assuming that Congress was trying to implement good policy unless the statute plainly contradicts that assumption. This type of thinking is ubiquitous in judicial decisions, and, in my view, it can be found in the majority opinion in Medtronic as well, as Justice Steven notes in his separate opinion:
There is nothing in the preenactment history of the MDA suggesting that Congress thought state tort remedies had impeded the development of medical devices. Nor is there any evidence at all to suggest that Congress decided that the cost of injuries from Food and Drug Administration-approved medical devices was outweighed "by solicitude for those who would suffer without new medical devices if juries were allowed to apply the tort law of 50 States to all innovations." Ante, at 13 (opinion of the Court). That is a policy argument advanced by the Court, not by Congress.
Can the Times editorial be blamed for echoing the judgment of Scalia's colleague?
See Dan Slater's post for more.
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As Jack has recently observed,
apart from Katrina, the Iraq War and the conflict with al Qaeda, there
has hardly been a government challenge of greater enormity this decade
than the economic crisis we are now facing. Yet someone who is neither
elected nor politically accountable, Ben Bernanke, is making virtually
all of the nation's most momentous monetary decisions . . . and there
is little the President can do about it. (The President may not remove
members of the Board of the Federal Reserve except "for cause," 12
U.S.C. 242, which has long been understood to reflect congressional
intent that the President may not remove such officers merely because
of a substantive disagreement with their particular monetary
decisions.) What's more, virtually everyone in the Nation now accepts
this as the Way Things Ought to Be and, truth be told, is grateful and
relieved that the President is not "the Decider" when it comes to the
fate of our economy.
And what does the Bush Administration have
to say about this profound threat to the "unitary executive"? After all, even with respect to the much-less-powerful Consumer Product Safety Commission, the Bush OLC (per John Yoo), wrote that a similar for-cause removal condition for CPSC Commissioners "could prove to be unconstitutional."
Well, on
Monday, the Administration's Department of Treasury will
"propose a far-reaching overhaul of the nation's financial regulatory
structure that would reshape the relationship between Wall Street and
Washington and redefine the responsibilities of some of the federal
government's most powerful agencies." In particular, and most
strikingly, the powers of the Federal Reserve would be dramatically expanded:
the Fed "would gain the power to investigate any aspect of financial
institutions that threatens the stability of the entire system,
gathering information and taking action to combat risks to the
financial system as a whole." In the words of one Treasury official,
the Fed "would act as a 'free safety,' . . . with broad but somewhat
undefined powers to roam the entire playing field of Wall Street's
activities."
Needless to say, the Administration has not -- thus far -- added that tis bold new proposal "could prove to be unconstitutional." The Blueprint for Monday's statutory proposal does not even mention the
apparent constitutional anomaly that these important functions would be
transferred away from the control of the elected President and other
politically accountable officials.
* * * *
As Jack wrote:
Within
the halls of the Bush Administration, nobody seems to be thumping the
pulpit, arguing about the framers and demanding the sacred prerogatives
of the Unitary Executive. Messrs. Cheney and Addington are nowhere to
be heard from defending the President's powers to take responsibility
for the money supply and for the financial crisis we are now in.
President Bush doesn't want the buck to stop in his office. He likes
the dictatorship of the Fed just fine.
Continue reading at Balkinization . . .
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According to the New York Times, the Treasury Department is pushing a plan which broaden and deepen the reach of the federal government into America's financial markets:
According to a summary provided by the administration, the plan would consolidate an alphabet soup of banking and securities regulators into a powerful trio of overseers responsible for everything from banks and brokerage firms to hedge funds and private equity firms.
While the plan could expose Wall Street investment banks and hedge funds to greater scrutiny, it carefully avoids a call for tighter regulation.
The plan would not rein in practices that have been linked to the housing and mortgage crisis, like packaging risky subprime mortgages into securities carrying the highest ratings.
The plan would give the Fed some authority over Wall Street firms, but only when an investment bank’s practices threatened the entire financial system.
And the plan does not recommend tighter rules over the vast and largely unregulated markets for risk sharing and hedging, like credit default swaps, which are supposed to insure lenders against loss but became a speculative instrument themselves and gave many institutions a false sense of security.
Parts of the plan could reduce the power of the Securities and Exchange Commission, which is charged with maintaining orderly stock and bond markets and protecting investors. The plan would merge the S.E.C. with the Commodity Futures Trading Commission, which regulates exchange-traded futures for oil, grains, currencies and the like.
All of which may sound good now, in the heat of the moment. But so did Sarbanes-Oxley ("SOX") when it was first proposed -- and according to UCLA law professor Stephen Bainbridge, the results haven't been great: "The lesson is that when something MUST be done, the best thing to do may be nothing. Not, to be sure, the politically wise thing, but the right thing. Unfortunately, we’re in the same sort of environment that led to SOX."
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So it just comes down to different judgments about the proper weighing of the costs and benefits of publication. Marty thinks that the legal arguments are bad (high benefit from publication) and suspects that the secrecy of the NSA program was not important (low cost from publication). I don't think that the legal arguments are as bad as he does (for another day...) but, even assuming he is right, it remains the case that he believes that if the benefits of secrecy were high enough, the Times should not have published. Hence the rebuttable (sorry, "almost irrebuttable") presumption. Because Marty admits that he does not know whether the harm caused by disclosure of the program was significant or not, he cannot say whether the presumption was rebutted. So on the merits, Marty is in no position to say that this is an "easy case."
Still, I take his view to be that even if we can't know whether this was an easy case on the merits, the evidence suggests that it was an easy case for the Times, which presumably understood the harm that would be caused by the program's disclosure. Marty takes Lichtblau at his word that the government failed to give The Times persuasive information (new, secret information?) that the harm caused by disclosure would be significant. However, the Times' behavior—the 13 month delay before publication—suggests otherwise. Even on Marty's interpretation of Lichtblau, the Times believed that the national security reasons for holding off publication of the story that the U.S. government was spying on thousands of Americans were justified, until it learned that U.S. government officials had doubts about the program's legality. So the Times anyway did not think the national security argument was trivial. It thought that this argument was good enough to withhold the story that Americans were being spied upon, but not good enough to withhold the story that Americans were being spied upon illegally. This might have been the right decision, but an easy case?
Only if one trusts the Times' judgment about the national security risks and only if one puts tremendous weight, as Marty does again and again, on the weakness of the legal justification for the program. If we don't trust the Times' motives, we are back to the "who decides" question with which I began. Marty uses a lawyer's trick in order to evade the most serious weakness in his argument: that (as he admits) he doesn't know the magnitude of the harm caused by the disclosure and that (as he doesn't admit) we don't know whether the Times' own judgment on this issue was reasonable. This trick is to assert presumptions that favor an outcome that reflects one's normative position. For Marty, what we do know (that the administration broke the law or that the Times plausibly believed that it did) creates the presumption in favor of disclosure. Mere uncertainty (about the magnitude of the harm or the Times' view about the magnitude of the harm) can't, for a lawyer, overcome a presumption. Q.E.D. This is a recurrent tactic in security versus civil liberties arguments like this one.
But there is no reason to assert the presumption in favor of disclosure. One can just as easily argue that the Times should have treated (or did treat) the government's national security justification of the program as creating a presumption against publication that could be rebutted with evidence that failure to disclose would cause significant harm. (I would prefer to see the harm characterized in terms of actual people injured by the activity; Marty claims to be more concerned about the abstract harm of illegality, as if this alone could rebut the presumption, but if he really believes this, I don't see why he would go to the trouble of converting a bunch of legal fictions about congressional intent into fact.) There is no particular reason to think that the presumption should go in one direction or another. This legalistic language just obscures the normative questions at stake: whether the Times acted properly or not, and whether it and other media can be trusted to make the right decisions in the future, when we, the public, don't know the magnitude of the harm. This is why it is so important to determine whether Lichtblau's account of the Times' decision-making process is plausible and appealing.
Finally, in response to Deborah, I recognize that courts are very reluctant to impose prior restraints on publication even for the sake of national security, and that the doctrine allows for only very narrow exceptions which would probably not apply in this case. (Yet, we still don't know what the harm was. ...) I'm raising the question whether these rules make sense anymore but I don't have a firm view myself. I don't see any reason for thinking that the media are in a better position than judges to make the correct decision (the point of discussing Lichtblau in the first place), but it may be, practically speaking, impossible to imagine the doctrine being in any other way. I do think, though, that a judge rather than the executive branch itself should make the decision whether a newspaper can go ahead with publication (how much deference the judge should give to the executive branch's reasoning is another hard question), and I don't believe that this view is inconsistent with my prior work.
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Wow, Eric, you packed a lot into that provocative opening post, and led me to read Lichtblau's how-the-media-sausage-is made story I confess I might not otherwise have read, given the day job. Call me a cynic, but I've invariably come away from such stories believing that the press operates in a deeply, deeply flawed way that is, nevertheless, probably the best among alternatives available in a democracy (modulo some more aggressive professional watchdog NGOs and welcoming suggestions of how one might sensibly deal with runaway profit motives). Pretty much left with the same sense here.
But it strikes me that the conversation so far (involving you, Marty, Orin, David, Dawn) is less about a disagreement over journalistic practices and more about this larger problem of who makes decisions on questions of legality and national security. I take it that you don't think the press should exercise much independent judgment here but rather substantially defer to the executive on questions of effectiveness (though I vigorously join Marty in rejecting your reasons why). But I was perhaps most startled by your suggestion that "in an ideal world," it would be "better for a judge, rather than a newspaper editor, to decide whether a national security program should be compromised because of doubts about its value or legality."
Setting aside all kinds of important First Amendment issues here, I'd love to hear your case for why the judiciary has comparatively greater institutional competence than the media in making such an assessment. If I hadn't read any of your previous work, I might read you as here arguing for an expanded judicial role in reviewing the national security secrecy views of the executive. But it can't possibly be so, can it?
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Eric asks a reasonable but ultimatelyt thetrical quesiton of me: do I think natinal security concerns should wiegh in the balance concerning publication? Of course national security concerns should be part of the calculus as to whether to publish. Just like he n doubt thinks concerns about legality should be weighed as well. After all, he surely knows that reporters every day refrain from publishing all kinds of interesting national security info -- such as troop positions in Iraq. But as I suggested, and Marty amplifies, it's hard to see how the concern he raises could swamp the serious legal concerns in this case. Surely Eric is not saying that any potential national security harm is enough to bar publication. And surely he realizes that by allowing a free press, given the self-selection of who goes into the journalism business, means that in such cases one might well expect the journalists to tilt in favor of publication; we have as a society created a civic culture in which publication is likely when the entire Justice Department is about to quit. (Eric does say that the disclosure prevented an effective and legal program from being put in place but he offers no evidence that this is correct -- who says the settlement reached within the Administraiton is either effective or legal other than, it appears, him and the adminstration itself?) But let's put all that aside. Eric thinks the president should be entitled to seek an injunction to stop publication and that the rules against prior restraint perhaps should be altered to favor the President if he does so. Never mind that not long ago Eric argued on this blog that: "It is easy to understand why certain political freedoms should be put beyond the arena of politics and be protected by courts. Without such rules, the party in power can entrench itself and undermine political competition. It is hard to understand the analogous arguments for constitutionalizing gun rights." But the plain fact is that the President cou;d have sought an injucntion. And the simple fact is that our elected president did not seek an injunction in this case. So the reason no judge weighed in here on whether this should have been published is that no president aksed as judge to do so. So, on Eric's own reasoning, the truly irrepsonsible actor here is none other than President Bush, right? So why take on Mr. Lichtblau?
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Guilty as charged. Yes, careful lawyer that I try to be, I did include a qualification to suggest that maybe there could, one day, be some case in which a newspaper should refrain from publishing a story about rampant illegality, affecting the privacy of tens or hundreds of thousands of U.S. persons, authorized by the President of the United States (in part on a theory that he has the constitutional authority as Commander in Chief to disregard the law). I can't just now think of what that case might be; but who knows? Hence, my assumption that the Times applied a strong, almost irrebuttable presumption in favor of publishing (once it was convinced the program was unlawful), rather than a bright-line rule. But I agree with David -- it's hard to imagine an easier case than this one.
Did the program "benefit the nation," in the sense of providing the intelligence community with relevant and important information it would not have obtained under FISA? I certainly hope so. But then, that would be true, in spades, if the President simply ignored all legal restrictions on intelligence-gathering -- an Executive unbounded by laws regulating surveillance, detention, interrogation, etc., would undoubtedly obtain far more information about the enemy than an Executive who takes care that such laws are faithfully executed.
And therefore . . . what, exactly? If that sort of "benefit" were a sufficient reason to refrain from publishing, then newspapers would never reveal any wrongdoing undertaken for security-related reasons (or for any other public purpose, for that matter). Eric doesn't suggest such a rule, of course -- he would ask the Times to weigh the benefits of lawbreaking against the "costs." I'm sure that at some level, the Times made such a calculation, based on what little they knew (i.e., as with Eric and me, not very much). Indeed, they invited the Administration to make the case that the program was legal, or that this was the rare case in which, despite the illegality of the program, the cost/benefit balance was so out of whack that my presumed "presumption" in favor of publishing a story about gross executive lawbreaking should have been rebutted. As it turns out, however, the Administration gave them very little reason to rebut the presumption -- and what it did say to the Times turned out to include representations that the Times discovered to be blatantly false, which left the Times with no reason at all to think that the presumption should be overcome -- and with a great deal of skepticism that the sky would, indeed, fall.
Callous disregard for the real costs and benefits? Hardly. What the Times knew, and what Eric conspicuously ignores, is that we as a nation had already engaged in a wide-ranging, detailed, and contested debate, over three-plus years, about the various costs and benefits of allowing the executive free reign to engage in domestic electronic surveillance, and we had reached a consensus about the proper resolution of such calculations in the manner prescribed by the Constitution: We enacted a law, by overwhelming majorities of both houses of Congress, and with the support of Presidents of both parties -- the Foreign Intelligence Surveillance Act. And Congress had repeatedly amended that law over the years whenever the executive made the case that the cost/benefit analysis had changed. (Eric confidently states that the NSA program did not, so far as we know, "actually injure anyone." This is just another way of saying that Eric disagrees with the vast majorities of Presidents, legislators and the public who have concluded that there are real harms when the government surveilles its citizens' e-mails and phone calls.)
Continue reading at Balkinization . . .
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Eric writes, "The question was whether The Times went about making its decision [to reveal the Bush administration's violations of FISA] in a responsible way." Marty and David's responses (citing Eric Lichtblau's column) have devastated any suggestion to the contrary (at least to my satisfaction; Eric P. seems unconvinced). I see little to add to their very strong posts on that question.
But I think we do have to name the even more fundamental question: whether the Bush administration itself acted responsibly in keeping secret that same story. What was its legitimate justification in the first place for misleading the NYT into keeping that information secret for more than a year?
I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration's violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don't know the full extent of our government's illegal surveillance or illegal interrogations (and who knows what else)-despite Congress's failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark. Whether a President ever may legitimately act contrary to a statute is itself a controversial question. I believe the answer is yes, in extremely rare and limited circumstances (circumstances that clearly were not satisfied in the FISA or torture controversies). But how can it be faithful to our system of government for the President to act contrary to federal statutes in secret?!
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Marty puts the case succinctly:
Has there ever been any case in which a serious American newspaper declined to publish information it had about felonious conduct at the highest levels of government? And if that meant the cessation of the program, so be it -- because the program was, after all, unlawful. Unlawful programs should be ended -- or, in any event, the Times was quite justified in acting upon a strong presumption to that effect.
But note the equivocation. He starts of with a ringing call for moral clarity-"unlawful programs should be ended." But, good lawyer that he is, he builds in a safety hatch-there should be "a strong presumption to that effect"-without absolutely committing himself to it. And why a presumption rather than a rule? Do we really need to ask the eminences at the Columbia School of Journalism, as David would advise us to do? Because there are no absolutes in this world, and in some cases-where the damage to national security would be sufficiently high, one can surmise?-The Times would not be justified in publishing the information. Whatever. Lawyers like to talk about rules-and-presumptions. I prefer to talk in terms of balancing costs and benefits. Jack Goldsmith, who can claim a measure of credibility and who has seen classified information that we have not, says: "I agreed with President Bush that revelations by Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done ‘great harm' to the nation."
Marty can't deny the relevance of the benefit of the program to the question of whether The Times should report the story. After all, if the benefit of the program were irrelevant, there is no need for a presumption. Did The Times consider whether the presumption had been rebutted? If The Times had good reason to believe that the national security benefits of the program were small, Lichtblau doesn't tell us what it was.
So what are the costs of the program? Presumably, the harm to innocent people who were inadvertently (or deliberately) spied upon-but no one knows what that is. Instead, Marty emphasizes its sheer illegality-an abstract cost but a real one. But its illegality was in the process of being corrected by Justice Department lawyers before the story was released, indeed before the reporters knew anything at all (which David cleverly interprets as part of the story's newsworthiness).
Goldsmith believed that the problems of illegality could be resolved, and he and others sought to do so by working with the FISA court, restraining the executive branch, and encouraging the White House to cooperate with Congress. He believed that an effective program could be made lawful, and he and his colleagues were in the process of bringing about that result. But The Times made that particular outcome-a lawful program that was also effective because it was secret-impossible by publicizing it to the world.
Marty believes that The Times published the story because it discovered that the NSA program was illegal. I don't agree. But if Marty is right, so much the worse for The Times. I find it hard to believe that Marty thinks that destroying a plausible national security program in order to expose illegal actions that (Goldsmith believed) could have been, and soon were to be, placed on a sounder legal footing, and did not (so far as we or The Times know, so far) actually injure anyone, would be justified. Such a devotion to the forms of legality, without consideration of the practical effects of a course of action, verges on fanaticism. Marty's not a fanatic; if he were, he wouldn't have included that presumption.
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If I can wade into the debate on the Times' publication of the Risen & Lichtblau NSA wiretapping story, I think the Times acted relatively carefully but James Risen's subsequent solo book "State of War" was quite reckless. The original story by the Times didn't explain specifically how the wiretapping had occurred, and therefore didn't give America's enemies a roadmap to avoiding future interception. The original story just said that calls and e-mails were "intercepted," which in and of itself doesn't reveal anything about sources and methods.
In contrast, Risen's solo book gave our enemies the roadmap. It explained that the NSA program took advantage of the fact that much of the world's telephone and Internet trafffic happens to be routed through U.S. switches. When passing through the U.S., the book explained, the NSA could and did access the foreign-to-foreign calls that were momentarily inside the U.S. No warrant needed; everything was available and easily vacuumed up.
If you're part of a foreign government or a terrorist group, that's extremely valuable information to have. You now know to avoid any technologies that might inadvertently route communications through the U.S. because the NSA is going to look at everything that touches the States. Want to avoid wiretapping? Stick to communications systems that stay local. The NSA may still be able to get snippets, but they won't get everything.
I don't know how to calculate the long-term damage to our national security caused by this disclosure in Risen's book. But I would expect it was (and will be) enormous.
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David, there was nothing "abstract" about what The Times was doing. Are you saying that any possible harm to national security was negligible, or irrelevant?
I did not argue that The Times should not have disclosed the existence of the program, a question about which I have no opinion, having no access to the relevant facts. The question was whether The Times went about making its decision in a responsible way. Nothing in Lichtblau's account gives one confidence that it did. One ought, at least, to wonder whether the "unseemly competitive motive" of newspapers--you put it so much less heroically than Lichtblau does--should be expected to result in publication decisions that serve the national interest in the post 9/11 world. Let us examine the evidence rather than consult the oracles at the Columbia School of Journalism.
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Eric Posner claims not to be able to discern from from Eric Lichtblau's column just why the Times changed its mind between 2004 and 2005 about publishing the story revealing the Bush Administration's unlawful wiretapping program.
What's the great mystery?
Apparently, in 2004 Administration officials asked the Times not to publish because, among other things, they insisted that there was never any serious legal debate
within the administration about the legality of the program; that DOJ had always signed off on its
legality; that the lawmakers who were
briefed on the program never voiced any concerns; that there were tight controls in place to guard against abuse; and that the program
would be rendered so ineffective if disclosed that it would have to be
shut down immediately.
Risen and Lichtblau questioned these representations at the time, but couldn't persuade their editors that they were untrue. What changed in 2005? Eric P. says that Eric L. "does not really tell us." Really?
Continued at Balkinization
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Perhaps I am tainted by having once been a journalist, but although Eric raises a host of interesting questions that could be plucked from a good Columbia School of Journalism class on reportorial ethics, all of which may be hard to answer in the abstract, I should think that a govenrmental practice of surveilling numerous American citizens that is in direct contravention of an existing federal statute (indeed, a statute that makes such violation a felony); that is justified only by reference to a vaguely worded subsequent statute that provides so little clear support that it must be augmented by a controversial claim of preclusive executive authority entitling the President to act in violation of a congressional enactment; and that precipitates a near mass walkout by the highest levels of the Justice Department because they believe that the law is being flouted woud be a pretty good case for . . . publishing! As for why there was a delay, I do not know. And perhaps The Times can be faulted, if this is Eric's point, for undue delay. But insofar as Eric means to suggest that somehow this information should not or would not have been published by a responsible newspaper weighing all the right questions, and that it was only some unseemly competitive motive that can explain its ultimate decision to print this news, then I for one am glad that in this instance we had an "irresponsible" daily rag up and running.
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According to our colleagues at Trailhead the Clinton campaign has questioned whether Obama lied when he claimed to be a law professor at U of Chicago. Formally his position was Senior Lecturer. In a way this is almost too silly to merit a response: when you’re taking aclass from someone employed by a university you almost certainly call that person “Professor.” Q. E. D. But it is true that law schools make scores of fine distinctions between faculty members, in part because university rules reserve certain titles for people who have passed faculty committees that evaluate scholarly merit. So technically, the Clinton folks are right— “Senior Lecturer” is not synonymous with “Professor,” and inside the ivory tower people care a lot about such titles, just as in the ancien regimes of Europe a Viscount who claimed to a Count was a fraud; a Baronet who passed himself off as a Baron would have been taken to task by those with a legitimate claim to that status.
During my twelve years at Stanford (first as an Assistant, then an Associate, then a Full and now a Chaired Professor of Law if you care about such things) many Adjunct Faculty, Visiting Lecturers, Senior Lecturers, Teaching Fellows and Scholars-in-Residence have referred to themselves as “Professors” when dealing with the media and the general public and no one, to my knowledge, has thought that honor or honesty required us to correct the technical misimpression.
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Elsewhere on Slate, Eric Lichtblau describes the "inside drama" behind The Times' wiretapping story, a drama in which our hero confronts the arrayed forces of the U.S. government, momentarily stumbles, picks himself up, brings the Bush administration to its knees, and learns important things about the world (that government officials sometimes lie, for example).
Many people have wondered why The Times did not report the NSA program in the fall of 2004, when Lichtblau and his colleague, James Risen, uncovered the story, but instead waited until December 2005. If the Times did not believe the administration's national security reasons for keeping the program secret, it should have published in 2004. If it did believe those reasons, then it should not have published in 2005. The only legitimate explanation for its change of heart would have to be some additional information or event that came to its attention between the fall of 2004 and December 2005. What was it?
Lichtblau does not really tell us, but several possible explanations emerge from his account.
1. Reporters had become increasingly distrustful of the Bush administration. Too many of the things it said turned out to be false.
2. The sense of outrage about 9/11 had faded, and reporters were less likely to give the government the benefit of the doubt.
3. Over the course of those 13 months, the reporters learned that the program was unlawful.
4. Risen decided (on his own?) to publish the story in a book he was writing. The Times did not want to be scooped by its own reporter.
The first and second explanations have some psychological plausibility, but, to my mind, they are not persuasive. Anyone with any knowledge about how the U.S. government has behaved in the past, in normal times and during emergencies, could not possibly believe that government officials are always to be trusted. Could The Times' reporters really have been so naïve? More likely, The Times' editors feared a public backlash if The Times expressed excessive skepticism about the government's motives in the wake of 9/11. Actually, more than three years after 9/11. That hardly speaks well for The Times, either.
As for the third explanation, Lichtblau says that he and Risen already knew about internal Justice Department disagreement about the legality of the program in the fall of 2004. And The Times did not need to use the legal issues as an excuse for publication; it reported the SWIFT monitoring program without claiming that this program was of doubtful legality. (Ironically, as Jack Goldsmith relates in his book, The Terror Presidency, government lawyers who had expressed doubts about the legality of the program had won the day, and were working to put the program on sounder legal footing, long before the story was published.)
This brings us to the fourth explanation. Can it really be the case that The Times was forced to publish by a reporter? One can only feel queasy. The actual decision to publish was, in effect, made not even by The Times' editors, who might be expected to take a broader view of things, but by a single reporter acting on his own? Is the drama supposed to be a comedy, or a tragedy? ("'You sure you know what you're doing?' I asked finally. He shrugged." Mamet? Pinter?)
So Lichtblau does not give us an account for the delay that is both plausible and appealing. Lichtblau also never mentions whether he and his editors discussed the issues that would seem most obviously pertinent to the question of publication: was the program effective?; would it have been seriously undermined by its disclosure?; was it illegal?; and, what should reporters reasonably believe, given their limited knowledge of what is going on? Surely his editors thought about these things. Or was it just a question of PR: will people praise us for our brave reporting or condemn us for undermining national security? Failing to address these questions in his account (he dismisses the national security worries as "clichés" rather than explaining why he disbelieved them), Lichtblau gives the impression that he is and was indifferent about what the answers might be. Was it just a matter of skewering the government that had lied to him, national security be damned?
Several questions are raised by this episode. Suppose The Times or some other newspaper stumbles upon yet another government counterterror program that has been kept secret and whose value depends on secrecy. One question is a matter of substance: if the value of a counterterror program depends on its being kept secret, under what circumstances should the media nonetheless report it? As long as the program has any news interest (as it always will)? Only when the program might, if misused, cause harm to Americans or others (as it almost always will)? Only when there are legal doubts about the program (as there often will be)? Is the effectiveness of the program relevant, and does the administration have the burden of proving the effectiveness of a program (how, exactly?) in order to persuade a newspaper not to publicize it? Lichtblau does not address any of these questions; indeed, he gives the impression that he has never even thought about them.
The second question is the Who Decides question. Lichtblau says that the Times was spurred into action when it heard that the Bush administration was thinking of seeking a Pentagon Papers-style injunction against publication. Of course, the press has expressed longstanding opposition to prior restraints. However, in an ideal world, wouldn't it be better for a judge, rather than a newspaper editor, to decide whether a national security program should be compromised because of doubts about its value or legality? How was The Times to know whether the secret program was lawful or not? And how was it to evaluate its effectiveness and the importance of continued secrecy? Indeed, a trial was held; the administration made its case. It's just that The Times was the prosecutor and the judge. And whatever the editors of The Times might have really thought, their hand was forced by a single reporter acting on his own.
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In an incredibly opaque speech to the U.S. Chamber of Commerce yesterday, Treasury Secretary Henry Paulson implied that he would seek "the same type of regulation and supervision" for investment banks as that which exists for commercial banks. He made the comment while defending the Fed's moves to front $30 billion to support the rescue of the ailing Bear Stearns investment bank. But, Paulson stopped short of encouraging a massive regulatory push -- saying that "recent market conditions are an exception from the norm" and that "bank regulation . . . is fundamentally different from non-bank regulation."
It's not clear yet how much legal or regulatory change is coming to emerge from the Bear Stearns crisis, or the sub-prime mortgage meltdown. But a front-page article ($) in Monday's Wall Street Journal speculated these crises would bring a tectonic shift in the way American law treats business:
The idea that less regulation is better for the economy has held sway in Washington since the Reagan administration. Now that consensus is crumbling, posing a potentially costly challenge to business no matter who wins the White House in November.
The crisis in the nation's housing market, the recent turmoil on Wall Street and a series of safety scares involving food, drugs and toys are driving both political parties to reconsider how much companies and markets should be relied upon to police themselves.
Even under the pro-business Bush administration, it appears the question isn't whether the government will enact tougher rules for various parts of the economy, but just how much stricter those rules will be. The new climate has some business groups girding for battle against what they fear could be onerous new requirements.
"We're in for a potentially significant regulatory response," said Glenn Hubbard, dean of Columbia University's business school and a former chief economist for the Bush White House, referring to the credit crunch and its impact on financial markets. "The hope is we won't overreact."
Today's reactions ($) to Paulson's speech seem to confirm that such a tectonic shift is underway. I think some regulatory improvements are in order, but like Prof. Hubbard, I think there's also a significant risk of overreaction here. And more broadly, I worry that we might be looking to law as a false panacea for all that ails American capitalism today -- and specifically, what afflicts the mortgage market. There are limits to what the law can accomplish, and I don't know that re-regulation or toughened financial laws will do what we want here. What do you think -- is this tectonic shift away from deregulation a good idea? What is the proper role for law in America's financial markets?
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Jack's got it right when he writes: "
In short, consultation of foreign or international sources will not inevitably nudge interpretation of a constitutional term to the left or to the right -- any more than would consultation of historical context or contemporary legal practice in the United States. That fact counsels shifting away from blanket condemnation of foreign consultation, and toward demands that it be conducted with no less methodological rigor than is expected in historical exegeses and 50-state surveys.
* Here's Mr. Dooley on interpretation: "I niver r-read th‘ constitootion an I niver seen anny wan that r-read
it, but it must be all right, for an’ because ‘twas made wan hundherd
years ago or more be min that is now dead an’ in their graves. ... Could thim pathriots do wrong? Did they know what was best f’r
us afther fightin’ f’r our liberties? I should smoke a ham."
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Douglas W. Kmiec
So many kind and thoughtful people have taken the time to write or comment upon my recent endorsement of Sen. Barack Obama for president asking for additional explanation that it has become impossible to answer each individually, so with great respect, but far less time than I would like, please accept these supplemental thoughts as an expression of gratitude to all who wrote in agreement or disagreement, and with civility.
As many know, I was first attracted to government by Ronald Reagan, who lives in my memory as a great leader and an inspiring communicator. Sen. Obama has these gifts as well, but of course, mere rhetorical flourish without defensible substance would be worth little. Is there more to Sen. Obama? I believe there is. President Reagan often said his proudest achievement was making America feel good about itself again. Sen. Obama is trying to give us genuine reason—good reason—to have that feeling again. Indeed, he may have already partially succeeded. Having taught several generations of students over 35 years, I have never seen young people more alive and interested in the political process. His witness is encouraging them to look to civic and public involvement as a way of finding their own purpose—a purpose that they intuitively want to be in service to others.
How else do I perceive Sen. Obama restoring the American ideal?
By saying to the world, we intend to hold ourselves to international standards of decency and justice. (I note that Sen. McCain picked up part of this theme yesterday in a speech here in Los Angeles—good for him. Sen. Obama's influence is resonating well beyond me and my students.)
By honoring the memory of those who died on 9/11 (and the 4,000 men and women of our armed forces who have perished in Iraq) with the honest assessment that our national safety is not enhanced by fighting the wrong war at a tremendous cost of life and resources.
By saying to the average working person in America, your work matters, and it will be compensated at a family wage; your retirement will be safeguarded from corporate fraud and manipulation—be it by cooking the books a la Enron or the legal abuses of a shadow banking system that by profligate lending practice has precipitated the mortgage meltdown and the bail-out of Bear-Stearns.
By recognizing that we create our own immigration problem by failing to fix an immigration system that neither safeguards national security nor permits genuine unmet labor needs to be filled on unexploited terms.
By saying to a nation of consumers that happiness is not found in mindless consumption and that we have an obligation to better stewardship of the environment and to develop alternative sources of energy—for our own health and well-being and that of our children and grandchildren—and, of course, as a matter of national security as well.
By saying to his fellow candidates for president in both parties, let's end the name-calling; the politics of division based on race—understanding that we have had enough of black anger pitted against white resentment, that we indeed must say to those who seek office on those divisive terms, "Not this time." It is better for us to understand that failing schools are failures for all concerned—whether you're the student graduating without knowing how to make change or the customer who is shorted.
By understanding the significance of faith as a source of meaning in the life of our nation and our individual lives; that religion and freedom depend on each other (something, by the way, both the senator and Mitt Romney said just in slightly different phraseology). Freedom is enhanced by the "habits of the heart" and virtue nourished by religion, and at the same time, religious faith only matters if it is not coerced. None of us is entitled to have our personal faith enacted into law, but we can expect the law to accommodate, not grudgingly at the point of a lawsuit, but empathetically as a matter of good will and common sense all religious practices that do not endanger the public order.
And should he be elected president, by saying to his co-equal branches, I understand this is a constitutional system, and I have an obligation to use power wisely and not look for every opportunity to expand it or use it foolishly, as in the dismissal of my own U.S. attorneys with little thought and even less justification.
Will the election of Sen. Obama accomplish all these things?
Perhaps not, but like the Gipper used to say to us: If not us, who? If not now, when? Many of our allies are watching us, and while we should never pursue a course to win the approval of others, when the course we have followed proves not to be true, we must change direction if we are to have any hope of reaching our proper destination. The sentiment reported by those who live and work in capitals around the globe is that Sen. Obama's successful campaign to date, in itself, has signaled to the world that—well, to pick the Reagan phrase again—it is "morning in America" because
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the America they knew as an ally committed to peace and freedom and not hazy, ill-conceived forms of pre-emptive war is back;
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the America they thought was the gold standard for the rule of law is back;
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the America that could recognize its own shortcomings, be it racial or gender inequality, and right itself was back.
I am not quite as prepared as the readers of the foreign press to be quite this rejoicing this early. This is especially true since I disagree with Sen. Obama, the partisan elected official, in many, many ways. But his having campaigned not as a partisan but as a unifying force, my endorsement is best seen as a public acceptance and friendly reminder of the covenant his campaign is making. Like a restriction running with the land, the endorsement follows the covenant. If the covenant is breached in campaign or in office, the endorsement will be renounced more loudly than it was given. In short, I am counting on Sen. Obama the president to keep Sen. Obama the presidential candidate's word—namely, that he intends to pursue policies aimed at transcending the politics of hate and division.
That, for example, on abortion, which I know to be a grave moral evil and that I understand Sen. Obama to see as a matter already legally settled, that he will nonetheless work to reduce the incidence of the practice by what he has stressed—the importance of families and churches conveying the importance of "having young people show reverence toward sexuality and intimacy."
That on the definition of family, we will not undermine the significance of responsible procreation for the long-term health of the nation even as we work to end invidious discrimination and misunderstanding toward homosexuals in our society.
That when there are calls for government involvement, the first thought won't be the bigger the government the better, but rather the very thoughtful questions Sen. Obama has already raised during his campaign such as: When should government intervene? And what can it usefully do?
And especially because—in his precampaign partisan role—he voted against two individuals who I know to be the very definition of "impartial judge" that we will work together to keep politics out of the courts; that just as some states have successfully developed merit systems for judicial appointments, both parties will stop seeing the judicial branch as the ideal placement for those who will advance our favored political philosophy regardless of the law as written.
Let me end this already too long explanation by saying my endorsement is not about animosity toward John McCain or Hillary Clinton. I was a McCain backer in 2000, and as the father of five, including three daughters who are pursuing professional lives, I respect Mrs. Clinton's desire to break the glass ceiling.
It's just that their public moments—like mine—are past. John McCain's understanding of warfare and national security is an extension of "the greatest generation," but it is no disrespect to say that just as "shock and awe" did not prevail in Iraq, Sen. McCain's conceptions of military deployment are ill-suited to meeting the far more nimble and insidious nature of the present terrorist threat. Again, his most recent address suggesting a "league of democracies," while not without its difficulties in terms of running the risk again of only dealing with our friends, shows a glimmer of the independently minded, pre-Bush McCain, and I urge him to continue to develop thoughts that take him beyond outworn models of base deployments that we cannot afford and that in some circumstances provoke more than secure.
And Mrs. Clinton is to me not advantaged, but disadvantaged, by her previous time in the White House. The ranks of capable, intelligent, well-prepared women who could serve as president are long and deep. In all seriousness, and with apologies to the Adams and Bush families, as I understand democracy, we ought not to return to those quarters someone who—directly or indirectly—will merely attract the ideas and personnel of the past.
Taking a leave of absence from my GOP home was not my first choice. As Ronald Reagan said, he didn't leave the Democratic Party; it left him. I feel the GOP left me. Some do not see the trajectory from Romney to Obama as plainly as I do, and it would take an equally long letter to elaborate, and I will spare every reader who made it this far that burden. Let me just say, Gov. Romney well understood the significance of family, faith, and fiscal responsibility. In too many ways, the present administration was the most fiscally irresponsible of our lifetime, prayed aloud but ignored the teachings of faith to seek peace and pursue war only when warranted and, in so doing, jeopardized the well-being of every family in America. I love my family, my faith, and my country too much to entrust the next four years to any candidate who would stay upon a course that has been so badly misdirected.
My gratitude, again, to all who have written.
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Two thoughts in response to Marty's provocative questions:
First, I think having a relatively independent DNI probably is manageable constitutionally. We already have, after all, an FBI director who is appointed for a term of years that does not coincide with that of the appointing president. While the DNI is higher up the food chain, I suspect the office could be structured so as to look pretty similar. The more formal one makes the DNI's independence—in other words, the harder his removal is for the president to effectuate—the more difficult the question becomes. But at a minimum, it should be possible to create an office with a term of years and a strong norm against removal for reasons other than misconduct.
All of which seems to me a perfectly dreadful idea, and I'm frankly a little bewildered by its attraction for the people most offended by the intelligence policies of the current administration. After all, having a long-term occupant of that office would ensure continuity across administrations in an area in which there is simply no political consensus as to the proper posture of the executive branch. If you imagine it existing now, it would allow Bush to appoint Obama's DNI. The reason the FBI director's term of years is defensible is that Americans basically agree on the apolitical nature of the investigative function and want to insulate it from the shifting political winds. A similar consensus, I suppose, exists for much intelligence collection and analysis. But no such consensus exists for a lot of intelligence policy over which the DNI has charge. Would we really want Bush to appoint Obama's point person on warrantless wiretapping, renditions, and interrogation?
An Obama administration would presumably handle a lot of things within the DNI's purview differently from a Bush administration. And the Republican who runs against Obama four years from now, should Obama win in the fall, would presumably criticize and promise to change Obama's intelligence policies. If we make the DNI's position apolitical, we greatly reduce the capacity for political debate over and change in intelligence policy.
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(Cross posted at Balkinization)
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Jack, to answer your questions, as pithily as possible, I understand judicial restraint as underenforcement of constitutional norms, not the position that there are few or no constitutional rights or only those constitutional rights that reflect my political preferences. And you are right to point out the difficulty of making comparisons to foreign constitutions; a conversation for another time, perhaps. But enough about me! I'd rather hear about your views than talk about mine, which are warmed-over leftovers of the work of the constitutional law professors I cited earlier.* You seem to have something new to say.
In earlier posts, you said, or seemed to say, that if Dahlia doesn't like the way that Supreme Court justices "invent rights," then she should start or join a social movement ("If you don't like the living Constitution you get, you really should be working harder to get the national politics you like, because that's pretty much how the Constitution changes over time."). This puzzled Dahlia, who has been operating under the assumption that part of her job was to spot errors and inconsistencies in the court's decisions: "If you really mean it that ‘social movements' will carry the day whether or not the court intercedes, it does raise the question of why we bother with courts in the first place. ... So while I admire the Zen-like commitment to letting the political systems work it out over time, I am not quite sold."
In our latest exchange, I tried to make a case for judicial restraint. The argument was a normative argument (judicial restraint is good) but it also depended on an empirical claim (good for both political sides, so they can, in principle, agree to it). Your response in your second-to-last post (yes I did fall down the rabbit hole into Balkinizationland) was:
Now nobody who can get appointed to the federal courts believes that courts should generally get out of the business of judicial review; almost everybody mainstream enough to get a job in the federal judiciary thinks that there plenty of things that courts should be able to declare unconstitutional. ...
If we start to see more judicial restraint in the federal courts, I agree with Eric (or at least one position of Eric's) this will not be because judges have bought into the latest academic theories about good judging. Rather, it will be because this is consonant with changing substantive agendas, as happened with liberals for a time during and immediately following the New Deal. (Conservatives, meanwhile, took the opposite view, at least where economic regulation and federalism were concerned.) ...
Given these supply side effects, the movement by conservative jurists away from judicial restraint is overdetermined. Conservatives gaining control over the federal courts plus the concerted strategies of conservative public interest lawyers were likely to produce increased judicial activism in a conservative direction. Conservatism today supports judicial restraint only fitfully; the rhetoric of the 1960s and 1970s hasn't always caught up with the reality.
And a great deal more in this vein, very much in the spirit of your response to Dahlia. If it is true that judges will (for example) exercise judicial restraint if and only if (?) changing substantive agendas favor that posture, then there isn't much point in discussing whether judicial restraint (however defined) is good or bad, is it? Or in encouraging judges to exercise it? Or in encouraging elected officials to seek out judges with this inclination? Nor does there seem to be much point (Dahlia's concern) in criticizing judges for deciding cases inconsistently with their professed judicial philosophies, other than, perhaps, to point out to them that they have deviated from party orthodoxy. We can do no more than wait for substantive agendas to change.
This is certainly one view. The decline of judicial restraint was not only determined; it was overdetermined. And if it should reappear, that would be determined or overdetermined as well. Am I to be faulted for thinking that you were caught in the snarls of the determinacy paradox? I am glad that you reject this view.
But then, what is your view? I am trying to reconcile the following half-understood fragments. 1) A suggestion that Supreme Court justices do politics; does that mean narrow partisanship is unavoidable, or is it possible that justices could be made to see that some judicial philosophies are better, for the public and for themselves and their parties, than others? 2) Is the version of originalism that you have been peddling such a philosophy? Or is it just of theoretical interest (the "right" way to interpret the Constitution even if no judge ever adopts it)? Or perhaps a strategy for liberal or progressive judges who would like to hoist conservatives by their own petards? 3) How do these ideas fit with your political science style discussions, which emphasize the importance of social movements, politics, appointments, and the like? Easy on the humor please: we are literal-minded here in flyover territory.
*Jack's Balkinization co-blogger Mark Graber notes correctly that in my earlier post I was referring only to law professors who have advanced the views I am defending here. For the work of political scientists in a similar vein, see his post here.
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In the New York Times this week, Adam Liptak takes a long overdue and somewhat tepid look at the fuzzy math Justice Scalia used in his concurrence in Kansas v. Marsh when he concluded that "The rate at which innocent people are convicted of felonies is less than three-hundredths of 1 percent - .027 percent, to be exact". Scalia sleeps well knowing our system works so brilliantly.
The problem, of course is that .027 percent is a hoax, and reading the piece, I was stuck once again that a justice generally considered to be so bright could get something this important so fundamentallywrong. But one need only look at the study Scalia cites (by Joshua Marquis, a stalwart of the prosecutorial lobby) to understand the error of his ways.
Marquis came up with the number that Scalia adopted much like a toddler solving a problem in a kindergarten math workbook: He took the total number of exonerations, (north of 200 now) picked a gratuitous multiplier (10 purely for rhetorical purposes), and then divided by 15 million—the total number of convictions during the period of years he considered.
As I've previously pointed out, here's why that's a ludicrous methodology:
Comparing exonerations to felony convictions is like arguing that the Ford Pinto was safe because compared to the total number of automobiles sold in the United States, not many of them blew up. The proper way to determine the failure rate of the Pinto is not to use the total number of cars sold as the denominator, but rather the number of Pintos sold. Likewise, the denominator in Marquis' fraction shouldn't be the 15 million felony convictions over the past 15 years, but rather the number of similar cases in which innocence is actually disputed.
Marquis' most glaring error is his failure to acknowledge the fact that most felony arrests aren't contested. In fact, 95 percent of them are resolved by plea rather than trial. Thus in 19 out of every 20 felony cases, there is no contested issue of guilt and no real claim of error.
Only trials in which someone is convicted while maintaining his innocence should be consideredin computing an error rate. Of Marquis' 15 million felony cases, 14.25 million were pleas. When the denominator in his fraction is changed from 15 million to 750,000, the error rate jumps from the arguably ignorable 3 in 10,000 to more like 50 in 10,000.
And Marquis's numbers become even more disturbing with further analysis. Because of the overwhelming demands involved in reinvestigating a crime with an eye toward exoneration, it is almost exclusively defendants sentenced for rapes and murders whose cases get scrutiny from groups like the Innocence Project. The chances that a drug defendant is going to interest them are virtually nil. Thus the only people who have any meaningful access to the possibility of exoneration are a tiny subset of criminal defendants. Murders constitute only 0.8 percent of all felony cases,and rapes less than 2 percent. In other words, less than 450,000 of Marquis's 15 million felony convictions came in cases where the defendant has had a real shot at exoneration.
It is true that murder cases go to trial far more often than run-of-the-mill drug sales or check forgeries. In fact, some 44 percent of murder cases actually go to trial, with an average conviction rate of about 85 percent. But even taking this into account, of the 150,000 murder cases in Marquis's 15 million, only 66,000 homicide defendants maintained their innocence through a trial, of which just over 56,000 were convicted. Using similar trial and conviction rates for rapes yields somewhere south of 200,000 contested convictions in serious cases.
So what are the real numbers? Liptak cites a small Virgina sample of closed rape files from 1973 through 1988, which suggested a false conviction rate of between 6 and 9 percent. Another study, (by my colleague at Seton Hall, Michael Risinger) which looked at death row DNA exonerations among defendants sentenced to death between 1982 and 1989 for murders involving rape suggested that at least 3.3 percent were innocent.
A few percent may not sound like a lot, but imagine a failure rate of just 1 percent elsewhere in our society: If 1 percent of heart stents failed upon implantation, an additional 100,000 people a year would die, If commercial jets had a 1 percent chance of crashing after take-off almost 400 planes a day would fallout of the sky. Quite simply 1 percent is not an error rate we are be willing elsewhere and it's not ok to accept it in our criminal justice system. Of course as I've just finished explaining, the actual number is almost certainly much higher than that anyway.
In the end, whether the actual number of innocent people wrongly convicted is 3 percent or 9 percent, what is certain is that many thousands of innocent people are languishing in our nation's prisons tonight. And that is not a number Justice Scalia or anyone else should be willing to accept.
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One of the students in my Separation of Powers class flags that Barack Obama has proposed that the director of national intelligence be given a fixed term, "like the Chairman of the Federal Reserve," in order to "insulate the [DNI] from political pressure." Presumably, Obama means that the DNI should also be removable by the President only "for cause," as is the case with the members of the Federal Reserve Board (12 U.S.C. 242).
Jack has recently written about how odd it is that proponents of the unitary executive rarely if ever complain about the independence of the Fed, notwithstanding that the members of that board make decisions much more momentous than almost any the president himself makes—and that by now we all simply take for granted that the president must defer on monetary questions to this collection of unelected, unaccountable officials. I am planning a follow-up post on this issue soon, but for now, I'll simply throw out a few questions for the group, the latter two of which are probably outside our areas of expertise:
1. Is Obama's proposal constitutional? If not, is there a way to distinguish it from the Federal Reserve statute?
2. Is there any precedent for a major presidential candidate proposing to cede presidential control over such an important executive function?
3. If Obama is elected, would a Democratic Congress enact such a statute? Would the intelligence "community" support it or oppose it?
4. Is it good policy?
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Both the Clinton campaign and our comrades at Trailhead are complaining that Barack Obama was, in fact, never a law professor.
Well was he? Sorry Trailhead, but it's not so clear-cut. To see why requires a quick visit through the mists and mysteries of academic culture.
Obama was a "senior lecturer" at Chicago. When I was a lowly "visiting professor" at the University of Chicago, there were a number of "senior lecturers." Most were former professors who had other, usually very fancy jobs, and therefore taught less. The list included my old boss Judge Richard Posner, along with Judges Frank Easterbrook and Diane Wood, and I believe Dennis Hutchison. As the list suggests, being a senior lecturer isn't exactly like being the janitor. In fact, its sort of surprising that Chicago gave Obama that title.
To confuse matters further, the title "lecturer" is almost certainly borrowed from the English title, which refers to what Americans would call an "associate" or "assistant professor." In that sense, the term "lecturer" can be sometimes be something of a synonym for "professor." One lectures, the other professes.
But what about the difference in rank or standing? There is a difference. At most schools, the term for the job Obama had is called "adjunct professor," or sometimes "visiting assistant professor" or "clinical professor." In one sense people with these jobs are law professors—in the sense that they profess the law. It is also true that students in the class call them "professor." Doubtless Obama's students called him "Professor Obama."
But on the other hand, an adjunct is not a full-time professor, though he or she might have been so once. Nor has the adjunct or visiting assistant professor or clinical professor gone through the exact same filters required to be a "tenure-track" professor. Yet they do go through some important filters. You can't make a ham sandwich into a law professor.
So where does this lead us? To my mind, it makes for a tempest in a teapot, for two reasons.
First, while academics do care an awful lot about these things, the details may matter much more to insiders than outsiders. At the hospital, there are clerks, interns, residents, and actual attending doctors, but for simplicity's sake we call them all "doctor," even if they are doctors of various qualification. Similarly, I'm certainly not a blogger by occupation, but during this post I am. If Obama had said he was a tenured professor, that would be an outright lie. But if a clinical or adjunct claims to be a law professor, fair enough.
Second and more crucially, context makes a difference. When Obama was in the classroom, he was a law professor. But if he says, I spent these years as a law professor—that's not true. So its fair to say that while he was in the midst of teaching, Obama was a professor, even if he wasn't actually a professor by occupation.
By this standard, Obama's Web site puts it correctly: "he returned to Chicago to practice as a civil rights lawyer and teach constitutional law. And in the speeches, he ought say,
"I taught constitutional law, which means unlike the current president I actually respect the Constitution...."
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Over at Obsidian Wings, my friend Publius [not his real name -- a.w.] suggests that states should enjoy flexibility under the Second Amendment to calibrate gun-control regulations in light of the varying needs of different cities and towns:
If your world is 18th century Massachusetts, then broad gun rights make a lot of sense. If your world is a densely-populated housing project in the Bronx, then broad gun rights make much less sense. Indeed, they create very dangerous environments. And if your world is rural Montana, then the policy rationale shifts back the other way.
Publius seems to get the analysis precisely backward: If "my world" is a housing project in the Bronx, then I'd face a greater need to carry a gun, for self-defense. By contrast, if I lived in rural Montana, then my need for easier access to guns would be much, much lower.
That said, maybe Publius is on to something. Maybe the courts should take more care to calibrate constitutional rights in light of the facts on the ground in differing locales. If we're going that route, then I'd recommend that we start with the Fourth Amendment's protection against "unreasonable" searches and seizures, giving police officers greater discretion in searching persons, homes, and automobiles without a warrant in high-crime urban areas, and further limiting their discretion to conduct warrantless searches in low-crime suburbs.
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Like any associate at a big law firm in a major city, I'm keeping a close eye on layoff trends. I'm a little less worried for my friends in various M&A shops, however, now that I've seen DealBreaker's coverage of how Wall Street is adapting to new market conditions.
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When Linda Greenhouse recently announced that she was leaving the New York Times, it was a sad day for Supreme Court coverage. Now there's good Greenhouse news--and a coup for Yale Law School. Greenhouse will be the law school's Distinguished Journalist-in-Residence starting in January 2009, a new position created for her, to support her research as well as participate in law school doings. Court observers will still miss her on the front pages, but they'll get her sharp eye and analysis in other forms. I can't think of a downside.
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In a major foreign policy address today to the Los Angeles World Affairs Council, Sen. John McCain offered a few policy ideas that sounded, well, downright Democratic, even going so far as to cite Truman and Kennedy as role models:
America must be a model citizen if we want others to look to us as a model. How we behave at home affects how we are perceived abroad. We must fight the terrorists and at the same time defend the rights that are the foundation of our society. We can't torture or treat inhumanely suspected terrorists we have captured. I believe we should close Guantanamo and work with our allies to forge a new international understanding on the disposition of dangerous detainees under our control.
There is such a thing as international good citizenship. We need to be good stewards of our planet and join with other nations to help preserve our common home. The risks of global warming have no borders. We and the other nations of the world must get serious about substantially reducing greenhouse gas emissions in the coming years or we will hand off a much-diminished world to our grandchildren. We need a successor to the Kyoto Treaty, a cap-and-trade system that delivers the necessary environmental impact in an economically responsible manner. We Americans must lead by example and encourage the participation of the rest of the world, including most importantly, the developing economic powerhouses of China and India.
I r
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Last week I cited an L.A. Times feature on the Tupac Shakur killing as part of a post on Eliot Spitzer and Dickie Scruggs. Serious questions have now been raised about the accuracy of that story, which hinges upon a series of documents provided to the paper by a source which depicted an informant's conversations with the FBI. Times editor Russ Stanton said that "questions have been raised about the authenticity of documents that we relied on for a story on the assault of Tupac Shakur in New York ... we are taking this very seriously and have begun our own investigation."
(Full disclosure: I've been friends with Chuck Philips, the L.A. Times reporter who wrote the Shakur story, for nearly 15 years, and think he's a phenomenal journalist, but have not talked with him about this matter.)
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Back to Jack in a bit. Adam Liptak's NYT article notes that foreign courts don't like to enforce American punitive damages awards, a position that Liptak's interviewees attribute to foreign discomfort with the American jury system and American-style punitive damages. It's true that foreigners think that the American jury system is crazy, but European courts routinely enforce American compensatory-damage judgments, which means mainly the judgments of juries. So European discomfort with juries can't go as deep as Liptak's article implies.
As for punitive damages, the attitude of the European courts is not surprising, once one recalls that American courts also do not enforce foreign judgments that are "penal"—namely criminal, for example, fines. European courts appear to have the same rule, and the evident puzzle for them is whether punitive damage judgments should be classified as regular civil judgments (their formal classification) or criminal judgments like fines (which they seem to be, in effect). Punitive damages straddle the line between civil judgments (which are supposed to compensate) and criminal judgments (which are supposed to punish). Hence European puzzlement about whether to enforce these awards.
Courts also don't enforce foreign tax judgments, and this rule, along with the penal rule, seem to reflect a kind of inter-state deal. We'll enforce your civil judgments if you enforce ours—because we're basically in agreement that people should be compensated for their injuries, and we don't want to let defendants escape liability by going abroad. However, we don't agree as much about taxation, criminal penalties, and general regulatory matters, so let's agree to leave enforcement of these rules to one's own national courts, even if sometimes people can escape judgments by going abroad. If this is really the deal, then European reluctance to enforce American punitive awards is justified, even if these awards are good policy.
See also Jonathan Adler's post here.
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Kenji, thanks for the props last week—looking forward to continuing our conversations here and elsewhere. Since we basically agree on the Obama speech, I wonder what you thought of Christopher Hitchens' characteristically energetic denunciation of same. As you can guess from my previous posts, I think he was wrong to argue that the speech was nothing more than a cynical political ploy—there were safer ways for Obama to deal with the Wright scandal and he chose one that was, by and large, courageous and honest. But do you think Hitchens did make a few fair points as to the poisonous relationship between race, religion and politics? Such as:
- Obama almost certainly did choose the “controversial” Rev. Wright in order to gain street cred in the poor and segregated black communities of Chicago. Whether this was nothing more than cynical political calculation or a combination of that and a sincere and laudable desire to learn more about the mores and attitudes of a community he felt connected to by race but had had little exposure to is debatable (I think it’s the latter). But having done so, he had to let a lot of crazy and incendiary talk slide and now it’s come back to haunt him: He can’t defend Wright because some of what Wright says is indefensible, and yet he won’t renounce Wright because the community that Wright (to some extent) represents is one that Obama genuinely cherishes and cares about. I don't blame Obama for this, but isn't it too bad that "street cred" in the black community comes from alliances with demagogues like Wright?
- Isn’t Hitchens right to bemoan the tight interweaving of black political activism and religion, as epitomized by the so-called “liberation theology” of which Rev. Wright is a practitioner? Isn’t it bad for the black community and for civil rights struggles that so many black political leaders and intellectuals are either ministers or speak in the cadence and use the logic of religion (I’m thinking of Jesse Jackson, Al Sharpton and Michael Eric Dyson—all ministers—but also of people like Cornel West who one would think was a minister from listening to him, so completely has he mastered the charisma of the black preacher)? Hasn’t being dazzled by what Max Weber would call the "charisma" of the preacher, the magical thinking of scriptural analogy and the habit of turning political conviction into religious dogma kept black political thought mired in a destructive mind set of grievance and indignation? Yes, yes, I know people will rejoin: "what about the Reverend Martin Luther King Jr.?" but perhaps he was the exception that proves the rule? Or perhaps the desire to imitate MLK has led too many black leaders to exaggerate the most conspicuous, but perhaps not the most important, aspect of King’s persona—that the charismatic man of faith.
- The upshot: It’s not race but religion that should worry us with respect to the Obama/ Wright connection. Obama is no racial demagogue, but demagoguery is an ever present risk for someone who relies as much as Obama does on charisma in direct imitation of the revivalist preacher. Obama is wise and intelligent enough to offer us sound policy based on reason and analysis, but he too often defaults to “inspiration” when faced with tough questions (this is the real importance of Hillary Clinton’s infamous “it takes a president” comments several weeks ago, and one of the few instances where I have agreed with her in a dispute with team Obama.) If we are to realize the ambition that so many of us think Obama’s candidacy represents—not to get beyond race but to find a new and more productive way of engaging it—then don’t we need to move beyond religious, mystical and so-called “prophetic” approaches to what are, in the final analysis, social policy questions?
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continue reading at Balkinization . . .
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Reading over Chief Justice Roberts' Medellin opinion, it reminds me a lot of Justice Stevens' majority opinion in Hamdan v. Rumsfeld in 2006. Recall that in Hamdan, the court blocked the Bush administration's effort to create military commissions unilaterally by reading the UCMJ as requiring Congressional approval for those commissions. The basic idea: If you guys in the executive branch wanna do military commissions, you gotta get Congress clearly and unambiguously on board first.
Medellin v. Texas strikes me as similar. The majority reads the court's precedents on treaties as effectively requiring a clear statement that the treaty is self-executing before it will be construed to be so. And it also holds that the executive can't act on its own and make the Avena judgment binding. The basic idea: If you guys in the executive branch wanna make these foreign judgments binding law, you gotta get Congress clearly and unambiguously on board first.
Of course, the people who like both Hamdan and Medellin could probably meet in a phone booth. (And Justice Kennedy is already in the phone booth.) But the two decisions seem pretty similar to me.
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Can God create a boulder he cannot lift? That's the type of political question raised by the decision in Medellin: namely whether the Bush administration can create a court more resistant to enforcement of international law than the administration itself. And it seems that the answer is "yes."
The decision, boiled down, allows an individual state to put the whole United States in breach of a treaty, in defiance of both an international tribunal and the President's order that the State obey the treaty. If the federal courts are supposed to do anything, it is to prevent individual states from getting the United States into international trouble. That, as Breyer's dissent points out, was the point of the earliest and most important treaty enforcement cases—particularly the Great British Debt case. That case enforced the peace treaty ending the revolutionary war with Britain as against states whose actions threatened a new war. It set out a simple rule: The federal courts need to act to prevent states breaching U.S. treaties. The whole issue of "self-execution" is secondary to this concern.
And with this the Bush administration agreed; it realized that the national interest called for enforcement of the Vienna Convention. Remember that this case is about the treatment of arrested foreign nationals. The worse the United States treats foreign nationals who are arrested, the worse things are for millions of American expatriates.
That's why I disagree with Eric. It's not clear to me how it serves the interest of the whole country to have individual states getting other countries angry at the U.S. That problem in other contexts convinced the Supreme Court to prevent Massachusetts from creating its own sanction regime for Burma (Crosby), and convinced it to prevent California from setting up its own claim system for World War II abuses. But in this decision the complexity and weirdness of the "self-execution" doctrine has led the court to miss what is really going on.
The U.S. happens to benefit from enforcement of this particular treaty; hence Bush's order to Texas to enforce the treaty. It's the court, swamped by doctrine and operating outside of the international system that doesn't see that.
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Phil, the Supremes have time-honored words ready-made to make your Munaf point. Here's the theme, from the court's 1949 opinion in Watts (p. 52), quoted verbatim in the 2004 Padilla dissent (p. 11 n.10):
And there comes a point where this Court should not be ignorant as judges of what we know as men.
(And woman, one might add.) The theme's found, too, in this from Chief Justice Howard Taft, in the 1922 Child Labor Tax Case (p. 37):
All others can see and understand this. How can we properly shut our minds to it?
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Today, the Supreme Court handed down an opinion of great importance for understanding America's obligations under international law. The United States is a party to the Vienna Convention on Consular Relations, which requires states to allow foreign nationals to obtain advice from their consulates when they are arrested and to give notice to these foreign nationals that they have this right. Local police in the United States do not always know that they are supposed to do this, and the lawyers assigned to criminal defendants don't always know that they should complain to the court if the local police fail to do this. In most cases, if your lawyer fails to invoke one of your rights before the trial judge, you can't later bring it to the attention of another judge in a habeas proceeding.This is known as the procedural default rule.
In 2004, the International Court of Justice, the judicial organ of the United Nations, held, in a case brought by Mexico against the United States, that depriving foreign nationals of their consular rights under the procedural default rule violates the Vienna Convention. In response, the United States withdrew from the protocol that gave the ICJ jurisdiction over these cases, but the president issued a memorandum instructing state courts "to give effect" to the ICJ's decision with respect to pending cases, including Medellin's. In the Medellin case, there were two issues: whether the ICJ's judgment binds U.S. federal courts and whether, if not, the president's attempt to force state courts to give effect to the ICJ's judgment was lawful. The court answered both questions with a "no."
The legal arguments are interesting, but the larger significance of this case concerns the extent to which international law controls the U.S. government. Consider the following implications of the case:
1. The court interpreted the relevant treaties as "non-self-executing" (they do not create judicially enforceable domestic law because Congress has not incorporated them through legislation) rather than "self-executing." The case will likely make courts in the future less likely to interpret treaties as creating domestic law. If a violation occurs, injured parties will be limited to pursuing diplomatic remedies; U.S. courts will be out of the picture.
2. The court deprived the president of a powerful instrument for forcing American state courts to comply with non-self-executing treaties. In a rare burst of internationalism, President Bush tried to compel American states and their courts to live up to American treaty obligations. But it turns out that he doesn't have the power to do this; he will need to persuade Congress to give him the authority, treaty by treaty.
3. The court expresses skepticism about the claim that the judgment of an international court could ever "automatically" bind federal and state courts, finding it hard to believe that Congress would want "politically sensitive judgments" to be enforced by courts rather than addressed by the political branches.
(Expressing a point that will warm the hearts of realists everywhere, the majority opinion pointed out that when the United States government originally agreed that the ICJ would have jurisdiction over disputes between states, it anticipated that the only way that the prevailing state would be able to enforce the judgment would be by petitioning the Security Council—where the United States holds a veto.)
There is an academic theory that holds that the type of litigation (sometimes called "transnational legal process") exemplified by the Medellin case would eventually bring the United States into greater and greater compliance with international law. But with the benefit of hindsight, we see that the opposite has been the case. The U.S. government reacted to this litigation by withdrawing from the protocol that gave the ICJ jurisdiction over these cases, and the U.S. Supreme Court has reacted to this litigation by weakening the domestic effect of treaties, expressing discomfort with international adjudication and making clear that the president lacks the power to compel the states to comply with treaties. The United States will violate or withdraw from international law when its national government wants to, and sometimes it will do so even when its national government does not want to.
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Like Marty, Diane, and Deborah, I, too, am excited about today's oral argument in Munaf and Omar. Not just because I think this case raises thorny issues, but also because this case deals with a subject I have some personal experience with.
I served in Iraq from 2005-06 as an adviser to the Iraqi police in Baqubah. My team also worked closely with the provincial courts and jails as part of an effort to improve the larger rule-of-law system. Every time we visited a police station, we also looked at its detention cell or jail. We lived on the police headquarters compound for the first three months of our tour, literally living above the provincial jail; we later moved down the street and spent at least two days inside the jail. Attorneys for Munaf and Omar now argue that it would be unlawful to transfer their clients from U.S. (or Multi-National Forces) custody to Iraqi custody because of the conditions in the Iraqi jails and prisons—and the likelihood of torture there. I believe these arguments because I saw the overcrowding, squalid conditions, lack of due process, and evidence of torture in these facilities with my own eyes.
Second, I soldiered under the Byzantine organization known as Multi-National Forces-Iraq. I served pretty far down in the command structure on an adviser team; between me and MNF-I lay the brigade, division, and corps layers of command. However, in our work with the Rule of Law system and Iraqi security forces, we frequently interacted with senior officials and leaders from MNF-I. Notwithstanding the legal arguments from the government's counsel, there is no question in my mind that this is a U.S.-led, U.S.-centric, and U.S.-run organization in every way—right down to the American comfort food they serve in the chow halls next to the Republican Palace in Baghdad that MNF-I uses for a headquarters. I understand the government's argument with respect to the U.N. Security Council mandate and other points, but I think that argument flies in the face of reality.
Why should reality matter?
I think the court is particularly sensitive to what I'll call the "ground truth" in these detention cases. I think the justices remember well how they heard oral argument in Rasul and Hamdi in April 2004—and even asked a question about torture, eliciting no response from the government—only to have CBS air the first images from Abu Ghraib that night on television. I also think the court is aware of how the torture issue has developed since then. My sense is that the court will consider the realities of Iraq in their deliberation and draw out some of those realities today at oral argument.
I look forward to reading Dahlia's "Supreme Court Dispatch" tonight. ...
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Thank heavens for you, too, Marty. Otherwise I would've completely overlooked the powerful argument that it's really Bulgaria pulling the strings in Iraq.
As for the rest of the merits, there's nothing you said, Marty, that I have much cause to fault. Hirota is readily distinguishable, particularly (for better and worse) on citizenship grounds. And the MNF-I arguments seem particularly likely to ring hollow on a court that has, so far, been more persuaded by arguments based in reality. As Justice Kennedy put it in Rasul: "Guantanamo Bay is in every practical respect a United States territory." Practically speaking, I'd like to think it hard to see how the administration wins this one.
But that brings us to Eric's argument, which I take to amount to this: Even if the federal habeas courts find jurisdiction to hear the cases, and Munaf and Omar ultimately win release from U.S. custody, they're still in Iraq. What's the point of this whole habeas exercise challenging the legality of their detention by the Americans if the Iraqis can just arrest them right away anyway? Several points. First, with respect to its implications for the legal question presented (Do U.S. courts have the power to hear the case?), so what? You're raising concerns mostly about the meaningfulness of a final remedy. Even if you're right that there's nothing good that can come for Munaf and Omar (and I'll argue in a sec it's at a minimum not at all clear), we've all seen the Supreme Court (in an exercise, one might suggest, of judicial restraint) regularly distinguish between answering questions about whether it has the power to decide, well before it gets to the question what it has the power to decide. So for the time being, I'd say that issue just isn't here.
Second, a key issue that is here is the preliminary injunction barring petitioners' transfer to Iraqi custody. That is, the question of where Munaf and Omar get to stay while the federal courts think about whether their several-year-long imprisonment by the United States without meaningful access to counsel, after (in Omar's case) severe beatings, etc., violates anything in the U.S. Constitution or laws. There, the outcome makes a potentially huge difference, as much of the briefing in the case discusses. Petitioners have vigorous claims that sending them to the Iraqis pending trial would violate U.S. treaty obligations not to transfer anyone anywhere where they have (here, not just substantial grounds, but every expectation) of being tortured. So even if it turns out the U.S. has done nothing wrong, and Munaf and Omar ultimately get turned over to the Iraqis, I'd buy a client's preference to put that off while the courts mull everything over.
Finally, and here I'd welcome some insight as it's been a while since I had fed courts, what is the scope of discretion a district court has in awarding a remedy in habeas? Release is surely in the realm. What about release in a country where there's a reasonable expectation petitioner won't be tortured? On its face, doesn't seem out of the question. But I'd be happy to know more.
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Scholars who want to explain things and also suggest reform find themselves in a difficult position. Suppose you have an excellent theory that can predict how justices will vote in Supreme Court cases. The theory's independent variables are all nonlegal factors, such as who appointed the justices, where they obtained their law degree, the region in which they grew up, etc. Next, the Supreme Court decides a case, exactly as predicted by your theory, but in a way that, you are sure, will greatly injure American society. You sit down to write an op-ed decrying this outrageous assault on the rule of law. "Put your pen down," says Jack, in effect. "Your own theory predicted this outcome, and your theory does not include, as an independent variable, op-eds written by outraged professors. Therefore, you are wasting your time (or just showing us that you don't believe your own theory)." See Jack's post here, which was a response to mine here, which was a response to his here, and see Dahlia's skeptical response to his initial argument.
This problem was called the "determinacy paradox" by a pair of economists—Brendan O'Flaherty and Jagdish Bhagwati—who realized that (for example) economists' efforts to persuade governments to lower trade barriers were inconsistent with economists' theories about why governments raise trade barriers. If trade policy reflects the influence of interest groups that care only about the welfare of their members, then it seems pointless to tell the government that free trade advances the public good. It's a powerful critique, and if Jack didn't also make normative arguments both on his blog and in his scholarship, I would be persuaded he believed it.
After all, Jack advises liberals and progressives (not sure which is the right word these days) to stop complaining about bad judicial reasoning and to start engaging in politics. Exercise your right to vote, engage in public criticism, join a social movement. If you succeed, you will eventually put into power presidents and senators who are willing to appoint Supreme Court justices who agree with your views. However, this theory, or at least one reading of this theory, does not escape the determinacy paradox, either. It only appears to do so because no one has a very good theory about how a social movement starts. But on one reading, Jack implicitly assumes an ironclad deterministic theory, one that says that social movements of one or another particular political coloring will come into existence when factors X, Y, and Z are present (say, economic disruption, large-scale immigration, the appearance of a charismatic figure, etc.). If his theory is a good theory, then whether or not you, the reader, engage in politics or join a social movement or do anything at all, future Supreme Court case outcomes have already been determined.
I don't think that the determinacy paradox is quite as troubling as Jack appears to think. Indeed, in another (probably better) reading of his theory, it makes sense to engage in politics, including the political activity of criticizing Supreme Court justices for too enthusiastically striking down statutes that contradict the political preferences of the party to which those justices belong. Let's agree that Supreme Court justices, today and in the future, are heavily influenced by "politics." And let politics include not just the expression of bare political preferences, but also arguments about publically beneficial institutional arrangements. Some people are cynical about institutional arguments, thinking that they are almost always disguised partisan arguments, but it is undeniable that, every once in a while, an institutional innovation benefits both sides of a partisan divide. Civil service reform, which limited destructive patronage battles between parties, might be an example. A more pertinent example would be the development of an independent judiciary. The argument today is about whether this judiciary performs adequately, or should be reformed. A strong case has been made that American Supreme Court justices have gone too far in evaluating and striking down laws on the basis of their constitutionality. In doing so, they contribute to a pattern of behavior that hurts Democrats when Republicans control the court, Republicans when Democrats control the court, and, the argument goes, everyone in the aggregate because the temporary gains for each side are less than the temporary losses and the permanent damage to democracy and the rule of law. The type of institutional deal that would be necessary to escape this cycle is no harder to imagine than other institutional deals that serve bipartisan interests. Existing Supreme Court justices might be led to see that in the long term, their personal, ideological, or partisan goals would be advanced through judicial restraint (because they benefit when the opposite party controls the court). Even if they don't, future Supreme Court justice appointers might. And the political branches, if they ever get tired of how the court behaves, might press for institutional reforms from the outside. The fact that most advanced liberal democracies have much less of this behavior makes this scenario quite imaginable.
This judicial restraint view might be wrong, but if so, it is wrong for empirical reasons that one would like to hear from Jack or anyone else. The response that Jack needs to give is not a discussion (however interesting) of how, historically, various political agents struggled for control and some of them adopted this particular view, in some cases for opportunistic reasons. You can't defeat a normative argument with a description of how others have made the same normative argument in an opportunistic fashion. Jack's determinacy-paradox argument, if taken literally, contradicts his own argument that people should engage in politics if they seek to improve the world. If taken in a less literal sense as a warning that it can be hard to persuade Supreme Court justices to change their behavior and that it's even harder to persuade others that particular institutional reforms will benefit people across the political spectrum, no one disagrees with him.
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Continue reading at Balkinization ...
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No answers to questions by Eric and Deborah, but more questions about Munaf: There's something curious about the United States' position in Munaf v. Geren, on which the Supreme Court will hear oral argument Tuesday morning.
Petitioning for a writ of habeas are Mohammad Munaf and Shawqi Ahmad Omar, both U.S. citizens who also hold citizenship in a second country and both of whom now are detained in Iraq. The U.S. brief filed in advance of oral argument cites as the "threshold jurisdictional question" in the case whether
United States courts lack jurisdiction to review the detention of individuals held broad pursuant to international authority, including individuals held by United States forces acting as part of a multinational force.
Interesting question, particularly given that the 1949 per curiam judgment in Hirota. There, as I discussed a while back, out of nine justices agreed denied habeas petitions challenging convictions issued by the International Military Tribunal for the Far East, the Tokyo-based counterpart to the Nuremberg trials. The court in Hirota deemed the IMTFE a "military tribunal" established by U.S. Gen. Douglas MacArthur "as the agent of the Allied Powers," so that "the courts of the United States have no power or authority to review, to affirm, set aside, or annul the judgments and sentences imposed." (p. 17)
But here's what is curious: In Munaf the U.S. government contends that U.S. troops that are detaining petitioners do not hold them "'in custody under or by color of the authority of the United States,' " as subsection (c)(1) of the federal habeas statute requires, for the reason that those troops are detaining petitioners "pursuant to international authority"; that is, the coalition known as Multi-National Force (MNF). (pp. 17-18)
The claim suggests a break in the U.S. chain of command—a cession of U.S. sovereignty—that's at odds both with the staunchly sovereigntist stance of this administration and with extrajudicial statements that administration officials have made. To cite just two examples, on June 5, 2004, Colin Powell, then the United States' Secretary of State, wrote in a letter to Lauro L. Baja Jr., then president of the U.N. Security Council: "[T]he MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel. ... The existing framework governing these matters is sufficient for these purposes." Likewise, in a July 1, 2004, U.S. Department of Defense briefing, Brigadier General David Rodriguez, deputy director for operations, J-3, Joint Staff, said with regard to the MNF:
But in every case, all our allies have a chain of command that goes up to their national leaders, just like we do.
Though the clash in claims may not stop the government as a matter of law, I am curious to see, should it be noted in oral argument, whether the government reconciles the clash as a matter of persuasive advocacy.
(Cross-posted at IntLawGrrls blog.)
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The petitioners' claims on the merits include:
1. That a de facto or de jure transfer to the Iraqis is not authorized by law;
2. That such a transfer is also prohibited by an extradition treaty;
3. That because there is a likelihood of torture, such transfer would also violate another treaty;
and
4. That the U.S. military did not provide them with adequate process before deciding to detain them incident to a decision to transfer them to Iraqi authorities, and that if such process were afforded, they would demonstrate that there is no ground for trying them as criminals in the Iraqi system.
Now, these might all be fruitless claims—I have no idea. But that's what the habeas proceeding would test. If at the end of such process, the U.S. courts were to hold that any of those claims were correct—that the transfer would be unlawful, would lead to torture, etc., and if the U.S. executive branch were to respect such a holding, then the military would not transfer the petitioners to the Iraqi authorities. As Judge Tatel explained in the Omar case:
At this point in time, we have no way of knowing how the U.S. military would release Omar if the district court ultimately rules in his favor, much less whether and to what extent the military would communicate with Iraqi authorities. Nor do we have any idea what would happen to Omar once released. Perhaps he would end up in Iraqi custody, but perhaps he would not. For example,
perhaps because of developments at the habeas hearing, such as the appearance of defects in the government's case or the introduction of exculpatory evidence, the Iraqis would decide that Omar is no longer worth prosecuting. Or perhaps by the time the district court ordered Omar's release, Iraqi priorities would have changed, leaving Iraqi authorities uninterested in allocating scarce military resources ... to his
arrest. The point is that on the record before us at this stage of these proceedings, neither the government nor the dissent nor we can possibly know what would happen to Omar if the district court barred his transfer and ordered his release. Given this uncertainty, a preliminary injunction protecting Omar from the
certainty of transfer now is hardly an “empty gesture.” ... The dissent's speculation about a U.S. military “tip-off” to the Iraqis suffers from a second defect.
If the district court ultimately rules that the U.S. military lacks authority to transfer Omar, the military will be unable to transfer him either directly through a formal handoff or indirectly by “releasing” him with a wink-and-a-nod to the Iraqis.
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Suppose that U.S. troops are on patrol in country X. Perhaps they are engaging in joint maneuvers with that country's armed forces; perhaps they are there for some other reason. Some soldiers out on maneuvers run across a person whose face is on a "wanted" poster that they have seen. In violation of their own orders, U.S. law, and local law, they decide to arrest that person, reasoning that he is dangerous and that they are doing everyone a favor. A scandal ensues; the soldiers are disciplined.
Meanwhile, however, the government of country X asks the U.S. military, which has taken custody of the person in question, to hand him over to the government. The government understandably prefers that a wanted criminal not go free. The U.S. military is about to make the transfer when it learns that a U.S. district court has issued a preliminary injunction against turning this person over to the foreign government. This person, who happens to be an American citizen, although concededly under the criminal jurisdiction of country X where his alleged crimes occurred, has some relatives back in the U.S. who have filed a habeas petition on his behalf.
Normally, a habeas petition asks a court to order the U.S. government to release the person in custody. Fine, says the government; we will release him to the government of X. He is a wanted criminal, after all. No, says the court; you have to hold onto him. After we have a habeas hearing, then you can release him. Release him to the government of X? We'll decide later, says the court. Well, what are the other possibilities? Release him secretly so that he can continue to roam at large in country X? Ship him back to the United States and set him free there? Why would we want to do that?
Deborah, isn't this the Omar case (except that I have assumed, for the sake of argument, that U.S. custody of Omar is clearly illegal when it might well not have been)? Why would it be hypocritical or in any other way wrong for the United States government to release Omar to the custody of Iraqi law enforcement authorities? I'm sure Iraqi criminal justice is not fantastic, but it's what everyone else there has to put up with. As best I can tell, the majority of the appellate panel thinks that detaining Omar for a while longer might do him a favor because the Iraqi authorities could change their minds about arresting him and charging him with crimes, perhaps in light of evidence disclosed in the hearing. In effect, the court is anticipating that Omar's remedy for being illegally (if that is the case) detained is that he will be detained even longer. Odd.
To see why this is so odd, suppose that the preliminary injunction were out of the picture. Omar is picked up, and a habeas hearing is held instantaneously. If he wins (the court holds that the detention was illegal), then he is kept in detention (for how long?) in the hope that the Iraqis will change their minds. If he loses (the court holds that the detention was legal), then he is released immediately into the waiting arms of the Iraqi police. Do you think that a wanted criminal in Iraq should be shipped back to the United States for a trial here, even though the alleged crime was committed on Iraqi soil?
If I were a Supreme Court justice, I would ask Omar's counsel what relief he ultimately hoped to obtain (after the hearing is held). I find it hard to believe that the counsel could answer this question without sounding ridiculous. Anyone have any ideas?
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Deborah asks about the Munaf/Omar case being argued on Tuesday: "On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?"
Well, Deborah, if there's one principle the Bush administration cares even more about than dissing international law, even more than making mincemeat of treaty obligations, even more than preserving unilateral executive prerogatives, it's making sure there is no judicial oversight over the president's conduct of war. (My favorite bit from John Yoo's most recent book is when he recounts [page 142] that in the weeks after Sept. 11, the administration formed an interagency task force to study the issues related to detention and trial of al Qaeda members, and although there were many novel and contentious questions confronting the group, "[t]he one thing we all agreed on was that any detention facility should be located outside the United States"—because then the courts would (they thought) lack jurisdiction over the detention facility. In other words, "The first thing we do, let's kill all the judges.")
In this case, the cleanest way to exclude the courts is to contend that—surprise!—it's not really the U.S. in Iraq who is detaining the U.S. citizens. What? How can that be?
Continue reading at Balkinization ...
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Of all the striking things about the consolidated cases the Supreme Court is set to hear this Tuesday—presenting the question whether U.S. citizens held by the U.S. military in Iraq can seek habeas review of their detention in the U.S. federal courts—the most striking to me has got to be how little anyone seems to care.
I should say I'm not one to raise the specter of public inattention lightly. Indeed, it always drove me a little bit nuts how often (viz. invariably) I'd get the question at public panels devoted to post-9/11 law and security issues (usually with respect to torture): "Why doesn't anyone seem to care about this?" First, a huge number of people demonstrably care (including the hosts of the forum and everyone attending). Congress has legislated now repeatedly on the topic. Foundations and nonprofits have devoted comparatively enormous quantities of time and resources to advancing (to greater or lesser degrees of success) their views. Academic and popular publications have proliferated on this like copies of Thriller c. 1983. And as far as I can tell, pretty much everyone in the press has covered it (torture in particular) at one time or another in recent years. Not, of course, that there's anything wrong with that. Second, I'm a lawyer, not a public opinion pollster. To the extent one hasn't encountered one's preferred level of rioting in the streets on a particular issue, I'd as soon defer on the "why" question to political scientists, clergy members, and marketing analysts (not necessarily in that order). Third, on what actual basis is anyone asserting there isn't "anyone" who cares? Their own polling? The issue's relative absence on the cover of People magazine?
Now where was I? Ah, being slightly more careful lest I be rightly accused of self-contradiction. Trying again—I've heard comparatively little about this case at the listservs, blogs, conferences, columns, amicus briefs, etc. folks in my field frequent. Maybe I just don't get out enough. Whatever the case, I think Geren v. Omar and Munaf v. Geren have the potential to be at least as important as Hamdi, Rasul, and Hamdan—the banner Supreme Court cases post-9/11 dealing (mostly favorably) with individual rights in the face of executive power.
While I'm hoping/guessing Dahlia will help fill the relative vacuum with her usual fabulous account of oral arguments on Tuesday, here are some questions I'd be most interested in hearing my fellow bloggers address in the meantime: 1) Anyone think this case is not likely to take another chunk out of the idea that the executive acting on security matters abroad is entitled to total deference by the courts? 2) On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?
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Continue reading at Balkinization ...
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Eric, comparing legal analysis to the hard sciences simply doesn't make much sense to me; if you could get all lawyers and judges to agree on an objective and methodology, then perhaps the comparison would be apt, but that's obviously not the state of affairs.
(That said, you seem to beg the question in your comparison. If geologists' methodologies did break down along political/ideological lines, then wouldn't we likely identify various schools as "conservative geology" and "liberal geology"?)
It seems to me that the better comparison is to, say, economics, and that science rather clearly has politically identified schools (Austrian economics more clearly recognized as a conservative school; Kensyian a more leftish one).
Again, you ask, why not call "conservative jurisprudence" that which tends to arrive at conservative outcomes? Perfectly fair question; indeed, that was the basic point of the 1994 Ernest Young article I cited yesterday. I'm not saying I agree or disagree with you; for the purposes of this post, I'm merely saying that that's not the end to which I employed the term "conservative jurisprudence" in my Thursday post. You raise a nice point, but, as I candidly admitted earlier in the discussion, it's just not one to which I've given too much consideration, and as such I'd feel a little out of place shooting from the hip here! Perhaps "conservative jurisprudence" should be denoted by its "conservative" results; perhaps it should be judged by its "conservative" premises. For now, I'll conservatively withhold judgment.
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Diane's point is well-taken: If the evidence is tainted, it's tainted for purposes of conviction, as well as for sentencing, and it's just as tainted if the defendant gets a long prison sentence as it is if he gets a lethal injection. If the conviction is "clean," by contrast, it's clean irrespective of the nature of the sentence he receives.
Yet I think Emily is onto something anyway when she says that she doesn't "want this country to be a place where people are sentenced to die based on a prosecution that is tainted by torture testimony." Death, after all, is different in many ways, some legal, some prudential. I'm willing, for example, to see a conviction sustained on a weaker factual record than the record on which I'm willing to see a capital sentence carried out—notwithstanding the fact that as a purely legal matter, the evidentiary threshold is the same: proof beyond a reasonable doubt.
That's why I've been cheered at times when governors (and President Clinton once) commuted death sentences to life in prison based on residual doubts about the integrity of a trial record but did not act against the conviction itself. Something similar may be at work here. The stakes in the MCA's softening of the traditional rules of evidence are particularly high in light of the availability of capital punishment in this case. Put another way, I think many people would not argue against conviction of someone who had been waterboarded upon capture if the government can prove his culpability without the use of tainted evidence. Many more, I suspect, would argue in principle against his execution, even if the evidence is clean.
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Doug,
In a word: Welcome.
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Adam, thanks; your admirably patient response clears things up a little, but at the risk of trying your patience further, I must admit that my confusion has not dissipated. You say "conservative jurisprudence" means "only those methods of legal analysis most commonly employed by American ‘conservatives.' " You can't mean that; by this logic, "conservative geology" is the method of geology most commonly employed by geologists who happen to belong to the Republican party. Wouldn't it be better to define "conservative jurisprudence" as a method of legal analysis used to generate conservative case outcomes? Put this way, isn't there something a little embarrassing about the whole inquiry? Geologists don't evaluate each other on the basis of the political valence of their methodologies; why should jurists? I would think that "conservative jurisprudence" would be an insult hurdled by liberals at judges who care about political outcomes rather than the law. Instead, it is a badge of honor that conservatives pin on the robes of their favorite judges. How did this happen?
Here is what I think. At one time, conservatives could argue that judges who held themselves out as impartial were actually trying to move the law to the left. In the course of pointing out the errors of the judges, these conservative critics tried to explain what they thought the correct type of legal methodology would be. Defenders of the judges said that the judges were impartial, and the critics were trying to get the judges to adopt the critics' own politically biased, "conservative" legal methods. So the critics were called "conservative" jurisprudents while the defenders were called "liberal" jurisprudents. But people on both sides denied the labels: They wanted to be called "correct," not "conservative" or "liberal." It is too bad that this is no longer true. Now the chief concern seems to be whether one's erstwhile allies have gone heterodox: not whether Will's, um, legal philosophy is correct, but whether it is conservative.
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Today I endorse Barack Obama for president of the United States. I believe him to be a person of integrity, intelligence, and genuine good will. I take him at his word that he wants to move the nation beyond its religious and racial divides and that he wants to return the United States to that company of nations committed to human rights. I do not know if his earlier life experience is sufficient for the challenges of the presidency that lie ahead. I doubt we know this about any of the men or women we might select. It likely depends upon the serendipity of the events that cannot be foreseen. I do have confidence that the senator will cast his net widely in search of men and women of diverse, open-minded views and of superior intellectual qualities to assist him in the wide range of responsibilities that he must superintend.
This endorsement may be of little note or consequence, except perhaps that it comes from an unlikely source: namely, a former constitutional legal counsel to two Republican presidents. The endorsement will likely supply no strategic advantage equivalent to that represented by the very helpful accolades the senator has received from many of high stature and accomplishment, including most recently, from Gov. Bill Richardson. Nevertheless, it is important to be said publicly in a public forum in order that it be understood. It is not arrived at without careful thought and some difficulty.
As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends but as recognition of the significance of the procreative family as a building block of society. As a Republican and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement. As a Republican, I strongly believe that the Supreme Court of the United States must be fully dedicated to the rule of law and to the employ of a consistent method of interpretation that keeps the court within its limited judicial role. As a Republican, I believe problems are best resolved closest to their source and that we should never arrogate to a higher level of government that which can be more effectively and efficiently resolved below. As a Republican and a constitutional lawyer, I believe religious freedom does not mean religious separation or mindless exclusion from the public square.
In various ways, Sen. Barack Obama and I may disagree on aspects of these important fundamentals, but I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them.
No doubt some of my friends will see this as a matter of party or intellectual treachery. I regret that, and I respect their disagreement. But they will readily agree that as Republicans, we are first Americans. As Americans, we must voice our concerns for the well-being of our nation without partisanship when decisions that have been made endanger the body politic. Our president has involved our nation in a military engagement without sufficient justification or a clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.
Sept. 11 and the radical Islamic ideology that it represents is a continuing threat to our safety, and the next president must have the honesty to recognize that it, as author Paul Berman has written, "draws on totalitarian inspirations from 20th-century Europe and with its double roots, religious and modern, perversely intertwined. ... wields a lot more power, intellectually speaking, then naïve observers might suppose." Sen. Obama needs to address this extremist movement with the same clarity and honesty with which he has addressed the topic of race in America. Effective criticism of the incumbent for diverting us from this task is a good start, but it is incomplete without a forthright outline of a commitment to undertake, with international partners, the formation of a worldwide entity that will track, detain, prosecute, convict, punish, and thereby stem radical Islam's threat to civil order. I await Sen. Obama's more extended thinking upon this vital subject as he accepts the nomination of his party and engages Sen. McCain in the general campaign discussion to come.
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Eric, you changed the topic on me and perhaps misunderstood. The conversation was about the politics of abortion and Republican coalition--no one is questioning the sincerity of belief of many who would like to see Roe overruled and abortion banned.
Do you doubt that the legislation I described would likely increase the total number of abortions? My point was that the kind of legislative initiatives that come out of the "Republican coalition" you were discussing does not actually accomplish a reduction in abortions. (And that the primary prochoice organizations do work hard toward that goal.) That may also well reveal that some (not all) such political forces are more interested in objectives other than reducing the number of abortions. Among them may be controlling the nature and understanding of motherhood and diminishing women's equality and sexual freedom (and even where those are not objectives, they may provide strong influences). For the many who sincerely would like to reduce the number of abortions, that desire provides the basis for education about the true effects of the legislation and the possibility for instead forging common ground policies that promote pregnancy prevention and healthy childbearing.
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Benjamin and Emily appear to agree that, as he puts it, "[t]o the extent the eventual convictions of KSM et al rely on coerced testimony, even indirectly,... the Defense Department should not put them to death." But should the prospect of execution alone be the only concern? Benjamin does proceed to discuss "clean convictions," implying the answer is "No."
At least since the days of Mapp (1961) and Wong Sun (1963) -- or, for that matter, Bram (1897) -- the question of tainted evidence has arisen 1st and foremost at the guilt/innocence phase. If it's addressed properly there, most likely there'd be no cause for reconsideration-in-mitigation at sentencing. Seems a simple enough premise. Yet it's one away from which the U.S. criminal justice system's seemed to have moved in recent years. Example of this shift: the widely shared notion that it's a victory when a tainted-for-whatever-reason capital sentence is commuted to life.
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Dawn, you've hit the nail on the head. What hypocrites! To think that we would believe that they are against abortion just because they are trying to shut down abortion clinics. I hadn't realized that their nefarious scheme is to increase the number of abortions by reducing the availability of contraceptives! How could I have been so easily fooled?
Jack, I'm afraid you'll need to revise your theory that Republican leaders surreptitiously want to preserve Roe so that they can maintain a coalition that will dissolve if Roe is overturned. In light of Dawn's argument, you will need to claim that Republican leaders pretend they want to overturn Roe, on behalf of a constituency that pretends that it wants to reduce the number of abortions. Politics can be so confusing!
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Columbia business professor Ray Fisman has a fascinating column in Slate on the economics of California's "three strikes" law -- a subject near to my heart because I wrote my undergraduate thesis on it. Researchers at RAND have done some work on the costs, benefits and efficacy of the law, but Fisman writes that a new study by the National Bureau of Economic Research contains some disturbing findings:
. . . [The study] finds that three-strikes laws like California's, while discouraging criminals from doing things like smoking pot or shoplifting, may push those who do continue in a life of crime to commit more violent offenses. The study's author, Radha Iyengar, argues that this is because under such laws, felons with a pair of strikes against them have little to lose (and often much to gain) by committing serious crimes rather than minor offenses.
Why would stiffer penalties increase violent crime? To understand this seeming paradox, you first need to understand the nature of California's three-strikes law. Not just any offense gets you a first strike. It must be a so-called "record-aggravating" offense, which includes violent crimes like assault and rape as well as serious nonviolent crimes such as burglary or drug sales to minors. But after strike one, strikes two and three can come from any felony, including minor offenses like possession of marijuana or even stealing golf clubs or videotapes. A third strike carries with it a mandatory sentence of at least 25 years in prison.
Now, put yourself in the shoes of a two-strike criminal. The prospect of 25 years behind bars for a third offense is likely to give even a hardened criminal pause before he or she crosses the street against the lights. So we'd expect two-strike felons to commit fewer crimes. But suppose you've already decided to break the law—maybe you need to make a quick buck. Are you going to lift a few golf clubs from the local pro shop? Or are you going to hold up a bank? The potential haul from a bank robbery is obviously much greater, and the penalty is the same: Bank robbery will get you decades in the slammer, but if it's your third offense, so will shoplifting.
Even if you don't quite have the chutzpah to pull off a bank job, you still might end up committing a more violent crime if you're in a 0-2 hole. Let's say you opt for the golf club caper, but as you're making your getaway, you're cornered by a store security guard. Do you surrender quietly or pull out a gun? If strike three is looming, it's all the same to you whether you end up on trial for shoplifting or armed assault, so why not try to shoot your way out of an arrest?
The Supreme Court upheld California's three strikes law a few years ago. And in the aggregate, the law has helped reduce crime by putting away a lot of criminals (albeit at staggering cost for the state of California). But I don't think that's the end of the discussion. It's one thing to ask whether a law is Constitutional; it's quite another to ask whether the law is effective, or a prudent public policy. I'm curious about what my Convictions colleagues think. Do sentencing laws like "three strikes" work? Or are there better, cheaper, more effective alternatives? And if the law's unintended consequence has been to make 2nd strike criminals more violent, what can we do about it?
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[Dawn Johnsen] With apologies for the more-than-24-hour response time - an eternity for a blog, I know - I want to resurrect Eric's statement: "Members of the Republican coalition are not so much concerned about Roe as about reducing the number of abortions." Implausible, I think, on its face. But for any for whom it may be true, let me explain to them the error of their ways, with an example from here in Indiana.
Anti-choice legislators introduced two bills in the Indiana legislature a couple of sessions ago: one an outright criminal ban on abortion and another a "TRAP" law. "TRAP" or "targeted regulation of abortion providers" laws are designed to sound non-threatening and trick people into thinking they are about legitimate health concerns. But they actually seek to shut down facilities that perform abortions: by singling them out for medically unnecessary, extremely expensive regulations, such as building specifications that mandate hallway widths and room sizes that mirror hospitals.
The Indiana TRAP law would have closed every abortion clinic in the state, and kept them closed unless and until they could afford expensive renovations or relocations (leaving hospitals the only lawful possibility). The criminal ban went nowhere, but the legislature came extremely close to enacting the TRAP law and shutting down every one of Indiana's seven abortion clinics for plainly no legitimate purpose. Including our Planned Parenthood clinic here in Bloomington.
A few stubborn facts: Last year Planned Parenthood of Indiana dispensed nearly half a million units of contraceptives, doing more than any other organization to reduce the abortion rate in Indiana. I repeat, the TRAP law would have debilitated for no legitimate purpose the organization doing more than any other to reduce unwanted pregnancies in Indiana. Most of its patients have limited other options, for they live at or below the poverty level. Nationally, 81 percent of Planned Parenthood's patients receive services to prevent unintended pregnancy. Many others receive screening for cancer, HIV and sexually transmitted diseases. And three percent of its services go to women to make real Roe's increasingly hollow promise, that whether to have an abortion is a decision for the woman and not for politicians to impose on her.
The way to reduce the number of abortions is no secret. It's by making available contraception and comprehensive sexuality education. And more than that, by enacting policies that support healthy pregnancies and healthy families. How about universal health care, or at least an expansion of the CHIP program for kids? Where is that Republican coalition?
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[Adam White]
Justice Clarence Thomas is the featured interview in the weekend edition of the Wall Street Journal. He's interviewed by David Rivkin and Lee Casey, a pair of prominent lawyers who do a fair share of writing on the side. (Our editor, Phil, is no stranger to Rivkin; they appeared together on NPR back in 2005, at the height of the laws-of-war debates.)
The article is intended for a general audience, and as such it offers little material unfamiliar to regular Court-watchers. (Except for the fact that he uses a Cornhuskers screen-saver not because he has any affiliation with the school but, rather, because "he's just a fan.") Nevertheless, I enjoyed his reflections on oral argument:
And why doesn't he ask questions at oral argument, a question oft-posed by critics insinuating that he is intellectually lazy or worse? Mr. Thomas chuckles wryly and observes that oral advocacy was much more important in the Court's early days. Today, cases are thoroughly briefed by the time they reach the Supreme Court, and there is just too little time to have a meaningful conversation with the lawyers. "This is my 17th term and I haven't found it necessary to ask a bunch of questions. I would be doing it to satisfy other people, not to do my job. Most of the answers are in the briefs. This isn't Perry Mason."
Those wondering how, precisely, to write a brief that will please Justice Thomas should consult LawProse.org, which boasts a fascinating series of video interviews with the respective Justices on the subject of brief-writing.
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[Adam White]
Eric, I think you're reading too much into my post on George Will's latest column. You make a few points; let me roughly group them and respond in turn, not necessarily in the order in which you presented them:
First, regarding the specifics of the Will column: I'm not sure why you took me to be "worried about whether Will's legal philosophy should be called 'conservative jurisprudence,'" or to be "relieved" to ultimately answer in the affirmative. I certainly wouldn't "worry" one way or the other as to Will.
Second, as I intended to convey in my post, Will's column raised eyebrows not for his suggestion that "[t]here must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say" (i.e., the portion you quoted) but, rather, for his view of the Fourteenth Amendment:
The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism -- judges judging rather than merely ratifying government's caprices.
Will's call for courts to impose a greater-than-rational-basis review on state economic regulation is a fairly bold departure from the textualism/originalism jurisprudence now predominent among conservative legal and political scholars. I noted that Will (to borrow your phrasing) "touched a nerve" by invoking a degree of judicial restrictions on regulatory power very much outside of the modern American conservative mainstream. That's all.
Third, your larger point: You confess puzzlement by my use of the term "conservative jurisprudence." In fact, you suggest that the term is novel to the blogosphere -- and, hoping not to appear out of place among your fellow bloggers, you ask for insight on what you characterize as "a secret meeting where everyone is wearing costumes and speaking in code." (Hats and keys and passwords? Gee, whiz.)
I think you're simply reading too much into my point. By using the term "conservative jurisprudence," I meant only those methods of legal analysis most commonly employed by American "conservatives." Subjective definition perched upon subjective definition, no doubt. Nevertheless, I don't think it's a particularly novel term, and I certainly do not agree that the term "conservative jurisprudence" is the strange province of bloggers.
Cass Sunstein, for example, quite nonchalantly used the term "conservative constitutional thought" in his recent paper on "Burkean minimalism." (Sunstein identified at least two "approaches" under the broader umbrella of "conservative constitutional thought": "Originalists, including Justices Antonin Scalia and Clarence Thomas," and "conservative perfectionists," including "the most influential memebers of the Lochner Court".)
Ernest Young's 1994 contribution to the North Carolina Law Review -- also focusing on Burke -- offers a fine account of "Modern Conservative Jurisprudence," which he sees as encompassing "Originalism" and "judicial restraint." (He begins with Mark Tushnet's 1985 sharp quote, "Conservative constitutional theory might be interesting, but it isn't.")
And of course there other myriad other examples. (Robin West's 1990 Michigan Law Review article, "Progressive and Conservative Constitutionalism" among them.) At risk of being overly general, these authors used the terms "conservative jurisprudence," "conservative constitutional thought," and other variants in the same way that I did: I referred only to the methods of legal analysis most commonly associated with "conservatives."
As for your specific questions as to whether Will will be thrown out of the "clubhouse," or how a method of legal analysis comes to be adopted by conservatives -- good questions, and ones for which I don't have any answers. I can't say I've ever given them much thought. How conservatives (or progressives, or Marxists, or Iowans) come to respective consensuses on preferred methods of legal analysis certainly is a question far beyond the capabilities of a blog post's analysis.
In short: Let not your heart be troubled, Eric! You've stumbled upon no secret societies; you've accidentally uncovered no secret handshakes, keys, or hats! I meant to offer no more cryptic a point than that Will's analysis, while certainly not within the modern American conservative legal mainstream, was perfectly consistent with his prior writings and, therefore, unsurprising, and that it isn't utterly foreign to conservative thought. I certainly did not intend to introduce into the debate any new or novel terms.
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Eugene Volokh takes Dahlia Lithwick to task for accusing Republican Supreme Court justices of hypocrisy when in fact they are merely applying their ("conservative") judicial philosophies in a consistent manner. Dahlia thinks that conservatives believe that courts should leave policy to legislatures, respect precedent, and refrain from inventing constitutional rights, and that the Republican Supreme Court justices do none of these things. Heller might not be the best case for her argument, especially because it has not yet been decided; but if it is decided as everyone expects it will be (namely, conservatives on one side, liberals on the other), it is not the worst example that she could have come up with. (She says similar unflattering things about the liberals on the Court.)
The problem, as Volokh points out, is that it is hard to show that any of the existing Supreme Court justices are being hypocritical. They have their particular judicial philosophies, and are arguably acting consistently with them. Dahlia's hypocrisy charge will nevertheless ring true for some people. Correctly read, I think, she is not so much accusing any particular justice of hypocrisy; rather, she is accusing a composite of conservatives of hypocrisy--those conservatives who argued, back when liberals ran the Supreme Court, that justices should try to avoid striking down statutes, and who now, with a conservative court doing the same thing, are egging it on.
Conservative thinking about courts has changed. At one time, conservatives criticized the Court for aggressively striking down laws; now conservatives seem less concerned about this behavior. (I am simplifying: there are exceptions in both groups.) Because the time-one conservatives said the Court was doing politics, and the time-two conservatives deny that they have a political agenda for the courts, something, vaguely, seems hypocritical. (A mirror-image argument is being made about liberals who have begun arguing for judicial restraint.) But no particular individual is necessarily hypocritical. The first group has faded into the background, and the second group has come to the forefront. With the change in the personnel of the courts, there is more political demand for the ideas of the second group than for the ideas of the first. No individual is hypocritical, but if you thought of the "conservative movement" as a living, breathing person, then you could accuse that person of hypocrisy. Unfortunately, there is no such composite person. Dahlia commits the "fallacy of division," attributing to the members of a group motives that would better describe the group as a whole, with the added twist that the group is inappropriately anthropomorphized.
One can see the problem more clearly by focusing on how people are chosen for the Court. Presidents want to appoint Supreme Court justices who will decide cases consistently with the presidents' political agendas, but they can't very well ask their appointees to do politics. The solution is to find and appoint people who sincerely hold judicial philosophies that are likely to generate the political outcomes that the president values. It isn't fair to call these appointees hypocrites; they are sincere (as far as we can tell). Nor does it seem fair to call the presidents hypocrites, though they are less than straightforward when they claim that they care about the judicial philosophies rather than the politics of appointees (they care about the former because they care about the latter). Politicians do politics, so it would be strange to call them hypocrites for advancing their political agendas in the courts. So voila, we have a hypocritical institution--the Supreme Court, which claims to do law, and not to do politics, but does both--even though it may well be composed of, and by, people who are not hypocritical at all. How do we know that the Supreme Court is hypocritical? Because it holds itself out as an impartial institution that decides the law only, but makes decisions that a twelve-year old could tie to the politics of its members--as Heller seems to make (or will make) painfully clear.
You can call an institution hypocritical until you're blue in its face, but it's not going to change its behavior. It's just an abstraction, after all. The question is whether one can live with the institution as it is, or can figure out some way to make it better. Calling the justices hypocrites won't work because they are not hypocrites. Telling them--or at least a wavering swing vote--that they risk damaging the reputation of that institution, and hence their means for exerting influence, might.
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[Nancy Gertner] Kenji Yoshino asks whether it is better to eliminate peremptory challenges altogether rather than risk their use in a discriminatory fashion. I understand the problem; Snyder, the Supreme Court's recent peremptory challenge case, dramatized it. Still, because of what I know of the real world of criminal trials, I would not throw out peremptory challenges.
Peremptory challenges are more likely to be based on stereotypes of all kinds where the voir dire process has been inadequate. The more information you have about someone the less likely you are going to stereotype him or her. The problem is that voir dire in federal court is usually limited. (State courts are different; some, like Connecticut, have a long tradition of elaborate voir dire. Some federal courts mirror the more elaborate voir dire of the states in which they are located, but that is the exception not the rule.) Typically, a juror's self-assessment of partiality or impartiality is the end of the analysis. So, until courts recognize the significance of a searching voir dire, lawyers will never be able to ask the kind of questions that really elicit bias on the part of the juror. (When I was a practicing lawyer, the only mandated question about race in the courts of Massachusetts was, "are you sensible of any bias or prejudice you might have " a question often asked to the jurors as a group. It was an approach hardly likely to elicit a meaningful response from the jurors. In fact, it reminded me of an AA meeting; the jurors were expected to stand up and say, "My name is John Smith and I am a racist." Happily, the Massachusetts has changed its jury selection procedures.)
Of course, one might say if we had a more searching voir dire, why would we ever need peremptory challenges. The only answer is that peremptory challenges represent the system's safety valve—because the very process of jury selection may alienate a juror, because there may not be enough time to ask all of the relevant questions of a juror, because in high profile cases one may suspect a juror to have been influenced by 24/7 news coverage but the juror denies it, etc.
I recognize the contradiction—if after lots of questioning you don't have a rational basis for a cause objection, you are more likely to challenge a juror based on hunches, gut feelings, and of course, bias. Still, the very possibility of a Batson challenge has an impact on the exercise of peremptory challenges. In addition, perhaps after Snyder the courts will do a better job of monitoring. For every Snyder there were a thousand cases where courts have been unwilling to second guess the prosecutor. It was enough if the prosecutor offered any old reason so long as it was ostensibly race neutral; it didn't have to make sense. (The Supreme Court literally said that in a 1995 case, Purkett v. Elem.) This included "I got the feeling that the juror didn't want to be here," or another where the juror seemed "squishy on the death penalty," or made a funny face, or looked bored.
Whether Snyder augurs a change is an open question. It was, after all, a death penalty case. At times it appears that there is death penalty jurisprudence and then all other criminal prosecutions. In addition, as we have seen to a degree in sentencing, there are Supreme Court pronouncements which are effectively ignored by the lower federal courts.
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So here's where I think our arguments are passing in the ether, Jack. First, I've always understood there to be an at least doctrinal (perish the thought) distinction between "fundamental rights" and "everything in the Bill of Rights." (So when, for example, we studied in law school why a state law forcing the sterilization of certain people was constitutionally problematic, it mattered in the court's decision to apply strict scrutiny that in particular "[m]arriage and procreation are fundamental to the very existence and survival of the race.")
I take you in recent posts to be arguing there's no daylight between rights fundamental and any right in Amendments 1 through 8 (i.e. that "fundamental rights" include at a minimum everything in the Bill of Rights). Among other things, then, I'm stuck with how to understand things like the grand jury right, on which the states have gotten a constitutional pass. Guess that falls into the Balkin given-a-chance-I'd-reverse bucket.
Second, I wasn't arguing that strict scrutiny should apply to regulations of Second Amendment rights, or indeed that strict scrutiny is what applies to everything in the first 10 amendments. Just the opposite (as I'd hoped was made clear when I noted, for example, "the highly contextual availability of those rights (even the great First Amendment)..."). I was arguing that applying strict scrutiny (or something thereabouts) seemed like the necessary implication of your argument that the right to carry a handgun is "fundamental." Because you apparently think Amendments 1-8 or 9 are all "fundamental," I can see why you wouldn't think that the necessary implication at all. Glad to have the record straight.
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Richard Schragger is another Slate contributor who teaches at UVA law school. He sent in this email in an effort to clarify where you and I differ Jack.
In his post concerning the “living Constitution” Jack takes Dahlia to task for her naiveté – how can a “living constitutionalist” believe that constitutional law-making is anything other than a mixture of constitutional law and constitutional politics (with the latter more dominant than the former)? This explosion of the law/politics divide is too all-encompassing—and it doesn’t give us much traction on the important question—which is: What does the Constitution require? Jack offers an externalist perspective on constitutional change and calls it the "living constitution" -- but what he is offering is a description of how political/historical forces shape courts and other institutions of government – an account that may or may not be accurate but is, in any case, not what lots of opponents of originalism mean when they speak of the “living constitution.” Jack’s description also doesn't answer the question of whether the Court is actually engaged in making law. What I think Dahlia cares about (or, more accurately, what I care about) is the Court from an internalist perspective: We think that the Constitution is law, that law has content, and that legal doctrine has to be justified by an actual theory or account of the Constitution, the rights it contains, and how those rights apply through time.
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I’ve been getting lots of interesting emails about my conversation with Jack about the proper role of social moments in constitutional courts so I thought I’d share some of the best. James Ryan teaches at the University of Virginia and has written for Slate. He writes:
I wonder if what really bothers you is the difference between well-heeled interest groups, who should be able to do just fine in the legislature, versus social groups that are traditionally disadvantaged in the legislative process. Seems like you could accept that social groups can and should help shape the Court's agenda but believe, ala Ely and political process theory, that there's no reason for the Court to overturn the legislative process when it disadvantages social groups that can and often do just fine in the legislative arena, as in the NRA. The Court might want to take a closer look when groups that are routinely disadvantaged ask for their help. E.g., you can make the argument that the Court should pay more attention to the NAACP than the NRA.
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[Benjamin Wittes] To the extent the eventual convictions of KSM et al rely on coerced testimony, even indirectly, I agree with you, Emily, that the Defense Department should not put them to death. The hard question is what to do if, notwithstanding their brutal treatment, the military commissions can deliver "clean" convictions that do not depend on coercion at all. There are several ways this could happen. The first is that the defendants-some of whom have evinced significant pride in their acts-do not contest the allegations against them, but actively take credit for them. This is what KSM did in his combatant status hearing and also what Richard Reid did in federal court and two other detainees tried to do in prior military commissions. It strikes me as a plausible, even likely, disposition for at least some of the 9/11 defendants.
The second possibility is that prosecutors may be able to convince a military commission-as civilian prosecutors convinced a judge and jury in Jose Padilla's case—that the evidence they are presenting is in no way tainted by the circumstances of the defendants' initial interrogation. So while I agree with you that this country shouldn't "be a place where people are sentenced to die based on a prosecution that is tainted by torture testimony," that doesn't seem to me to end the inquiry. These cases could raise a different question: whether the fact of having been tortured-or something close to it—renders one ineligible for the death penalty, no matter how culpable one is and no matter how well-scrubbed one's criminal trial might be. I hate the death penalty enough that I have trouble answering that question dispassionately, but I think my answer is that it probably doesn't—that is, if the conviction is truly unaided by the fruits of coercion, I would not fight execution based on the fact of the coercion having taken place (though I would, as described earlier, have grave anxieties about execution in these cases for other reasons).
That, of course, raises the question of whether the rules of the tribunals created by the MCA are strong enough to make sure that convictions are not tainted. The answer is, well, maybe. In theory, they could stand to admit a fair bit of coerced testimony if the presiding judge deems it probative and reliable given the totality of the circumstances. But that very standard also allows a lot of litigation over the reliability of a given piece of evidence and its probative value under the circumstances under which authorities got it. The result of that litigation could well be that the tainted stuff stays out. In other words, I can imagine unfair trials under the MCA or very fair trials under it. So all the rhetoric aside, I don't think we'll know until trials actually happen how fair or unfair the system really is.
The truth is that a lot of trial systems have rules that permit horrifying unfairness under the worst circumstances. A few years ago, I did a series of editorials for the Washington Post about procedural rules in Virginia criminal cases under which more than 10 percent of convicts used to lose their right to appeal because of lawyer errors in filing appellate documents. The process of restoring these defaulted appeals would generally cause the inmates to lose all ability to file habeas corpus actions. (The rules have since changed.) Nothing in the MCA is that indefensible, in my opinion—yet we don't generally talk about Virginia rules as so pervasively unfair as to render trials conducted in the state as per se illegitimate. We treat each case on its own merits. While I do suggest substantial changes to the MCA in my forthcoming book (about which I'm grateful for Emily's kind words), I'm inclined to view trials under it as warranting at least that level of confidence.
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continue reading at Balkinization . . .
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With growing appreciation of Jack and Dahlia (and growing bewilderment at how any of us will keep up with our day jobs in a post-Convictions world), let me offer a few thoughts in response to Jack's post on the Second Amendment and more broadly on constitutional interpretation by "progressive constitutionalists."
Jack's of course right that we should all know a lot more about the framers (and framing) of the 14th Amendment. Count me in. I also couldn't agree more with the general sentiment I take Jack to be expressing that those who continue to assert vigorous state rights-type arguments (in various contexts, most ridiculously perhaps when it comes to voting rights) are simply missing the reality that their side lost the Civil War. Even on the more specific point, I would be willing to defer on grounds of comparative historical illiteracy to Jack's account that one of the things the 14th Amendment framers had in mind in passing the amendment was to make sure, I take it his historical argument would lead him to say to the Heller Court, that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason. For such is the result at least traditional strict scrutiny of regulation of a fundamental right would most likely bring.
But it is that last point that brings me back to the question my earlier post meant to be asking - namely, that however terribly inadequate (Charles Black said), ahistorical (as you would say), and otherwise laden with "baggage" (as Chief Justice Roberts would say) the Court's fundamental rights jurisprudence has been in the past ~150 years, my naïve stare decisis-related assumption had been that those decided cases are entitled to at least some measure of "interpretive weight" as against the statements of the no-doubt-far-more-enlightened views of Senator Howard. Of course it would've been better had Slaughterhouse been rightly (or even plausibly) decided, and we all hadn't wandered off for the past century and a half down the less-than-perfect substantive due process road, and the associated imperfect road along which we incorporated some (but not all) of the Bill of Rights against the states. But alas, that is the legal road we have traveled. It is one thing for progressives to explore anew the heretofore untapped scope of the privileges of immunities clause. It seems to me another thing to ignore, in any case in which any of that along-the-way jurisprudence seems inconvenient, everything else that might inform the modern Court's understanding of what makes a right fundamental.
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I must confess, Dahlia, that you saw something in my last post that I didn't see. I was not writing about the "drawbacks of living constitutionalism," but about how living constitutionalism of the kind you like actually works.
You seem to think that there is some important difference between the way that political and social movements influenced and interacted with John Roberts and his conservative brethren and the way that they influenced and interacted with Earl Warren and his liberal allies. I'm here to tell you that there are not that many differences, if you put aside who you happen to be rooting for. People said the same things about Earl Warren (and William O. Douglas and William Brennan) that you now are saying about John Roberts, as in: "Where the heck did he get this stuff? Is he just making it all up? Is he just a mouthpiece for the liberal wing of the Democratic Party? He must have been too influenced by those crazy lefties." etc., etc. etc.
Go back and read what people said in the 1950s and 1960s about the work done by courts in this era and you'll find it all very familiar. It sounds just like you. If you like, we can turn back the clock and reverse all those liberal decisions that were done the "wrong way." But frankly, I'd rather not.
One last thing. The notion that "the individual right to bear arms `ar[o]se full blown' from the head of Chief Justice John Roberts" and not out of the text of the Bill of Rights is news to me. I guess you could also say that the right against sex discrimination sprang full blown out of the head of William Brennan or that the right against segregated schools sprang full blown out of the head of Earl Warren. This is not historically accurate in either of those cases, and it's not historically accurate in the case of Roberts. Believe me, I'm not generally in the business of carrying water for our current Chief Justice. But let's give credit where credit is due.
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Adam invites us to ponder a recent column by George Will, who says, in the context of a picayune dispute among a group of people whom he obviously thinks are a bunch of rubes (actually, the "people" of Pinal County are salt-of-the-earth regular guys and gals who love their families but are not averse to some clean fun, and who elect secret admirers of the Gestapo to rule over them):
there is this mighty oak of a principle: There must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say.
I don't know whether this principle is a mighty oak or not, but it's hardly news. Any lawyer would tell you the same thing if he could stay awake long enough to finish the sentence. If courts didn't do this, there wouldn't be much point in having a legislature. Why Will thinks that a court interpreting a statute according to its meaning is "judicial activism" is beyond me. Maybe, he's confusing statutory interpretation with the opposite practice of striking down a statute because it violates the Constitution. Starting from the premise that local courts should enforce the "plain language" of the relevant zoning ordinance so as to constrain the power-mad officials of Pinal County, Will concludes that courts should strike down these ordinances because they violate the Constitution. So which is it? Uphold or strike down?
Adam seems worried about whether Will's legal philosophy should be called "conservative jurisprudence." He seems relieved that the answer is yes. But what is "conservative jurisprudence," anyway? Jurisprudence is the study of law; is "conservative jurisprudence" like "conservative geology" or "conservative astrophysics"? Would Scalia and Thomas agree that their jurisprudence is "conservative" or would they just say it is "correct"? What happens if Will's jurisprudence turns out not to be conservative? Does he have to turn in some special key or a funny hat? Is the correctness or not of Will's jurisprudence relevant to the issue of whether it is conservative? Or is the idea that "correct" is just an unnecessarily simple way of saying "conservative"?
Reading Adam's post, I feel that I have stumbled across a secret meeting where everyone is wearing costumes and speaking in code. If I am going to take a place in the blogosphere, I will have to learn this code myself. So someone please help me. Why would conservatives or anyone else have a nerve touched by Will's column? Is it because one can derive (as I learned in logic) any proposition ("war is peace," "black is white," "taxes are good") from two contradictory premises? Should this bother only conservatives but not liberals? And why does it matter whether someone's jurisprudence counts as "conservative" or not? Is the idea that jurisprudence is "conservative" if it generates right-wing case outcomes--for example, Republicans always win and Democrats always lose? If a judge resolves a breach of contract dispute by decreeing that neither party may have an abortion, does this count as "conservative jurisprudence"? If someone's jurisprudence produces liberal case outcomes, does that mean his jurisprudence is wrong, or just that he is denied entry into the clubhouse? Adam, someone, help?
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To respond to David’s questions on the deported dandy Sebastian Horsley, here’s the governing law from the State Department. The United Kingdom is one of the countries recognized under the Visa Waiver Program, which is what it sounds like. But according to the State Department site an individual otherwise eligible for a waiver must apply for a visa if the alien “[h]as a criminal record or other condition making them ineligible for a visa.”
That infelicitously worded provision makes it sound like you have to apply for a visa if you aren’t eligible for one. The reality is not quite so Kafkaesque. Yes, classes of ineligible aliens include “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of, a crime involving moral turpitude.” Such aliens, however, can still be admitted if: (1) the crime was committed when the alien was under 18; (2) the crime was committed more than five years before the visa application; or (3) “the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year.”
Unfortunately for Horsley, none of these exceptions apply to him. He has admitted that he spent 100,000 pounds (about $200,000) each on prostitutes, drugs, and suits. Disclaimer: fashion crimes are not deemed acts of moral turpitude, though Horsley was pulled out of the line for wearing a three-piece suit and a top hat on this occasion.
While we’re on the sartorial point, it does seem that Horsley wanted to make an entrance to this country in more ways than one. He had come here without incident on prior occasions. One wonders whether this may have been because he waited until he got through customs before going into full dandy persona. Because I don’t want to encourage end-runs around the law or stifle personality, I’m not recommending that the soignée artiste abjure the Oscar Wilde “I-have-nothing-to-declare-but-my-genius” approach to customs. But the occupational hazard of being fashion-forward is that you do stand out.
With that background in mind, let’s move to David’s questions: “What’s a poor memoirist to do when confronted at the border with his own tell-all tome? How does he avoid getting booted for ‘moral turpitude’?” He has at least three options. He can get all the turpitude out of his system before he is 18. He can place a five-year moratorium on his turpitude in the years before applying for a visa. Or he can live a life free of turpitude and write a memoir about his veterinary practice in Yorkshire, like that nice James Herriot.
You also ask whether “the book was sufficient evidence of his moral failings,” or whether the deportation rested “on the admission he made (presumably by confirming facts in the book) in the interview.” According to the press, his book was “considered,” but it’s hard to believe it was the only ground for his deportation. The book is 368 pages long. The interrogation lasted for eight hours. Perhaps the book is one of those dense poetic efforts where skimming feels itself like an act of moral turpitude. But that’s still 50 pages an hour for one official. Recall as well that the book is touted as an “unauthorized autobiography,” which presumably means that Horsley’s superego did not hold the other parts of his self to strict levels of truthfulness. Because of that disclaimer, it’s hard to see how officials could properly use the book as stand-alone evidence of his bad acts. Besides, Horsley generally seems like a open person—in interviews prior to the one he had at Newark airport, he has talked about sleeping with a thousand prostitutes and why he felt the need to stage his own crucifixion.
And let’s not miss the silver lining. As someone who likes reading memoirs, I, like others, was dispirited to learn that James Frey’s A Million Little Pieces and Margaret Seltzer’s Love and Consequences were fictionalized. It’s comforting that customs officials believe that Mr. Horsley, unlike Ms. Seltzer, has done many of the things he says he has done. I hope they put a sticker on the book to that effect. Indeed, given that publishing houses say that fact-checking memoirs is impractical, maybe they should farm out the vetting process to the government. The Secretary of Homeland Security could be renamed the Master of Revels, and citizens would feel safe—well, more safe--from the serious threat dandy memoirists pose to this country.
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Jack, thanks for your thoughtful post on the drawbacks of living constitutionalism. I don’t imagine you really believe that the version of living constitutionalism you’ve unspooled -- if it’s living constitutionalism at all – is one I’d embrace. That’s judicial tyranny. My objection in Heller was not to “political and social movement guided constitutional development” but to political and social movement dominated constitutional development as the courts snoozed. I don’t imagine anyone genuinely believes the courts could or would ignore political forces.
I’m actually rather fond of the unwashed masses. But what I didn’t see happening in Heller was the kind of serious constitutional conversation between the unwashed and the courts that we both favor. What I did see was the individual right to bear arms “arise full blown” from the head of Chief Justice John Roberts.
It’s not clear to me that we differ about “living constitutionalism” at all. Both originalists and living constitutionalists can embrace judicial restraint. I simply think the constitution has real meaning, and that courts play a role beyond merely carrying water for special interest groups social forces. That’s why I am most looking forward to your answer to the question Eric and I posed earlier this week. If it’s really all just politics, why do we need constitutional courts at all?
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Ben, you posed great questions the other day
about the 9/11 plotters, their culpability and appropriate punishment,
the due process that the military tribunals set up to try them could
deliver, and, especially, what "real due process" would look like for
them. For me the answers to the first two questions are tied up in each
other. Because of my doubts about the procedural protections to be
afforded KSM et al, in particular the influence of torture testimony
on their trials (whether or not it's directly admitted), I don't
think they should be executed, despite their culpability. I just don't
want this country to be a place where people are sentenced to die based
on a prosecution that is tainted by torture testimony.
There are a lot of hard questions that this sliver of certainty
doesn't address: What's supposed to happen to these detainees, then,
and your crucial question, what due process should they get?
I'm only beginning to stumble toward my own answers. I know you've
thought a lot more about this than I have, thanks to the
impressive-looking advance copy of your new book, Law and the Long War,
that is sitting on my desk. We probably come out in different places on
various points, but I'd love to hear your thoughts whenever you think
the time is right. (And everyone else's, too, of course.)
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continue reading at Balkinization . . .
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I'm not inclined to defend Cheney's freelancing in Heller, but I do think David's being a little too facile when he says in this post that "the next time a unitarian tells you the JAGs in the military, civil rights lawyers in Justice, or scientists throughout the government have no right to assert their independence, remember-they're only following Cheney's lead."
The argument for the executive's tolerating a certain measure of independent action from each of the groups David names is different, and in all of these cases, the argument is totally different from the unique case of the office of the Vice President. We expect a measure of independence from the JAGs in order to protect their ability to represent clients in the context of a justice system that exists within an executive department. We expect government scientists to be insulated from politics because scientific truths are not supposed to change with party control over the executive branch. Civil Rights Division lawyers in the Justice Department, by contrast, are not and should not be independent of their agency's positions; as lawyers representing the United States, they are arms of it. Each of these cases represents a different weighing of the relative benefits of unity versus diversity in viewpoint, the executive's ability to formulate and promulgate its policies versus its interest in preserving such goods as the right to trial or free scientific inquiry. In none of these cases is independent action by lower executive officials built into the constitutional design.
The vice president, by contrast, has a measure of independence for a unique reason: Because the Constitution makes him at once president of the Senate and first in line to the presidency-both a creature of the administration and a sometimes-meaningful part of the legislature. In Cheney's case, the vice president is also perhaps the president's closest aide and the strongest voice within his administration for a unitarian conception of the executive. These facts make his involvement in Heller hypocritical, as David suggests, but they do not alter the reality that he-unlike almost all other executive branch officials-legitimately wears more than one hat. His ability to switch hats is a function of the same constitutional design as the unitary executive he belligerently champions.
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CNN says the blogosphere is abuzz with news of the Obama passport story, so I feel somehow obliged to make it true. Trouble is, I'd always figured most lawyers should have way more questions than answers at such an early point in such a story. So what could we possibly have to contribute?
For what it's worth, here's what I got. According to the U.S. State Department website, the Passport Services division maintains U.S. passport records for passports issued from 1925 to the present. "These records normally consist of applications for United States passports and supporting evidence of United States citizenship, and are protected by the Privacy Act of 1974. Passport records do not include evidence of travel such as entrance/exit stamps, visas, residence permits, etc., since this information is entered into the passport book after it is issue[d]." On the law, violation of the relevant Privacy Act provisions (like willful disclosure of protected agency records) can subject the violator (provided he/she's an "officer or employee of an agency") to criminal fines up to $5,000, or a civil action by the individual. So assuming contractors count as agency employees within the meaning of the statute (and I wonder whether there's case law here), I could imagine finding statutory violations under these circumstances. And boy does it look bad.
The thing is, while I'm certainly pleased such personal records are protected from disclosure, and am appalled at the thought of politically motivated snooping, I don't get what could be of such great interest in a passport file to warrant the trouble? It seems hard to picture someone successfully using Obama's Social Security number in any kind of identity theft scheme. Does someone seriously think he might be lying about his citizenship? Or does "imprudent [read cat-killing] curiosity" by poorly trained contractors ring true?
Anyone care to buzz back?
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I hate, once again, to be the guy to bring our blog down from the empyrean of Supreme Court analysis and that whole "Unitary Executive" thing, but can we talk -- just for a minute -- about what went down at Newark Airport on Tuesday when a British memoirist was denied entry to the US because, it seems his book described using lots of drugs and having sex with prostitutes?
Now I get why if you are, say a Governor of New York who has made his reputation by busting callgirl rings, actually being caught on a federal wiretap being all John-y is aproblem, but writing about it in an arch tell-all memoir?
The Times indicates that Sebastian Horsley, whose memoir, "Dandy in the Underworld," was published last week by Harper Perennial, was "detained by United States customs authorities for eight hours and questioned about his former drug addiction, use of prostitutes and activity as a male escort." The results were, of course, that he was denied entry to the US and returned to England (even though he's visited many times before without any trouble).
So here's the question for all of you: What's a poor memoirist to do when confronted at the border with his own tell-all-tome? How does he avoid getting booted for "moral turpitude"? And do you think the book was sufficient evidence of his moral failings, or did the deportation rest on the admissions he made (presumably by confirming facts in the book) in the interview?
Thoughts and schemes welcome.
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George Will touched a nerve among conservatives today. In his new column, he called for judicial intervention to thwart local regulations limiting dancing at a restaurant, in the name of the Fourteenth Amendment. This embrace of judicial activism certainly didn't please my friends Matt Franck, Ed Whelan, or Steve "Feddie" Dillard.
Steve and Ed seemed a bit surprised by Will's position; I must say, though, that I find it fairly consistent with Will's prior writings. Will's view of the role of the courts is no different from his view of the role of government generally his primary concern is that government should minimize interference with personal liberty (particularly on matters of speech). At the same time, he he opposed judicial disruptions of well-established societal institutions. (Thus, when the Supreme Court ruled in the VMI case, he famously decried "our robed masters.") Can these two priorities come into conflict? Of course. I've not seen Will wrestle with that point.
Even though (or perhaps because) his own instincts are less-than-systematic, Will loves to pick fights with conservatives on questions of the role of the judiciary. He is not a fan of "originalism"; he associates it with the Dred Scott decision and the Alien and Sedition Acts. He seems to go out of his way to accuse conservatives of celebrating a brand of "judicial restraint" that is inconsistent with judicial enforcement of the Takings Clause; he accuses conservatives of preaching "dogmatic majoritarianism."
Quite obviously, I have a few qualms with Will's arguments. That said, I won't go so far as to say that his generally-libertarian views aren't "conservative." They certainly don't constitute the current maintstrean modern American conservative jurisprudence; that mantle belongs, as we all know, to a Scalia/Thomas-style Originalism. Nevertheless, Will's modified libertarianism is a conservative jurisprudence, as are popular constitutionalism, "Lochnerianism" (to butcher a term), and perhaps others.
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David continued the conversation on the compatibility of Cheney's assertion that the Vice President is not part of the Executive Branch and his support for the theory of the Unitary Executive by posing a couple of questions. Given that I've done my best to show the theoretical consistency of those positions, I'll take a crack at responding.
David, you first suggest that if the Vice President is part of the legislative branch, then his participation in executive branch affairs would seem to run afoul of the Supreme Court's stance against congressional encroachment on executive power. I think you overlook a pretty important distinction:
In the Supreme Court's cases (and in the D.C. Circuit decision you mentioned, FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993)), the courts stood athwart congressional attempts to "aggrandize" power not afforded Congress by the Constitution. In NRA Political Victory Fund, the D.C. Circuit went so far as to state (without offering any on-point citation) that "the mere presence of agents of Congress on an entity with executive powers offends the Constitution."
Even assuming that the D.C. Circuit's statement can be taken as being co-extensive with the Supreme Court's precedents (I think the D.C. Circuit's statement is a bit more aggressive), Vice Presidential participation at the invitation of the President seems to me not to raise the red flags identified in the case law. A Vice President's ad hoc participation in formulation of Administration policy occurs only where the President allows it. Thus, the President's invitation to the Vice President to participate in Administration policymaking involves no threat of congressional "encroachment" on the executive -- the executive remains in full control of the arrangement!
Similarly, where the D.C. Circuit warned (with respect to ex officio congressional members on the FEC) that "their mere presence as agents of Congress conveys a tacit message to the other commissioners," Vice Presidential involvement in Administration policymaking deliberations raise no such concerns. In such cases, the Vice President isn't acting "as [an] agent[] of Congress" -- he's acting as an agent of the President!
Your second question asked how the Vice President, if a member of the Legislative Branch, could refuse to disclose information to Congress (your case in point: the Cheney Energy Task Force). My answer here is similar to my answer to your first question: for purposes of Presidential privilege and confidentiality, the important question is not whether the Vice President enjoys the privilege, but whether the President enjoys the privilege, and whether the vice-presidential communications were undertaken for the purpose of collecting and conveying to the President information for the President's decision-making process. The fact that a member of the legislative branch is a party to confidential policy meetings convened for the purpose of providing advice to the President does not -- so far as I know -- defeat the privilege. (On that point, though, I'm happy to be corrected.)
Finally, a clarification: You and I disagree slightly on the Vice President's constitutional pedigree: You say that his office "is truly a mix of the branches," but my hypothesis has been that his office is just part of the Legislative Branch. Maybe that's why, contrary to your point, I'm a "Unitarian" who feels comfortable with the Vice President's "complex" nature.
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Musing on the oral argument in Heller, which I just found time to digest (check out the read-along-picture-book-like function at Oyez.org):
Anyone else struck by the oddity of an originalist focus with regard to the existence vel non of an individual right, followed by a 20th century fast-forward with regard to application? On the 1st point, nearly all (though not all) Justices spent the 1st third of the argument plumbing what words in the 2d Amendment used to mean, as far back as 1689. Then, at p. 40, Justice Antonin Scalia: "And yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny. We certainly apply it to freedom of speech." Litigants and Justices alike -- with the notable exception of Chief Justice John G. Roberts, Jr. (p. 44) -- seemed to accept that some "level of scrutiny" applied.
No great thoughts here about what the Court ought to do, but was struck by this juxtaposition in 1 case of discourse from 2 eras.
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Suppose that a number of people form a group in order to obtain some goal, X. They appoint some of their members to be the leaders of the group. These leaders quickly realize that if goal X is actually achieved, the group will disband, and the leaders of the group will be out of a job. At the same time, if they refuse to work toward X, they will be fired. Therefore, the leaders of the group take actions that lead the group progressively toward X but make sure that X is never achieved -- a political version of Zeno's paradox.
Does this story sound plausible? Economists will recognize it as an agency-cost theory: the agent (the leader or leaders) and the principals (the members) have divergent interests. Both want to achieve X but the agent also wants to keep his job. If group members cannot adequately monitor his actions, the agent will take steps that best satisfy both his ends, which means working toward X but not actually achieving it. Because the group cannot distinguish between honestly working toward X and deceitfully taking baby steps, they cannot discipline the leader for his bad behavior.
The story underlies Jack's claim that the leaders of the Republican Party don't really want the Supreme Court to overturn Roe, because once that happens, they will be out of the job. They have been working toward X for 35 years now, but they will make sure never to achieve the goal, apparently by ensuring that people willing to overturn Roe are not appointed to the Supreme Court. David tries to refute this argument by adopting its logic to gun rights. The Republican Party also seeks to secure guns rights. If it succeeds, then it will fall apart. Yet the Supreme Court justices seem inclined to deliver success. This must mean that Jack's logic is faulty, the leaders of the Republican Party actually do want to overturn Roe, and hence Roe will be overturned. Jack responds by denying David's implicit premise that establishing gun rights serves the Republican coalition in the same way that overturning Roe does.
Jack's theory can be attacked more directly. The agency theory assumes an information asymmetry between leaders and members: the members cannot monitor the leaders' behavior. In many settings, such an assumption is reasonable, but here it is not. It is perfectly clear what the Republican Party leadership is, and is not, doing to undermine Roe. That they have not put all their resources into this task is consistent with an innocent explanation: they have to please all members of their coalition and these people care about things other than (or in addition to) overturning Roe. If Bush had put all his political capital (when he had political capital) into appointing clearly anti-Roe jurists to the Supreme Court, he would not have been able to use it to obtain other things that he and other Republicans care about (tax reductions, etc.).
The theory also makes too much of the difference between overturning Roe and chipping away at it. Members of the Republican coalition are not so much concerned about Roe as about reducing the number of abortions. They also care about other things. So as the Roe precedent becomes weaker, it will become easier to restrict abortion, and therefore people opposed to abortion will feel decreasingly concerned about that issue and correspondingly more concerned about the other issues that they care about. If Jack's theory is right, then the leaders of the Republican Party can't merely preserve Roe as a hollowed out shell; they must ensure that, in fact, little progress is made in restricting abortion as a practical matter. In other words, they maintain their leadership by accomplishing very little for their followers, all the while arguing that they are doing their best. Not a plausible recipe for political success.
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David, as one of the leading purveyors of the claim that the court will chip away at Roe without overruling it, I respectfully suggest that your logic is flawed.
continue reading at Balkinization . . .
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One theory that has been circulating for some time has been that the conservatives on the court will never overrule Roe/Casey because doing so would be bad for the Republicans. Instead, on this view, the conservative justices will just nibble away at the abortion right without ever really jettisoning it. It's not the most attractive account of how the Supreme Court operates, but it's a theory nonetheless. I've never really bought this view, and now I think the oral argument in Heller points against it. Here's why. Probably the most politically galvanizning outcome from Heller would be a decision that upholds the D.C. gun law—that would get the gun rights folk hopping mad and thus supermobilized, and it would no doubt create a political headache for those on the other side. And yet, from all appearances, it looks like the conservatives on the court are plenty eager to strike down the statute in the course of recognizing the individual's Second Amendment right to keep and bear arms that the NRA has been pressing for years. Doesn't that suggest that, as soon as there are five solid conservative votes in place, Roe/Casey really is likely to be overturned, short-term partisan calculations notwithstanding?
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[David Barron]
By noting the vice president's surprising comfort level with his own independence—as I did in an earlier post on the Binary Executive—I did not mean to argue Cheney was acting illegally by striking out on his own. My point was to highlight the hypocrisy of it all. If even Mr. Unitary Executive is comfortable with asserting his independent authority as a "sometime" member of the executive branch, then shouldn't we question whether a unitary command structure is as imperative as unitarians often claim?
Obviously, the veep is a complex office. It is truly a mix of the branches. But unitarian doctrine can't handle that kind of complexity.
Consider the puzzles that it raises:
1. How can the veep play a direct role in making executive war policy? After all, the D.C. Circuit has held that legislative agents can't sit as nonvoting ex-office members of the Federal Elections Commission. Even that minimal participation, that court has said in a paradigm of unitarian reasoning, smacks of inappropriate legislative aggrandizement. How much worse, then, for the Senate's president to be telling the CIA what to do!?
2. Why should the veep get the benefit of the president's constitutional power to make recommendations to Congress, as Cheney argued he should in fine Unitarian fashion, in objecting to requests to disclose information concerning his energy task force. After all, as a member of Congress, isn't he supposed to receive recommendations rather than make them?
Suffice it to say, then, that, as Adam says, the veep is a hybrid and a hybrid that the Constitution tolerates. But isn't that instructive of a more general point about the Constitution?
If our constitutional system can tolerate this kind of complex blending at the very highest levels of the executive branch, then why should we think it seeks to stamp out similar configurations lower down the chain of command. So the next time a unitarian tells you the JAGs in the military, civil rights lawyers in Justice, or scientists throughout the government have no right to assert their independence, remember—they're only following Cheney's lead.
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Though Richard Ford and I sometimes have exciting fights, today I give him props twice in the space of an hour. I agree that Obama’s speech was stunning. As in other contexts where I’ve heard him, he refused to be a demagogue, staving off applause from the audience so he could get his ideas across. And what an idea it was.
What I took home from the speech was that in a pluralistic society, all individuals have an obligation to reflect on what part of their suffering arises from the human condition generally, and what part is specific to a particular demographic characteristic they hold. Speaking for myself, I’m struck as I get older at how many of the things I thought were “gay issues” are much more universal than I thought—the difficulty of relationships, the fear of dying young, and so on. Of course, that doesn’t mean gays do not face real oppression in this country, or that the challenges faced by different groups don't admit of degrees. But to the extent that I don’t distinguish between the human condition and the gay condition, I hurt my ability to ameliorate the latter. This is because potential straight allies will rightly resent that I cast them as obstacles to my human flourishing rather than as individuals who have a stake in that flourishing themselves.
What’s legal about this? Well, over the past few decades, the Court has moved away from traditional group-based equality jurisprudence. I’m thinking here of Cleburne v. Cleburne Living Center (1985) (intimating there will be no more heightened scrutiny groups) or Washington v. Davis (1976) (foreclosing disparate impact claims under the equal protection guarantees) or City of Boerne v. Flores (1997) (restricting Congress’s power to pass civil-rights legislation). At the same time, the Court has looked more favorably on a universal rights approach to civil rights. I’m thinking here of Lawrence v. Texas (2003) (protecting general right to sexual intimacy) or Tennessee v. Lane (2004) (protecting general right to access the courts). The Court's move, though less easy to pinpoint, has a lot in common with Obama’s insight that we need to transcend groups when the interest in question is genuinely common. Heather Gerken and I are going to have a debate about this in the next week or so that will flesh out this jurisprudential shift, for those who are interested.
In the meantime, I’ll be basking in the afterglow of that amazing speech. As a colleague of mine said, Obama’s address made his political colleagues look like “normative midgets.” (I except Hillary Clinton from that characterization, though I'm not sure my colleague does.) I like that characterization because the insight I'm celebrating feels more like normal science than rocket science. But as Ford says, it's not something we hear from our politicians. My colleague's phrase reminded me of a rather ungracious honorary degree recipient who in his acceptance speech paraphrased Newton’s line about having seen further than his peers because he had stood on the shoulders of giants. “If I’ve seen a little further than my peers,” the honoree said, “It’s because I’ve looked over the heads of midgets.” In his commonsensical and fair-minded understanding of race, Obama stands tall.
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Here’s another thought on Snyder. To start with the big picture, peremptory challenges are called an “arbitrary and capricious right” by Blackstone (the only place I know where he uses that phrase with a positive connotation). Many believe that this means peremptories should be exercised in a completely unrestricted way, and that Batson v. Kentucky (1986) and J.E.B. v. Alabama (1994), which stated that they could not be exercised on race or gender grounds, were incorrectly decided.
Given that Batson is still good law, however, all the Justices are in the position of having to assess whether the litigant’s “arbitrary and capricious” reason is race-based. I think what distinguishes Snyder and the Miller-El v. Dretke (2005) on the one hand from Hernandez v. New York (1990) on the other is that the stated reasons for which the potential jurors were struck in the first two cases were pretty hard to associate with race. But that distinction leads to a perverse result.
In Snyder, the prosecutor said he struck the African-American potential juror because he seemed nervous and because he was worried that jury service would interfere with his work obligations. In Miller, the prosecutor said he struck because the juror allegedly said that he would not give the death penalty if rehabilitation were possible, even though the juror said no such thing. In both instances, it was hard to distinguish these jurors from the white jurors who were not struck. It is probably true that close to 100 percent of African-American jurors consider the impact their jury service will have on their work, but it is also probably true that close to 100 percent of all jurors have this same concern.
Contrast Hernandez, where the Court permitted the prosecutor to strike all Latinos from a jury in a criminal trial of a Latino defendant. The prosecutor stated that he struck the jurors because they spoke Spanish, and therefore were less likely to defer to the court-appointed translator when Spanish-speaking witnesses took the stand. While the case didn’t generate a majority opinion, a majority of the Justices credited this reason and permitted the strikes.
The Court, then, sent the message that if you want to strike a minority juror, you should use a “non-race-based” attribute correlated with their race or national origin (which receives the same treatment as race for these purposes). But this leads to an unappealing result: As Richard Ford has eloquently argued elsewhere, this will have the tendency to reify stereotypes about groups. Latinos are indeed statistically more likely to speak Spanish than whites, so striking on the basis of “non-deference to Spanish speakers” will permit the removal of more Latinos than whites from a jury.
I don’t see the Court getting any subtler about this issue (in Hernandez, for instance, there’s no analysis in the Supreme Court’s various opinions of whether non-Latino Spanish speakers were struck, or whether the prosecutor even asked non-Latino potential jurors if they spoke Spanish). Given this assumption, it seems wiser to abolish peremptory challenges altogether, unless benefits of which I’m unaware so grossly outweigh the bars such strikes can place on the participation of citizens on juries regardless of race. I’m curious to know what our trial lawyers and judge think.
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continue reading at Balkinization . . .
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Emily’s brief post raises several fascinating questions, which seem to me to warrant fleshing out. The key sentence is the following: “if the government executes these men [the 9/11 plotters] after the coercive interrogation (torture) some of them experienced and all the failings of the this-ride-only military tribunals set up to try them, the damage Guantanamo has done to the reputation of our justice system will be raised by a power of ten.” But that specter, she writes may concentrate the mind. So “maybe the threat of the death penalty is the best hope that they will get some semblance of real due process.”
So here are my questions—to Emily and to all:
1) Whatever people think of the death penalty, should the circumstances of these detainees’ interrogation ameliorate their sentences? I can see why we would want to suppress evidence obtained under duress. I’m not sure I see why being coercively interrogated—even tortured—lessens one's culpability for September 11, assuming that culpability can be proven without relying on evidence obtained improperly.
2) Are we really so confident that these tribunals are incapable of delivering a semblance of real due process? Are they really that different from other ad hoc tribunals countries have set up to deal with extraordinary international criminal trials? Nuremberg, after all, was a this-ride-only military tribunal and we think of it as a triumph of international justice. Do we really think fair trials are impossible under the Military Commissions Act and, if so, why?
3) What would “real due process” look like for these defendants at this time?
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Phillip asked about Harvard's new tuition-waiver program, which he thinks will encourage students to take public service jobs. Maybe, but I'm not so sure.
Suppose that the third year of Harvard Law School costs $40,000. Under plan (1), you borrow $40,000 from a bank and give the money to Harvard in return for your education; you owe $40,000 but Harvard pays it, so that you pay $0 back per month as long as you are employed in a sufficiently low-paying public service job. If you stay in that job long enough, you pay back $0 and the debt is retired. Under plan (2), you don't borrow anything and don't pay Harvard anything, nor do you have a debt. But you have a contractual obligation to pay Harvard $40,000 (actually more) if you never take the public service job, and the amount you are required to pay if you breach your pledge gradually declines to $0 as you stay longer in the job. In short, under plan (1) and plan (2) you pay nothing for your third year at Harvard if you take a public service job for a sufficiently long period time, and you pay something up to $40,000 if you do not. Incidentally, because the two plans are identical (except for their names and for trivial details, and for the fact that the loan-forgiveness plan may cover more than one year of tuition), the new plan will not have any special incentive effects, for women or anyone else, that the old plan lacked.
To be sure, the new plan seems to have fewer restrictions than the loan-forgiveness plan. It appears to offer tuition forgiveness to more highly paid people. So in conjunction, the plans appear more generous. But perhaps not as much as first meets the eye. Harvard has said that it is committed to paying $3 million per year for this new plan. But if your $40,000 tuition payment is waived, then you can borrow $40,000 less than you otherwise would, which means that Harvard will have to forgive precisely $40,000 less in loans--a wash. In theory, Harvard could be saving in loan-forgiveness expenditures the same $3 million it is paying for the students' tuition. It is likely that Harvard won't make back the entire $3 million, of course. But one can't tell without looking at Harvard's actual expenditures for the two programs, and that information will not be available until they both have been put in operation. If the additional expenditures turn out to be small, then so will the effect on students' incentives.
Well, if Harvard is being even a little more generous, that's a good thing, isn't it? It depends on what you mean by generous. The money has to come from somewhere. Harvard does not have shareholders who earn lower returns because of this program. Perhaps, some donors are giving more to fund this program, or perhaps Harvard is paying its faculty less, or maybe students who get law-firm jobs are paying more. So it's not so much Harvard that is being generous as its donors, faculty, or students who prefer to take a law firm job. Is this a good use of their money? It depends on how their money would have been used if this program were not put in place.
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[Deborah Pearlstein] Can't wait to read the Obama posts, but first thanks to Jack for the interesting post about the nature of constitutional rights, fundamental and otherwise. Nonetheless, I confess it didn't quite overcome my lingering sense of puzzlement about where the Second Amendment fits in the constitutional hierarchy. To start I'll need some help understanding the evidentiary weight I should accord Senator Howard's remarks about the Fourteenth Amendment to our understanding of the meaning of Second. But I've always been inclined to support a relatively eclectic methodology of constitutional interpretation (i.e. start with the text and if that doesn't settle everything, at least consider other sources that might plausibly shed light) so I won't quibble much in a non-litigation setting.
There's also, however, the problem that the Supreme Court seems rather early and often to have disagreed with the Senator's take on what "privileges and immunities" under the Fourteenth Amendment includes. Now I'm hardly a supporter of the Slaughterhouse view of matters, but surely (harking back to our living constitution dilemma) such precedent counts for something, even in a post-Roberts world.
And then there's the logic puzzle. As I read Howard, he says whatever "privileges and immunities" means, it includes "fundamental rights" (per Corfield) plus the first 8 amendments of the Constitution (i.e. "to these should be added the personal rights guaranteed..."). While he later suggests it's all "fundamental" in some sense, his initial cut could at least be read as distinguishing all the good stuff we know about in the Bill of Rights from other rights, deemed fundamental, not necessarily enumerated in the first 8 tries. His views as in support of living constitutionalism I'd buy. But that Howard sheds any light on the jurisprudential distinction between rights "fundamental" and not, I don't quite see it.
Which brings us back to the original question - how do we know a fundamental right when we see it? Or, how do we know the Second Amendment fits the bill? Inclusion in the Bill of Rights per se, and perhaps strangely enough, hasn't actually seemed sufficient. Indeed, given the highly contextual availability of those rights (even the great First Amendment), someone new to Supreme Court case law might reasonably conclude that a right is more likely to be found fundamental if it's only claim to textual fame is the "substantive due process" clause (so to speak). The grand jury is apparently not implicit in the concept of ordered liberty; bodily integrity is. Now it could be that I've just been making this more complicated than necessary, and calling a right "fundamental" is just a way of getting it treated like a right we would've included in the Bill of Rights but for those pesky word limits. I'd be delighted for clarification. For now, though, I guess count me as unconvinced of the fundamental status of the right as Mr. Heller sees it.
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Diane, you clearly don't understand blogging etiquette: You say something snappy, I shoot back a snarky criticism, you ratchet things up a notch, and the fun ensues from there. Having read your polite response, I'm rendered speechless.
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Adam, have you never heard of a catchy lede? Extracting from eye the thumb not put there: I think we agree -- we have a coming together -- that the majority opinion is an unusual appellate application of the Batson doctrine. Diane
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[by Rich Ford]
Diane,
Here's a take on Snyder and words left unsaid: Justices Roberts' and Alito's position in Snyder is perfectly consistent with a strict and rigorous colorblindness interpretation of the equal protection clause-- i.e. the same position they both adopted last term in Parents Involved in Community Schools v. Seattle. The equal protection clause is now as likely, if not more likely, to block race conscious efforts to remedy racial injustice as it is to block racial discrimination as conventionally understood. And so ironically, making it difficult to establish an equal protection violation-- once a conservative position--may soon be in the way of conservative efforts to reverse and prohibit race conscious remedial policies. So, if the Court can parse the record for evidence of discrimination in preemptory strikes can it also, say, parse the record for evidence of race consciousness in a selective university's admissions decisions or a local government's decision to award a contract to a minority owned business? This isn't to say their positions were cynical and strategic, but Supreme Court Justices do decide cases with weight of precedent in mind. I'm just suggesting that the ideological terrain of equal protection jurisprudence is trickier than it once was and it may be that we're simply looking a reorientation of conservatism in Roberts and Alito. Could this explain why so much was left unsaid?
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Diane, you summarized today's Snyder decision with "Today the issue of race divided conservatives in America." But by that mode of reasoning, you just as well could have offered, "Today the issue of race divided lawyers in America; African-American vote unanimously criticizes Court's decision." Or maybe "Conservatives in America show diverse views; liberals vote in lockstep."
I dare say that all three of those headlines are equally lacking.
As Justice Thomas's opinion demonstrates, the dissent's analysis turned on the factual content of the record, and demonstrated Thomas's customary hesitation to overturn the record and findings of the trial court.
In the end, I can't say that I'd necessarily agree (or disagree) with Justice Thomas's conclusion. That said, it's a stretch (to say the least) to assert that Justice Thomas's rigorous rule of deference to the trial court's findings -- a rule strongly consistent with Thomas's record in general -- is illustrative of larger societal issues.
And your pointless thumb in the eye of conservatives probably isn't the sort of "coming together" moment that Barack Obama is calling for, no?
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I thought Obama’s speech on race was possibly the best thing any politician has said about race in decades (note the qualification: any politician. )
Putting Rev. Wrights’ comments in the context of understandable, if misdirected, black anger over real racial problems was a rhetorical master stroke, made even better by the fact that it rings absolutely true. And it was gutsy: it’s plausible that much of Obama’s support comes from white voters who hope Obama represents a free pass on racial questions. But Obama didn’t offer a free pass—he offered a demanding challenge: we must address racial inequities and try to understand our fellow citizens even when they offend us. I thought this subtle but pointed rejection of a staple of politically correct thinking (if anyone ”offends” me then the conversation has to stop until they take care of my hurt feelings) was spot on—if we’re to get anywhere in dealing with race, we’d better get not be so quick to take offense.
And comparing black anger and white resentment helps make the important point that we’re now locked into a race dialogue that consist primarily of scandal and reaction (“you’re a racist”—“no, you’re just playing the race card.”) that’s based in large part on the politics of umbrage and outrage—a competition for who’s been more wronged. It’s really encouraging that Obama is thinking of a way to move beyond this depressing stalemate rather than simply exploit it for short term advantage (compare his and Clinton’s back and forth on race and gender after S Carolina or, Mitt Romney’s defensive reaction to questions about his religious convictions).
It wasn’t perfect: I would have liked more candor on the tough questions—given the legacy of Jim Crow racism about which Obama spoke, what should we do? It’s true that some racial problems are really just part of larger social and economic problems: for instance, the problem of the black “super ghetto” is in large part a consequence of the emptying out of industrial cities during the 60s and 70s as a result of profound economic changes, the decline of manufacturing, etc. So in that sense poor blacks in the South Side of Chicago have common cause with unemployed Ohio steel workers. But it's too easy to say this and stop: for instance, neighborhood and school segregation—probably the greatest unaddressed legacy of Jim Crow--may well require race conscious solutions such as affirmative action and busing. It’s understandable that Obama doesn’t want to wander into those mine fields, but her won’t be able to avoid them for long if he’s serious about confronting racial inequity.
But these cavils aside, it was a brave and profound speech and best of all it suggests how Obama will use his considerable rhetorical skills, not just to inspire political support, but to lead on contentious issues.
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Amidst all the reporting about massive first-year associate salaries at big law firms, greedy lawyers who will do anything to win a case, and other shark tales, every now and then there comes some positive news. This time the good news comes from Harvard Law School, where a number of our Convictions contributors teach. HLS is planning to waive the third-year tuition for any law student who commits to spending their first five years after graduation in public service (broadly defined). According to the Washington Post:
The initiative will save students who start their law classes this fall more than $41,000 in tuition. The school estimates that the program will cost about $3 million annually over five years.
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Harvard described the initiative as the first program of its kind in legal education. Students will be asked to demonstrate a commitment to public service during their time in law school. Although the program is geared toward students entering the school this fall, current students will be eligible for smaller tuition grants of $5,000 and $10,000.
The school defines public-service work as any full-time job in government (federal, state and local and the military), any full-time job for a nonprofit organization and any full-time job for a political campaign. Up to one year of a clerkship can qualify toward the five-year commitment.
Like many schools, Harvard Law also offers a loan repayment assistance program for graduates who choose careers in government, public interest and higher education.
So far, so good. I think it's generally a good idea for law schools to encourage public service. But is this the best way to do it? One can easily imagine the enormous enforcement headache this will create on the back end. I've had some experience with that in the context of the Truman Scholarship, a federal grant which aims to encourage public service, but has a mediocre track record at doing so because Truman Scholars often change their career plans after graduation. And there are other concerns too. Carolyn raises some good points at law.com's blog regarding potential effects on the legal labor market that may disadvantage graduates at schools (particularly those without the resources to waive their 3L tuition). And she points to this note by UCLA economist Matthew Kahn, who thinks there may be important socioeconomic consequences which flow from this program that lead to more of a "glass ceiling" at law firms down the road.
I'm curious what my Convictions colleagues think. Should law schools be in the business of encouraging public service? And if so, how?
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by Diane Marie Amann
Today the issue of race divided conservatives in America.
In Snyder v. Louisiana, the U.S. Supreme Court reversed defendant's capital conviction for murder of his estranged wife on the ground that the exclusion of a single potential juror -- an African-American student teacher -- violated the Equal Protection Clause of the 14th Amendment to the Constitution. The 7-2 judgment is remarkable. That's not only because the majority included 3 persons typically identified with the Court's conservative wing: Justice Samuel A. Alito, Jr., the author; Chief Justice John G. Roberts, Jr.; and Justice Anthony M. Kennedy. Also remarkable is the brevity of the opinion. Attorneys who have litigated Batson motions, as I have, no doubt will remark on the quick certainty with which the Court concluded that there had been a sufficient showing that the state acted "in substantial part by discriminatory intent" (pp. 12-13) simply by comparing the treatment of the student teacher with that of 2 white veniremen.
The Court left unsaid what well may be a prime source of that quick certainty: Snyder had come to be known as the O.J. revenge case, a case in which the prosecution struck not 1 but all potential jurors of African-American heritage. It was a case in which the prosecution alluded in his penalty-phase closing to the then-recent acquittal of O.J. Simpson on charges of murdering his ex-wife, and suggested to jurors that they should not let the defendant before them "get away with" it. All 3 of the members of Louisiana's highest court who dissented from affirmance of the conviction cited this overall context -- as 1 put it, "this injection of racial issues, and the fact that the prejudicial
arguments were made to an all-white jury" (942 So.2d 484, 501) -- as evidence that exclusions of potential jurors were racially motivated.
The U.S. Supreme Court is to be commended for what it did in Snyder. But on this day when America ponders Sen. Barack Obama's profound unmasking of the issue of race, it seems proper to question the decision of the Court to leave so much unsaid.
(prior Convictions posts on Obama's speech here and here)
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continue reading at Balkinization . . .
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[Dahlia Lithwick]
Jack I am well aware that wading into a constitutional tussle with Jack Balkin is a lot like going hunting with Dick Cheney but I want to push back a little on your “living constitution” post. First, thanks for the kind words. Second, to the extent you’re arguing that “living constitution” just means “things change” I can’t disagree. I think the original spokesman for this constitutional worldview was probably the Buddha.
But when I argued this week against the way the gun lobby came to dominate/shape the constitutional conversation over the second amendment, I wasn’t arguing for a dead constitution. I was wondering out loud where the best locus of constitutional change might be. I just can’t quite accept your premise – or what I think is your premise -- that since the constitution changes, and indeed the court changes, it makes little difference which political forces drive those changes.
If you really mean it that “social movements” will carry the day whether or not the court intercedes, it does raise the question of why we bother with courts in the first place. I think this is at least part of what Eric means when he writes that “the constitution, in practice . . . is political but not the same as ordinary politics.”
So while I admire the Zen-like commitment to letting the political systems work it out over time, I am not quite sold. As Deborah observes, when the court is simultaneously finding new fundamental rights and curling its lip over the very idea of levels of scrutiny, living constuitutionalism has become unmoored from any constraint at all.
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Jack's description of the "living constitution" is apt, but he glosses over what is really at stake. Academics have long known that the justices are motivated by their political views, and these views appear in a relatively straightforward way in their votes. Nonetheless, there has been a sustained effort by law professors over decades to prove that Warren Court-era precedents could be justified as a matter of constitutional theory, rather than simply being the policy preferences of liberal justices. To justify these case outcomes in this way is to argue that they are not political, but that they reflect the underlying rules of the game to which everyone, left and right, is more or less committed. The legal academy still has not given up on this agenda; indeed, some of Jack's own writings fall into this camp (for example, his effort to develop a liberal style of originalism). If Heller finally destroys this decades-long literature by proving once and for all that justices don't care about constitutional theory, that won't be much comfort for the victims of avoidable gun homicides, but at least some trees will be spared.
However, Jack is right to describe the constitution, in practice, as something that is political but not the same as ordinary politics. Because justices must be approved by the president and the Senate, their views will never deviate too far from the ideological mainstream. And if a right- or left-wing justice wants to write majority opinions that will influence future justices from either party, he will have to moderate his views so as to establish precedents that others can live with. Finally, because the parties take turns in power, there is always a mix of liberal and conservative justices. In essence, the power to appoint a justice gives the president the power to extend his general ideological views for decades after he leaves office, but by the same token his power is limited by the fact that most of the justices in office during his term will have been appointed by his predecessors. The net effect is a heavily conservative (in the temporal rather than ideological sense) drag on public policy. Justices in office today reflect the partisan views of presidents in office up to thirty-three years ago.
This is our system. Does it make any sense? Jack seems to think so; I doubt it. It might smooth out policy variance over time. When presidents with ambitious agendas (left or right) come to power, they must contend with a supreme court that is likely to reject their policies or some of them. You might well be willing to give up the New Deal in order to be spared the Reagan Revolution, or vice versa. It also, in effect, enhances the degree of supermajoritarianism that already exists in our heavily supermajoritarian system. A new law has to be good enough not only to please the president and Congress, but also a supreme court whose members might have different views from those of the two political branches. It seems unlikely that this system makes much sense. In exchange for the dubious advantage of variance-reduction, it produces a heavy orientation toward maintaining the status quo, and will cause problems in particular when public opinion changes more rapidly than the average justice's term.
Jack talks as though there were no alternative to this system, and the best thing to do is to help your party win, so your party's president can appoint the next justice. Perhaps he is right. But in academia, anyway, there is an increasingly widely held view that the best solution is to encourage justices to exercise more judicial restraint. This was once the view held by many conservatives, though apparently no longer; conservatives these days seem to favor originalism. Still, if liberals jump on this bandwagon more quickly than conservatives step off it, maybe a bipartisan consensus in favor of judicial restraint will finally form. Indeed, the best recent academic work (by people like Adrian Vermeule, Jeremy Waldron, Mark Tushnet, Cass Sunstein, and Larry Kramer) points out the thin moral, political, institutional, and historical basis for judicial supremacy, and urges the justices to abandon judicial review altogether or radically limit it. And if the justices cannot be persuaded by academic argument, maybe the sting of ridicule, so effectively administered by Dahlia among others, will do the trick.
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[Deborah Pearlstein] Reading Dahlia's account of yesterday's oral arguments in the big gun case reminds me why it was my co-clerks and I would read coverage by Linda and Dahlia the morning after arguments at the Court and call it a day (as far as non-work reading went). They pretty much nailed it every time. But as much as I'd like to spend more time wallowing in the delight of unpacking Justice Kennedy's Freudian obsession with Grizzlies (Stephen Colbert - are you listening?), it's this "fundamental right" to gun ownership that has me more troubled.
It's not that I necessarily disagree with the many distinguished progressive scholars (Jack Balkin, Larry Tribe) who think there may actually be an individual right lurking in the obscure text of U.S. Const, Amend 2. There are, as they say, arguments on both sides. It's this notion that whatever individual right the amendment protects it must be "fundamental" in nature. When I was in law school (and even since), there was an obscure but nonetheless real distinction made between constitutional rights that were "fundamental" and those that were, well, not. Some rights were "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut. Other rights were "new." Teague v. Lane. The interest of parents in their relationship with their children (requiring the waiver of court fees for the indigent to challenge termination of parental rights): fundamental. The interest of welfare recipients in the rational distribution of benefits (requiring the same fee waiver): not. (Cf. also the Court's repeated recognition that the violation of some trial rights in the Bill of Rights is presumptively prejudicial, while the violation of others is harmless error.) Most important for present purposes, the regulation of fundamental rights got strict scrutiny. Non-fundamental rights, not so much.
Setting aside for the moment Chief Justice Roberts' allergy to having his kids' orthodontia subsidized by further doctrinal debates about the appropriate level of scrutiny to which government regulation of rights should be subject, whence on earth comes this notion that about-to-be-newly-discovered gun rights are fundamental? Heller's brief pretty much just asserts that they are. The District's brief on the merits concludes that they aren't largely in footnotes. And even if CJ Roberts continues along his Clarence Thomas-esque "given-the-chance-I'd-overrule-everything-and-start-over" path, it strikes me as the far greater interpretive leap to find gun ownership "implicit in the concept of ordered liberty," than to conclude it's something less than that and let courts have a go at applying some sort of reasonableness/rationality review. Even living constitutionalists have their standards, no?
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Like Ben and Eric, I felt a certain appreciation for Mukasey's odd riff about how he "kind of hope[s]" the 9/11 plotters don't get the death penalty because they're like masochists who want it, which would make the US a sadist in doling it out. First of all, he's right. And also, if the government executes these men after the coercive interrogation (torture) some of them experienced and all the failings of the this-ride-only military tribunals set up to try them, the damage Guantanamo has done to the reputation of our justice system will be raised by a power of ten. I wonder, though, if in some upside-down way it's useful that the government is seeking the death penalty. Nothing concentrates the mind like a killing, including, perhaps, the minds of the military appointees and eventually (one hopes) Supreme Court justices who would have to allow these executions to take place. So maybe the threat of the death penalty is the best hope that they will get some semblance of real due process. Distressing as that is, it's better than the alternative.
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I have time only for a quick response to Adam White on Cheney’s assertion that the VP is not part of the executive branch. I did find ludicrous Cheney’s initial claim that he was not part of the executive branch, which he asserted for the purpose of perpetuating his cult of secrecy and avoiding reporting requirements related to classified documents. I continue to think ludicrous is an apt description. Jon Stewart and the rest of the media were absolutely right to have a field day with that one. Consistent with this administration’s utter and indefensible failure to be transparent regarding the legal advice that informs its sometimes-ludicrous positions, Cheney has not provided a detailed account of his legal claim. I found Adam’s discussion interesting, but unpersuasive. Cheney’s filing of the brief seems less ludicrous, in the sense of legally indefensible, but still seems an ugly business designed to send mixed messages to the court and a clear message to his political base.
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continue reading at Balkinization . . .
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Douglas W. Kmiec
Professor Posner is right that -- by originalist lights -- the argument for gun rights belongs in the legislature, not the Court. Nothing said in the Heller oral argument persuasively demonstrated that the Second Amendment as originally understood protects an individual right of self-defense. The Court may decide to the contrary, but it will be doing something other than originalism, as Justice Scalia has practiced it. That said, a right of self-defense, especially in one's home, existed at common law as confirmed by the 1744 case of Mallock v. Eastly (87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744) [viewing the issue as “settled and determined” that “a man may keep a gun for the defence of his house and family . . .”]; and the common law being merely the natural law applied, as the late Edward Corwin elegantly pointed out, there is a natural right of self-preservation. Professor Posner is mistaken to understand natural law as also supporting a right to disarm to secure public safety. Whether or not disarming the general public is a good idea is at most a derivative policy choice of the right of self-preservation, not the right itself. The Second Amendment was designed "to assure the continuation and render possible the effectiveness of” the Militia." In 1939, Miller treated this as the purpose guiding its construction. (Miller, 307 U.S. at 178.). Why Justice Kennedy thinks this “deficient” is unexplained by anything other than the fear of announcing to a portion of the general public that the NRA mailings they have received over the years have been overstated unless originalism includes the natural law of the Declaration of Independence which is the same natural law of the Ninth and Fourteenth Amendments so well explicated by my Pepperdine colleague Akhil Reed Amar.
A construction of the Second Amendment which assures the existence of militias by guaranteeing the private right to keep and bear arms is entirely consistent with Miller and the language and history of the Second Amendment, but for it to have any application in Heller, it would require someone in a state militia to assert it, and the existence of a militia that, as I have said in a previous post, is BYOG. Mr. Heller is neither in a self-arming militia nor in a state, and the Court has no business deciding this case without seriously accepting the premises of natural law originalism which as far as anyone can tell only resonates in the silence of Justice Thomas’ mind, and perhaps, not even there.
Maybe if the Court would write out its thinking first, before voting on it, it would grasp that it is error to make the Second Amendment into something it is not.
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I'd like to add to the Cheney discussion that Adam, Jack, Eric and Dawn have been having with a note about his comments today on the war, because I think they illuminate further his views on executive power.
ABC News' Martha Raddatz sat down with Vice President Dick Cheney to get his views on the Iraq war for a segment airing today, the fifth anniversary of the U.S. invasion of Iraq. Not surprisingly, Cheney remains an aggressive supporter of the Iraq war, defying anyone who questions the raison d'etre for the invasion. However, today, he went a step further, dismissing the American people themselves as irrelevant:
MS. RADDITZ: Tell me what you said to the Iraqi leadership and how far you're willing to push them.
VICE PRES. CHENEY: On the security front, I think there's a general consensus that we've made major progress -- that the surge has worked. That's been a major success.
MS. RADDITZ: Two-thirds of Americans say it's not worth fighting.
VICE PRES. CHENEY: So?
MS. RADDITZ: So? You're not -- you don't care what the American people think?
VICE PRES. CHENEY: No, I think you cannot be blown off course by the fluctuations in the public opinion polls. There has, in fact, been fundamental change and transformation, and improvement for the better. That's a huge accomplishment.
Well, at least we know where he stands. This statement goes beyond mere stubborn belief in his own policies, or disdain for opinion polling. He's effectively saying the people's views are irrelevant -- and that the White House will decide the course of the nation, irrespective of what the people say. I understand that we only elect a President and Vice President every four years, and that strictly speaking, public opinion isn't directly relevant to his actions on a day-to-day basis. But this is war, not some minor matter of policy. It is the people who must ultimately shoulder the burden of this war, whether through taxes or military service. Their views ought to count for something; something more than Cheney's remarks suggest.
I'm curious to hear what my Convictions colleagues think about Cheney's comments -- particularly those of you who have served in the Justice Department as attorneys and advisers to presidents in the past.
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While I think Orin's right about both the outcome of Heller and the impact of the Obama talk, I am far less sanguine about the chances of a conservative base so contented that they'll stay home in any significant numbers. There are dozens of easily fabricated social issues with which to generate conservative outrage toward morally or sexually profligate democrats, and though a neutered second amendment might be a fine reason to be pissed off, it's hard to imagine anyone in the McCain camp being too bummed out about losing it as an issue.
But on to Obama. I couldn't disagree with Orin more about Obama's explanation for his association with the good Revered. He was very clear. And, I might add, that in being so clear he showed a lot of spine. The senator's explanation (beyond the tepid "he introduced me to my faith") is that he's close to Wright because, despite the fact that some of his statements are reprehensible, the man is everything one wants in a preacher, and particularly one steeped in the traditions of black churches. Why let the man baptize your kids or conduct your wedding? Because he also feeds the poor, gives aid and shelter to the homeless, runs a prison ministry, and does most everything else that an activist church should do. Call me crazy but that's a pretty clear and convincing argument to me.
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While the last episode of The Wire may not have wrapped up quite as cleanly as some closure-loving commentators would have liked, the final act of the writers-captured not on the little screen but in the pages of Time magazine-was a stunning and brazen act of courage.
In the magazine last week, David Simon and his staff take dead aim at this country's war on drugs and conclude that "[i]f asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented." Citing the legendary example of John Peter Zenger, they declare jury nullification in drug cases to be an act of righteous civil disobedience.
The problem is that in taking their pledge to nullify, the authors have gently finessed a rather difficult and practical point. In order to acquit or hang a jury, one has to get on that jury, and the only way to do that is, well, to lie about one's intentions. This is no small omission. Many people will take comfort in the Zenger example, but far fewer will be willing to intentionally mislead a prosecutor or federal judge who has asked them (under oath) a direct question. But without the lie there can be no nullification because without the lie, prosecutors will strike you, judges will excuse you and defense attorneys will watch weeping as you sulk back to the central jury room with "civil case" stamped on your jury card.
The unfortunate truth is that jury selection in drug cases around the country increasingly resembles the kind of "death qualification" that capital juries go through. So common is the revulsion to our misguided drug war that judges and prosecutors routinely ask jurors if they have a principled objection to it, following up with questions specifically designed to expose anyone who would have a moral or political objection to the theory or practice of our war on drugs. Avoiding disclosure often takes more than just failing to raise one's hand in response to a general question. More and more, specific jurors who prosecutors suspect for one reason or another may harbor anti-drug way sympathies are directly queried about their views making withholding look very much like outright deception.
The problem with all of this, of course, is that in the end, more and more juries are comprised not of a fair cross-section of the population, but rather by conservative folks who have no compunction about convicting someone of a drug crime regardless of the eventual sentence. And generally speaking those same jurors are more likely to view the evidence in ways that are favorable to the government in a drug prosecution, increasing the likelihood of conviction.
In the end, taking the pledge that Mr. Simon proposes may be a wonderful thing if your goal is merely to raise awareness of the terrible injustices perpetuated everyday in drug cases around the country. But if you really want to set some people free, if called down to the courthouse, a more moderate position (or at least a bit of existential trickery) will be a more effective approach.
Of course the true ideologues may be able to look a judge or prosecutor in the face and claim they'll convict when they won't, but this is far harder in practice than it seems in theory. There is something about the majesty of the process that makes lying difficult. The solution though is simple, if a bit odd. Don't decide yet. Make no pledges you'll feel the need to disclose, insist that you will listen fairly to all the evidence presented, tell them honestly that you care passionately about the law, and that you'll withhold decision until you've heard the entire case. Get yourself on that jury. But when closing arguments are through and the judge has instructed you on the law, do precisely as Mr. Simon urges: "think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren't fictional."
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Tuesday was a very bad day for John McCain for two reasons. First, Barack Obama gave a thoughtful and inspiring talk on race in America. I don't think Obama actually gave a good reason why he had associated so closely and so long with Rev. Wright, but the episode gave him an opportunity to demonstrate once again that the man gives great speech.
Second, and even more troubling for McCain, the oral argument in Heller revealed five clear votes for an individual rights view of the Second Amendment. I think that's the right result, but it's bad news for John McCain's electoral chances. Nothing would motivate the conservative base like a 5-4 Supreme Court decision in late June ruling that the Second Amendment basically doesn't mean anything: it would be the Goodridge of 2008 and then some. If the Court issues a ringing endorsement of the Second Amendment instead, a lot of conservatives will feel content and be more likely to stay at home come November.
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Well, Eric, I'm suppose I'm a bit relieved that you were not proposing a catch-all limiting principle for identifying rights when interpreting our own Constitution, but were instead merely "addressing the question of 'would we want to put gun rights in the Constitution if we were to start from scratch?'"
On that second question, I'm glad to say I agree with you -- not because rights should be limited to those that protect against entrenchment of political power, but simply because I don't see any particular normative case for a constitutional right to use firearms for self-defense.
Like you, I can't hope to top Dahlia's skewering of Justice Kennedy's obsession with protecting settlers from those rapacious wolves and bears (and, uh, grizzly bears, too). His reasoning, such as it was, appeared to be (i) that settlers did use firearms to protect themselves on the frontier and (ii) (implicitly) that it would have been unthinkable for the state to have deigned to prevent them from doing so. As you are right to note, Kennedy is correct that a disarm-the-settlers statute would have been absurd -- not because there was a constitutional limitation on such enactments, but instead because there was no particular reason for the state to restrict the use of firearms on the frontier: The problems that confront the D.C. City Council today are just a bit different from those that legislatures considered in pre-revolutionary times.
What Kennedy fails to cite -- and what all of the briefs in the case do not identify, as far as I can tell -- is any evidence that the Constitution was ratified in order to guarantee that such settlers would continue to be left free to hunt wolves in the event some legislature somewhere decided to impose firearms limitations. In other words, the fact that something was (for good reason) largely unregulated at the time of the Founding does not mean that anyone thought it could not be regulated, if and when a legislature found a good reason for doing so. Justice Scalia actually made this point quite nicely a few years back in response to an argument of Justice Thomas that anonymous speech must be constitutionally protected because there was so much of it at the Founding:
Anonymous electioneering
was not prohibited by law in 1791 or in 1868. In fact, it was widely practiced
at the earlier date, an understandable legacy of the revolutionary era
in which political dissent could produce governmental reprisal. . . .But to prove that anonymous electioneering was used frequently is not
to establish that it is a constitutional right. Quite obviously, not every
restriction upon expression that did not exist in 1791 or in 1868 is ipso
facto unconstitutional, or else modern election laws . . . would be prohibited, as would (to mention only a few
other categories) modern anti noise regulation . . . and modern parade permitting regulation. . . . Evidence that anonymous electioneering was regarded as a constitutional
right is sparse, and as far as I am aware evidence that it was generally
regarded as such is nonexistent.
So what was it, anyway, that caused Kennedy to be so fixated on settlers and wolves? I think it might have been an amicus brief by Virginia1774.org, which quoted this excerpt from a 1632 Virginia law: “…But it is thought convenient that any man be permitted to kill deare or other
wild beasts or fowle in the common woods, forests, or rivers in regard that
thereby the inhabitants may be trained in the use of theire armes the Indians
kept from our plantations, and the wolves and other vermine destroyed…”
Wolves, Indians, even "other wild beasts" (albeit no specific reference to grizzlies): It's all there. Yet when I saw this quote, I thought it curious that the amicus begins it with an ellipsis and the word "but." Did the Virginia legislature really mean to be foreclosing any firearms regulation with respect to settlers and wild animals? Well, not quite. A quick Google search turned up this, Act 49 of the Virginia laws of 1632, which reads in full:
"NOE man shall kill any wild swyne out of the forrest or woods,
except in his [] or devident, without leave or lycense
from the Governor. But it is thought convenient that any man be permitted to kill deare
or other wild beasts or fowle in the common woods, forrests, or rivers in regard that thereby the
inhabitants may be trained in the use of theire armes, the Indians kept from our plantations, and
the wolves and other vermine destroyed. And for encouragement to destroy the wolves, it is
thought that whosoever shall kill a wolfe, and bringe in his head to the commander, it shall
be lawfull for such person or persons for every wolfe soe kild, to kill also one wild hogg and
take the same for his owne use."
In other words, the statutory phrase quoted out of context by the amicus is an exception -- a wolf exception! -- or, more precisely, a contrasting authorization, to a general prohibition on killing "wild swyne" without a license from the Governor. Moreover, from all that appears, the Virginia license to kill wolves is not based on any notion of constitutional or fundamental right, but instead on the simple finding that such killing was "thought convenient."
Thus, to the extent this 1632 Virginia law is to be an authoritative guide to the meaning of the Second Amendment (yes, I kid), I think the most it would demonstrate is that if a resident of D.C. brings the head of a wolf to Mayor Fenty, he has a constitutional right to a free ham.
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Marty, I wasn't making an argument about constitutional interpretation but about constitutional theory. In other words, not "what is the right outcome of the Heller case?", but "would we want to put gun rights in the Constitution if we were to start from scratch?" The second question is not altogether irrelevant to the first; at least, some people seem to think that the answer to this question might help answer the first question. That's why these arguments about bears and saber tooth tigers are being bruited about. But I'm not at all interested in the first question.
From the perspective of the second question, let's take this argument made by Kennedy: "the right of people living in the wilderness to protect themselves" -- the right of "the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that."
The constitutional theory question is not whether it would be right or wrong to deprive the remote settler of the means to defend himself, but whether there is any reason to think that the government would take away his guns without a good reason-or as you put it, to think that the type of government overreaching that we properly worry about would extend to regulation of gun-toting settlers who live in the wilderness. I certainly can't think of any. Remote settlers are not the sort of people who are usually discriminated against; nor are they the sort of people who threaten a government's hold on power-quite the contrary. Do we think that Congress or the Alaskan state legislature has any interest in sending agents to the wilds of Alaska in order to confiscate the guns of remote settlers? Is the idea that the government has been captured by the grizzly bear lobby, or that settlers are treated as second-class citizens? Maybe the settlers have a longstanding complaint that the U.S. government discriminated against them by failing to slaughter the Indians fast enough? Does it count that the U.S. government and the thinly populated states have been subsidizing settlers for centuries-by offering free land, protection from out-of-state creditors, and tax benefits? It's hard to imagine a more cosseted group than our hardy band of settlers.
I can't top Dahlia's skill at ridiculing bad arguments, and I don't think I need to persuade you, either. If this is actually what the founders believed, so much the worse for them.
As for your last point, I was making a point about the "natural right" argument discussed in an earlier post by Doug Kmiec, not to constitutional rights (which you run together, but they are different, of course). "Natural right" is just a fancy way of saying that there is a moral reason to (in this case) let people keep their guns, namely, so they can protect themselves. As I said, there is also a moral reason to take away guns: to protect the rest of us. So natural rights thinking doesn't provide the basis of a constitutional right to own guns. It is indeterminate; another reason to leave the issue to politics.
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Eric, if I understand your post, you argue that constitutional rights should only be recognized where they would help to prevent the political party in power from "entrench[ing] itself and undermin[ing] political competition" -- in other words, to help correct a political process failure.
Well, that's one reason why the Constitution (the Bill of Rights, in particular) establishes certain rights, but it's certainly not the only, or the predominant, reason. (Think of the various ends served by the Bill of Attainder Clause, the Free Speech Clause, the Free Exercise Clause, the Fourth Amendment, the right to privacy, the Fifth Amendment, the Eighth Amendment, etc.)
So, let's say that Justice Kennedy were correct, and the Second Amendment was, indeed, ratified in order to protect "the right of people living in the wilderness [which apparently includes much of D.C.] to protect themselves" -- the right of "the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that." (Lions and tigers and bears, oh my.)
Now, I don't think this is a very plausible reading of the Second Amendment; but let's assume that it were (as the Court appears prepared to hold -- when Kennedy settles on a particular story about constitutional value or settlement, he's usually difficult to move off it, cf. Alden v. Maine). Why wouldn't, or shouldn't, that right be cognizable? Is your argument simply that constitution writers should not create rights except to protect against political entrenchment? If so, I suppose that's one theory of what (minimalist) constitutions ought to be about -- but what does it have to do with interpreting ours, which is designed to protect against other forms of government overreaching, too?
(In your post, you suggest that a right of self-defense would "come into conflict with my
natural right to protect myself by disarming criminals," a conflict
that "can only sensibly be resolved through political compromise." But in order for there to be such a conflict between constitutional or natural rights here, the Court would have to recognize, not a right to "protect myself by disarming criminals," but instead a right to have the state protect me by disarming criminals. And on this (and any other imaginable) Court, that proposition has no support at all. Cf. DeShaney.)
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I'm Rich Ford of Stanford Law School. As Dahlia mentioned, my wife just gave birth to our second child (thanks Dahlia for the well wishes) so I've not been on top of blogging (or anything else)--sorry this is a bit on the late side. I write about civil rights, race relations and local government law and I've just recently published a book entitled The Race Card which was excerpted in Slate back in January. I'm looking forward to the conversation.
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The effect of declaring some activity as being protected by a constitutional right is to remove it from democratic politics. If the activity is expressing dissatisfaction with the government, then the people, acting through their government, cannot suppress such expression. If the activity is owning a gun, then the people cannot suppress gun ownership. When the people, acting through their government, try to regulate the activity in question, the court says "no way!"
It is easy to understand why certain political freedoms should be put beyond the arena of politics and be protected by courts. Without such rules, the party in power can entrench itself and undermine political competition. It is hard to understand the analogous arguments for constitutionalizing gun rights.
Some argue that if people do not own guns, then democracy is put in danger, since people can no longer take up arms if the government tries to establish a tyranny or refuses to protect them. Maybe this was a legitimate concern at the end of the eighteenth century (or even the nineteenth century, as Akhil Amar suggests), but as a theory for restricting democratic politics today it is farfetched. Gun owners are politically powerful; gun control laws are few and limited; gun rights are endorsed by both parties; with hundreds of millions of handguns in circulation, no serious gun control law has a chance of success; and, even if everyone were disarmed, the government would not impose a dictatorship. It already has more than ample firepower if that is what it really wanted to do.
Others argue that governments fail to protect people from crime, so they shouldn't be permitted to deprive people of the means to protect themselves, as this would violate a right to self-defense supposedly found in natural law. But your natural right to protect yourself with a gun comes into conflict with my natural right to protect myself by disarming criminals; this conflict can only sensibly be resolved through political compromise. The government's crime policies are political choices; if arguments against gun control are plausible, they have a fair chance in the political arena--and indeed have won the day virtually everywhere.
Finally, a number of people argue that gun rights are "customary" or "lived rights." If so, so much worse is the case for constitutionalizing them. If gun ownership is such a profound part of our culture, any government that tried to restrict it without very good reasons would pay a high price at the polls.
There are plenty of reasonable policy arguments on both sides of the issue, but these arguments should be directed to legislatures, not courts. There is no plausible argument grounded in reasonable constitutional theory for taking gun ownership out of the arena of democratic politics.
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[Adam White]
Dawn, you seemed to misunderstand my argument when you ascribed to me the position that "we can have constitutional entities not squarely in one of the three constitutional boxes." In the first part of my argument, I tried to make clear that I -- along with the quoted members of the Founding generation -- saw the Vice President to be a legislative official rather than an executive official.
I referred to the Vice President as a "sui generis" office not to suggest that his office is not part of one of the three constitutional branches of federal government but, rather, to distinguish my view from Adam's position that the Vice President is the "Head of the Legislative." I wouldn't say that he's the "Head" of that branch, but I would say that he is "sui generis" among legislative officials: he is nationally-elected, he votes only in certain circumstances, he is first in the line of succession.
By contrast, the Constitution affords him no specified role in the Executive Branch. He has no Executive Power (it's committed to the President); he's not the head of a department. Rather, his only constitutional relationship to the Executive Branch (other than his nominal title) is a prospective one: In certain circumstances, he succeeds to the presidency.
Thus, I think you're hasty to assert that it is "ludicrous" to suggest that the Vice President is Legislative, not Executive, official. John Adams and Oliver Ellsworth -- hardly ignorant of the Constitution -- come out much closer to Cheney's position than to yours.
No doubt, over time the Vice President has come to be known primarily for his role in succession, and for the roles afforded particular Vice Presidents by particular Presidents. Thus, it should come as no surprise that most people would reflexively assert that the Vice President is just an Executive Branch official. I'd recommend, however, that Founding-era discussions strongly suggest that today's conventional wisdom is a little more "conventional" than it is "wise."
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Stopping the Justices from voting before they know the answer –
A proposal for reversing the internal operations of the Supreme Court of the United States.
Douglas W. Kmiec
Heller has already been identified as a test of the fidelity to precedent and restraint of the Roberts Court. That following oral argument, it seems possible if not likely that the Justices will disregard or minimize the significance of the militia clause of the Second Amendment and decide that there is a right of self defense that nowhere exists in the present text of the Constitution presents a unique challenge to that reputation. Putting aside whether that is or is not a defensible constitutional outcome, it is institutionally important for the outcome to be arrived at by means other than mere assertion.
When the Justices assemble around the table in the Chief’s outer office to decide D.C. v. Heller, they will follow the usual practice of voting on the outcome first and only then researching to justify and explain the outcome. With due respect to the Court’s tradition, that methodology is backwards. It is also subversive of public confidence in the Court. In a difficult case, like Heller, where the historical materials, linguistic analysis, and constitutional considerations are plentiful and largely being examined conscientiously for the first time, it is all the more important for the Court to follow the scientific method of doing the research and writing first before deliberation and vote. Reversing the process would have the benefit of: avoiding the appearance of elevating politics over law by actually avoiding the temptation to substitute politics for law. By engaging in the difficult work of legal research and analysis of existing text, history, and precedent before any of the members of the Court are asked to reach an ultimate determination, the Court can increase the odds of writing coherently and with greater unity. Those witnessing this morning's oral argument know that task will be difficult. The analytical strands and possibilities from the meaning of the English Bill of Rights of 1689 to Mr. Madison's expectations of draftsmanship to the deficiency (or not) of precedent, to the nature of trigger locks require Herculean effort to assemble into a proper answer. If they were fully candid, I venture the Justices would concede that at this moment they possess at best a tentative conclusion. Why vote before a fulsome examination of the law by reference to a complete exposition of what one member of the Court would offer as the most honest and defensible constitutional judgment. No one would buy a common appliance not knowing if it could be constructed to perform its intended task. Why ask Justices to accept opinions that have yet to be fully formed?
Who would write the opinion if a preliminary vote were not taken first for purposes of assignment? Quite simply, the Justice next in line for a writing assignment who is fully up to date with his or her work. Once and for all, the residual politics of confirmation would be set aside and only Court administration would govern. Yes, this would deprive either the Chief Justice or the senior associate justice, most often, John Paul Stevens, of the right of assignment, but that deprivation would be in pursuit of a higher order good to which I venture both the Chief Justice and Justice Stevens would subscribe: the elevation of the rule of law and the strengthening of the respect for the Court as an institution.
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If I teach Constitution Law again, I think I'll be assigning the speech Barack Obama just gave. (I just posted on this over at XX Factor as well). Always seems to me that the toughest thing about teaching Con Law is that in some ways it's a course about race-- but students find it very hard to talk about race. Slavery, segregation, educational achievement, poverty, affirmative action.... these are all issues that make some students belligerent and other students miserably silent. Obama just took on some of the most painful issues... and gave everyone permission to be mixed up and confused. Can't think of a better way to help jump start an honest conversation about the many ways in which issues of race have inflected American constitutional jurisprudence.
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by Dawn Johnsen
For this my inaugural substantive blog I want to pose a question much on my mind: how do we restore our nation's honor, as well as our own?
I am a bit tempted instead to join the fray over VP Cheney's filing of the D.C. guns brief, flatly at odds with the Bush administration's brief, begun by David Barron. Perhaps more later, but I can't resist just a quick response to Adam White's attempt to defend Cheney's consistency by repeating what I personally find a ludicrous argument that the VP is not part of the executive branch. Adam suggests that perhaps "the Office of the Vice President ... is simply sui generis." This suggestion that we can have constitutional entities not squarely in one of the three constitutional boxes simply is not going to fly with unitary-executive types of Cheney's stripe-at least not if they are being principled.
But back to the question weighing on my mind--which I know also concerns many fellow Slate bloggers, because they have eloquently expressed and forcefully addressed it in their work:
[T]he US administration ... not only sanctions the torture of prisoners taken in the so-called wars on terror but is active in every way to subvert laws and conventions proscribing torture. ... [T]he issue for individual Americans becomes a moral one: how, in the face of this shame to which I am subjected, do I behave? How do I save my honour?
These are words I recently read in Nobel-prize winner J. M. Coetzee's new novel Diary of a Bad Year. They hit me hard. What are we Americans to do to, confronted with a government that does not respect the legal and moral bounds of human decency, a government that believes torture is justified whenever the president so decrees and that all views to the contrary, of Congress and the world community, are to be ignored? How do we save our country's honor, and our own?
I felt the sense of shame and responsibility for my government's behavior especially acutely in the summer of 2004, with the leaking of the infamous and outrageous Bush administration Office of Legal Counsel Torture Memo. I served at OLC during the Clinton administration, including as OLC's head from 1997-98. It was a great privilege to serve this country I so love-and a tremendous and painful shock to see the corruption of OLC's work in the torture memo. One response from 17 former OLCers (including Slate bloggers David Barron, Walter Dellinger, and Marty Lederman) was to develop 10 "Principles To Guide the Office of Legal Counsel" (published here and in an appendix to this article). We hoped these principles, if followed, could help prevent future OLC advice that was similarly, in the words of fellow blogger and former OLCer Jack Goldsmith in his must-read The Terror Presidency, "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."
The same question, of what we are to do in the face of national dishonor, also occurred to me a few weeks ago, as I listened to President Bush describe his visit to a Rwandan memorial to the 1994 genocide there. Now let me be clear (before "comments" erupt): I am not in any way equating anything the Bush administration has done with the brutal mass murder of 800,000 people. That would be ridiculous. President Bush correctly described the Rwandan genocide as one of the most horrific episodes of the 20th century.
But President Bush spoke there, too, of the power of the reminder the memorial provides and the need to protect against recurrences there, or elsewhere. That brought to mind that whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed.
A more comparable incident, in terms of scale and potential to serve as a model, is how the Canadian government dealt with its complicity in the United States' "extraordinary rendition" of Maher Arar. The Bush administration wrongly suspected Arar, a Canadian, of terrorism and seized and "rendered" him to Syria in September 2002, where he was tortured for almost a year. The Canadian government extensively investigated the incident (hampered by the United States' refusal to participate); it ultimately issued a lengthy report and formal apology, compensated Arar with $10 million, and filed a formal protest with the United States. The Bush administration, to the contrary, has refused to apologize and has used claims of national security to keep secret any details, though when pressed in a congressional hearing, Secretary of State Condoleezza Rice finally admitted the United States had mishandled the case.
The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. Coetzee writes of his fear that "[t]he worst of their deeds we will never know":
The judgment of history is clearly a matter that exercises the minds of the US administration too. History will judge us on the basis of the record we leave behind, they say in public; and over that record, they remind themselves in private, we have an unparalleled degree of control. Of the worst of our crimes let no trace survive, textual or physical. Let the files be shredded, the hard drives smashed, the bodies burned, the ashes scattered. ... On their priority list, security-by which they mean secrecy-comes first, second, and third.
Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.
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[Marty Lederman]
Because surely not enough has yet been written about the Heller case ... I thought I'd weigh in with three fairly discrete observations about it. These remarks in certain respects complement what Akhil Amar and Kenji Yoshino have recently posted.
1. First, there has almost certainly been more textualist and originalist writings-in the briefs, the blogosphere, the law reviews, etc.-about this case than about any other in recent memory. (This is largely a function of the fact that there is so little Supreme Court doctrine on point, and thus an argumentative void that could easily be filled by appeals to text and original meaning.) Yet in my unscientific small survey, I've yet to find even one observer of the court who thinks that textualist and/or originalist arguments will have the slightest effect on the vote of even a single justice in the case ... just as in most other constitutional cases (such as the Sixth Amendment right to counsel case argued this morning), in which such arguments are window dressing, at best.
Now, of course this would not be the case if the text or original intent (or original "meaning") pointed unequivocally in one direction or the other. But as Mark Tushnet's terrific, concise volume demonstrates, they don't. Or, in any event, and as Akhil Amar emphasizes, the text and original understanding surely do not unequivocally point in the direction of securing an individual right to own a handgun for purposes of self-defense against other private parties. (That's why, as Doug Kmiec notes, Heller supporters such as Nelson Lund (see Part IV of his brief) so quickly fall back upon fairly vague and very general Blackstonian notions of a natural right of self-defense.)
I therefore agree with Akhil that the justices are much more likely to decide the case not upon evidence from text or original understanding of the Second Amendment (although such matters will undoubtedly pepper their various written opinions), but instead based upon whether they are persuaded that (in Akhil's words) "Americans have established, merely by living our lives freely across the country and over the centuries, certain customary rights that governments have generally respected; basic rights [that] are simply facts of life, the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low."
As noted below, however, I'm less certain than Akhil which way such a consideration will (or should) cut with respect to D.C.'s restrictions in the Heller case, because it turns out the district does not prohibit the use of all firearms for self-defense in one's home.
Continue reading at Balkinization ...
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Mukasey's comments were stupid and more than a little inappropriate. But like Eric, I have a certain sympathy for his mixed feelings here.
While I oppose the death penalty as a policy matter, in a legal culture in which we reserve the right to execute people for relatively routine street crimes, it seems quite absurd for the justice system to get squeamish about executing the operational masterminds of Sept. 11. It gives new meaning to the word caprice. Kill one person and you get a lethal injection; kill 3,000 and you get a term of years? It makes no sense.
And yet, nobody who has studied al-Qaida in even the most cursory fashion will sleep easy at night imagining punishments that martyr its leadership. Al-Qaida is a cult of martyrdom. Bin Laden's rhetoric is overt on this point. He talks about how al-Qaida's youth love death as much as Americans love life. He talks about suicide attacks in frankly aesthetic terms. The hanging of Egyptian intellectual Sayyid Qutb, who joyfully went to his death at Nasser's hands, made a martyr out of modern jihadism's intellectual godfather—and thus vastly magnified his myth. The last thing America needs to do is to fuel this martydom culture with more executions.
I have no idea how you square this circle—and I don't approve of the attorney general's ruminating about it publicly. I'm kind of glad, however, that he's thinking about it.
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While I don't have thoughts on the substantive merits of Heller [FN1], David's comment on the Cheney brief's implications for the unitary executive raises an issue that's interested me greatly. Simply put, I don't think that the vice president's support of the theory of the unitary executive is at odds with his filing a separate brief in Heller.
1. Cheney May Well Be Right: The Vice President Isn't Part of the Executive Branch: As a preliminary matter, I must say that I tend to agree with the office of the vice president's position that the vice president isn't part of the executive branch. In fact, I think you would have been greeted with outright laughter from Vice Presidents Jefferson, Burr, or Calhoun if you had suggested anything to the contrary. Elected by the people-not appointed by the president-their office exists separate from the presidency. The vice president is not merely another executive branch officer subject to presidential dismissal.
Article II of the Constitution vests in the president "the executive power." It does not identify, however, the affirmative powers of the vice president-his only specifically identified power, other than his role in succession, is Article I's designation of the vice president as the president of the Senate. True, Article II does mention the possibility of vice presidential impeachment, a