Does the Constitution protect a substantive right to hunt?

Sandy Levinson

I am inspired by some of the responses to Jack Balkin's last post on Heller; I agree completely with Jack's argument, and I'm curious about the implications of some of the respondents' arguments.

Let's assume that it is legitimate to use a firearm to hunt, and let's even assume that that's what anyone in the late 18th century would (properly) have believed and, indeed, what many Americans have believed since then. But is there a right to hunt per se? Imagine, for example, that animal-rights supporters take power in some state and simply outlaw the hunting of any and all animals. (Any killing of predators will be taken care of by professional "animal control officers" who will uniquely have the right to use deadly force against them.) That would, obviously, also make it illegal to use your gun (or bow or arrow, etc.) to hunt an animal.

Would any reasonable person argue that the Constitution would prohibit a state (and perhaps Congress as well, operating under the same view of the Constitution that legitimizes the Endangered Species Act) from outlawing all hunting and thus making rifles, shotguns, etc., absolutely "useless" for their most common intended purpose? If one finds a "right to self-defense" (that includes the possession and even use of firearms) in the Second Amendment, does that entail, for anyone other for a fanatic, that "a right to hunt and kill animals" is also a protected Second Amendment right? Would the state really be estopped from stating that killing animals is no longer a "reasonable use" of firearms? Isn't this just one more argument in favor of the Ninth Amendment, which so easily allows us to differentiate between self-defense and killing animals, instead of shoehorning everything one likes into (and excising everything one dislikes, such as bringing firearms into federal courthouses from) the Second Amendment?

[UPDATE: I have corrected a typo in the last paragraph. But let me borrow from a point made by University of Pennsylvania Professor of Law Paul Robinson in an op-ed in yesterday's New York Times, "Shoot to Stun," that suggests that a number of non-lethal weapons are available, including tasers, that are far more effective as means of self-defense than handguns. So does the Second Amendment protect a right to handguns even if there is extremely good evidence that the purpose of self-defense can be achieved by modes less likely to kill people (or to be the source of accidental deaths when found by children, etc.)? If guns can effectively be prohibited as means of hunting, because of animal rights concerns, then why couldn't they be prohibited as means of self-defense if other weapons are easily available and do the job (of self-defense) far more effectively.

Incidentally, should the Supreme Court take judicial notice that people who kill others, even in self-defense, sometimes feel remorse (as Kennedy argued was the case with women who had abortions), so this would count as an additional reason to require the substitution of non-lethal means of self-defense over lethal ones?]



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Posted 4:57 PM by Sandy Levinson [link] (10) comments

Is Heller an Original Meaning Decision?

JB

Many commentators, including my good friends Randy Barnett and Larry Solum, have praised Justice Scalia’s opinion in Heller v. District of Columbia as a sparkling example of original meaning originalism. After having read the opinion closely a number of times, I am not so sure.

I do not doubt that Scalia uses original meaning methodology at the beginning of the opinion. Rather, the crucial move that decides the case– and that separates the majority from the dissent– is not an argument from original meaning. Let me explain.

The first part of Scalia’s opinion does make a very straightforward inquiry into original meaning. It asks what the words of the Second Amendment meant at the time of enactment. The “meaning” it looks for is what Larry Solum calls “semantic content,” the concepts that the clause uses and the ways that they are put together to form sentence meaning.

So Scalia concludes, after some discussion, that the semantic content of “keep and bear arms” means roughly the same what it means today, something along the lines of “to possess and carry weapons in case of confrontation.” Actually, the extra words “in case of confrontation” are not necessary to the original meaning. They are an implication Scalia adds, in large part, I think, because he wants to prepare the reader for his argument about self-defense.

Scalia points out, and I think correctly, that the original meaning of the phrase “keep and bear arms” isn’t limited to military uses. It could refer to non-military uses, like hunting or self-defense. Such a construction of its scope is consistent with the original meaning of the clause. It is not a generally recognized term of art with a meaning that must be more limited.

So far, so good. The next step is to note that the Amendment states a principle, not a rule or a standard. The principle is that “the right to keep and bear arms shall not be infringed.” What exactly is this principle, and what is its proper scope? The principle in the Second amendment, like many principles in the Constitution, is vague. For example, the First Amendment says that “Congress shall make no law . . . abridging the freedom of speech.” The key word in this sentence is not “no” but “freedom.” Whatever the freedom of speech is, Congress may make no law abridging it. But what precisely is the freedom of speech? Does it include all acts of speaking? Is reasonable regulation of speech an abridgement of the freedom or is it merely a ban on license or abuse.” Moreover, as Justice Scalia himself has pointed out, the word “speech” in the First Amendment seems to be a synecdoche, that is it is a part that stands for a larger class of related things, like writing, printing, painting, sculpture, music, telecommunications, and so on. So even once we know the original meaning, we must fill in vague principles with constitutional constructions.

Back to the Second Amendment. We know there is a principle: don’t abridge the right of the people to keep and bear arms. But we don’t know what the content of that principle (or set of principles) is; and the original meaning of the sentence, the clause meaning, does not tell us. It could point to any number of different principles.

Here’s where the opinion gets tricky. What most people would do, and what both Scalia and Stevens do, is to look back into history to see what principles the framers and ratifiers sought to put into effect through their choice of words. That is, they are looking for the “original principle” or “original purpose” of the clause, and it’s important to understand that this inquiry involves a different aspect of “meaning” than asking about the original semantic content of the clause. The argument is that if a principle was an original purpose, then we should interpret it according to that purpose today.

It turns out that there is an original principle that everyone agrees the framers and ratifiers had: it was to prevent the federal government from disarming citizen militias organized by the states. This would deter federal tyranny, insurrection, and foreign invasion. Call this the principle of preservation of state militias. There is a second principle that almost everyone agrees was an original purpose: to prevent the federal government from disarming citizen militias that were not organized by states, but that might arise spontaneously to fight a tyrannical federal government, tyrannical state government, anti-republican insurrection, or foreign invasion. Call this the principle of republican insurrection. Both of these principles are civic republican ideas: they assume that citizens formed militias as a public duty they owed to each other and to the republic. Citizens would band together, either organized by states, or spontaneously, to protect each other and the republic from invaders or tyrants. It was not a purely individualist or liberal right to be free from state interference as we imagine rights today. Rather, it was a right that arose from a common duty of political obligation.

The history strongly supports that among the original purposes of the text was constitutionalizing these two principles: the principle of preservation of state militias and the principle of republican insurrection. We can see this from the preamble to the Amendment, which speaks of militias, from the history of the English Bill of Rights, in which Protestants wanted the right to defend themselves against the Stuart Kings (this is an example of the insurrectionist theory), and also from the drafting history of the Second Amendment, which demonstrates civic republican ideas about the obligation to serve in the militia (that is why there was discussion of an exemption for religious dissenters). Justice Scalia rejects the drafting history as evidence of original meaning, but it is quite relevant to discovering original purpose, and that is what both he and Justice Stevens are interested in at this point in the discussion.

There is also a third principle that the text might have been created to protect: It might have been designed to constitutionalize the common law right of self-defense using generally available weapons. And now comes the key issue in the case.

The problem is that the historical evidence that the framers and ratifiers sought to constitutionalize this common law right is mixed. It is far less strong than the evidence for the first two purposes. There is evidence that goes both ways in the history, and some pieces of evidence can point both ways depending on how you read them and the context in which you consider them. You can see some of this evidence by comparing the historical versions offered by the majority and the dissent, each of which articulates the history in ways most favorable to itself and each of which pretends that there is no other possible conclusion to draw from the history. That by itself should lead you to be dubious of the confident claims that both sides make.

Nevertheless, we can say one thing: The original meaning of the text is consistent with all three purposes, including the right of self-defense. So if we wanted to construe the Second Amendment to constitutionalize the common law right of self defense, we could. There is nothing in the original meaning of the text that stops us. That is true even though the preamble speaks of militias, because, as Scalia correctly points out, this does not necessarily limit the scope of the clause. It might be one reason not to read the clause to constitutionalize the common law right of self defense, but it is not a conclusive reason.

However, as one moves into the 19th century, people’s attitudes change. More and more people think that the common law right of keeping and bearing arms in self defense is a fundamental constitutional right. Some of them think it is part of the Second Amendment, others don’t identify it with any particular part of the Constitution but regard it as a basic right of citizenship. Either way, by late 1840s there is evidence that lots of people think that this is a basic right. In particular, the framers of the Fourteenth Amendment think it is a privilege or immunity of citizenship, and there is strong evidence that they believe that this right is one of the privileges or immunities of citizens of the United States that the States must protect under the Fourteenth Amendment.

So even if the evidence is unclear that self-defense was an original purpose in 1791, the evidence is strong that it was a purpose of the framers of the Fourteenth Amendment when they wrote the Privileges or Immunities Clause, which was designed to incorporate the individual or personal rights in the Bill of Rights, including the individual rights protected by the Second Amendment. And because people believed this in 1868, that is a reason to think that this interpretation is a permissible construction of the Second Amendment as it applies to the federal government. Once again, the text can bear it, despite the preamble.

And here is the point: The argument that the Second Amendment constitutionalized the right of self-defense does not follow directly from the Amendment’s original meaning, as Scalia claims it does. Just because a reading is consistent with original meaning, that does not mean that it is required by original meaning.

Rather, it is a permissible construction or gloss on the Amendment. It is a gloss that develops over time, and becomes generally and widely accepted by Reconstruction, and continues throughout the 19th century, as Scalia’s opinion suggests. However, because Scalia wants to insist that this was always an original purpose of the Amendment, he reads this 19th century history as proof of the original purposes of 1791. This is anachronistic. And, as noted above, he confuses original meaning – i.e., the content of the words used – with original purpose and original expectations.

Scalia seems to believe (incorrectly) that the purposes attributed to a clause at the time of the founding are a part of its original meaning. Having made that mistake, he also seems to believe that if a purpose attributed to an amendment is not among its original purposes, it cannot be a legitimate purpose because it is not part of the original meaning. This means that the 19th century evidence is only relevant to him if it proves what people believed to be the purposes of the Amendment in 1791. If, it turns out that a particular purpose (self-defense) developed over time as a result of gradual evolution of American values, it is not an original purpose. Hence it is illegitimate to attribute it to the text.

I disagree with this entire line of reasoning. The question of original meaning is different from the question of original purpose and original expectations. Original meaning originalism says that we are bound by the first kind of meaning: what concepts did the words point to (or what was the semantic content of the words) at the time the text was adopted? Where the original meaning is vague, we must engage in constructions to flesh out the text and apply it to present day problems.

It would have been far more honest to say the following: Does the Second Amendment constitutionalize the right of self-defense? The original meaning can bear this construction. The evidence that this was an original purpose is mixed, although there is some evidence. But this purpose– constitutionalizing the common law right of self-defense– became an important purpose, perhaps the most important purpose attributed to the Amendment throughout the 19th century, as the country gradually moved away from civic republican ideals and toward what we would now call classical liberal notions. This gloss on the text is a permissible construction, and it is a construction that has deep roots in our history and traditions. Therefore we should accept it as one of the purposes of the Second Amendment. So Scalia’s basic conclusion is correct.

But note that this is not an argument derived wholly from original meaning. Rather, it is an argument from what I would call text and principle. It starts with the original meaning and then, noting that the text points to a principle, it asks what the principle is. It then inquires into the larger purposes behind a vague text, and the purposes don’t have to be the originally intended purposes. Other purposes can count, as long as they are consistent with original meaning. In this case, the Privileges or Immunities Clause was believed to protect the right of self-defense against the states. This is an especially powerful reason for holding that the Second Amendment, which binds the federal government, also protects this right. (Thus the strong evidence for incorporation of a self-defense right against the states gives us good reasons to adopt this permissible construction of the Second Amendment with respect to the federal government).

Scalia’s basic result, I repeat, seems to me to be correct. But the key move in his opinion is not a deduction from original meaning. It is permissible reading, but Scalia does not want to recognize that it involves a choice on his part. He reads history anachronistically and he confuses original meaning with original purpose and original expectations in order to avoid presenting what he is doing as a choice.

Heller is a permissible construction of a vague text, consistent with original meaning but not compelled by it. The right of self-defense became associated with the Second Amendment over the course of history, as generations of Americans asked what the Constitution and the Bill of Rights meant to them in their own time. The argument for the constitutional right of self-defense is, in other words, an argument from living constitutionalism. Justice Scalia is well known to despise the idea of living constitutionalism. But what he has given us in Heller is actually a living constitutionalist argument disguised as law office history.

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Posted 9:31 AM by JB [link] (17) comments

Made in China: What We Have Become

Marty Lederman

The SERE techniques that we used on prisoners at Guantanamo, as a matter of official state policy, approved at the highest levels of the Justice and Defense Departments, came directly from a document that described the techniques that the Communist Chinese used during the Korean War to obtain confessions, many of them false, from American Air Force POWs.

The intended and actual effects of these techniques?:

"Makes Victim Dependent on Interrogator"

"Weakens Mental and Physical Ability to Resist"

"Reduces Prisoner to ‘Animal Level’ Concerns."

Of course, the chart in question was not copied verbatim at Guantanamo -- the DOD folks had the foresight to make one (and only one) change: They omitted the original title, which was "Communist Coercive Methods for Eliciting Individual Compliance."

Nor is this merely ancient history (i.e., from 2002-2003). Recall that the President of the United States has formally authorized the CIA to continue using some (unknown) subset of these techniques, based on a finding that, although they might "reduce the prisoner to animal level concerns," they are not "cruel treatment" prohibited by Common Article 3 of the Geneva Conventions.

[UPDATE: As Max Hailperin notes in the Comments, the Biderman article in question emphasizes that the techniques in question had been used for centuries by interrogators around the world. "In fact, the truly most interesting point from Biderman's article may be a easily-overlooked modifier in his remark that the techniques were not original to the Chinese. He writes 'The methods of gaining compliance they used included nothing which was not common practice to police and intelligence interrogators of other times and nations, where restraints precluding such tactics were not in force.' I think those concluding words, 'where restraints precluding such tactics were not in force,' are the ones we ought to focus on. Implicit in Biderman's use of those words is an assumption that relatively humane, civilized nations would in fact put such restraints in place." That's what the Geneva Conventions did. Until February 2002.]

[UPDATE: Another commenter notes this telling passage from the Biderman article:

[O]ne form of torture was experienced by a considerable number of Air Force prisoners of war during efforts to coerce false confessions from them. The prisoners were required to stand, or sit, at attention for exceedingly long periods of tinme-in one extreme case, day and night for a week at a time with only brief respites. In a few cases, the standing was aggravated by extreme cold. This form of torture had several distinct advantages for extorting confessions.

....

Where the individual is told to stand at attention for long periods, an intervening factor is introduced. The immediate source of pain is not the interrogator but the victim himself. The contest becomes, in a way, one of the individual against himself. The motivational strength of the individual is likely to exhaust itself in this internal encounter. Bringing the subject to act "against himself" in this manner has additional advantages for the interrogator. It leads the prisoner to exaggerate the power of the interrogator.

...

For the interrogator, forced standing has still further advanitages. It is consistent with formal adherence to mythical principles of legality and humaneness important to the Communists. These principles are important in the interrogation-particularly in facilitating the adoption of a positive attitude by the prisoner toward the interrogator and the forces he represents. Adherence to these mythical principles also protects the interrogator from potential punishment at some future time for mistreating prisoners. The Communists, furthermore, can gain a considerablc propaganda advantage when victims who are released truthfully state that no one ever laid a hand on them.

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Posted 7:21 AM by Marty Lederman [link] (11) comments

For Thurgood Marshall's Centennial

Mary L. Dudziak

One hundred years ago today, Thurgood Marshall was born. In our own vastly different legal environment, it is hard to imagine what a milestone it was when Marshall became the nation’s first African American Supreme Court Justice in 1967, when he first argued before the Court as the first African American Solicitor General in 1965, when the man known as "Mr. Civil Rights" was confirmed by the Senate for a seat on the Second Circuit Court of Appeals after a year-long confirmation stalemate in 1962, or when his most important case as a civil rights lawyer, Brown v. Board of Education, was decided by the Court in 1954.

Thank you to Jack Balkin for posting my new book about Marshall on Balkinization and for inviting me to blog here. Exporting American Dreams: Thurgood Marshall’s African Journey focuses on one part of this man’s life, but one of my objectives in writing it was to reintroduce Marshall to a public that remembers him only as an aging Supreme Court dissenter. The book sets Marshall’s work in Africa in the context of his American civil rights work in the 1960s and takes the reader along with Marshall not only to constitutional negotiations leading to independence for Kenya, but also to a civil rights strategy meeting in Atlanta, and to the Louisiana sit-ins in 1960 leading to one of the cases that captured Marshall’s attention in his last months at the NAACP Legal Defense Fund.

The narrative strategy of the book is unusual. Each chapter is transnational. The focus shifts from the American civil rights context to Marshall’s work in Kenya (about which I’ve posted here and here, and will say more later). And it turns at times to the Kenyans Marshall worked most closely with, including Tom Mboya, a dynamic young Kenyan leader once seen as the West’s best hope for Africa, but assassinated in 1969.

By crossing borders, the book is part of historians’ efforts to examine American history on a global terrain. It engages an issue explored in recent works by James Campbell, Kevin Gaines and Saidiya Hartman: the way race and national identity are configured in African/American encounters. As a transnational legal biography, the book integrates foreign and domestic narratives, treating an international sojourn not as a vacation from Marshall’s "real life," but as another arena in which his ideas about law and social change were both framed and ultimately challenged. His belief that legal change was an essential element of equal citizenship seemed old-fashioned to younger American 1960s activists, but it was borne out of his life experience and was reinforced by his engagement in legal negotiations aimed at liberating Africans.

Thurgood Marshall has long been a staple in American history books, though sometimes only in passing reference to his American milestones. For his centennial, we should remember as well that his work – at home and abroad – made a mark on the world.

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Posted 12:01 AM by Mary L. Dudziak [link] (0) comments

Roe's Survival and Bush I's Souter pick

Priscilla J. Smith

Jack, the one thing you are missing I think, is the relative importance of abortion to the different Presidents, personally and for votes and the importance of Roe to a majority of the American people. This is implicit in David's posts.

I do believe that Reagan and Bush II, the two Republican Presidents who were/are evangelical about overturning Roe tried/are trying hard to do so. Scalia, Kennedy and O’Connor were meant to do this, Roberts and Alito are as well. History (i.e., Blackmun's notes lovingly reviewed by Linda Greenhouse) tells us that the Court would have done it if Kennedy hadn’t flipped during Casey. Bush I, on the other hand, simply wasn’t evangelical about the issue. Under pressure from Babs he had supported Roe in the past like other good waspy Republicans from New England, and flipped during the elections only to keep the Reagan base.

It’s true we were lucky (dumb or otherwise) with Souter, though his vote wouldn’t have mattered if Kennedy and O’Connor had voted to overturn Roe as intended. But history also reveals (in the form of statements by Warren Rudman and i'm sure other things) that Bush I didn’t care enough about abortion to insure the abortion paper trail was there with Souter. He wanted a confirmable conservative, someone who would avoid confirmation battles, and Warren Rudman (R. Sen. N.H.) sold Souter as both.

Bush I also thought he was a popular enough President, the moderates strong enough, that he didn’t have to choose a diehard anti. Remember Souter was nominated on July 25, 1990 on the eve of the Gulf War, which started in August. A year later, as 1992 and elections approached, Thomas was payback to the base.

So it’s clear there is some (dumb) luck or perhaps we could call it -- to romanticize -- judicial integrity, and perhaps true conservatism winning out over evangelical faith (Kennedy, O’Connor and in the old days Souter). Remember when conservatives still followed stare decisis and some judges were open-minded and willing to learn. Some still are, see, e.g., my favorite judge, Judge Kopf, Republican Bush I appointee for U.S. Attorney, now Chief Judge of the Distrist of Nebraska, whose chances of 8th circuit nomination we abortion lawyers undoubtedly ruined.

Couple this with a lack of resolve (or disinterest) by Bush I, and the power, though waning, of more moderate Republicans like Warren Rudman (Souter); and here we are. It has taken this long because the voters are split and that was reflected in Presidents. Now the religious right overreached and Bush II overreached with them. Bush II is so unpopular partly because of his stance on social issues, including abortion and we can only hope that the moderates translate that to McCain or we are done for.


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Posted 5:55 PM by Priscilla J. Smith [link] (4) comments

Best New Blawg

Marty Lederman

Without much fanfare, Bernie Meyler has entered the blogosphere. With characteristically wise and provocative thoughts, not only about Heller and Boumediene and the recent Carl Schmitt craze, but also Macbeth and Faith Akin.

Well worth your bookmark.
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Posted 9:56 AM by Marty Lederman [link] (0) comments

Through the Looking Glass: Indefinite Detention and the Parhat Case

Marty Lederman

Can the President indefinitely detain someone who has no connection to Al Qaeda and who has not engaged in any belligerent acts against the United States?

Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush Administration had not established a sufficient foundation for its indefinite military detention of Huzaifa Parhat, who has been imprisoned at Guantanamo for more than six years. Much of the evidence that the court considered is classified, and therefore the court decided that it would publicly release only a redacted version of its opinion. The court released that redacted version today.

Even in its redacted form, this extraordinarily careful and detailed opinion, authored by Judge Garland and joined in full by both of his more conservative colleagues, offers a stark depiction of the most significant problems with the Bush Administration’s detention policy—namely, that the military has relied upon a breathtakingly broad standard of who can be detained, and then has made particular detention decisions based on very speculative and thin evidence, even under that broad standard. The detention policy in practice, in other words, has been much more indiscriminate than any authority Congress afforded the President in the conflict against al Qaeda.

Within a week after the attacks of September 11th, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The Administration argues that this Authorization for Use of Military Force (AUMF) authorizes the indefinite detention of Parhat, and several similarly situated detainees, at Guantanamo.

Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that "planned, authorized, committed, or aided" those attacks. In particular, it is undisputed that he is not a member of al Qaeda or of the Taliban. Indeed, the Pentagon’s Combatant Status Review Tribunal (CSRT) did not even find him to be "an individual who was part of or supporting Taliban or al Qaida forces." And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).

So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced “weegur”). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to “oppression and torture” by the Chinese Government, including “harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas.” In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone -- not the United States -- as his enemy.

In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and seventeen other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained imprisoned for more than six years.

In light of all this -– and the utter lack of any connection between Parhat and any hostilities against the United States (let alone the 9/11 attacks) -- what is the possible theory under which the Pentagon has purported to detain Parhat for the better half of a decade (with no end in sight)?

As today’s opinion demonstrates, the government relies on the following, fairly astounding chain of reasoning:

1. The Taliban aided al Qaeda in committing the terrorist attacks of September 11th, and/or “harbored” al Qaeda.

2. Military force against the Taliban would “prevent future acts of international terrorism against the United States” by al Qaeda.

3. Thus, the AUMF authorizes “necessary and appropriate military force” against the Taliban.

4. A longstanding incident of the use of such force is the authority to indefinitely detain those who fight on behalf of, and under the command of, the entity (the Taliban and al Qaeda) against whom the use military force has been authorized.

[Up to this point, the argument is fairly unobjectionable, and supported by the Hamdi decision.]

5. In the AUMF, the government argues, Congress authorized force against not only the Taliban and al Qaeda, but also any entity that, subsequent to September 2001, has become so closely associated with al Qaeda or the Taliban that it is effectively “part of the same organization,” and thus covered by the AUMF (even if it would not have been so covered when the AUMF was enacted)—or, at the very least, such a subsequently affiliated organization is covered by the AUMF if it is “effectively part of” al Qaeda or the Taliban and the entity has also “engaged in hostilities against the United States and its coalition partners.” (The DOD definition requires both showings.)

6. A Uighur independence group known as the East Turkistan Islamic Movement (ETIM) is “associated” with the Taliban in the sense that it is “effectively part of” the Taliban.

7. Moreover, the ETIM is engaged in hostilities against the United States and its coalition partners.

8. Therefore, the AUMF authorizes the indefinite detention of anyone who is part of the ETIM, whether or not that person has any connections directly to the Taliban or al Qaeda, and whether or not that person has ever engaged in, planned or supported hostilities against the United States or its coalition partners.

9. Indeed, the AUMF authorizes the indefinite detention of anyone who has merely “supported” the ETIM, even if that person has not joined (and is not otherwise "part of") the ETIM, has no connections directly to the Taliban or al Qaeda, and has never engaged in, planned or supported hostilities against the United States or its coalition partners.

10. Although there was no evidence that Parhat joined, became a member of, or in any direct sense “supported” the ETIM, he did seek and receive training on the use of a rifle and pistol at the Uighur camp in Afghanistan, which he intended to use solely for resistance against the Chinese government (not a part of the U.S. coalition).

11. One leader of that Uighur camp was a man named Hassan Maksum.

12. According to the government, Maksum is also a “leader” of ETIM, although there is no evidence that Parhat knew anything about any al Qaeda or Taliban association with Uighur camps. (It’s not clear from the unredacted portions of the opinion whether there was any evidence that Parhat knew Maksum was affiliated with ETIM.)

13. Ergo, because Parhat received training at a camp led by an alleged ETIM leader, Parhat “supported” ETIM.

14. Accordingly, the military can indefinitely detain Parhat (and similarly situated Uighur detainees) at Guantanamo.

* * * *
That’s a fairly astounding chain of “logic”—one that explains why the Pentagon has detained so many persons who have not engaged in hostilities and who have little or no obvious connection to al Qaeda.

In its Parhat decision, the court of appeals does not reach the most fundamental, most important question: whether the Pentagon’s expansive theory of AUMF detention authority -- the 14-step logic described above -- is valid. That is to say, the court does not decide whether Parhat could be detained, even without any connections directly to the Taliban or al Qaeda, and absent evidence that Parhat has ever engaged in, planned or supported hostilities against the United States or its coalition partners, merely upon proof that (i) he had “supported” the ETIM; (ii) the ETIM had become “effectively part of the Taliban” after September 11th; and (iii) the ETIM had engaged in hostilities against the United States and its coalition partners. It assumes for purposes of argument that this would be a valid interpretation of Congress's statute, and holds that even so, the Pentagon has not established a basis for detaining Parhat, because the evidence on which it relied was not credible.

The court, admirably seeking to rely on the narrowest possible ground for decision, does not address whether Parhat’s training at the Uighur camp would suffice to demonstrate that he has “supported” the ETIM (let alone the Taliban) -- again, assuming the validity of the government's theory of detention authority.

Instead, what the court held was “merely” that the military had failed to demonstrate points Nos. 6 and 7, above: Even assuming the validity of DOD's own definition of who is detainable, the court reasoned, the evidence presented to the CSRT and to the court was insufficient to demonstrate, by a preponderance of the evidence, two things that are, by the Pentagon’s own admission, essential minimum prerequisites for detention of the Uighur detainees: (i) that the ETIM is "associated with" the Taliban, in the (required) sense of being "effectively part of the same organization”; and (ii) that the ETIM has engaged in hostilities against the US or its coalition partners.

As to these two failings in the Pentagon’s proof, the court had this to say:

The Tribunal’s findings regarding the Uighur group rest, in key respects, on statements in classified State and Defense Department documents that provide no information regarding the sources of the reporting upon which the statements are based, and otherwise lack sufficient indicia of the statements’ reliability. . . . The grounds for the charges that ETIM was “associated” with al Qaida and the Taliban, and that it is engaged in hostilities against the United States or its coalition partners, were statements in classified documents that do not state (or, in most instances, even describe) the sources or rationales for those statements. . . .

The principal evidence against Parhat regarding the second and third elements of DOD’s definition of enemy combatant consists of four government intelligence documents. The documents make assertions -- often in haec verba -- about activities undertaken by ETIM, and about that
organization’s relationship to al Qaida and the Taliban. The documents repeatedly describe those activities and relationships as having “reportedly” occurred, as being “said to” or “reported to” have happened, and as things that “may” be true or are
“suspected of” having taken place. But in virtually every instance, the documents do not say who “reported” or “said” or “suspected” those things. Nor do they provide any of the underlying reporting upon which the documents’ bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions, the [CSRT] could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that Parhat is an enemy combatant.

DOJ argued that the documents in question were in fact reliable, and probative of the ETIM’s affiliation and operations, for two reasons. But the court, citing Lewis Carroll, rejected those two arguments, and for good reason:

First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions.

Second, the government insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case . This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the departments regard the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are “reported” or “said” or “suspected” to have occurred suggests at least some skepticism. Nor do we know whether the departments rely on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.

As for the remedy, I'll turn it over to Lyle Denniston's excellent summary over on SCOTUSblog:

Having found that designation flawed on the basis of the evidence the CSRT considered, the Circuit Court then turned to the issue of remedy. It said it would not itself order his immediate release from confinement or his transfer out of Guantanamo to a country other than China. The government, it said, might have other evidence beyond what it submitted to the CSRT, and thus the Pentagon might want to try again before a new CSRT.

Still, it stressed, it would not “countenance the ‘endless “do-overs”' that Parhat fears.” While not deciding whether it has the direct authority to order him released, it said it was satisfied that it at least has the power to decide whether the government has proved that a detainee is an enemy combatant. So, it said, it would not accept a role of merely issuing an endless series of opinions on the quality of evidence put before each new round before a CSRT -- an indication that, at some point, it would order release.

The Court stressed that, if Parhat prefers, he was free to pursue immediately in U.S. District Court a plea for his release, by filing a habeas petition under the Supreme Court’s June 12 decision in Boumediene v. Bush (06-1195). In such a proceeding, it said, he would have more rights than in a review by the Circuit Court of a CSRT decision. And, he could use this new opinion, it said, to challenge the CSRT in the habeas case. “Most important,” it said, “in that proceeding there is no question but that the court will have the power to order him released.”

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Posted 6:47 PM by Marty Lederman [link] (36) comments

Should people be denounced for telling the truth?

Sandy Levinson

The U.S. News and World Report has asked, with regard to Charles Black's comment that John McCain would benefit from a terrorist attack, whether it was "a flub or the quiet truth." He was certainly quickly denounced for stating what almost everyone, I am confident, believes to be a truth, quiet or not. (Does anyone believe that it would help Obama or even be a wash in terms of impact on the election?)

Similarly, former Gen. Wesley Clark, an Obama supporter, has been castigated for telling CBS that "I don’t think riding in a fighter plane and getting shot down is a qualification to be president." I think that one should ask the identical question posed by the US News and World Report. One might say, as has Sen. Obama (repeatedly) that John McCain displayed literally incredible valor in responding to many years of torture in Vietnam; I would also add my admiration for McCain's refusing to bear grudges against those who had been anti-War during the 1960s. But why would any person believe that "getting shot down" (which is precisely what happened to McCain) and then being tortured has anything to do with qualifying one to be President of the United States as against, say, receiving an award for displaying incredible grace under maximum pressure? And, incidentally, is it relevant that McCain graduated well down in his Annapolis class? Isn't it worth thinking about the fact that the three senators who in fact saw ground combat in Vietnam--James Webb, Chuck Hagel, and John Kerry--are all dedicated opponents of the Iraq War? I know that McCain has a son serving in Iraq, but, again, so does Webb. One might also consider Eisenhower's generally prudent policies during his presidency--including his apt decision not to join the French in Vietnam--as against the far more inexperienced Kennedy's decision to follow many of his militarily inexperienced advisers into that morass. (Kennedy, of course, made it to the White House in part because his boat was destroyed and he had the good fortune to survive. He, too, never saw any ground combat.)


I was severely chastised last year for suggesting that there is good reason to mistrust people whose sole experience of war is from planes high above the ground. They have rarely, if ever, whether in this country or others (such as Israel), been sources of wisdom on the conduct of international and military affairs (which, of course, are intertwined). They notoriously believe in the ability of airpower to "shock and awe" and win quick and easy victories, as did McCain prior to the invasion of Iraq. I intend no disrespect for the pilots who risked their lives and, on many occasions, genuinely served the highest interests of the United States. But that's a logically different question from asking what constitutes the best experience to serve as President. If military service is relevant at all, which is itself debatable, then surely we can debate what kind of service is most relevant. (Would any sane person believe that George W. Bush's "service" in the air force reserve gave him any relevant experience fitting him to become president?) None of this has anything to do with challenging patriotism. I assume that McCain (and, for that matter, George W. Bush) get A's in "patriotism." What we're talking about is what is relevant to becoming president and taking on the powers of our "constitutional dictatorship" with regard to the power of life and death in military conflict


Both Black and Clark were probably dumb to say what they did. (And, for Clark, I assume that this torpedoes his possibility of becoming Vice President.) But is this anything more than an illustration of Jack Nicholson's point (I forget the name of the character he was playing), "You can't bear the truth"? (Note well, I have no reason to believe that amending our dysfunctional Constitution would change anything in this regard. We are talking about political culture, not about legal institutions.)



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Posted 5:46 PM by Sandy Levinson [link] (16) comments

Are Campaign-Finance Laws Inherently Incumbent Protecting? Are All Election Laws?

Rick Pildes

Over at the Volokh Conspiracy blog, Ilya Somin has an interesting response to my posts here on the Supreme Court’s decision last week holding unconstitutional the so-called “Millionaire’s Amendment” to the nation’s campaign-finance laws. I argued that despite the noble-sounding egalitarian justification for this provision, many close observers recognized this provision to be, in purpose and effect, designed to protect incumbents against serious competition. That included Sen. McCain, who supported the provision, and Sen. Dodd, who opposed it, along with many academic experts in the campaign-finance laws.

Somin agrees about this provision, but wants to generalize the point. He suggests that all campaign-finance laws are likely to be pro-incumbent. There are two different reasons this might be so. One is that it is inherent in campaign-finance regulation that it will necessarily favor incumbents; on this view, a laissez-faire, privately-financed system is inherently the kind of regime that will enable challengers to be most effective in competing against incumbents. The other possible reason is that, as a matter of realpolitick, the only kind of campaign-finance regime incumbents are likely to enact will be one that favors incumbents, that is, themselves. Somin seems to be making the second argument more than the first, which is an argument about the political economy of these laws. So that’s the argument I want to address.

The problem is both more complicated and even broader than Somin’s post suggests. More complicated, because it’s important to avoid the action/inaction fallacy here. It might well be that the failure to enact campaign-finance laws of one sort or another is incumbent protecting. As a matter of political economy, there’s no reason to assume that the baseline before any recent piece of legislation provided an optimal state of a competitive electoral structure. Indeed, far from it: because all sitting legislators were elected under that prior status quo, one might better start from the presumption that their self-interest favors leaving in place the rules under which they were elected (this is overly simplified, but sound enough to get the general point across). We have plenty of examples. The classic malapportionment problem that the Court finally addressed in the 1960s is the most obvious: in many states, legislators had designed election districts at the start of the 20th century and then refused to redraw those districts for the next 60 years, even as massive migration from rural to urban areas led election districts to have wildly disproportionate numbers of people in them in ways that grossly underepresented urban areas. But of course, the legislators elected under the existing regime had do interest in changing those districts and “updating” them to reflect these demographic changes – until outside intervention, in the form of the Supreme Court’s one-vote, one-person cases forced them to do so. Moreover, in areas in which there is considerable uncertainty about predicting the effects of any legislative change to election rules, incumbents are likely to be all the more resistant to change. Legislators are quite risk averse, not surprisingly, when it comes changing the rules involving their own seats. When it comes to major changes with as complex-to-predict effects as something like the McCain-Feingold law, for example, most legislators were certainly not chomping at the bit to enact these changes.

The problem is also even broader. As a matter of political economy, there is no reason to single out campaign-finance laws for this skepticism. Anytime existing legislators regulate (or fail to regulate) the election process, there is always the risk that they will do so not for public-regarding reasons, but for self-interested ones. In fact, this is one of the hidden costs of the rise of the secret ballot, believe it or not: once the ballot became secret, that meant the State took over the function of printing ballots. And that meant the State began to regulate the ballot, including what kinds of pre-conditions candidates had to meet to get on the ballot. That, in turn, raised the risk – and sometimes the reality – that incumbent legislators would regulate access to the ballot not for genuine public-regarding reasons, but in ways designed to insulate themselves as much as possible from challengers. Or take the current controversies over voter ID laws: are these laws enacted for genuine public-regarding purposes? Or are they self-interested devices by which those in power seek to entrench themselves and their partisan allies even more deeply in power?

Here’s what I think follows. First, it is indeed true that as long as sitting legislators have the power to shape the groundrules of democratic elections, there is always the risk that they will do so for self-interested reasons. This is a serious problem, not to be underestimated, which is why I posted initially on the Millionaire’s Amendment and why I appreciate Somin’s raising of this issue. Second, this risk is just as true from legislative inaction as action. Thus, it is much too simple to proclaim that, if a legislature enacted any particular law – such as a campaign-finance law – it must be the case that the law is incumbent protecting. Third, despite the risks, we are inevitably going to have to have election laws: elections are structured processes. That is why the title of this post is intentionally provocative. Finally, all this means that to decide which election laws are incumbent protecting and which are, instead, appropriate, we inevitably need substantive analysis that distinguishes one law from another. That substantive analysis is extremely difficult and interesting, both as a matter of policy and constitutional law. I can’t begin to provide any of it here. But in response to Somin, yes, suspicion is a good starting point, but it cannot be an endpoint. It is not sufficient to proclaim all campaign-finance laws – or the McCain-Feingold law in particular – or all election laws incumbent protecting merely because incumbents enacted them. If we are to be convinced that any particular noble-sounding election law is, in fact, a device to protect incumbents, we are going to need a more substantive story about the particular law at issue.

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Posted 10:13 AM by Rick Pildes [link] (1) comments

Reviewed: Holland on Mugabe and Akpan's African Stories

Mary L. Dudziak

Labels: Africa

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Posted 12:57 PM by Mary L. Dudziak [link] (0) comments

Money talks, but is it speech?

Guest Blogger

Deborah Hellman

Justice Stevens, in the parts of his opinion in Davis v. FEC (decided Thursday) in which he writes alone (Parts I and III), argues for a reexamination of the part of First Amendment doctrine which treats restrictions on campaign expenditures as direct restrictions on speech. Instead, Justice Stevens argues, restrictions on the spending of money are restrictions on conduct that has incidental effects on speech – like time, place and manner restrictions – and are thus subject to more lenient review. The so-called “millionaire’s amendment” at issue in Davis highlights the absurdity of the Court’s current approach. Justice Alito’s majority holds that raising the contribution limits applicable to the opponents of self-funded candidates burdens the self-funder’s right to spend money (in that it becomes less advantageous to do so) and thus constitutes an unconstitutional restriction on speech.

If spending money really is close enough to speech to warrant strict First Amendment scrutiny, this chain of reasoning makes sense. But it is rather attenuated logic to suppose that raising the contribution limits on his opponent actually constitutes a violation of the millionaire’s right to speak. So, let’s take up Justice Stevens’ invitation and go back to first principles.

Why think a restriction on spending money is a direct restriction on speech? Spending money is obviously not speech itself (no one doubts that). But it is a vehicle, indeed an important vehicle for speech. If one cannot spend money to speak, how would one purchase an advertisement, print a campaign brochure, etc. Moreover, as Eugene Volokh has argued, the right to spend money is crucial to the protection of other Constitutional rights. The right to counsel, for example, would not be worth much without the attendant right to pay for a lawyer.

But the important point to remember is that money is useful to all sorts of ends – both constitutionally significant and insignificant. Does the usefulness of money mean that spending money in connection with a constitutionally protected right is always as aspect of that right, deserving of special protection by the Court? Sometimes spending money in connection with a constitutional right is correctly considered an aspect of that right (as in the right to counsel case) but not always. Following Lawrence, Eisenstadt, and Griswold, one might say there is a constitutionally protected right to sexual intimacy . But this articulation of the right at issue need not imply that one has a right to spend one’s money achieve it (prostitution). One has a constitutionally protected right to a jury trial but this right does not include within its ambit the right to spend one’s money to bribe the judge or jury. Spending money helps one to achieve all sorts of ends, including some constitutionally protected rights. In order to decide if the right at issue includes the right to spend money to achieve it, further inquiry is required. So my first point is that current doctrine is flawed in failing to provide an argument for why spending money is an aspect of the constitutionally protected right.

What principles should guide this inquiry? I think it would be helpful to look at the sorts of transactions that we remove from the market economy – “blocked exchanges,” in Michael Walzer’s terms. Buying and selling of babies, organs, sex, parental rights and more are forbidden. So too buying political favors and legal outcomes (bribery of public officials, judges, jurors). In times of military draft, buying a substitute is no longer allowed. And there are others. There are at lest two different types of concerns in play here. First, sometimes we worry about how buying and selling of the good changes the way we value it (so-called “commodification”). Second, the buying and selling of something sometimes violates some other important value (democracy, equality, justice, etc.). We might then compare the list of rights in which we protect the spending of money to achieve them (right to counsel) with those that we don’t (jury trial). I take it that we think that buying a high priced lawyer won’t corrupt justice in the way that paying off the judge will. Fair enough.

So now what of money spending and speech? Is money-spending a part of speech? Of political speech? We can now see why restricting the spending of money to publish a book, for example, is different from campaign finance restrictions. In the case of the first restriction, there is no other important competing value. However, restrictions on campaign expenditures are different. Spending money (on one’s own campaign or the campaign of others) may facilitate one’s expressive activity but ought not be seen as an integral part of it because other important values (here democracy and equality) suggest reasons for limiting the reach of the market to this domain. Stevens makes precisely this sort of argument, quoting a passage from an article by Cass Sunstein: “It seems uncontroversial that ‘there is no good reason to allow disparities in wealth to be translated into disparities in political power. A well-functioning democracy distinguishes between market processes of purchase and sale on the one hand and political processes of voting and reason-giving on the other.’” (citing Sunstein, Political Equality and Unintended Consequences, 94 Colum. L. Rev. 1390, (1994))

There are clearly arguments one could make for the claim that campaign spending is more like buying a lawyer than bribing the judge. The key point is that this is the right question to ask. The Court too quickly concludes that restrictions on spending money must be treated as direct restrictions on speech because the ability to spend money is often how a person gets her message out. Because spending money is useful toward almost any aim, this is not a relevant observation. Rather one must articulate a theory of when constitutional rights must include the right to spend money to achieve them and when not. Once we note that sometimes facilitation is protected and sometimes not, we realize that an argument is needed to determine whether spending money to achieve the right is an aspect of that right. Where a good argument can be made for blocking a particular transaction (like prostitution), it is likely that spending money in connection with that right will not be constitutionally protected. Campaign finance may be enough like voting and serving in the army to suggest that a commitment to democracy here provides a reason to see spending money as not within the scope of the constitutionally protected right to speak.

This argument is presented in more detail in my “What Money Can and Cannot Buy”. I am working on a more complete account currently.

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Posted 7:46 AM by Guest Blogger [link] (21) comments

So will Tom Friedman ever connect the dots?

Sandy Levinson

[In his New York Times column, Tom Friedman writes as follows:

My fellow Americans: We are a country in debt and in decline — not terminal, not irreversible, but in decline. Our political system seems incapable of producing long-range answers to big problems or big opportunities. We are the ones who need a better-functioning democracy — more than the Iraqis and Afghans. We are the ones in need of nation-building. It is our political system that is not working. ....

“America and its political leaders, after two decades of failing to come together to solve big problems, seem to have lost faith in their ability to do so,” Wall Street Journal columnist Gerald Seib noted last week. “A political system that expects failure doesn’t try very hard to produce anything else.”

We used to try harder and do better. After Sputnik, we came together as a nation and responded with a technology, infrastructure and education surge, notes Robert Hormats, vice chairman of Goldman Sachs International.. . . “But today,” added Hormats, “the political system seems incapable of producing a critical mass to support any kind of serious long-term reform.”

I won't bother going through my now standard-form argument, but how much longer will the punditry bewail the failures of our political system without paying even the slightest attention to the features of our Constitution that contribute to them?



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Posted 12:27 AM by Sandy Levinson [link] (29) comments

Originalism and Guns Redux

Mark Graber

The constitutionality of gun control regulations raises two questions about the original understanding or meaning of the Second Amendment. The first, amply surveyed in this blog and elsewhere, is whether the Second Amendment in 1791 protected an individual right independent of the right to be a member of the local militia (Saul Cornell’s wonderful book points out that the Second Amendment might both protect an individual right and be tied to militia service). The second, less discussed, is the standard of review. Justice Scalia, without surveying history all that much, jumped from the conclusion that the Second Amendment protected an individual right to the conclusion that gun control regulations would have to scrutinized carefully to pass constitutional muster. The history is more complicated.

Antebellum Americans did not regard laws aimed at safeguarding the public welfare, health, safety, or morals as violating fundamental rights. In their view, government officials did not limit liberty when they forbade actions thought to threaten harm to others or self. The emphasis was on legislative ends, not on legislative means. As Howard Gillman perceptively notes, pre-New Deal “jurisprudence . . . focused on the character of the legislation rather than the importance of the restricted liberty.” [Interested Readers should take a long look at Howard Gillman, Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence, 47 Pol. Res. Q. 623 (1994) and Gillman, THE CONSTITUTION BESIEGED. ] In short, rights at the time of the framing limited government purposes. Having a right was not an immunity against legislation in the general interest. If government was motivated by the desire to preserve public safety, and the regulation was plainly directed against the public safety, then government could restrict property rights, speech rights, and presumably gun rights. Whether the Alien and Sedition Acts were unconstitutional depended on whether they were good faith efforts to promote national security (a legitimate purpose) or bad faith means for silencing political opposition (an illegitimate purpose).

Heller is a stunningly easy case when considered in light of what rights meant in 1791. Whatever else may be said of the DC regulation, the restrictions on handguns were clearly an attempt to promote public safety and prevent crimes, both very legitimate public purposes in the eighteenth and nineteenth centuries. No issue of class legislation arises, because the prohibition applied across the board and, unlike wage and price laws, could not be considered a means for benefitting one class or citizens at the expense of another.

Rights have another meaning in 2008. To claim a right is to claim that your liberty cannot be restricted even if doing so has a clear relationship to the public welfare. Much contemporary civil rights law favored by both the left and right is rooted in contemporary understandings about the relationship between rights and the public welfare. I think that is entirely appropriate, that constitutional interpretation is the interpretation of a constitutional tradition. But I was under the impression that everyone in Heller was talking about the original meaning of constitutional provisions, not their Dworkian reinterpretation. The next time opponents of gun control regulation talk about original meanings, we should insist they discuss the original meaning of “right” as well as the original meaning of “to keep and bear arms.”

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Posted 2:30 PM by Mark Graber [link] (10) comments

Roe and Partisan Entrenchment

JB

David, far be it from me to suggest that elections don't matter a great deal for constitutional development. That they do is the central claim of Sandy Levinson's and my theory of partisan entrenchment. It's nice to know we have a fan. But there is still the question of why Roe v. Wade survived in the face of a series of Republican Supreme Court appointments, a question that, at first glance, the partisan entrenchment theory would seem not to answer very well. Since I'm one of the advocates of the theory, it has fallen to me to deal with the problem.

Your explanation to this quandary appears to be-- just dumb luck. Well, dumb luck does explain some things, but I would prefer to push the question a little further. That is because Roe is not just any decision that happened to survive. It's one of the most important decisions in contemporary American politics, and the Republican Party's platform has, since 1980, been devoted to overturning it.

So if Roe has survived five Republican appointments since the failure of the Bork nomination, it's worth asking whether the cause is just dumb luck. Are the Republicans just that incompetent on this key issue?

Hence I've tried to offer an account that explains, based on incentive structures, why a president might choose more moderate nominees on a key issue of his time than he would otherwise choose. The reason I've offered is that presidents will do this if they believe that this will help them preserve a coalition.

Mark Graber of this blog, in a famous political science article back in 1993, argued that one of the Supreme Court's functions is to keep political coalitions together by taking the heat for particular hot button issues that would split the dominant coalition apart if it had to confront them directly. He suggested that abortion was such an issue for the Republicans. If that's so, then presidents would probably take this fact into account in making Supreme Court nominations. Hence the reverse litmus test.

This account also meshes with the idea that Presidents tend to temper their appointments when they face a hostile Senate. A president who appointed a outspoken opponent of Roe would lose votes at the margin that might be sufficient to deny confirmation. Some of those votes at the margin would be Republican Senators bucking their President's choice. (Think of someone like Arlen Specter, for example.) Choosing a nominee who will only hollow out Roe increases the chances that Senate Republicans will vote more or less as a block.

You are correct that this account doesn't explain the nomination of Clarence Thomas, a strong opponent of Roe. That nomination would seem to have made absolutely no sense given that the Democrats controlled the Senate in 1992. All other things being equal, the President should have appointed some one far more moderate on abortion rights to get past the Democrats in the Senate. So why did President George H.W. Bush nominate Thomas? The answer is obvious. President Bush felt fairly strong pressure from all sides to appoint an African-American to replace Thurgood Marshall. Thomas was the obvious (perhaps the only) high profile conservative to fill that slot, and Bush calculated that the Democrats (and moderate Republicans) wouldn't dare turn down an African-American nominee. He was correct. My assumption is that Bush nominated Thomas not because of his views on Roe v. Wade but because Thomas was both conservative and black. Those considerations were paramount in his calculations.

Since Presidents have a short to medium-term time horizon, and since political calculations are always changing, we can't assume that Republican Presidents will follow the strategy of hollow-out- but-don't-overturn indefinitely. (For example, it would make no sense if the country as a whole eventually became markedly pro-life.) But it does help explain why Roe is still in place, especially in the crucial period between 1987 and the appointment of Ruth Bader Ginsburg in 1994. During that period the Republicans had made three straight appointments to a Court that was already thought to be on the verge of overturning Roe v. Wade. What emerged was Casey, which limited Roe in several respects, but did not formally overturn it. Casey is the classic example of the hollow-out-but-don't-overrule strategy.

I'm perfectly willing to consider other accounts that are broadly consistent with the basic assumption of partisan entrenchment theory-- that elections matter. The one I've offered, which tries to understand why Presidents make certain appointments and not others, seems to me the best one. Another account would argue that the Justices themselves are motivated to keep their party's coalition together. I think this is not consistent with judicial role understandings. But if you want to resuscitate that account, or if you have another one besides dumb luck, I'd be delighted to hear it.

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Posted 9:05 AM by JB [link] (6) comments

Thoughts on Heller from a "Real Historian"

Guest Blogger

Jack Rakove

Picking up on Sandy Levinson's and Mark Tushnet’s recent postings, and drawing on my own working life as a “real historian” with more than a passing interest in originalism, I asked the other Jack to add a posting of my own on Heller. Many readers will know that I do not come to this question lightly, having written both a long review piece on The Second Amendent: The Highest Stage of Originalism for the Chicago-Kent symposium and, more recently, the historians’ brief supporting the D.C. position in the case itself.

I agree with Mark that neither of the two main opinions in Heller would pass muster as serious historical writing, but I would disagree with Sandy that the two opinions are equally incompetent.

The basis of that disagreement goes beyond the obvious fact that the dissent of Stevens tracks (and even cites) my historians’ brief to the interesting analytical or methodological differences between the two opinions. On some of these differences I am certain readers of this list are more au courant than I can claim to be, and I welcome comment and enlightenment.

As Tom Friedman likes to say, let me explain. The pivot of my disagreement lies in weighing the merits of Scalia’s approach, which basically says that the actual history of how the Second Amendment made its way into the text of the Constitution is irrelevant, against Stevens’ more focused reliance on what was actually in dispute in 1787-1789 (if there were any serious contemporary commentary post-Sept. 1789, one could say 1787-1791, but since there does not seem to have been, the narrow date range works for me).

When I embarked on the project that became Original Meanings many years ago, my genuine purpose was to develop a historically-grounded way of thinking about what the document originally meant. It supposed that there were four categories of evidence (broadly defined) that one could bring to bear: (1) the intentions of the framers, (2) the understandings of the ratifiers, (3) the intellectual legacy (which I think would include prior legal doctrine and understandings) on which both could draw, and (4) what I call the lessons of experience, meaning the inferences we can draw particularly about (1) and (2) from knowing something about the political history of the Revolutionary era proper and the way in which that affected and altered received understandings. As a “real historian” my inclination would be to give greater preference to (1) and (4) but the larger point was to think about the value of all four categories.

In writing a brief for Heller (and before that, Hamdan and Vieth) I tried to adhere to this methodology, and in reading the opinions in the first, with their avowed originalist emphases, I have kept the same strictures in mind. And that is why I am troubled by the idea that they are equally illustrative examples of law office history.

The Scalia opinion seems materially defective to me for several reasons. The most important, as noted earlier, is its explicit disdain for the legislative history of the Amendment, whether that is described in terms of the Convention’s framing of the Militia Clause, the public exchanges and ratification convention debates it sparked, or what we know of the progress of the Amendment itself through Congress. I understand that this position correlates with Scalia’s general skepticism about legislative history in statutory construction, but that does not alleviate my concern. Why? As a “real historian,” I think that all of the following points are relevant to any kind of serious originalism.

First, as opposed to Scalia’s reliance on the “normal meaning” of a “pre-existing” definition of militia, one point that the Convention debates of August 1787 and any of a number of secondary historical works establishes is that the definition of the militia was precisely what was at issue. This does not rule out the idea that there was a previous “normal” or “public” meaning available to ordinary citizens, but it also reminds us that nearly all of the key concepts of political life (e.g., the definition of “executive power”) came under a great deal of stress in the decade after 1776, making it essential to recover their meaning not merely from the best dictionaries available but also from the context in which they were used. Scalia’s version of originalism/textualism, as applied in this opinion, seems oblivious to the most important findings that historians from Edmund Morgan (writing on the Stamp Act) on through Bailyn, Wood, myself, and others have argued over the last half-century: that this was a deeply creative era in constitutionalism and political thought, and the idea that static definitions will capture the dynamism of what was going on cannot possibly be true. Next to bigger concepts like “constitution” or “executive power” or “rights,” fussing about the meaning of militia might seem small potatoes. But the point holds equally well.

(There is a deeper issue here that I also wonder whether the “public meaning” school has considered, much less addressed, relating to the 18th-century’s preoccupation with the plasticity of language itself. This is famously alluded to in Madison’s well-known but brief observations about language in Federalist 37, but one might wish to consult the broader discussion in Hannah Dawson, Locke, Language and Early-Modern Philosophy [Cambridge U. P., 2007]. It would be a great irony if the legal scholars’ emphasis on public meaning failed to take account of the skepticism of the period under study on this very point.)

Second, Scalia’s professed disdain for what was actually being debated allows him to avoid asking what became of those statements of 1787-1788 that seem to be most suggestive of the idea that the Second Amendment was conceived to cover private purposes of gun ownership. He makes passing mention of three usual suspects: the Dissent of the minority Antifederalists in the Pennsylvania convention; the lone recommendation against individual disarmament emanating from the NH convention; and Samuel Adams’s similar reference in the Massachusetts Convention. The most telling of these, as I argued in the brief, is the first (a) because it was published relatively early in the ratification campaign, and could thus have become a rallying point for anyone at all concerned with the security of a private right; (b) because it quickly became an object of Federalist ridicule, lying there ideologically inert; and (c) because that in turn meant that the ensuing debate really was about the militia as an institution, not an individual right that no one in 1789 understood to be on the table.

I see that I am myself lapsing into advocacy at this point, so I will yield the floor with this concluding observation: there are two quite different modes of originalist analysis at play in the two opinions, and clear choices therefore (beyond the outcomes) in asking which one delivers more analytically. From the vantage point of a “real historian” (or a “working historian,” to cite an important early essay of Bailyn’s), Stevens’ approach appears superior, not only because of result, but because it rests less on theoretical pronouncements that are difficult if not impossible to test and focuses more tightly on a salient “legislative history” of the provision in question.

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Posted 8:02 PM by Guest Blogger [link] (58) comments

A Note on Heller and Party Politics

JB

David Barron raises the interesting question of whether conservative Justices "mak[e] decisions in ways that create political debates sure to help Republicans." (And whether liberal Justices similarly decide cases in ways that are likely to mobilize Democrats.) If so, then the five person conservative majority missed a chance in Heller: deciding for D.C. would probably have motivated the conservative base, while deciding for Heller probably fails to mobilize them very much. David doubts that such considerations actually motivate the Justices. Similarly, David asks whether the smart move by Republican-appointed Justices really is to hollow out Roe and Casey instead of overturning them.


Let me repeat what I have said before. We should not confuse the motivations of Presidents and party leaders in nominating certain Justices with the motivations of the Justices themselves.

A Republican President might well consider the likely effects on the party's political prospects if he nominates a Justice who will vote to overturn Roe as opposed to merely hollowing it out. In fact I think that since the failure of the Bork nomination, Republican Presidents have considered this as a factor. It is what I call the Republicans' reverse litmus test on Roe.

Once the Justice is appointed, however, that Justice will not engage in the same sort of calculations as the President who appointed him or her. The Justice will decide the cases according to the Justice's considered views about the Constitution. The Justice might vote to go slow or decide a question narrowly to avoid backlash. But that is different, I think, from voting against one's views about the best interpretation of the Constitution in order to help your party win the next election.

So it is very unlikely that Justices deliberately decide cases in ways they think are wrong in order to help their party's prospects in future elections. It is far more likely that Presidents make calculations of what a Justice's decisions are likely to do for the party's political interests when they decide whom to appoint.

Justices are most likely to take partisan considerations into account when they are in dissent and they are deciding how to write their dissents to mobilize support for their views. I have always thought that some of Justice Scalia's more over the top dissents are written to mobilize the conservative base. They often feature angry denunciations that are sure to be quoted in the newspapers. Certainly Scalia's recent dissent in Boumediene (The majority has the blood of American soldiers on its hands!), and his dissent in Lawrence (watch out, gay marriage is coming!) were fairly transparent attempts to create campaign issues for the 2008 and 2004 elections, respectively. But that is quite different from saying that Justice Scalia would cast his vote in order to get the Republican base fired up.

In the case of Heller, it's very unlikely that motivating the Republican base was a factor in any of the Justices' decisions. It is also very unlikely that it played a role in the Court's recent abortion decision, Carhart II. Rather, it is likely that the Justices voted the way they did because of their substantive views on the Second Amendment and the right to abortion.

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