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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.
* * *
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.