JB

The House of Representatives voted overwhelmingly yesterday to ban all forms of human cloning. The Weldon-Stupak bill, H.R. 534, makes it a crime "for any person or entity, public or private, in or affecting interstate commerce, knowingly--

(1) to perform or attempt to perform human cloning;

(2) to participate in an attempt to perform human cloning; or

(3) to ship or receive for any purpose an embryo produced by human cloning or any product derived from such embryo.

In addition, the bill makes it a crime for "any person or entity, public or private, knowingly to import for any purpose an embryo produced by human cloning or any product derived from such embryo."

Human cloning, in turn is defined in the bill as "human asexual reproduction, accomplished by introducing nuclear material from one or more human somatic cells into a fertilized or unfertilized oocyte whose nuclear material has been removed or inactivated so as to produce a living organism (at any stage of development) that is genetically virtually identical to an existing or previously existing human organism."

The bill leaves untouched scientific "research in the use of nuclear transfer or other cloning techniques to produce molecules, DNA, cells other than human embryos, tissues, organs, plants, or animals other than humans." The idea, basically, is that forms of cloning that do not involve the creation and destruction of human embryos would not be prohibited.

However, currently, the creation of embryonic stem cells does require the creation of human embryos from which the stem cells are taken, so creation of new stem cells from newly cloned human embryos would be prohibited under this bill. Stem cells are important to medical research because they can be made into many other different types of cells. The hope is that such cells can be turned into replacement tissues for people who are suffering from spinal cord injuries or degenerative diseases, including Parkinson's and diabetes.

There are any number of important issues raised by the new bill. One of them is federalism. The bill outlaws cloning at the national level, instead of leaving the issue up to individual states. In the past conservatives have often criticized liberals for seeking national solutions to economic and social issues rather than leaving these issues up to the states, which, conservatives often claim, are closer to the people. It's important to recognize that many people would probably say the same thing about human cloning. But we have not heard much about this from conservative politicians in Congress who have been pushing for a ban on cloning. The reason is not difficult to understand: Throughout American history debates over federalism and state's rights have been a stalking horse for other, substantive issues, like tarrifs, child labor, civil rights, racial equality, and reproductive freedom. Many conservative politicians talk loud and long about federalism, but in reality they are committed to decentralization only so long as it serves the substantive agendas they like. They are fair weather federalists.

I myself have no problem with a national solution to the cloning issue. For me the issue is whether a total ban on cloning, including both therapeutic cloning and cloning employed to make babies, is good public policy.

There is a constitutional twist to this issue. The constitutional basis of the cloning ban is Congress's power to regulate interstate commerce. In the Supreme Court's 2000 decision in United States v. Morrison, the Court's five person conservative majority struck down the Violence Against Women Act on the grounds that the problem of violence against women was not related to interestate commerce; Congress should have left the issue of domestic violence to individual states. The Court, attempting to strike a blow for state's rights, argued that the federal government did not have the power to reach "non-economic" subjects which included crime and family law, even if these activities had substantial cumulative effects on interestate commerce. Violence against women, the Court argued was non economic because it involved crime and family relations, which, it claimed, were traditionally local activities. It is interesting to know what the Court would make of a nationwide ban on human cloning. After all, making babies seems to be about families and family law. There is no requirement in the bill that the cloning be done for a fee or as part of any other economic activity. Ironically, therapeutic cloning-- involving stem cell research to create replacement tissues and organs-- might be the most "economic" version of cloning, since one assumes that these services will be bought and sold like other medical services. But a more plausible argument is that the ban on human cloning is evidence that the Supreme Court's distinction between inherently "economic" and "non-economic" activities simply makes no sense, and the Surpeme Court's attempt to limit federal power in Morrison was misguided and the case should be overruled.

JB

The Washington Post reports that the Bush Administration is now telling other countries that it has decided to go to war no matter what and that it is up to them to preserve the United Nations as a viable organization by voting to give the U.S. authorization to invade Iraq. The issue is not whether or not there will be war, but "whether council members are willing to irrevocably destroy the world body's legitimacy by failing to follow the U.S. lead, senior U.S. and diplomatic sources said." Put another way, it will be the fault of these other countries if the U.N. is rendered irrelevant because they didn't unquestioningly obey the orders of the United States.

A senior diplomat from [a Security] council member [nation] said his government . . . . was told not to anguish over whether to vote for war. "You are not going to decide whether there is war in Iraq or not," the diplomat said U.S. officials told him. "That decision is ours, and we have already made it. It is already final. The only question now is whether the council will go along with it or not."

Second, this strategy is likely to cause some states to dig in their heels. If the United States is going to war regardless of the evidence that Hans Blix produces, and if the U.S. doesn't really care what they think, why should they bless the U.S. attack? If the war goes badly, they can say "I told you so." If it goes well, they can free ride on the benefits. The only reason to go along is a fear that the U.S. will punish them later on for failing to toe the party line. But the U.S. can't possibly punish all the countries that fail to go along. It will need at least some of them later, and the more influential they are (e.g., China, Russia, France, Germany), the more the U.S. will need to get past the present disagreements in the long run. Thus, ironically, the current strategy of bullying may be counter-productive because it allows countries to free ride while telling their populations that they did not kowtow to the Americans.

Third, this strategy gives Saddam absolutely no incentives to disarm. Why disarm when the U.S. has publicly announced that no matter what the U.N. says or does Iraq is going to be invaded by the Americans? Again, it is the Bush Administration that has made the U.N. irrelevant by preventing the U.N. from offering Saddam the following deal: Disarm and stay alive; fail to disarm and be deposed. The U.N. cannot offer that deal if America will attack no matter what Saddam does.

The President has continued to insist officially that he has not made up his mind whether or not to go to war. It is clear that this is a lie. That fact in itself is not so troubling. Politicians lie all the time. The problem is that this is a lie that his diplomatic officials are now openly saying is a lie.

This is no way to run a railroad, much less conduct foreign policy.

JB

Tom Friedman's column in today's New York Times says something I've believed for some time-- Even if the Bush Administration has justified reasons for going to war with Saddam Hussein, it has played its hand particularly badly. Its parochialism, chauvinism, and truculence have seriously undermined its case diplomatically. As Friedman points out:

I side with those who believe we need to confront Saddam — but we have to do it right, with allies and staying power, and the Bush team has bungled that.

The Bush folks are big on attitude, weak on strategy and terrible at diplomacy. I covered the first gulf war, in 1990-91. What I remember most are the seven trips I took with Secretary of State James A. Baker III around the world to watch him build — face-to-face — the coalition and public support for that war, before a shot was fired. Going to someone else's country is a sign you respect his opinion. This Bush team has done no such hands-on spade work. Its members think diplomacy is a phone call.

Finally, the Administration has continually overplayed the immediacy of the threat and simultaneously downplayed the costs and dangers of an occupation of Iraq that may last many years. As Friedman (who supports a war) puts it, if you are going to war, you have to be honest with those you wish to convince, and, equally important, honest with yourself:

Tell people the truth. Saddam does not threaten us today. He can be deterred. Taking him out is a war of choice — but it's a legitimate choice. It's because he is undermining the U.N., it's because if left alone he will seek weapons that will threaten all his neighbors, it's because you believe the people of Iraq deserve to be liberated from his tyranny, and it's because you intend to help Iraqis create a progressive state that could stimulate reform in the Arab/Muslim world, so that this region won't keep churning out angry young people who are attracted to radical Islam and are the real weapons of mass destruction.

That's the case for war — and it will require years of occupying Iraq and a simultaneous effort to defuse the Israeli-Palestinian conflict to create a regional context for success. If done right, such a war could shrink Al Qaeda's influence — but Al Qaeda is a separate enemy that will have to be fought separately, and will remain a threat even if Saddam is ousted.

If Bush had done things differently, if he had started with diplomacy, as his father did in 1990-91, and not treated our allies, and the U.N., with barely disguised contempt and with accusations of cowardice and irrelevance, he might not be in the situation he currently is in. He might not have to go to war with a "coallition of the willing," but might truly be leading the world to pressure a rogue state to disarm. But because he has treated our allies so roughly and disrespectfully, he has squandered the best opportunity he might have had. This is an Administration that prides itself on being tough and domineering. But its pride and its aggressiveness are its greatest limitation. Great leadership is more than being overbearing and forceful; great power is more than making threats and accusing those who don't blindly follow you of betrayal and subversion. Great leaders do not merely threaten, they also persuade; they do not simply accuse and denounce those they wish to bring to their side, they make it possible for others to agree with them and work with them. It is time for our leaders to stop behaving like a casting call for a "B" Western. As someone famous recently put it, all of this strutting and posturing is like a bad movie, and I've seen it before.

JB

Sun Tzu says that the greatest general is one who never has to go to war. But that simply raises the question: How can the United States achieve its objectives without going to war?

It’s important to understand that a strategy for avoiding war does not mean that we should not threaten to go to war. The only reason why Saddam Hussein has agreed to let weapons inspectors back in his country in the first place is because the United States has begun preparations for war. It is sometimes necessary to make a realistic threat of the use of force.

However, threatening to go to war and making preparations for war is not the same thing as actually going to war. There is a crucial difference. Threatening and preparing for war offers both a carrot and a stick. If you don’t do what we say, we will go to war. If you do what we say we will not go to war. Simply signaling that we are going to war no matter what transpires offers Saddam no reason to do anything other than to prepare for war himself. Thus the optimal strategy is to threaten war while always leaving Saddam with the option to avoid it through disarming. It is ok to be forceful; it is not ok to be so forceful that one undermines the strategic advantage of making a realistic threat of force.

Our European allies want us to take more time and engage in more rounds of inspections. We should take them up on that invitation. We should take them up on that invitation because it will buy the United States crucial time to repair rifts in the Atlantic alliance. And it will hamstring Saddam in the meantime. As I’ve noted in a previous post, a strategy of continuing inspections at least until October has many advantages.

Our President says that he is losing patience. But patience is of the essence here. With patience, we may be able to avoid war. Or we may be able to make war on the most favorable terms with the maximum of international cooperation and support. After all, our optimal strategy is not attacking immediately with a coallition of the willing. It is assembling the full authority of the United Nations behind us and completely isolating Saddam, leaving him with no other choice than to disarm.

The alternatives, in other words, are not simply a stark choice between attacking now or removing our troops and leaving Saddam alone. There are all sorts of intermediate strategies to take. Those strategies may achieve our objectives without war. The fact that Bush does not seem to be interested in intermediate strategies is what I find most worrisome about his conduct in the current crisis.

Nevertheless, we must hope that President Bush has secretly adopted one of those intermediate strategies, even while conveying to the world that he means to go to war by the end of March. If this in fact what he is doing, he’s a damn good poker player. But he certainly has me, and our allies fooled into thinking that he means war come what may. And, perhaps, most importantly, he seems to have Saddam Hussein fooled into thinking that there is nothing he can do to prevent a U.S. attack. That sort of bluffing is counterproductive.

JB

One thing that suggests to me that President Bush's strategic sense isn't working properly is that all signs seem to indicate that he is ready to go to war in March with only a "coallition of the willing." The dangers of this policy are threefold:

(1) Risking that the war will not be over until the weather starts to get really hot in the middle of April.

(2) Splitting the alliance between European powers and the United States that has existed since World War II, and placing Germany, France, Russia, and China together in a common community of interest publicly opposed to the asserted strategic interests of the United States. This will also make it easier for these countries to refuse to help us in the reconstruction of Iraq following our victory.

(3) Undermining the U.N. as an international body that might assist with the reconstruction of Iraq.

Suppose instead that Bush called France's bluff and allowed for several more rounds of inspections to dog Saddam through the summer. Then, assuming that Saddam is still playing cat and mouse, he could press for an attack in October, when the weather turns cold. After six months of inspections, the other members of the security council might well be fed up with Saddam and Bush would have his U.N. support. This would keep the Atlantic alliance together, prevent NATO from unravelling, and bolster the idea of using the U.N. as an international forum for identifying, deterring and punishing rogue states like Iraq. And, one other thing, Bush could fight all fall and winter long without worrying about the weather.

Finally, although this has little to do with the geopolitical interests of the United States, the October strategy would also have political advantages at home. Bush could insist that he was not rushing to war, but gave inspections as much time as our European allies wanted. This would completely undermine Democratic criticisms that he is being unilateral. And he could begin the war in October 2003 and conclude it at the beginning of 2004. This would boost his poll ratings when they are needed most-- just before the 2004 campaign begins. Ending a successful war at the beginning of 2004-- instead of the middle of 2003-- could do wonders for his chances at reelection in 2004.

If the October strategy makes more sense than the March strategy both practically and politically, why isn't Bush following it?

In fact, we don't know that he isn't going to follow it. He still has plenty of time to do so, and announcing more inspections at the last moment will make him look like someone who did his best to avoid war as long as possible, instead of a warmonger, which much of Europe now sees him as being.

Nevertheless, there are two reasons why he may not do so. First, he has assembled a very large contingent of forces in the vicinity. Keeping those forces there is very expensive. It is not clear that he is willing to keep them there for six months. Having mobilized them, it will be costly and difficult to demobilize them without sending the wrong signal to Saddam. If he were really thinking about October rather than March, he probably should have built his forces up more slowly.

Second, Bush has shown in the past that when he wants something, he goes after it, regardless of criticism from those who disagree with him. He has made so many signs that he plans to attack with or without the U.N.'s approval that a turn around at this point would be a true stunner. Moreover, holding back now might be interpreted as a sign that the French have persuaded us, rather than a sign that we have persuaded them. I'm not sure that the Bush Administration wants to send such a signal, either to our allies, or to Saddam.

Nevertheless, I continue to hope against hope that he surprises everyone and gives the inspections more time. Bush may be belligerent and stubborn, but he has also shown himself to be cunning and shrewd on occasion. The October strategy is so much better on so many dimensions that no one-- least of all Bush himself-- can afford to rule it out.

JB

Many people who think that we should not immediately go to war with Iraq are dismayed that Colin Powell, the voice of reason in the Bush Administration, has been made the point man for war at the United Nations. Given that Powell is the author of the Powell Doctrine, which asserts that you don't attack unless you have overwhelming force and a clear exist strategy, why is he pushing us to get into a war without a clear exit strategy-- a war that may have the most disastrous consequences for us and for the world in the next two decades?

The answer is that Colin Powell is not just an ordinary citizen. He is Secretary of State, and he works for George W. Bush. Even if he would prefer to avoid war, he is doing exactly what a rational actor would do given his role and his preferences.

Assume that Powell thinks as follows:

His first choice is to avoid war, because there is no clear exit strategy and the consequences of war are unpredictable and may even be disastrous.

His second choice is to go to war only with full U.N. support, which gets us both the legitimacy of U.N. authorization and the promise of assistance by other countries after the war is over. It also strengthens international cooperation and international institutions for keeping the peace against threats posed by rogue states like Iraq.

His least favorite option is going to war without U.N. authorization, because this will split the Atlantic coallition, undermine NATO, alienate France, Germany, and Russia, send Europe on its own path, and lead to all of the unexpected and dangerous consequences of going to war without a clear way out.

Now let's add one more fact. He knows, and he has known since at least mid January, that the President has made up his mind that he is going to war no matter what happens in the U.N.. Powell argued against war for months, but he lost. So now what should he do?

At this point, he knows he can't get his favorite option. So of the two other possibilities, he has a strong preference for number two-- U.N. authorization and support. That is why he is pressing the case as emphatically as possible. He knows that he can't convince his boss, but maybe, just maybe, he can convince the Security Council, and this will make the war-- if there is to be war-- much less dangerous and destabilizing than it might otherwise be.

So the next time you see Colin Powell's frustration, understand-- he's not play acting. This is for real. He knows that war is coming, and he wants the war to go forward with the least possible chance of disaster. He is being not only a patriot, but also a responsible world citizen. He is doing what he can, given the limitations of the role he is in, to avert or at least ameliorate what he believes may well be a situation of great danger for the United States and the world.

If all this is true, you may ask, why doesn't Powell just escape the constraints of his role by resigning? The answer is that he can't really resign right now. If he does, the hawks in the Administration will win: the United States will go to war without U.N. support, and it will do so sooner rather than later.

Powell is between a rock and a hard place. It is a problem not of his own making, but because he works for a President who is too stubborn and aggressive for his-- and the country's and the world's-- own good. Powell has the misfortune to be Secretary of State to a President who, as I have noted previously, is simply not up to the task of deailng with the complexities of a post-9-11 world. And the rest of us-- in the country, and the world--- are being held hostage to the President's character flaws. It is sobering indeed to recognize that one man's intransigence is about to send the word into a brutal and destructive war. I am not talking about Saddam Hussein. I am talking about George W. Bush, who seems, more than ever, to live up to his title as the most dangerous person on Earth.

As the world hurtles toward a future we cannot predict, Colin Powell must play the hand he has been dealt. He is on the opposite side of this controversy from me. Nevertheless, I admire the man greatly and I wish him God speed.

JB

During the 2000 Election, one of the greatest concerns many had about Governor Bush was that he lacked sufficient knowledge, experience and judgment to engage in foreign policy, and that he would not hold up well in a crisis. What would this fellow do, many people said to themselves, if we ever went to war?

Bush’s response was to point out that he would surround himself by able advisors, who would give him the facts and he would make the tough decisions. His selection of Dick Cheney as his running mate was the great symbol of Bush’s commitment to reliance on seasoned officials.

After 9-11, questions of Bush’s competency seemed to be laid to rest. After all, he did respond to a very big crisis. He mobilized public support for an invasion of Afghanistan, and his generals carried it out successfully, although they did not catch Osama Bin Laden.

But in a sense this proof was misleading. Bush’s response to 9-11 showed that Bush was a man of fierce determination, who would stick to a course and see it through. He showed that if attacked, he would not hesitate to use force to punish those suspected of complicity in the assaults and to threaten to use force against anyone else who dared consider a similar adventure.

Similarly, in domestic politics, Bush’s basic strategy has been to push for very significant policies, and refuse to budge, waiting to see if his adversaries crumble or become divided among themselves. His basic mantra has been “don’t negotiate with yourself;” instead, take the strongest possible stand– whether on tax cuts, judicial appointments, or anything else, and see if the Democrats will stand up to you or whether they will fold.

The problem is that single mindedness, stubbornness, and a willingness to use force and threaten force may be an effective strategy in some contexts, but they are not necessarily the best strategy in all contexts. Current conditions show why Bush’s dominant strategy and tendencies have gotten us into considerable trouble.

His policy toward Iraq has squandered almost all of the goodwill that came our way after 9-11.

He has managed to create the largest antiwar movement *before* a war in recent memory, both in the United States and in Europe.

He has managed to strain our relations with our closest allies in Europe almost to the breaking point, and it is quite likely that he has precipitated a new geopolitical arrangement with America and Europe seeing themselves increasingly as adversaries, rather than as two important entities working together to ensure the spread of democracy and freedom. In the process, he has also succeeded in allying France, Germany and Russia against him.

On the domestic front, his unswerving devotion to larger and larger tax cuts promises to create larger and larger deficits for the foreseeable future, even as he plans to spend more and more money on his military adventures and on the consequences these adventures will inevitably produce.

He has managed to preside over an economy sinking into increasingly dire conditions; his first tax cut has done nothing to ameliorate the bad economic times, and neither he nor his rotating cast of economic advisors have made a plausible case that his favored policies of greater and greater tax cuts for the rich are going to improve things.

If you asked voters in 2000 what they would think of a President who would single-handedly destroy the fifty year old Atlantic alliance with Europe, plunge us into war, send the government into mountains of red ink and fail to deal with mounting economic problems at home, they would probably have responded that such a person was not fit to be President. It would sound to them like the fellow, however good intentioned he might be, was simply not up to the job.

And they would be right.

What obscures this judgment today, I think is, that unlike Jimmy Carter, who presided over a mess not even half as bad as this one, George W. Bush seems to be a man of action. He is determined. He will not be denied. He is utterly convinced that he has God on his side. People tend to associate action and bluster with strong leadership. What this overlooks is that a person can fail to be up to the job of President not because he is too reticent and weak-willed, or because he freezes in a crisis, but because he overreacts and pushes too hard and too fast at the wrong times. George W. Bush’s failings are not neurosis and indecision. They are stubbornness, tunnel vision, narrowmindedness, over-aggressiveness, belligerence, and hubris.

Bush’s failures as President will emerge over time– as our alliance with Europe is damaged, as our economy stagnates, as the costs of war mount. Eventually, people will see that the aggressive singlemindedness they so admired in the wake of 9-11 was ill-equipped to deal with the complexities of a post 9-11 world. They will see that he has done on the world stage exactly what he did before in his career as a businessman: He has made a very big mess, and someone else is going to have to clean that mess up.

JB

This past week a federal judge ruled that the City of New York could prevent an extimated crowd of 100,000 antiwar demonstrators from marching in Manhattan this Saturday to protest the upcoming war against Iraq. Instead, the city will allow 10,000 of them to assemble at a stationary location.

The protestors had requested a permit for more than 100,000 people to march down First Avenue past the United Nations, west on 42nd Street and north to Central Park. The City denied the permit, arguing that the march presented safety, crowd control, and security risks given that the city and the country are at orange alert, the second highest level of security awareness. The City's position was upheld on Monday in an opinon by Barbara S. Jones of United States District Court in Manhattan, and upheld again by a panel of the Second Circuit.

The court argued that the City's parade permit scheme was content netural and reasonable and did not discriminate against the protesters on the basis of their viewpoint. But the case is an example of how formally neutral rules about freedom of speech can have predictable effects in treating different viewpoints differently. in the past year, for example, New York awarded permits for the Puerto Rican Day parade, the Dominican Day parade, and the St. Patrick's Day parade, all of which had crowds over 100,000. The difference was that these parades are scheduled well in advance, and the security risks are predictably smaller than a parade about an issue of major political importance about which fevers are running high. What that means is that protests on political issues of the immediate moment that people disagree about heatedly are disfavored in comparison to parades celebrating, for example, how wonderful it is to be Irish in New York. It's even possible that a parade organized in favor of the war in Iraq, might draw less hostile crowds than an anti-war rally, and so would cause less problems for officials.

I have no reason to believe that the City officials were motivated by opposition to the antiwar cause. However, in general city bureacrats do like things quiet and orderly, and so are likely to view mass protests on controversial subjects as a major headache. Allowing them to avoid awarding permits for such demonstrations is one way in which present first amendment doctrines shape how protest occurs in the United States.

JB

My op-ed on the the Domestic Security Enhancement Act of 2003, popularly known as the "Patriot Act II," appears in today's L.A. Times.

It's hard to say what the worst feature of the new proposals is, but I figure that the one that will spark the most interest in the general public will be the use of presumptions to strip U.S. citizenship from people who violate parts of the the Act. I'm sorry to say that there are a number of precedents that Ashcroft might use to justify the loss of citizenship provisions-- they stem from earlier periods in our Nation's history. For example, for many years, women who married citizens of other countries were deemed to have voluntarily surrendered their U.S. citizenship-- based on the common law fiction that husband and wife are one (and that one is the husband). This was remedied in the passage of the Cable Act in 1922. However, even after the Cable Act, marriage to a Chinese or Japanese national would result in automatic loss of citizenship because they could not become citizens. The rules regarding marriage and loss of citizenship were motivated by a rather dismal combination of racism and sexism.

If you are interested in the issue of loss of citizenship, and have access to law reviews, I recommend Alex Aleinikoff's article, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471 (1986).

JB

Let me be clear about this: As a cyberlaw professor and a professor of constitutional law, I can unequivocally state that one of the biggest dangers to democracy right now is electronic voting machines. If they are designed properly, they can enhance democracy. But if they are designed poorly, they can facilitate ballot fraud on a scale previously unknown in American history.

The question is not whether electronic balloting is a good thing or a bad thing. It is what kinds of electronic balloting have built in safeguards and checks against electronic fraud, and what kinds don’t. The recently passed Help America Vote Act (HAVA), includes $3.9 billion to help state and local goverments install hi-tech upgrades to their voting technology. What is being overlooked is that not all electronic voting systems are created equal. Some of the ones on the market, perhaps even most, have serious flaws that enable unscrupulous people to alter vote counts and commit massive electoral fraud. Some also are designed to leave no electronic backup or paper trail that would enable state officials to discover vote tampering or conduct recounts.

This, my friends, is a disaster waiting to happen.

You can read about some of these problems here, here, and here.

Several bloggers have begun posting stories about the dangers of poorly designed electronic voting systems. They have been spurred on by revelations that Nebraska Senator Chuck Hagel (R) had failed to disclose that he owns a stake in a company that owns Election Systems & Software (ES&S), a company that makes nearly half the voting machines used in the United States, including virtually all those used in his native Nebraska.

This conflict of interest has led a number of bloggers to speculate whether Hagel’s unexpectedly overwhelming victories in the Nebraska Senate race in 1996 and 2002 were due to artificial enhancements. They point out that ES&S's systems are among those which make it difficult if not impossible to discover electronic voter fraud and conduct recounts. I express no opinion on these speculations, but if you want more information, you can find discussions at Testify, Seeing the Forest, Alas, a Blog, Common Dreams, and Sideshow.

My apologizes to anyone else who posted stories on this issue that I overlooked.

As many of you know, I am a great critic of the Supreme Court’s decision in Bush v. Gore, which handed the presidency to George W. Bush through a particularly unpersuasive argument about when to grant a stay and about what constitutes an appropriate remedy for violates of the Equal Protection Clause. However, I also have said in print that I don’t think that the opinion’s holding that the Equal Protection Clause applies to vote tabulations is all that crazy; in fact it makes some sense. It extends the guarantee of equal protection from how voting districts are drawn to how votes are tabulated.

I also pointed out two other things, however

1. One problem with Bush v. Gore’s equal protection holding is that it did not carry its equal protection reasoning to its logical conclusion. The greatest problem of equality may stem not from hand counts but from unequal access to technologies that produce different degrees of reliability in vote counts.

2. Bush v. Gore seems to be premised on suspicion that Florida judicial officials were not being consistent in their hand counts; i.e., the Court, without directly saying it, was suggesting that perhaps the inconsistencies were not random, but might be politically motivated.

Putting these two points together, I submit that if Bush v. Gore is not simply a device concocted by five Justices to put Republicans in office, it should also stand for the proposition that the states and the federal government may not install voting technologies with a high degree of unreliability or a significant risk of voting fraud if there are other, equally available technologies at roughly the same cost that are more reliable and have safeguards against voting fraud.

In other words, although I hate and despise the manipulation of remedies that produced the actual result in Bush v. Gore, I think that we should take the Equal Protection holding of Bush v. Gore completely seriously. And I think that state and local governments should too. They should immediately demand that the technology companies they deal with install fail safe mechanisms to ensure voting reliability and prevent voting fraud, and if these companies refuse to do so, on the grounds that their data is protected by trade secret or other intellectual property rights, these contracts should be voided on the grounds that states may not install unconstitutional voting systems.

I’m being quite hardnosed on this, but it’s important to be hardnosed. There are lots of flaws in the American system of elections, but most of these flaws only matter every now and then in very close elections, like the crazy rules about the Electoral College and what happens if nobody gets a majority in the Electoral College. But the problems that electronic voting machines present are likely to occur in virtually every election held in this country-- federal, state and local -- from this day forward. If we don’t want our democracy to become a mockery, we have to pay the extra cost now to make sure our voting technologies are safe and adequate for the future.

JB

Everybody in the U.S. is piling on the French these days. Tom Friedman is exasperated with their changing stances on Iraq. He wants to kick them out of their permanent seat on the U.N. Security Council and replace them with India, the world's largest democracy. And there are lots of great jokes making fun of the French right now, (which I am ashamed to admit I am enjoying immensely, having spent altogether too much time studying French philosophy in my misspent youth). Numerous explanations abound for their intransigence, including their national character, their irresponsibility, their flightiness, their ingratitude, and a whole host of other flaws.

But the French are also the country that gave us Descartes, Voltaire and the Enlightenment (ok, forget about Derrida). They are the masters of sang froid, brute realism, ironic detachment, and cold unsentimentality. Are they really all that crazy? Does their intransigence make any sense at all?

It all depends on what you think the purposes of the military buildup and the U.N. inspection regime are. If the point is to get all of the countries of the world together through the auspices of the U.N. to scare and threaten Saddam Hussein into submission, then it would make sense for France to jump on board and present Hussein with a unified threat by the international community: disarm or be deposed. That is, if what this is about is a game of chicken, then the French should not be intransigent. They should immediately help the U.S. present a unified front, which may have the salutary effect of strengthening the United Nations as an international peacekeeper in future conflicts against rogue states. That's something many Europeans would like, because it would draw the U.S. ever further into a multilateral way of conducting its foreign policy, and it would strengthen international institutions in which the French and other Europeans believe they will have greater influence in the long run.

The problem is that the French fear that they don't have any control over what the United States will do once they sign on. The French want to see how far they can push Hussein without going to war; but they may fear (and rightly so) that Bush isn't playing that game. They fear that he is determined to go to war regardless of what Hussein does. If that's so, then France's preferred strategy-- what Tom Friedman earlier called Chicken a'L'Iraq-- isn't available. You can't threaten Hussein to get him to back down, because the U.S. won't pull back at the brink, it's going to war whatever Hussein does, and so Hussein has no incentive to do anything but wait and prepare for war.

Thus, joining the U.S. doesn't get France its preferred strategy. The question is whether holding back approval is more likely to do so. But that's also a dangerous game, because if the U.S. gets tired of waiting for the French to join in, it may go ahead and attack with its "coallition of the willing" sometime near the beginning to middle of March. That would be a worse result: No clear U.N. approval, no precedent for international cooperation against rogue states.

However, the French may be reasoning as follows: The longer we hold out, the more the U.S. may be willing to offer us a war and post-war strategy more to our liking. The U.S. is going to war no matter what we do, so we can't get our first best strategy. But we might be able to get our second best strategy-- both during the course of the war and in the occupation thereafter-- by being a royal pain in the butt until the U.S. listens to us.

This seems to me the best explanation of what is going on right now. If all of the other countries in Europe thought the same way the French did, the U.S. would have a real problem on its hands. But most of the other countries in Europe see no particular advantage in holding out. They figure that they are in better shape signing on early than signing on late. The French, however, think that signing on late will given them additional concessions. That's why they are holding out even though everyone else is rushing to sign on, and why the jokes are flying. But nobody knows yet who will be laughing five years from now.

JB

A fascinating discussion of the distribution of choices as the number of choices in a network increases, from Clay Shirky, via Instapundit. The power law idea tends to explain why choices on the Internet tend to cluster around a relatively small number of sites.

JB

In today's post, I want to talk about the results in Eldred and Bowers from the standpoint of how social movements influence constitutional change through their influence on party politics.

There are two basic ways that social movements can effect constitutional change. The first is through Article V amendment, which is quite difficult to do: It requires approval by two thirds of each house of Congress and ratification by three fourths of the states. Thus, the more common way for social movements to influence constitutional law is through influencing judicial interpretations of the Constitution made by Article III courts.

There are two basic ways to achieve favorable interpretations by the federal judiciary. The first is through the party system; the second is through an appeal to elite values.

Although social movements are the great source of constitutional innovation, they will not succeed unless they gain the support of national political parties. The success of social movement interpretations of the Constitution depends on the successful forging of lasting connections between the social movement and the national party system.

For this reason, the constitutional claims of social movements tend to succeed or fail to the extent that they are taken up by national political parties. To be sure, sometimes a party is nothing other than the political wing of a social movement. That describes the Republican Party of the 1860's, which included many free soilers and abolitionists. Sometimes a social movement successfully takes over a political party, as occurred with the Democrats in the 1930's and the Republican party in the 1980's. In both of these cases, the fate of the social movement is clearly tied to the fate of the electoral success of the party. But more often, social movements do not take over a party. They compete for attention and influence with many other interests in a political party, and this greatly affects their success in shaping constitutional norms.

Although social movements play an important role in developing innovative constitutional claims, the party system plays an even more crucial role in filtering, coopting and translating the claims of social movements, including their constitutional claims. Political parties aggregate the claims of social movements with other claims in order to build national political support. In the process, social movement claims get restated, limited, translated into more politically palatable terms, or even put on the back burner by politicians and other party operatives. Equally important, political parties control access to the system of judicial appointments.

To put it bluntly, when constitutional claims of social movements are presented before courts, it matters a great deal whether the movement’s representatives have friends in high places, and in particular, on the federal bench. The more friends they have, the more likely they are to win. The fewer friends they have, the more likely they are to lose. And the most likely method of getting a social movement’s friends on the federal bench is through the judicial appointments process. So unless the social movement has enough clout to push its favored candidates through the appointments process, it is a matter of luck whether the jurists it encounters will be sympathetic to its highly innovative arguments. Indeed, the more innovative the arguments for change in constitutional norms, the less likely they will succeed without ideological allies in high places.

The second way that social movements can influence judicial interpretation of the constitution is through appeals to elite values. Judges tend to be chosen from elite ranks and therefore tend to share values that most elites share regardless of party. This is the best explanation of the Supreme Court’s decisions in Griswold and Roe v. Wade. In the 1960s and early 1970s, elites in both parties tended to support contraceptive rights. In fact, of Richard Nixon’s four appointments to the Supreme Court, three joined in the decision in Roe v. Wade. It was not until the mid 1970's that pro-life voters began moving into the Republican Party, and the issue of abortion became a clearly partisan issue, with Democrats becoming mostly pro-choice and Republicans mostly pro-life. At this point Democratic judicial appointees began to become clearly more pro-choice than judges appointed by Republicans.

These factors help explain the result in Bowers v. Hardwick. The gay rights movement had little clout in either political party in 1986, so its biggest chance at success was through an appeal to elite values along the lines of Griswold or Roe. That was good enough for four votes-- two liberal democrats (Brennan and Marshall) and two moderate republicans (Blackmun and Stevens). (Actually, it was almost good enough for five votes, because another moderate Republican, Lewis Powell, almost joined). Seventeen years later, the gay rights movement has started to show some real clout in both parties, although for right now the influence is much greater in the Democratic Party than the Republican Party because of the influence of religious conservatives in the Republican Party. (One should not, however, discount the presence of libertarian and moderate conservatives in the Republican Party who support gay rights as well as abortion). In the long run, I expect that the movement’s growing influence in both parties will translate into more and more judges sympathetic to gay rights.

From this perspective, the result in Eldred v. Ashcroft is also not very surprising. As of now, the issues that the free culture movement is concerned with do not have much influence in either political party. Indeed, neither political party seems to think that these issues will draw much voting support. If anything, politicians in both parties are more likely to support Big Media because of its lobbying power and campaign contributions. As a result, the best shot for victory in Eldred v. Ashcroft was through an appeal to elite values. But elites– particularly older elites– either do not understand the issues that the free culture movement raises or are divided over them. As a result, the plaintiffs in Eldred were able to manage only two votes in their favor.

Eldred’s lawyer, Larry Lessig, believed that he could connect his constitutional challenge to the Sonny Bono Act to the success of the conservative social movements of the 1980's. Those movements succeeded in placing several conservatives on the Supreme Court and many more in the federal judiciary. These conservative jurists loudly defended the principle of limited federal powers, Lessig reasoned, so perhaps they might accept an argument for limited federal powers under the Copyright Clause.

The problem with this strategy is that it took the doctrinal arguments of the conservative justices much too seriously. It did not sufficiently recognize that what lies behind constitutional law is constitutional politics. Conservative jurists on the Supreme Court offer arguments for limited federal power for largely symbolic and ideological reasons that are connected to the goals of the conservative social movements of the 1970's and 1980's. That is why those judges and Justices were put on the federal bench in the first place. Arguments for limited federal power allowed the conservative justices to strike down or limit the reach of federal laws-- particularly federal civil rights laws-- that they and other conservatives don’t particularly like. The argument for limited federal power also allowed the conservative Justices to strike a symbolic blow for state’s rights.

The Copyright Term Extension Act does not fit into these categories. It does not symbolically trench upon interests of the states, and it is not a liberal civil rights measure. It was generally understood, for better or worse, as a protection of property rights, and many conservatives tend to think that protecting property rights is a good thing. Perhaps, as Lessig hoped, genuine believers in limited federal government would have found his arguments attractive. But the result in Eldred simply demonstrates that the best explanation of conservative judicial behavior is not pursuit of limited federal government per se but rather pursuit of the policy preferences of the conservative social movements that currently dominate the Republican Party, and were responsible for putting those conservative judges on the federal bench.

The appeal to the conservative values of the Rehnquist Court failed because those values do not mesh with the goals of the free culture movement. But that does not mean that, in the long run, the two parties will not embrace some of those values. I’ll have more to say about how that might happen in my next post on this subject.

JB

The Center for Public Integrity reports that Attorney General John Ashcroft is considering new legislation to give the federal government even greater powers over domestic intelligence gathering, while limiting judicial review of government action and restricting public access to information about what the government is doing. The Justice Department has not yet announced the new proposals, but apparently early drafts have already been completed. One of the most disturbing features of the proposed Domestic Security Enhancement Act of 2003 is that American citizens could lose their citizenship and be expatriated if they provide "material support" to any group the Attorney General has designated as a "terrorist organization." The idea, apparently, is that one who provides "material support" to such an organization-- even if such support is otherwise lawful-- is presumed to have intended to relinquish citizenship (because his intent can be inferred from his conduct) and therefore may be expatriated.

This gives new meaning to the expression, "America-- love it or leave it."

JB

On a radio call in show, Rep. Howard Cobble (R. N.C.) who is chair of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, rejected the suggestion of a caller that Arabs should be placed in internment camps. The situation today is different than in World War II, he explained. The internment of Japanese-American U.S. citizens during World War II was justified in order to protect them.

On Thursday, in further explanation of his remarks he stated: "I certainly intended no harm or ill will toward anybody. I still stand by what I said ... that, in no small part, it (internment) was done to protect the Japanese-Americans themselves.

Hmm, that's not how I remember the history. Eric Muller agrees, and he has a nice post summarizing the facts.

JB

I’m currently working on a scholarly article on how social movements succeed or fail in shaping American constitutional law. As I thought about the recent Eldred case, which refused to hold the Copyright Term Extension Act unconstitutional, I was struck by the similarities to Bowers v. Hardwick, the 1986 case in which the Supreme Court refused to hold that same sex sexual relations were constitutionally protected. I don’t mean to say that both decisions were equally unjust (or equally just). Given my politics, and my views about constitutional law, I happen to think that Bowers is a more troubling opinion than Eldred, but I understand that people may disagree, and some probably think that both cases are perfectly rightly decided.

Rather, what struck me about both cases is that both involved unsuccessful first attempts by a social movement to get the Supreme Court to accept some of the movement’s constitutional claims. Bowers is the first case in which the Supreme Court seriously considered and discussed at length the arguments of gay rights advocates; Eldred is the first case in which the Supreme Court has grappled with the emerging social movement for weaker intellectual property rights and “free culture.” In both cases, the Supreme Court decision reflected the beliefs (or prejudices) of a very large number of Americans who had not been exposed to the arguments of the social movement, and in both cases people feared that the social movement’s goals had been set back for many years by the loss. But, in both cases, I would suggest, such fears are unfounded.

Indeed, what Bowers produced was a resurgence of social movement activism by the gay rights movement. Unable to make their case in the federal courts, gay rights supporters shifted their strategies to influencing state, local and federal legislators and executive officials. Meanwhile, social attitudes changed, as there is a strong but not perfect correlation between the year that a person was born and their acceptance of homosexuality. Although not all young people support gay rights, more do than in previous generations. One suspects that in time, a very large number of Americans will accept that homosexuals deserve basic equal rights, or, at the very least, that same sex relations should not be criminalized.

By the time that the Supreme Court took its next major gay rights case in 1996, Romer v. Evans, the political landscape had changed greatly. A 5-4 majority struck down a Colorado state amendment that had been designed to preempt city and local ordinances protecting gay rights. What is important about Romer is that if you look at the new justices added since 1986 (Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer), four of them were in the majority in Romer, and two in dissent. That was enough to tip a 4-5 decision to a 5-4 decision. One should not assume that there are five clear votes for gay rights on the present Court; Boy Scouts v. Dale, which upheld the right of the Boy Scouts to fire an openly gay scoutmaster, went the other way. But it seems clear that the political and legal climate is changing in favor of gay rights. The Supreme Court has recently taken cert in Texas v. Lawrence, which asks whether Bowers v. Hardwick should be limited or overruled. It is quite likely that the Supremes took this case in order to overrule Bowers or at least severely cut back on it. Moreover, as I hope to discuss in my next post, it is altogether possible that future justices– even those appointed by Republicans– will be more sympathetic to gay rights claims than Burger (a Republican conservative) and White (a Democratic moderate) were in 1986.

In fact, the best evidence that times are changing is the vehemence with which the religious right has fought what it calls the “homosexual agenda.” When most Americans agree that homosexuality is illicit, it is not necessary to make such a fuss; rather majoritarian social mores are sufficient to lead judges and legislators to reject the claims of social movement advocates. But as the social movement gains steam, and convinces a larger and larger share of the public that it is making sense, opponents tend to become increasingly anxious, and you see energetic reaction and attempts at backlash. For me, the sign that the gay rights movement had drawn blood was the Defense of Marriage Act signed by President Clinton. The very notion that a state would legalize sex marriage was unthinkable in 1986; by 1996 religious and social conservatives were genuinely worried that it would happen in Hawaii, Alaska, or some place else. As it turned out, they were right. Vermont’s Supreme Court struck down its restriction on the right to marry as unfair to gays, and in response the legislature passed the nation’s first civil unions bill. The more vehement the attempt to stamp out a social movement once and for all, the clearer it is that the social movement is gaining ground.

When the justices first heard Bowers, most of them had very little acquaintance with the gay rights movement, and the AIDS epidemic was still surging. Much of America regarded homosexuality as immoral or unnatural or at least as abnormal. The Court’s treatment of the issue reflects these presuppositions. Chief Justice Burger and Justice White are said to have made distasteful remarks about gays during the Supreme Court conference following the argument, and their opinions show a palpable insensitivity to the rights of gays. Justice Powell, who cast the deciding fifth vote in Bowers, later said that in hindsight he regretted his decision, and that he might have changed his vote if he had ever met a gay person. This suggests that for people of Powell’s age, it was possible to spend one’s entire life without ever openly confronting homosexuality. In fact, Powell had met many gay people in his life, and had hired a number of gay clerks, including one clerk during the very term Bowers v. Hardwick was decided. He just didn’t know this, or else didn’t want to know.

There are interesting parallels to Eldred here. The free culture movement is relatively new. Although a fair number of young people tend to be sympathetic with it (because of their experience with things like peer-to-peer file sharing, the use of intellectual property to create their own websites and/or works of art), lots of other people, and in particular establishment types tend to see the movement as dreamers or pirates who are opposed to law and order, property rights and capitalism. The Supreme Court is stocked by Justices who are, to put it mildly, not technophiles; they don’t share the same cultural experiences and assumptions that motivate the free culture movement. The conservatives believe in protecting property rights and they generally don’t like innovative first amendment arguments unless they protect the rights of Christian conservatives, or business organizations. Thus it’s not surprising that there was very little sympathy for the arguments in made Eldred.

Losing in the courts in Eldred, just like Bowers, will lead social movement members to push for legislative and administrative reform. In large part this may be a good thing; social movements tend to atrophy or lose force if they rely too heavily on courts to push their constitutional claims and policy positions. An important difference, however, is that intellectual property law is largely federalized. That means that free culture advocates cannot easily begin in state and local fora, in the way that gay rights advocates did. They must concentrate their efforts largely in Congress and federal administrative agencies. That puts them at a comparative disadvantage. The fact that gay rights advocates could move to the states exemplifies one of the great advantages of federalism– not the federalism currently preached by the Supreme Court– which is largely used to protect states who wish to violate civil rights laws– but the basic structural idea that there are multiple legislative fora in which to press for social movement reform.

Finally, time is on the side of the free culture movement, just as it is on the side of the gay rights movement. The more comfortable people are with the new digital technologies, the more they will come to understand the value of arguments free culture advocates are making, even if they do not accept them in all respects. One suspects that we will also see increased vehemence in the attacks directed against the free culture movement as it gains support. My prediction is that the free culture movement's claims will win out, although not necessarily in precisely the way they are articulated today. No social movement gets everything it wants, but successful ones often lead to important changes in society. I think the free culture movement may, in time, have a profound effect on how we live our lives in the future.

In my next post on this topic, I’ll continue my discussion of the similarities between Eldred and Bowers. In particular, I will discuss the role that political parties play in the success or failure of social movements, both through legislative reforms and through the appointment of judges or justices who are sympathetic to the claims of social movement advocates.

Note-- I've added the second post following the first because the permalink does not appear to be working properly.

How Eldred v. Ashcroft is like Bowers v. Hardwick, Part II

This is the second of two posts on Eldred v. Ashcroft and how the result is similar to Bowers v. Hardwick. The first post can be found here.

In today's post, I want to talk about the results in Eldred and Bowers from the standpoint of how social movements influence constitutional change through their influence on party politics.

There are two basic ways that social movements can effect constitutional change. The first is through Article V amendment, which is quite difficult to do: It requires approval by two thirds of each house of Congress and ratification by three fourths of the states. Thus, the more common way for social movements to influence constitutional law is through influencing judicial interpretations of the Constitution made by Article III courts.

There are two basic ways to achieve favorable interpretations by the federal judiciary. The first is through the party system; the second is through an appeal to elite values.

Although social movements are the great source of constitutional innovation, they will not succeed unless they gain the support of national political parties. The success of social movement interpretations of the Constitution depends on the successful forging of lasting connections between the social movement and the national party system.

For this reason, the constitutional claims of social movements tend to succeed or fail to the extent that they are taken up by national political parties. To be sure, sometimes a party is nothing other than the political wing of a social movement. That describes the Republican Party of the 1860's, which included many free soilers and abolitionists. Sometimes a social movement successfully takes over a political party, as occurred with the Democrats in the 1930's and the Republican party in the 1980's. In both of these cases, the fate of the social movement is clearly tied to the fate of the electoral success of the party. But more often, social movements do not take over a party. They compete for attention and influence with many other interests in a political party, and this greatly affects their success in shaping constitutional norms.

Although social movements play an important role in developing innovative constitutional claims, the party system plays an even more crucial role in filtering, coopting and translating the claims of social movements, including their constitutional claims. Political parties aggregate the claims of social movements with other claims in order to build national political support. In the process, social movement claims get restated, limited, translated into more politically palatable terms, or even put on the back burner by politicians and other party operatives. Equally important, political parties control access to the system of judicial appointments.

To put it bluntly, when constitutional claims of social movements are presented before courts, it matters a great deal whether the movement’s representatives have friends in high places, and in particular, on the federal bench. The more friends they have, the more likely they are to win. The fewer friends they have, the more likely they are to lose. And the most likely method of getting a social movement’s friends on the federal bench is through the judicial appointments process. So unless the social movement has enough clout to push its favored candidates through the appointments process, it is a matter of luck whether the jurists it encounters will be sympathetic to its highly innovative arguments. Indeed, the more innovative the arguments for change in constitutional norms, the less likely they will succeed without ideological allies in high places.

The second way that social movements can influence judicial interpretation of the constitution is through appeals to elite values. Judges tend to be chosen from elite ranks and therefore tend to share values that most elites share regardless of party. This is the best explanation of the Supreme Court’s decisions in Griswold and Roe v. Wade. In the 1960s and early 1970s, elites in both parties tended to support contraceptive rights. In fact, of Richard Nixon’s four appointments to the Supreme Court, three joined in the decision in Roe v. Wade. It was not until the mid 1970's that pro-life voters began moving into the Republican Party, and the issue of abortion became a clearly partisan issue, with Democrats becoming mostly pro-choice and Republicans mostly pro-life. At this point Democratic judicial appointees began to become clearly more pro-choice than judges appointed by Republicans.

These factors help explain the result in Bowers v. Hardwick. The gay rights movement had little clout in either political party in 1986, so its biggest chance at success was through an appeal to elite values along the lines of Griswold or Roe. That was good enough for four votes-- two liberal democrats (Brennan and Marshall) and two moderate republicans (Blackmun and Stevens). (Actually, it was almost good enough for five votes, because another moderate Republican, Lewis Powell, almost joined). Seventeen years later, the gay rights movement has started to show some real clout in both parties, although for right now the influence is much greater in the Democratic Party than the Republican Party because of the influence of religious conservatives in the Republican Party. (One should not, however, discount the presence of libertarian and moderate conservatives in the Republican Party who support gay rights as well as abortion). In the long run, I expect that the movement’s growing influence in both parties will translate into more and more judges sympathetic to gay rights.

From this perspective, the result in Eldred v. Ashcroft is also not very surprising. As of now, the issues that the free culture movement is concerned with do not have much influence in either political party. Indeed, neither political party seems to think that these issues will draw much voting support. If anything, politicians in both parties are more likely to support Big Media because of its lobbying power and campaign contributions. As a result, the best shot for victory in Eldred v. Ashcroft was through an appeal to elite values. But elites– particularly older elites– either do not understand the issues that the free culture movement raises or are divided over them. As a result, the plaintiffs in Eldred were able to manage only two votes in their favor.

Eldred’s lawyer, Larry Lessig, believed that he could connect his constitutional challenge to the Sonny Bono Act to the success of the conservative social movements of the 1980's. Those movements succeeded in placing several conservatives on the Supreme Court and many more in the federal judiciary. These conservative jurists loudly defended the principle of limited federal powers, Lessig reasoned, so perhaps they might accept an argument for limited federal powers under the Copyright Clause.

The problem with this strategy is that it took the doctrinal arguments of the conservative justices much too seriously. It did not sufficiently recognize that what lies behind constitutional law is constitutional politics. Conservative jurists on the Supreme Court offer arguments for limited federal power for largely symbolic and ideological reasons that are connected to the goals of the conservative social movements of the 1970's and 1980's. That is why those judges and Justices were put on the federal bench in the first place. Arguments for limited federal power allowed the conservative justices to strike down or limit the reach of federal laws-- particularly federal civil rights laws-- that they and other conservatives don’t particularly like. The argument for limited federal power also allowed the conservative Justices to strike a symbolic blow for state’s rights.

The Copyright Term Extension Act does not fit into these categories. It does not symbolically trench upon interests of the states, and it is not a liberal civil rights measure. It was generally understood, for better or worse, as a protection of property rights, and many conservatives tend to think that protecting property rights is a good thing. Perhaps, as Lessig hoped, genuine believers in limited federal government would have found his arguments attractive. But the result in Eldred simply demonstrates that the best explanation of conservative judicial behavior is not pursuit of limited federal government per se but rather pursuit of the policy preferences of the conservative social movements that currently dominate the Republican Party, and were responsible for putting those conservative judges on the federal bench.

The appeal to the conservative values of the Rehnquist Court failed because those values do not mesh with the goals of the free culture movement. But that does not mean that, in the long run, the two parties will not embrace some of those values. I’ll have more to say about how that might happen in my next post on this subject.

JB

I just finished participating in the conference that I organized along with Yale Law Women to commemorate the thirtieth anniversary of Roe v. Wade. The sessions were packed and lively. The second two sessions were devoted to the question of "What Roe v. Wade Should Have Said." The panelists, all prominent American constitutional law professors, were asked how they would have written the opinon in Roe v. Wade (and the companion case of Doe v. Bolton) if they knew then what they know now. They were only permitted to cite sources available as of January 22nd, 1973, when Roe and Doe were originally decided.

One of the highlights of the session was a spirited exchange between the University of Minnesota's Michael Stokes Paulsen and my colleage Jed Rubenfeld on the status of the fetus-- or, as they put it, over whether an acorn is an oak tree. Mike Paulsen's strongly pro-life views, delivered to an audience that I presume was probably more pro-choice than pro-life, had a powerful effect.

My colleague Akhil Amar took a very interesting position-- he would strike the Texas law in Roe down because it was passed at a time when women didn't have the right to vote. What would happen if the Texas legislature then repassed an identical statute? Well, it would depend on whether the Texas Legislature had a representative number of women in it. Well, Akhil was asked, what if Texas had an initiative or referendum on the same law, so that women could vote on it? At that point, he suggested, he didn't know what he would decide. He would have to see what happened. And what about the Georgia statute in the companion case of Doe v. Bolton, which was passed in 1968, when women had the right to vote? The state courts should be allowed to clarify the meaning of the statute, Akhil explained.

Some members of the audience, I suspect, thought that this was taking the easy way out. What it suggests to me is that Akhil really doesn't believe in a substantive right to abortion, but rather is interested only in procedural guarantees of due process. But that leaves open the very interesting question whether the same logic applies to other statutes that effect women's rights-- i.e., they aren't necessarily unconstitutional as long as women have the right to vote.

Another very interesting feature of the discussion among the members of the mock Supreme Court was whether courts should push legislatures to be proactive in creating a world that respects women's work and the social and financial hardships of motherhood. Both my colleague Reva Siegel and Robin West of Georgetown pointed out that Congress had responsibilties to pass legislation enforcing sex equality norms that courts could not enforce on their own. Both are strongly pro-choice. Nevertheless, the nature of abortion regulation, they insisted, looks very different if there is a significant set of commitments by state legislatures or by the federal governrment to the support of mothers and to the welfare of children *after* they are born.

Anita Allen-Castellitto of Penn Law School argued that there should be no statutorily prescribed time limit on when women could get abortions; rather, legislatures should rely on doctors to act as a gatekeeper. Doctors won't perform very late abortions unless the woman's life is really at stake.

Jeffrey Rosen of George Washington Law School (and the New Republic) supports abortion rights as a policy matter, but argued that the courts should have stayed out of it. Both he and I considered the idea that Roe has been a political disaster. We both argued that it has strongly shaped contemporary American politics. Jeff thinks it has badly skewed the judicial appointments process. I think that it has been a boon to the Republican party, but not necessarily bad for the country. Mark Tushnet of Georgetown doubted that its political effects have been as great as Jeff and I believe. He argued that Ronald Reagan would have been elected in 1980 whether or not Roe v. Wade had been decided.

Mark's opinion for the conference was, literally, Justice Douglas's concurring opinion in Roe. His point was that the thinking of the Justices in 1973 was much more constrained by their times than we generally imagine, and that what they produced made much more sense than we usually give them credit for given who they were and the world in which they lived.