Balkinization  

Friday, May 30, 2003

JB

Did the Bush Administration Cook Intelligence Data on Iraq?

A growing number of national security professionals seem to think so, according to this report from Reuters, (via The Agonist)

JB

Journal of Higher Education Article on Academic Blogging

The June 6th issue has a feature on blogging, which was many months in the works. You can find it here.

JB

Ari Fleischer Explains What the War Was About


Courtesy of Sky News and Daily Kos:

"We have high confidence that they have weapons of mass destruction - that is what this war was about, and is about - and we have high confidence it will be found."


Paul Wolfowitz, however, begs to differ:

Q: There was an article published yesterday in Vanity Fair which quoted you as saying that weapons of mass destruction were chosen for bureaucratic reasons to justify war in Iraq.

Wolfowitz: I'm sorry, first of all, that isn't even the way the article puts it, but if you want to know what I actually said I would suggest you read the transcript of the interview which is on our website. What I said very clearly is that we have from the beginning had three concerns. One was weapons of mass destruction, second was terrorism, and the third -- and all three of these by the way are in Secretary Powell's presentation at the U.N. -- the third was the abuse of Iraqis by their own government. And in a sense there was a fourth overriding one, which was the connection between those first two, the connection between the weapons of mass destruction and terrorism. All three of those have been there, they've always been part of the rationale and I think it's been very clear.


I am willing to take Wolfowitz at his word: the issue was not just WMD in Saddam's hands, but the connection between WMD and international terrorism. Yet the question then becomes whether the Iraqi invasion helped prevent terrorist organizations from gaining access to weapons of mass destruction, or actually made it easier to do so. Because we have not found the WMD, there are two troubling possibilities: The first is that, as Secretary Rumsfeld suggests, the weapons had been destroyed before the war, in which case our invasion was based on faulty intelligence. Then we have done nothing to hinder terrorist organizations from gaining weapons of mass destruction, but we have stoked additional resentment and possibly added to the ranks of our enemies. The second possibility, which is even more troubling, is that by attacking Iraq we created anarchy that allowed weapons of mass destruction to move outside the country and into the hands of international terrorist organizations. That suggests that given the major reason for the war, the war itself was counterproductive.




Thursday, May 29, 2003

JB

Senator Byrd Tells It Like It Is

In this speech delivered on May 21st.

The problem is, he may be the only politician willing to take the heat for doing so. It seems that in the times in which we live, "The best lack all conviction, while the worst/Are full of passionate intensity." Byrd is willing to be a little passionate in return, and we should be grateful for his willingness to speak out, as he has repeatedly, in the months leading up to the war.

JB

The New European Constitution

An interesting discussion is going on in the blogosphere about the structure of the new European Constitution, whose provisions are currently being drafted. The latest (May 26, 2003) draft of the proposed constitution appears here. It's a long document, but well worth browing through. You can start reading about the new provisions in this summary helpfully provided by the BBC, and then move on to the various blog postings here, here, here, and here. Some of it is quite technical stuff if you don't know much about the current structure of the European Union, but if you know something about the framing of the American Constitution, lots of similarities and contrasts will jump out at you.

JB

Some Quotes on Weapons of Mass Destruction

From a story in today's Independent:


"Intelligence leaves no doubt that Iraq continues to possess and conceal lethal weapons"

-- George Bush, US President 18 March, 2003


"We are asked to accept Saddam decided to destroy those weapons. I say that such a claim is palpably absurd"

--Tony Blair, Prime Minister 18 March, 2003


[War Begins]


"Saddam's removal is necessary to eradicate the threat from his weapons of mass destruction"

--Jack Straw, Foreign Secretary 2 April, 2003


"Before people crow about the absence of weapons of mass destruction, I suggest they wait a bit"

--Tony Blair 28 April, 2003


"It is possible Iraqi leaders decided they would destroy them prior to the conflict"

--Donald Rumsfeld, US Defence Secretary 28 May, 2003



UPDATE: A fuller listing of choice quotes, including statements from Colin Powell's address before the United Nations, appears here.


UPDATE: Billmon has the same idea. Here's his rather extensive list (via Atrios).


Wednesday, May 28, 2003

JB

Do You Think He Has An Alibi?

According to this story (via This Modern World), Supreme Court Justice Clarence Thomas keeps a sign in his office which reads "Save America: Bomb Yale Law School."

I think he has some issues.

JB

Retreat on Federalism?

On Tuesday the Supreme Court decided Nevada Department of Human Resources v. Hibbs, holding that states may be sued for money damages when they violate their employees' rights under the federal Family and Medical Leave Act (FMLA).

In two previous cases, Kimel and Garrett, the Court held by 5-4 votes that states could not be sued when they violated their employees rights under federal age discrimination and disability discrimination laws. The same five conservatives (Rehnquist, O’Connor, Kennedy, Scalia, and Thomas) voted in the majority.

In Hibbs, Rehnquist and O’Connor switched sides and formed a majority with the moderates and liberals— Ginsburg, Breyer, Souter, and Stevens (who concurred in the result.).

What is most interesting about the opinion is how Rehnquist marshals his evidence that Congress found a pattern of sex discrimination, which allows him to conclude that Congress’s remedy– the FMLA– is “congruent and proportional” to those findings. He draws on studies of discrimination by private employers and federal employers to show that there is discrimination by state employers, and he uses evidence that states discriminated in awarding leaves for taking care of children to show that states might also discriminate in their policies regarding leaves to take care of sick relatives. In other words, he allows Congress considerable leeway in what is sufficient evidence of sex discrimination to justify the FMLA. He also describes the purpose of the statute very broadly, as a prophylactic measure designed to combat a basic assumption that supports gender discrimination in employment: that women will (and should) sacrifice their careers to take care of their families in ways that men will not. The point of the remedy is not to redress specific unconstitutional decisions about family leave made by state actors, or even the unconstitutional failure of states to provide particular benefits. Rather, Rehnquist argues, Congress is permitted to get at the root causes of sex inequality by providing a uniform federal benefit.

Two years ago, Rehnquist wrote the majority opinion in the Garrett case, which concerned disability discrimination. In that case, he read the record extremely narrowly. He excluded almost all evidence of discrimination against the disabled as irrelevant because it was from employers other than state employers, and because it was evidence of discrimination against the disabled of a different sort than the precise statutory provision that was before the Court. He refused to assume that societal discrimination or even discrimination by local governments suggested that states might also discriminate, and he refused to accept the proposition that because states might discriminate against the disabled in some ways they would discriminate in other ways. In short, he rejected the very sorts of inferences and arguments that he accepted in Hibbs. Not surprisingly, Justice Kennedy’s dissent calls him on this, and points out that according to the standards used in Garrett, the case should come out the other way.

So why did Rehnquist and O’Connor switch sides? Here are some possible explanations:

1. Personal considerations. O’Connor is particularly conscious of the value of family leave for women and therefore her concerns about federalism are attenuated. Rehnquist’s possible motivations are more various: The Chief is about to retire and he wants to go out with some opinions that will make him look moderate and statesmanlike. Hibbs is a much better candidate to do this than any of the other high profile cases the Court is about to announce. In the alternative, Chief Justice Rehnquist recognized that O’Connor was going to jump ship anyway, so he joined the majority opinion so that he could write it or assign it himself and thus control how broad the argument was. (This is something that Chief Justice Burger did regularly, much to the annoyance of his colleagues).

2. Heightened scrutiny. A second possibility is that Chief Justice Rehnquist and Justice O’Connor believe that where Congress is preventing or remedying discrimination that the Court has found subject to close judicial scrutiny, like sex or race discrimination, Congress should be given more leeway to prove its case. That is because there is much less danger that Congress is trying to interpret the Constitution more strictly than the Court is. Alternatively, Congress should have more leeway to fashion remedies because the states are more likely to be engaging in invidious discrimination where laws or practices touching upon suspect classifications are concerned. Note, however, that this begs the question, because family leave policies that have merely disparate impact on women do not violate the Constitution. As Justice Kennedy points out, under the Court’s precedents, mere failure to provide parenting or family leave is not sex discrimination, even if it affects women more heavily than men. Put differently, what is most interesting about the majority opinion is that it recognizes family and medical leave as a sex equality issue even though the Court’s own precedents do not.

3. Distinguishing between “old” rights and “new” rights. Another possibility is that Rehnquist and O’Connor are willing to give Congress a freer hand in imposing liability on states where questions of race and gender equality are concerned, because the long history of struggles for racial and gender equality have established the centrality of these values. By contrast, age and disability discrimination laws are comparative newcomers. Under this reading, Kimel and Garrett are mostly about reining in the proliferation of new egalitarian causes of action that go beyond the traditional categories of race and gender. So the difference isn’t federalism but how Rehnquist and O’Connor feel about the substantive importance of race and sex discrimination vis a vis other, newer egalitarian demands. It will be interesting to see how the two of them vote in the Lawrence case to be decided this Term, which concerns the rights of homosexuals.

4. Never take a good thing too far. A fourth possibility is that Rehnquist and O’Connor are wary of extending the Court’s federalism precedents to trench on highly visible and consequential civil rights statutes like the FMLA because this would spark hostile public reaction and undermine the Court’s authority. This is pure prudentialism– what makes the cases come out different is not the force of doctrinal logic but a set of political calculations about how Congress and the public will accept the decision. Nevertheless, one has to wonder, would the hostile reaction be importantly different from that produced by the decisions in Bush v. Gore, which decided a presidential election, or United States v. Morrison, which struck down the Violence Against Women Act? If the Court can decide the latter two cases and remain relatively unscathed, why should the issue of family and medical leave by state employers be any different?


Friday, May 23, 2003

JB

Two Sobering Thoughts

Two things happened yesterday that gave me a start. The first was an e-mail from Jim Ryan, a visiting Professor from the University of Virginia. As I mentioned in a previous post, Jim and I were walking right outside the Yale Law School on Wall Street when the bomb exploded on Wednesday. A few minutes before that, we were talking over whether to go outside for coffee (it was drizzling) or go downstairs to dining hall to see if it was still open. I said I didn't mind the rain, so we went outdoors. Jim pointed out that if we had decided to go to the dining hall, we would have gone down the main staircase and past Room 120 just as the bomb went off.

I'll bet there are at least a hundred people at the Law School who had close calls of that sort, probably much closer calls than that. A few feet more down the main hallway, a decision to go left rather than right, all of those contingencies might have made the difference between safety and injury. As a community, we were incredibly lucky. Somebody up there must have been watching out for us.

The second start came when a group of agents from the FBI and ATF came to my house Thursday evening. This was my second interview of the day. They were utterly professional and polite. They did their jobs incredibly well. But the first words out of their mouths threw me for a loop.

"Professor, we'd like to ask you about some of your writings....."

For a second, just for a second, I thought: "Oh my God, John Ashcroft has finally sent them to round me up for all those anti-Bush op-eds I've written."

And sure enough, one of the agents put a folder on the table in front of me containing a copy of all my recent op-eds, downloaded from the Internet and neatly printed out.

It quickly became clear what was going on. They wanted to know if anything I had written might have enraged someone enough that the person might consider taking his or her frustrations out on the Law School. They asked me which of my recent op-eds had gotten the most virulent responses. They didn't seem to know about my blog, or indeed, about blogs in general (although perhaps they were just playing possum). I explained what a blog is and how it changes the audience for political writing, how the Internet changes the group of people who can react to what you are saying. They asked for an example, and I mentioned how one of my op-eds criticizing Bush had been picked up by the conservative site NewsMax and distributed to their readers by e-mail and on the Web as part of a special "Insider's Report." The idea, apparently, was to stoke up some resentment at what NewsMax called the "most demonic form" of the liberal academy, an "Elitist Yale Law Professor." That NewsMax story ends, by the way, with the following lovely quote:

Balkin's commentary reveals what we at NewsMax believe, that the real enemy is not from without. These evil folks have always been and always will be. The real enemy is within. Welcome to American academia.

I told the FBI and ATF agents that although I'd received plenty of hate mail, I had never gotten any death threats or threats against the school. Just a lot of letters and e-mails from people who really, really didn't like what I had to say. They showed me a couple of composite sketches and asked if I recognized them. (I didn't). Then we talked about possible theories of who would want to bomb the school and why. After about thirty or forty minutes, we shook hands, I wished them good luck, and they left.

They were just checking out possible leads, possible theories of the case. That's their job. And for that reason the agents had to ask me about what I'd written, and what people might have thought about it. But I came away from the interview very depressed. I very much didn't want to believe in this particular theory of the case-- the idea that some nut job attacked the school and endangered its students because he or she didn't like the political beliefs of some of its professors. There are a hundred other reasons, I've told myself, why that bomb could have been set off. It will turn out to be one of them, I know.

Above all, I don't want to believe it because it would just be too depressing if it were true.


JB

Balkinization goes XML

I've installed an RSS 0.92 compatible link at the end of the blogroll. You may aggregate away.

Thanks to Derek Slater and Rebecca Tushnet both for the suggestion and for explaining how to do it.


Thursday, May 22, 2003

JB

More on the Explosion at Yale Law School

It is looking more and more likely that the explosion was caused by a bomb. The FBI, Homeland Security, ATF, as well as state and local law enforcement agencies are coordinating investigations, interviewing everyone who was in the building that day.

The damage to Room 120 and the Alumni Reading Room was extensive. Debris fell down the staircase from the Alumni Reading Room leading down to the International Law Library and Rare Book Collection. A pipe burst, pouring water on many of the rare books. Some of them can be restored, others may not be.

The law school community is a bit shaken but still in good spirits, because all of us know that we were very very lucky-- there were no injuries. If someone had been killed in this explosion, the mood here would be very different. Graduation will go on as scheduled, and we will not move over to the gymnasium. The graduation will take place in the courtyard, in the very heart of the Law School.

One amusing anecdote in an otherwise somber day: The wall between Room 120 and the Alumni Reading Room collapsed. Several portraits hanging in the Alumni Reading Room fell off that wall. My sources tell me that Bob Bork's, Pat Wald's,and former Dean Abe Goldstein's portraits were damaged, but Eleanor Holmes Norton is still up on what remains of the wall. The portrait of Guido Calabresi, former dean and now a judge on the Second Circuit, was also on that wall. Dean Tony Kronman reported that when he came in to inspect the damage, the portrait had somehow done a 270 degree flip and landed on its back, face up, completely undamaged.

That's Guido for you.

And that's the Yale Law School too. You can try to bomb us, but we will just do a backflip and come up good as new.



Wednesday, May 21, 2003

JB

Explosion at Yale Law School

I was walking out of the Law School building about a quarter of five in the afternoon with Jim Ryan to get some coffee when we both heard a big explosion from the Yale Law School building. A few minutes later, the entire Yale Law School community was walking down York street. Apparently an explosion occured in Room 120 on the first floor. Several students reported seeing a fireball in the main hallway that connects the various classrooms. Others reported that the wall in the Alumni reading room next to room 120 was destroyed.

The Law School has been cordoned off, and police have surrounded the area. I'm told the FBI has been called in. It's still not clear if this is an accident (an exploding pipe) or a crime scene (a bomb).

As of yet, there are no reports of injuries, but we don't know if anyone was in Room 120 when the explosion occured. This week is part of exam period and I don't know if students were working there.

I'm very worried about my students.


UPDATE: So far there are no reports of injuries, thank goodness. The building is closed off at least through Friday. (Graduation is Monday, but I assume we will move over to the gymnasium, as we have in the past when there's rain). Speculation is running rampant as to the cause of the explosion. We still don't know if it was a bomb or an exploding pipe. At the 6:30pm news conference Mayor DeStefano said he thought it was an "explosive device" (which, I assume, is a fancy name for a bomb). But we really won't know for some time.


Sunday, May 18, 2003

JB

Good Judging and "Following the Rules Laid Down," Part II

In my previous post on Larry Solum's theory of good judging, I pointed out that although Larry can justify following previous precedents that are inconsistent with his theory, he can't justify courts deciding those cases in the first place. The example I gave was the Burger Court's sex equality cases of the 1970s, which, I argued, were good decisions that Americans should, on the whole, be proud of. If Larry's theory can't account for the legitimacy of such decisions, I suggested, it is probably too narrow a conception of the judicial role.

In response, Larry adopts a strategy of confession and avoidance:

So I really have to bite the bullet. As Balkin recognizes, I am forced into the following position. Although the Supreme Court's gender equality jurisprudence is binding precedent and should continue to be followed by both the Supreme Court and the lower courts, those decisions were badly reasoned and gave insufficient weight to contrary precedent. Now, Balkin is right when he assumes that I "would agree that women should not be subjected to discrimination by the states or the federal government." So how can I possible think that decisions which lead to a result of which I approve are incorrect as a matter of law? Haven't I contradicted myself? Well, no. In fact, obviously not. Why not? Because judicial fiat is not the only way to change the law. Law can be changed by amending statutes, promulgating regulations, and even in some cases, by amending the constitution. If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law. Even with the Supreme Court's gender equality jurisprudence, both Congress and state legislatures have enacted a wide variety of important gender equality legislation. And it is not clear the polities without our institution of judicial review (the United Kingdom, Denmark, etc.) have lagged behind the United States in achieving gender equality.

It follows from this that Larry does not, in fact, think that the states and the federal government should be *constitutionally* prohibited from discriminating on the basis of sex. He believes that sex inequality is wrong, but that it should be up to individual states, and to the U.S. Congress to pass laws and issue regulations prohibiting sex discrimination. But I think this misses the point at issue: Should the principle of sex equality be part of our basic law, our fundamental rights, so that one does not have to get legislation passed in order to secure basic rights for women? One might well have said the same thing in Brown v. Board of Education: let each state decide whether it wants to keep Jim Crow or abolish it; let Congress decide whether it wants to ban segregation in the D.C. schools, or not, and so on. I guess one could take that position with respect to almost every important civil right that doesn't fall within Larry's neoformalist vision of judging. But my point is that if so, this seems to me at least, to be a serious criticism of his position. I don't think it would be sufficient to leave the question of sex equality, or race equality, for that matter, to the tender mercies of indvidual states.

Larry notes in passing that "If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law." Well, I think there is much to be said for that view, although there is some evidence going in the other direction. But I assume that Larry would agree that this does not justify the Court's 1970's sex equality jurisprudence, at least for a formalist. It might for someone like me, or like Justice White (both of us are strongly legal realist in our orientation, as you may have guessed) but the point of being a formalist is that if you don't play by the rules, you don't get the result you are seeking. Article V of the Cconstitution says that it takes three quarters of the states to change the Constitution, not three quarters less three.

But I digress. Larry may well think that he can bite the bullet on the sex equality question. But the sex equality example was only one example. What Larry does not sufficiently recognize, I think, is that the number of Supreme Court decisions that are not consistent with his model of neoformalist judging are plentiful. Indeed, I would venture to say that there is hardly an area of contemporary civil rights law in which the key precedents protecting civil rights and civil liberties were originally developed consistent with Larry's formula for good judging. Rather, the history of progress in civil rights in this country is the history of courts artfully dodging and sometimes overruling previous precedents, and creatively crafting new doctrinal structures in their stead, often with nary a concern for "plain meaning," structure, or original understanding. The list of cases that were decided in ways inconsistent with Larry's rather narrow conception of good judging is so long that I can't even begin to list them all, but here's a partial sample: the basic doctrines of the scope of free expression, the rule of strict scrutiny for content based regulations, the rule of Brandenburg v. Ohio protecting seditious libel, the contemporary protection of blasphemy and indecency, the public forum doctrine, the rule of New York Times v. Sullivan, the doctrine of freedom of association, the doctrines prohibiting unconstitutional conditions on speech, the constitutional recognition of picketing as a form of protected expression, and that's just the first amendment doctrines that come readily to mind.

But let's move on: We would also have to include almost all of the Supreme Court's criminal procedure jurisprudence and its application to the state governments, the rule of Gideon v. Wainwright, the rule of Shapiro v. Thompson, the fundamental right to marry recognized in Zablocki v. Redhail and Loving v. Virginia, the right to procreation recognized in Skinner v. Oklahoma, Griswold v. Connecticut and Eisenstadt v. Baird, the requirement of a hearing in adminstrative decisionmaking in Roth and its progeny, the application of equal protection clause to aliens, to illegimate children, to the mentally retarded, not to mention women, the application of the Equal Protection clause to voting in Baker v. Carr and its progeny, (including the equal protection holding in Bush v. Gore, don't forget!), the discovery of an "equal protection component" in the Fifth Amendment's Due Process clause so that the Federal Government could not discriminate on the basis of race in Bolling v. Sharpe, or on the basis of sex in Frontiero v. Richardson.

But wait, there's more: Quite apart from the ways courts have innovated in the area of civil rights and civil liberties, they have also innovated consistently in the scope of national powers. So to the list we must add the current constitutional powers of Congress to pass regulatory legislation under the commerce clause beginning with Darby and Wickard and their progeny, which include, by the way, the power of Congress to pass the Civil Rights Act of 1964 and much other subsequent civil rights legislation. to This we must add the doctrines authorizing the administratiive state, the power of Congress to delegate legislative and judicial authority to administrative agencies, and the power of Congress to create independent federal agencies like the FCC or, more importantly, the Federal Reserve, which keeps the money supply out of everyday political contestation. (Can you say "Cross of Gold speech?" I knew you could.) Oh, and by the way, The Legal Tender Cases, which authorized Congress to print paper money as legal tender? Not a particularly good example of neoformalist judging. I'm afraid those greenbacks will have to go.

My point is that cases like the sex equality decisions of the 1970s are not the exception. They are the rule. If we took seriously Larry's view that he would have to bite the bullet in all cases where the Supreme Court's decisions were inconsistent with his vision of neoformalist judging, then I'm afraid that he would have delegitimated a very sizeable chunk of the corpus of contemporary constitutional law, or at least the portions that I regularly teach in my courses and discuss in my casebook. All of this stuff should never have been decided. In other words, if Larry is willing to bite the bullet on cases that are inconsistent with his narrow conception of appropriate judging, he will be biting bullets for a very, very long time.

But it gets even worse. For Larry's response to the sex equality cases is that Congress and the states could just pass legislation protecting women's civil rights. But my point is that the Supreme Court has not simply engaged in what Larry would regard as creative legal interpretation in cases limiting government power. It has also creatively interpreted and expanded the scope of Congressional power as well. That is what the New Deal Revolution was all about. And indeed, it is quite likely that if the Court had just followed his neoformalist formula for good judging, Congress would be constitutionally prohibited from passing much of the very civil rights and civil liberties protections that he wishes to fall back on, and administrative agencies would not be able to pass all those regulations that Larry argued would pick up the slack in enforcing equality norms. Certainly the Civil Rights Act of 1964 is not consistent with 19th century precedents or 19th century understandings of federal power. I'm afraid that what Larry is committing us to is a Constitution without a very large proportion of the features that we today take for granted as its greatest strengths and its greatest achievements.

If I am correct about all this, then there is an enormous irony to Larry's theory. For despite all of these criticisms, Larry can in fact have his cake and eat it too. He can point out that judges should follow the sex equality cases, the cases broadening the scope of Congressional power, the cases legitimating the administrative state indeed, the whole panoply of cases that I have just pointed to, because they are *already decided,* and judges must follow stare decisis. But here is the irony: The only reason that these things are law now, and that judges must follow them, is because other judges in the past who Larry thinks didn't know how to do their jobs properly violated their oaths of office and inserted these travesties into constitutional law. So Larry's theory commits him to the following paradoxical position: He doesn't have to defend a deeply unjust and unworkable constitutional scheme because other judges in the past didn't follow his advice about what constitutes good judging and inappropriately mixed law and politics in the very ways he accuses me of. And that paradox, I think, suggests that there is something deeply wrong about his theory of judging. He is like a man who is living off the proceeds of stolen goods.

Now, there's another very important side to Larry's post, and it has to do with he thinks are my own views about judging in constitutional cases. Larry thinks that what I am advocating is simple lawlessness, that I am saying that ultimately it's all politics. He is mistaken about this, and he misreads me in large part because he has too narrow a view of what *legal* argument is. I must confess I don't recognize his theory of neoformalist judging in the actual practices of lawyers and judges in America. My view of legal argument is simply more flexible than his, that's why he jumps incorrectly to the conclusion that I think it's all just politics. But I think that history of the practice one is arguing about counts for something. And the more one studies the actual history of the practices of legal argument about the U.S. Constitution, and the ways in which our Constitutional law has actually developed, the more one discovers that these practices are much much more flexible that Larry's model of good judging permits. A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct. But that discussion will have to wait for another post.

JB

Good Judging and "Following the Rules Laid Down."

Matthew Yglesias agrees with Larry Solum about the following views of good judging:

Judges should be trying, as best they can, to figure out what the constitution means as law. That means that first and foremost judges should follow the rules laid down. Even the Supreme Court should regard its own precedents as binding, unless there is a compelling reason to do otherwise. We've been speaking mostly of constitutional law, so I will limit myself to that topic by way of illustration. When the precedents run out, judges should look to the plain meaning of the constitutional text. When the text of a particular provision is ambiguous, judges should look to other provisions and then to the structure of the Constitution as a whole. And if ambiguity persists, judges should make a good faith effort to determine the original meaning. And when ambiguity persists, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law.

This sounds like a nice algorithm for judicial decisionmaking, but I can't sign on to it. It seems to me insufficiently attentive to the historical realties that shape American constitutional development, and more to the point, it gives no account of the sort of judging that, in hindsight, we are most proud of as Americans.

Before I begin, I should note that there's something odd about Larry's formula for good judging. It's not at all clear to me why precedent trumps "plain meaning," why both of these trump structural considerations, and why all of them together trump original understandings. If there's an argument here, I don't see what it is. As Larry probably knows, Philip Bobbitt (and Dick Fallon) have argued fairly persuasively that this sort of lexical preference for some modalities of constitutional interpretation over others is unworkable. But I digress.

Let me take a simple example. I assume for purposes of discussion that Larry (and Matthew, for that matter) would agree that women should not be subjected to discrimination by the states or the federal government. In fact, the line of sex equality decisions that begins with Reed v. Reed in 1971 is something that I think most federal judicial nominees would be expected to agree with; or to put it another way, any judicial nominees who forthrightly stated that sex discrimination was constitutional would likely never be confirmed. I would go further: these precedents are something that we can and should be proud of; they demonstrate that we have become a freer, more equal, more tolerant, and more democratic society than we were before. To me they are not examples of bad judging, but examples of good judging, and if a theory of judging is inconsistent with them, I think that is a reason to be suspicious of the theory.

Now one can easily justify following these cases today because they are precedents. But the question I want to ask is whether the cases were originally correctly decided in the first place. That is, could someone who holds the views that Larry does about good judging consistently come out the "right" way on the sex discrimination issue? Frankly, I don't think it's possible. I don't think one can make a serious case that the 1970's sex discrimination cases are consistent with Larry's notion of what good judging is, at least if the point of good judging is to "follow the rules laid down." The precedents, in fact, were pretty clear: they all pointed in the opposite direction. The Court had decided in cases like Goesart and Hoyt that women were not entitled to be free from sex discrimination except in cases of voting covered by the Ninteenth Amendment. All other discrimination against women was to be subject to rational basis scrutiny, which means that almost all of it was to be upheld. Indeed, the key case that ushers in the 1937 revolution (don't get me started on whether *that* is consistent with previous precedents), West Coast Hotel v. Parrish, involved a Washington law that required minimum wages for women workers but not male workers. That is clearly sex discrimination, and the Court thought nothing of it. (Note that this is not a mere oversight. Adkins v. Children's Hospital, the case that West Coast Hotel overruled in 1937, emphasized the equal ability of men and women to make economic decisions as a reason for striking down a similar minimum wage law).

Reed v. Reed, to be sure, does make obeisance to the rational basis standard, but it applies it very differently from other rational basis cases in the post-1937 period, and it is generally understood to have been a disguised form of heightened scrutiny that was made official in Frontiero v. Richardson and Craig v. Boren. Reed v. Reed just can't be understood as "following the rules laid down," and certainly the next two cases can't.

My point is that if one just followed the "rules laid down," (Larry's interpretation of this phrase, not mine, I should add) you would never get to modern sex equality doctrine. Morever, because the "rules laid down" are clear, according to Larry's formula, you would never go on to ask about the "plain meaning" of the text, structure, and original understanding. However, let's go through the exercise just for fun.

Does the plain meaning of the equal protection clause mean that sex discrimination is unconstitutional? Certainly very few people thought so before 1970. I guess it all depends on what you mean by "equal protection of the laws," but the difficulty in figuring this out suggests that the words don't have a plain meaning that decides this particular question. (Of course, this raises another problem with Larry's hierarchy, the fact that he elevates the "plain meaning" of the constitutional text over the original understanding of its meaning. I don't see why one would do this. I can understand why one would want to consider textual arguments of all sorts-- including appeals to the larger abstract political principles behind the text-- as superior in many cases to originalist arguments, but that is not the same thing as Larry's suggestion.) In any case, if I were to ask what is the plain meaning of "equal protection," I would have a hard time distinguishing sex discrimination from discrimination against debt adjusters (Ferguson v. Skrupa) or discrimination between opticians and optometrists (Williamson v. Lee Optical). If you throw in a very elaborate political theory, you might get some traction on these questions, but that's not an appeal to "plain meaning," it's an appeal to the best political theory for deciding the case. (Ronald Dworkin, call your answering service please).

OK, well what about constitutional structure? Is there any structural reason to think that sex discrimination is unconstitutional? I'm afraid there's not. The Nineteenth Amendment gives women the right to vote, and they are technically a majority, (not a discrete and insular minority) so presumably they can already vote for candidates who would support women's rights. And the "plain meaning" of the Nineteenth Amendment (there's that phrase again) only extends to voting, not to all of the other forms of sex discrimination that the states and the federal government might impose. (By the way, if you think that there are structural reasons why women are kept in positions of social inequality, bully for you, that makes you an antisubordination theorist, just like me. However, I'm afraid this is not what constitutional scholars mean by "structural argument." Sociological speculation, for most of them, is "policy" analysis, the exact opposite of legal reasoning and following the rules laid down.).

That brings us to original understanding. I'm afraid that the original understanding is not very good for egalitarians generally, because, not to put to fine a point on it, the Framers of the 1787 Constitution (and the Fourteenth Amendment) were, how shall I say, men of their times. The Framers of the Fourteenth Amendment pretty clearly did not wish to alter the common law coverture rules, which meant that married women surrendered virtually all of their rights upon marriage. Moreover, the Framers of the Fourteenth Amendment did not believe that women should have political equality with men-- the right to vote, hold political office, or serve on juries. This is reflected in Section 2 of the 14th Amendment, which specifically refers to male voters. (This was changed by the Nineteenth Amendment, but the basic presumption that sex difference could be reflected in law was not). Furthermore, it's not, as some have speculated, that the question of quality for women was an oversight, that it was an issue that the Framers didn't get around to considering. In fact the suffragists were crying loud and long for equal rights for women at this point in American history. The framers of the Fourteenth Amendment heard their arguments, considered them, and rejected them; they simply didn't think that women should be equal to men in all (or even most) respects. Heck, they didn't think that blacks should be equal in all respects either.

OK, well what about Larry's last category, "general default rules that minimize their own discretion and maximize the predictability and certainty of the law?" I can't imagine this would justify overturning Goesart (decided in 1948) and Hoyt (decided only nine years before Reed, in 1961) and creating a new category of quasi-suspect classifications (Yes, that's what they are called in Supreme Court jurisprudence). If ever there were an example of judicial discretion and judicial activism, the Burger Court's sex equality jurisprudence is it. Indeed, as Justice Powell pointed out, there was a very good reason not to decide these cases: Congress had submitted the ERA to the states, and if the amendment had gone through what the Court did would be superflous. And the fact that the ERA was not ratified suggests that what the Court did was particularly inconsistent with principles of sound judicial restraint.

So it seems that if judges did what Larry wanted them to do, they would never have decided the sex equality cases. My view, by contrast, is that they did the right thing, and that we should be proud of what they did, and that if the Court had not created sex equality jurisprudence in the 1970's courts should do it today. That is to say, I reject the idea that Larry's account of good judging gets anywhere close to what we regard in hindsight as an important and valuable achievement of the Burger Court years. (Indeed, if there is a complaint to make about the Court's sex equality jurisprudence, it is that it was too timid, too doctrinally bound, and that it based itself too closely on previous reasoning about race and classifications based on race rather than recognizing the important differences between forms of racial subordination and sexual inequality.)

Does all of this mean that I don't think that the Supreme Court should decide cases according to law? Of course not. It's simply that I have a much more capacious view about what decision according to law is. It's not just following the rules laid down, and it's not just moving from modality to modality in hierarchical order. Judgment according to law is a matter of, well, judgment. And that judgment, particularly in the big cases, but also in the small ones, inevitably involves considerations of larger political principle, what I have called "high" politics.

The Supreme Court, and the federal courts generally, work in conversation with the political branches, not in isolation from them. Courts change the content of constitutional doctrines in response to social movement contestation and changing social mores. It's pretty clear that decision according to precedent does not explain the sex equality cases. The reasons lie elsewhere: in the Civil Rights Act of 1964 which required sex equality in employment, in the Civil Rights Movement of the 1950's and 1960's, and above all in the second wave of American feminism, which succeeded, in a very short time, in changing most Americans' attitudes about what political equality meant. Under this account, the fact that Congress had passed the ERA and submitted it to the states was a clear signal that the meaning of political equality had changed in the country, and therefore the Court was authorized to overrule its previous precedents and bring the Constitution in line with the times. Indeed, this is exactly what Justice White said to his colleagues in the conference notes on Frontiero v. Richardson. That is to say, although the standard story is that judging is supposed to be independent of politics, nothing could be further from the truth. Judgments of political principle are inextricable from legal interpretation of the Constitution, particularly its abstract generalities like equal protection, due process, and free speech. That is often true of decisions that people despise, but more importantly, it is also true of decisions, that, in retrospect, we regard as the greatest achievements of the courts, decisions that have made our Constitution the charter of liberty and equality worthy of our respect and admiration. Our Constitution is great not because it was great when it left the hands of its Framers; it has become great, and worthy of our admiration, because of what happened to it afterward, because of continuous political struggles over the larger meanings of liberty and equality that were eventually assimilated and codified by courts. That is how a Constitution originally designed to protect aristocratic white male property owners gradually was transformed into a charter of freedom.

The account that Larry offers of good judging is internalist: it tries to identify features of sound legal argument and juridical practice that are isolated from what is happening in the political world outside the courts. I think that every such account of judging is doomed to failure, not because the judicial virtues he identifies are unimportant, but because they are incomplete, and because they don't capture the historical realities of constitutional change in the United States. The more one studies the history of constitutional doctrine, the more one recognizes that the work of judges, although formally independent from politics, is never practically isolated from political contestation about the basic values of American life. That connection, which is sometimes hidden, and sometimes overt, is the by far the most important source of constitutional change, and, if I may say so, of constitutional legitimacy as well.


Saturday, May 17, 2003

JB

It Takes a Potemkin Village

The New York Times reports that American inattention to widespread looting and criminality following the Iraqi war has led to chaos in the country, with many Iraqis now longing for the peace and order of their former Stalinist strongman, Saddam Hussein.

As you may recall, Secretary of Defense Donald Rumsfeld at first downplayed the reports of widespread looting, remarking that "freedom's untidy:"

"Freedom's untidy, and free people are free to make mistakes and commit crimes and do bad things," Rumsfeld said. "They're also free to live their lives and do wonderful things. And that's what's going to happen here."

Among the many wonderful things that individual freedom-loving Iraqis have done in the month following war is carry off large parts of the country's infrastructure and electrical systems. Armed thugs now roam the streets, shooting and robbing people at will, terrorizing citizens and making them afraid to leave their homes. As a result, many stores and businesses have yet to reopen. Trade with other countries is essentially crippled because the safety of cargo cannot be guaranteed.

American troops have been slow to impose law and order on the country, exacerbating the problem and leading to growing anger and resentment among the Iraqi population:

Iraqi frustration at the power vacuum burst out this week, when Baghdad city workers pleaded with the American-run Office of Reconstruction and Humanitarian Assistance to at least issue a public announcement that citizens must obey the law.

A senior official of the reconstruction office said a statement, to be read on a local American-financed radio station, was being prepared, although it was not clear what laws were now in effect in Iraq. For many Iraqis, the damage has been done.

"We used to have a brutal dictatorship that controlled everything," said Mahmoud Ahmed Uthman, chairman of Al Khair Financial Investments Company, an investment fund that has been active here for years. "When the government collapsed, there was nothing left except a great emptiness. And that emptiness has been filled with chaos."


It is still not too late to turn things around, but it is now clear that putting Iraq back in order is going to take much longer than the Bush Administration thought, or at least was willing to admit in public. Not surprisingly, the Administration announced yesterday that plans for returning rule to a provisional government by the end of this month have been shelved indefinitely. On May 5th, General Jay Garner announced confidently that "Next week, or by the second weekend in May, you'll see the beginning of a
nucleus of a temporary Iraqi government, a government with an Iraqi face on it that is totally dealing with the coalition."

Apparently he was a bit too optimistic.

The basic problem is that the Administration has either been deluded about the way that the reconstruction of Iraq would proceed-- which tends to undermine confidence in its judgments about risk assessment in general-- or else it has simply been unwilling to tell the truth to the American people for fear of losing support for its policies. Either possibility is deeply troubling.

Tom Friedman points out yet another defect of the Bush Administration's approach-- attention deficit disorder:

The buildup to this war was so exhausting, the coverage of the dash to Baghdad so telegenic, and the climax of the toppling of Saddam's statue so dramatic, that everyone who went through it seems to prefer that the story just end there. The U.S. networks changed the subject after the fall of Baghdad as fast as you can say "Laci Peterson," and President Bush did the same as fast as you can say "tax cuts."

They are not only underestimating how hard nation building will be with this brutalized people, but how much the looting and power vacuum have put us into an even deeper hole. We need an emergency airlift of military police officers, a mobile telephone system so people can communicate, and a TV station. And we need, as one U.S. general said to me, to "take that $600 million of Saddam's money we found behind that wall, go up in a helicopter and spread it from one end of the country to the other." We have to get the economy going.

Iraqis are an exhausted people. Most seem ready to give us a chance, and we do have a shot at making this a decent place — but not with nation building lite. That approach is coming unstuck in Afghanistan and it will never work in Iraq. We've wasted an important month. We must get our act together and our energy up. Why doesn't Mr. Rumsfeld brief reporters every day about rebuilding Iraq, the way he did about destroying Saddam?


Friedman's points are well taken, and they are symptomatic of a larger problem: The Administration's boredom with the reconstruction of Iraq is only the tip of the iceberg. The Bush Administration seems to be all about smoke and mirrors, all about creating messes that other people will have to clean up somewhere down the road. It is true in Iraq, it is true in Afghanistan, it is true with respect to homeland security, and it is true of that fiscal obscenity called the Bush tax cut. It is no accident, I think, that this Administration has so perfectly refined the art of image manipulation. Image is everything. It has to be everything, for the manipulation of images is the surest path to diverting attention from the mounting problems that the Adminstration's polices are creating.

The Bush years have proven to be one giant Potemkin Village designed to fool the American public into thinking it has a strong, decisive leader who cares about us and is making us safe, strong, and secure. Yet it is quite clear, when one looks beyond the fantasy world projected on Fox News, that none of this is happening. We are not safer: Afghanistan and Iraq are both in a shambles, Al Qaeda is reasserting its muscle, Osama bin Laden and Saddam Hussein are unaccounted for, and above all the weapons of mass destruction for which we went to war and risked American lives have not been found. (Perhaps they were seized by looters in the confusion of the war, perhaps they had been destroyed long before the saber rattling began, or perhaps they were just a phantasm, the product of bad CIA intelligence.) And while the President has been making us less safe abroad, he has done little to protect the economy at home, instead pushing with monomaniacal devotion for tax cuts for the wealthiest Americans, a policy which will do nothing to stimluate the economy and everything to pad the wallets of his wealthiest contributors.

Do I sound cynical about this Administration? If so, it is because the real cynics are in the White House, working as hard as they can to pull the wool over our collective eyes. (I would have said that we are only getting what we deserve, since we elected this fellow, but in fact... well don't get me started.).

Our last President lied compulsively about what he did with his penis. Our current President lies compulsively about what he is doing to our economy and our national security. You be the judge of which has the greater potential for harm in the long run.

The Bush Administration has taken Lincoln's famous adage and turned it upside down. It is not necessary to fool all of the people all of the time, as long as one can fool enough of the people enough of the time, or at least until the next Presidential election. It takes a Potemkin Village to keep a Bush in power.


Tuesday, May 13, 2003

JB

A Bitter Harvest

The Washington Post reports the fascinating story of more than 50 Democratic members of the Texas Legislature fleeing the state to prevent the Republican controlled Legislature from imposing a new redistricting plan "orchestrated by U.S. House Majority Leader Tom DeLay (Tex.) designed to add five to seven seats to the 15 the GOP controls in the state's 32-member congressional delegation." The walkout robbed the Texas House of a quorum.

The Speaker of the House, Tom Craddick, cried foul, but it appears that some thirty years ago he staged a similar walkout. (via Atrios)

The story has lots of amusing features: for example, the Texas Rangers asked New Mexico if they could arrest legislators found there. The Attorney General, a Democrat, said no, but added "I have put out an all-points bulletin for law enforcement to be on the lookout for politicians in favor of health care for the needy and against tax cuts for the wealthy."

But the story has a more serious side. It has to do with the breakdown of bipartisan trust among politicians in Texas:

Although the immediate cause for the Democratic protest was the redistricting plan, the walkout was the culmination of what has been an extraordinarily venomous session of the Texas legislature -- and a milestone in a tectonic political shift in the state.

Republicans, who in January took control of both houses of the state legislature for the first time in 130 years, have used their new majority to push through a conservative legislative agenda using tactics Democrats regard as heavy-handed to the point of brutishness. On tort reform, school financing, home insurance and other issues, the GOP has pursued its agenda aggressively, refusing Democratic input in a state that has been run with a certain degree of bipartisanship in recent years.

A target of the Democrats' discontent has been new Republican House Speaker Tom Craddick. The longtime lawmaker has pushed for items on the GOP agenda with little regard for the Democrats' sensitivities. Congressional redistricting was the most contentious of those issues, and the final straw for many Democrats. "I'm not concerned if [redistricting] splits the House up," Craddick told the El Paso Times last week. "To be blunt, on the Republican side, the leadership has changed and so has the agenda."

He added that the redistricting bill would go to the floor, where "the fight will be loud, and the Republicans will win." The bill would carve up a number of congressional districts held by Democrats, in some cases creating bizarrely shaped boundaries connecting seemingly unrelated parts of the sprawling state, and slicing up neighborhoods. For instance, in Austin, a city of 678,000 and one of a dwindling number of Democratic enclaves in the state, a single downtown street would be divided into four congressional districts, one of them tortuously connected with the Mexican border about 300 miles away.


The flight of Democrats in Texas, I think, mirrors the current unhappiness in Washington over judicial nominations. Politicians resort to extreme measures when they feel that they can't really trust the party on the other side of the aisle.

Multiparty democracies like ours require trust between elites in opposing parties if democracy is to function effectively. When trust breaks down, the wheels of government grind to a halt, and bitter recriminations ensue.

I well understand that it takes two to tango, and that Democrats have contributed to partisan bickering. But I do think the causes of the current breakdown in trust are assymetrical. They lie in the astounding success of the conservative social movements of the 1980's and 1990's.

The contemporary Republican Party, which is currently dominated by its southern and western wings, has been effectively taken over these conservative social movements, which have brought the Party considerable electoral success in the past twenty years. Many members of these conservative social movements share the zealotry characteristic of true believers, and they are disinclined to compromise their principles. But a more important feature of the conservative social movements that have taken over the Republican Party, and by extention, American politics, is their taste for hardball politics and their fondness for authoritarian rhetoric and tactics. These authoritarian strains are, if anything, more important to understanding our current predicament than the ideological purity of Republican conservatives.

I realize that "authoritarian" is a strong word, but I will use it nevertheless, for it helps us understand the dynamic of American politics in the last two decades. As the Republicans have grown stronger, they have grown bolder, and more determined to have their way regardless of the consequences. Their rhetoric has become more fervent and exclusionary. Their disdain for their political opponents has grown more overt. They have perfected the art of smashmouth politics, believing, often accurately, that the Democrats don't have the guts to stand up to them. The feebleness of liberal responses to conservative attacks has emboldened hard right conservatives even more, and caused them to see liberal Democrats as not only wrong but also as servile, worthless, and unpatriotic. Their rhetoric, and their unwillingness to compromise, have ratched up accordingly. These trends have helped accelerate the breakdown of trust in Washington, and, if the story I quoted above is accurate, in Texas as well.

I have no essential objection to political hardball. It is part of the game of politics. And I believe that people should fight hard and long for the principles they believe in. I admire the perseverence and the principled behavior of social movements. I wish that the Democrats had some of the energy and zeal that I find in Republican politicians today. But I think that the right wing movements of the 80's and 90's, now having reached the pinnacle of power, have overreached. They have become so focused on winning, on grinding the Democrats into the ground and utterly destroying them, that they have begun to eat away at the foundations of cooperation on which multiparty government rests. Bullying your political opponents is not a one size fits all solution to what ails America. And if you keep on bullying people in politics, smearing them as unpatriotic fools, you will undermine the give and take that makes democracy possible.

Our country has been through bad scrapes before. I have no doubt that trust and bipartisanship accomodation can be restored. But I think things have begun to get out of hand. The fact that the Democrats have begun to fight back in the ways they have, resorting to extreme measures like judicial filibusters of lower court nominees in Washington, and fleeing the state in Texas, is a very bad sign. We can laugh about the legislators slipping out of Texas and being chased by Texas Rangers in Oklahoma. But the slow, destructive poison that has crept into our political system is no laughing matter.


Saturday, May 10, 2003

JB

Throwing in the Towel on Weapons of Mass Destruction

The Washington Post reports that Task Force 75, "the principal arm of the U.S. plan to discover and display forbidden Iraqi weapons," is winding down operations and preparing to leave Iraq next month, unable to find any weapons of mass destruction.


Leaders of Task Force 75's diverse staff -- biologists, chemists, arms treaty enforcers, nuclear operators, computer and document experts, and special forces troops -- arrived with high hopes of early success. They said they expected to find what Secretary of State Colin L. Powell described at the U.N. Security Council on Feb. 5 -- hundreds of tons of biological and chemical agents, missiles and rockets to deliver the agents, and evidence of an ongoing program to build a nuclear bomb.

Scores of fruitless missions broke that confidence, many task force members said in interviews.

Army Col. Richard McPhee, who will close down the task force next month, said he took seriously U.S. intelligence warnings on the eve of war that Hussein had given "release authority" to subordinates in command of chemical weapons. "We didn't have all these people in [protective] suits" for nothing, he said. But if Iraq thought of using such weapons, "there had to have been something to use. And we haven't found it. . . . Books will be written on that in the intelligence community for a long time."
...

Motivated and accomplished in their fields, task force members found themselves missing vital tools. They consistently found targets identified in Washington to be inaccurate, looted and burned, or both.


Even as Task Force 75 is winding down operations with little hope of finding weapons of mass destruction, the Administration is insisting that the search has just begun. In his statement of victory aboard the U.S.S. Abraham Lincoln, President Bush asserted that the search was only in its initial stages, with hundreds of sites to be investigated.

I well understand the need of the Administration to save face about coming up short in its major justification for sending American troops into combat. But at some point the Administration should feel some compunction to be more honest with the American public about what it is doing. It seems increasingly clear that the war in Iraq will have to be justified in hindsight for reasons other than the Administration said it would be fought. The justification will be the creation of a democratic republic in Iraq rather than stopping the threat posed by Saddam Hussein's weapons of mass destruction. It is unlikely that the public would have supported the war without the Administration's confident assurances that Hussein possessed weapons of mass destruction that someday would pose a threat to the United States. Those confident assurances appear to have been overconfident. As a result, the Administration is hoping that the fact of a decisive victory will paper over serious concerns about the honesty of its representations to the American people and the reliability of its weapons intelligence.



Wednesday, May 07, 2003

JB

Oh How I Love Them Frenchy Jokes!

Here's a great joke that's been making the rounds, and has been attributed to Tom Delay. I'm quoting a version courtesy of Eugene Volokh:


American to Frenchman: "Do you speak German?"


Frenchman: "No."


American: "You're welcome."


Come on, that's funny, guys.

And here's another one I'm sure you'll enjoy equally well:


Frenchman to American: "Are you a subject of Her Majesty the Queen of England?


American: "No."


Frenchman: "You're welcome."


Yes, I'm afraid its true. The Frenchies pulled our proverbial chestnuts out of the fire in 1778 when the Marquis de Lafayette arrived to whip our troops into shape, and France recognized our government and signed the the Treaty of Alliance and the Treaty of Amity and Commerce. Once France entered the war on the side of the Americans,
Great Britain was forced to defend the rest of its empire, fearing attacks in, among other places, the West Indies. They scattered their troops and resources, making them too weak to battle the Americans effectively in the colonies.

The French played a crucial role in the endgame too. By August 1781, Washington and Rochambeau (yes, a frog, if you are wondering) learned that a large French fleet under Admiral Francois de Grasse (zut alors, un autre frog!) was headed toward Virginia to prevent General Cornwallis from escaping by sea. That led Washington and Rochambeau to rush their forces southward to Virginia to trap Cornwallis on land. (In fact, although Washington had wanted to stay up north and attack New York, it was Rochambeau who convinced him that the best strategy was to turn south. Very devious, those frenchies!) By September 1781, Cornwallis knew his goose was cooked, as a combined French and American force of about 18,000 soldiers and sailors surrounded him at Yorktown. (Mon Dieu!) He surrendered on October 19, 1781. The treaty recognizing independence was not signed until 1783, appropriately enough, at Paris. However, during this period, the interests of the French and Americans began to diverge, (as they would so many times in the future) and the Americans negotiated a separate peace.


In any case, mes amis français, merci beaucoup! Je penserai à vous sur le 4ème juillet!




UPDATE: By the way, who exactly is this Tom De Lay guy, anyway? Is that a *French* name?

Better keep an eye on him.




Monday, May 05, 2003

JB

Were We Lied To?

Neil MacKay of the Sunday Herald reports:

The Bush administration has admitted that Saddam Hussein probably had no weapons of mass destruction.
Senior officials in the Bush administration have admitted that they would be 'amazed' if weapons of mass destruction (WMD) were found in Iraq.

According to administration sources, Saddam shut down and destroyed large parts of his WMD programmes before the invasion of Iraq.

Ironically, the claims came as US President George Bush yesterday repeatedly justified the war as necessary to remove Iraq's chemical and biological arms which posed a direct threat to America.

Bush claimed: 'Saddam Hussein had weapons of mass destruction. We will find them.'

The comments from within the administration will add further weight to attacks on the Blair government by Labour backbenchers that there is no 'smoking gun' and that the war against Iraq -- which centred on claims that Saddam was a risk to Britain, America and the Middle East because of unconventional weapons -- was unjustified.


Pauline Jelinek of the Associated Press tells the story a little differently:

In the American hunt for Iraq's banned weapons, drums of suspicious chemicals turn out to be crop pesticide; a cache of white powder is found to be explosives.

More than six weeks into the Iraq campaign, there has been a string of false alarms but no discovery of what the Bush administration said was its main justification for going to war chemical, biological and nuclear weapons programs.
....

"I'm absolutely sure that there are weapons of mass destruction there, and the evidence will be forthcoming,' Secretary of State Colin Powell said Sunday.

But after scores of fruitless searches, other administration officials privately have stopped promising that. Some now say that instead of finding weapons stockpiles, they might find nothing more than documents and other evidence that the program once existed and was either destroyed or abandoned.

"Politically, this could be a big problem,' said Paul Keer of the Arms Control Association, a Washington disarmament group. "If it turns out they ... exaggerated, people will say we attacked without justification some are starting to say that now.'

Before the war, administration officials did not just say Iraq had weapons of mass destruction, they also said they knew where some of them were.

In an unsuccessful bid for U.N. approval for the war, Powell showed the Security Council satellite photos and intelligence he said indicated weapons were being moved, and he named sites where he said chemical weapons were held.

"The intelligence community still stands behind that information. I do,' he said Sunday.

U.S.-led teams of military and civilian experts have reported finding nothing conclusive, however, after visiting most of some 100 sites that prewar American intelligence agencies said were the most probable hiding places. Hundreds more sites remain.

Expected intelligence from senior captured Iraqis who might have been most knowledgeable about the government's secrets is not materializing. One by one, they are insisting under interrogation that the government had no chemical, biological or nuclear weapons programs in recent years, U.S. officials say.

Pentagon officials said just days before the war that they had intelligence that chemical weapons had been distributed to some Iraqi military units. None has been found.
....

Arguing for patience, Loren Thompson of the Washington- based Lexington Institute noted that U.N. inspections struggled with Iraq for a dozen years and could not find all they were looking for.

"I don't think the expectation was that this stuff would be sticking out like a sore thumb,' he said. "I think eventually they'll find the weapons, but the important point is that the government that would have thought to use them against us is gone.'

Some critics maintain that is not the point at all. They say the question always has been not whether Saddam had weapons, but whether those weapons were a big enough threat to the United States to justify war.

"If the Iraqis did not use them ... to defend an invasion of their own country, when were they ever going to use them, and how were they a threat to the United States?' asked Cato Institute's Pena. "That's the question that has to be asked and is being glossed over.'


I must confess I did not much trust the Bush Administration's stated reasons for going to war, which were ever changing. Many Americans will simply take comfort in knowing that we won a swift military victory and elminated a despicable tyrant. Nevertheless, I can't help but think that if the Administration is proved wrong about its central justification for going to war, that does not inspire much confidence in their foreign policy. Either they lied to us, or their intelligence isn't very good. Neither alternative is acceptable. I for one don't particularly like being lied to about why my government is using deadly force. And I don't like my government going off to war if its intelligence is as incompetent as it would have to have been to avoid the conclusion that we were being lied to. At some point, I fear, either the Administration's dishonesty or its intelligence failures will catch up with it. That can't be a good thing.


UPDATE: Ken Fireman reminds us about the President's stated justifications for war:

On March 17, with war in Iraq just 48 hours away, President George W. Bush laid out in clear and succinct terms the rationale for the military action he was about to unleash.

"Intelligence gathered by this and other governments leaves no doubt that the Iraqi regime continues to possess and conceal some of the most lethal weapons ever devised," the president said in a televised address to the nation from the White House.

"This regime has already used weapons of mass destruction against Iraq's neighbors and against Iraq's people. The regime has a history of reckless aggression in the Middle East. It has a deep hatred of America and our friends. And it has aided, trained and harbored terrorists, including operatives of al-Qaida.

"The danger is clear. Using chemical, biological or - one day - nuclear weapons obtained with the help of Iraq, the terrorists could fulfill their stated ambitions and kill thousands or hundreds of thousands of innocent people, in our country or any other."


Fireman continues:

U.S. officials now acknowledge that Hussein may have destroyed or transferred at least part of his alleged arsenal before the war began. No new evidence has been uncovered on Hussein-al-Qaida links to buttress an administration case that many analysts have long regarded as tenuous. And an Iraqi army that Washington repeatedly portrayed as a major security threat to the region proved to be incapable of defending its own territory, let alone waging offensive operations against a neighbor.

This state of affairs has led some foreign affairs analysts to conclude that the Bush administration had something else in mind when it planned, organized and launched the war: a high-profile demonstration of American military might and the political resolve to use it that would reverberate through the Middle East and beyond, causing governments as near as Syria and Iran and as far away as North Korea to recalibrate their actions.
...

"I think the president and other senior officials were captivated by the neoconservative vision of a world transformed by American military power," says Joseph Cirincione, an arms control expert at the Carnegie Endowment for International Peace. "It promised a quick, dramatic improvement in U.S. national security, and control of a critical global resource, that the United States could do completely on its own without bothersome multilateral bodies."

The question, in the minds of Cirincione and other like-minded experts, is whether an administration determined to remove Hussein from power grossly inflated his military capabilities in order to sell its policy to the public.

"It was the only way to get the American people to go to war against Iraq," Cirincione said. "You couldn't get the American people to go to war to free the Iraqi people and overthrow an evil regime, because there are lots of evil regimes in the world. So they cited two reasons: that Hussein possessed weapons of mass destruction and Hussein had operational ties to al-Qaida.

"Neither appears to be true. I think this story is still developing. I think we're on the edge of realizing that this was either a massive intelligence failure - or a deliberate campaign to mislead the American people."


Say it isn't so, George, say it isn't so.


Sunday, May 04, 2003

JB

”High” Politics and Judicial Decisionmaking

Larry Solum rejects my distinction between high and low politics:

[T]he distinction between high politics and low politics .... [is a] conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics.

I think Larry has misunderstood the distinction I am making, which arises out of a larger theory of constitutional change that is intended as an alternative to my colleague Bruce Ackerman's. I am certainly not claiming that there is only politics in legal decisionmaking. Plenty of legal decisiomaking could not be so understood. Rather, I am trying to give an account of how opposed political visions legitimately operate in the context of *legal* decisionmaking, and what sort of political motivations should be viewed as inappropriate. The notion of “high politics” helps us understand how constitutional doctrine changes over time in relatively predictable ways given the appointments process and the changing personnel of the courts.

It’s very hard for me to separate *in practice* lots of Supreme Court decisions that are “based on the law” from those that are “based on high politics,” where by “high politics” I mean the invocation of larger visions about the key values that should underlie our understanding of the Constitution. This is not a claim that there is no difference between law and politics. That is certainly not my view. Rather it is a claim about how we characterize legal decisionmaking in the sorts of complicated and controversial cases that appear before the courts, and particularly the Supreme Court of the United States.

Decisions come before the Supreme Court because, for the most part, the Court is being asked to decide difficult legal questions for which there are a number of plausible legal solutions that make use of the familiar modalities of text, history, structure, doctrine, non-judicial precedents, consequences, and appeals to the ethos of the nation. Not every solution is equally plausible, but in most cases that come before the Supreme Court there is usually more than one way to decide the case consistent with the existing norms of legal argument. You and I might think that one solution is clearly better than all of the others, but very often (especially if you have views about the Constitution like mine) that solution is not the one chosen by the Court, and the solution the Court does choose becomes law nevertheless, and you have to deal with it in succeeding cases.

Now which solution seems to you or me to be most persuasive as a *legal* matter may have something to do with our constitutional politics– our views about the political principles and values that we think the Constitution read in its best light espouses– and our views about how those principles and values should be applied to the facts of the case as we understand those facts. As Justice Frankfurter once put it, a lot depends on the pictures of the world inside a judge’s head when a judge makes a decision. We can call those pictures ideology, or political or moral beliefs, or whatever you like. But the point is that people have them, and they influence how they see the world, and what is good and bad in it, and what could be improved in it, and also the best way to read and interpret the basic law of our nation, our Constitution.

When these pictures inside our heads, our ideology, our constitutional vision, frame what we think is the best understanding of our Constitution, which they inevitably do, should we regard this decisionmaking as not really “based on law” but instead secretly “based on politics?” It is very hard for me to accept that duality. Rather, I think that if you put someone on the bench, and ask them to take an oath to uphold the Constitution of the United States, and find the best *legal* solutions to questions of law, using the traditional modalities of text, history, structure, etc., you will simply get different answers to lots of important constitutional questions (but hardly all or hardly even the majority of such potential questions) depending on what Frankfurter called the pictures inside their heads. I don’t think this is a radical view about the relationship between politics and law. Indeed, I think it is just common sense.

Now the point of the distinction between high and low politics is that we *expect* that judges will promote their visions of what the Constitution means and should mean as they wrestle with the legal issues before them, and that it is not surprising that if you appoint nine conservative jurists to the Supreme Court of the United States that the constitutional law they produce will, in time, look significantly different than the constitutional law that would be produced by a Court staffed with nine liberals. But this does not mean that either of these hypothetical benches is necessarily deciding according to politics but not according to law. It just means that people disagree about what the best meaning of the Constitution is, and they tend to promote their favored view in *legal* argument, and, if they are Justices, write those views into law, where they become the doctrinal substrate for future decisions.

It is important to recognize that this is not a claim that the law is radically indeterminate. Quite the contrary: It assumes that the law (even Constitutional law) has pervasive elements of relative determinacy to it. Why is that? Because if the law were so indeterminate, there would be no point in fighting to put liberals or conservatives on the bench in order to move the law in a particular direction that would bind future jurists. The reason why it matters who sits on the bench, paradoxically, is that the law is only partially, or modestly underdetermined from the standpoint of existing legal norms of practice. The content of a case like Roe or Miranda, or Croson, or Alden v. Maine actually matters. It matters a lot.

Furthermore, it is important to recognize that a lot of what judges do is not simply following the rules laid down, in Mark Tushnet’s phrase, but rather involves doctrinal innovation. Courts make up new distinctions and doctrines to solve problems. These distinctions and doctrines are genuinely new in the sense that you couldn’t have easily derived them from previous doctrinal structures, much less from history, structure, text, and original understandings. Examples are the direct/indirect distinction in early 20th century commerce clause cases, the rejection of this distinction and the creation of the substantial effects test and the cumulative effects test in Darby and Wickard, the “congruence and propotionality” test in Boerne, the actual malice rule in New York Times v. Sullivan, the “public figure” doctrine as developed in later cases, the public forum doctrine, and so on. Indeed most of constitutional law is made up in this way at one point in time or another. It does not come from the text, history, and structure, but is creatively produced and inserted into doctrine in order to articulate and realize deeper constitutional values. These innovations are crucial in shaping the later development of constitutional law. And it is simply the case that people with different pictures in their heads, different ideologies, different visions of constitutional politics, will innovate in different ways. Justice Sutherland, for example, would not have come up with the “substantial effects” test; Justice Scalia, one suspects, would not have come up with the “endorsement” test in Establishment Clause cases, much less the three pronged test of Lemon v. Kurtzman.

To make a distinction between high and low politics, then, is to make a distinction about the relationship of ideology to the work of legal decisiomaking. It is ok for a judge to say, “I decided this case this way because I believe in decentralization as a principle that underlies our Constitution,” or “I am deeply suspicious of the ability of schoolboards to keep religious practice out of the public schools if they are given this degree of discretion,” or even “I think that gay people have a right to form intimate relations with those they love just like everybody else.” If one reads the conference notes of members of the Surpreme Court in decisions, this is precisely how they talk amongst themselves in explaining how they decide cases. It is ok for judges and Justices to have constitutional politics, to have larger visions of what the Constitution means or should mean and what rights Americans have or should have. That is what I mean by “high politics,” and there’s nothing wrong with judges having such views.

If what I have said is correct, then it is very difficult for Larry to insist, as he appears to do that Court’s shouldn’t be making decisions based on high politics, but just ones “based in law.” I don’t know how to parse that distinction. And anybody who pays careful attention to how Constitutional law actually changes over history, in countless doctrinal areas, can’t make sense of it either. Constitutional law changes over time because of the influence of high politics, which is worked out through legal argument, not outside of it. And we should just get used to that fact. Like the old joke about baptism, I not only believe in it, I’ve seen it done.

The description of Bush v. Gore as “low politics” is a claim that the decision cannot be understood as the fulfilment or promotion of a larger constitutional vision, but rather is a fairly transparent attempt (in the stay and remedy portions of the two Bush v. Gore opinions) to manipulate doctrine in order to place George W. Bush in office. I will repeat what I said before: By now most people understand that judges pursue “high politics” through their legal arguments. What they are not supposed to do is pursue is “low politics” in the sense of manipulating doctrine to secure advantages for their favorite political party. That is not simply because “low politics” is bad politics. It is because it is also bad legal decisionmaking. It is inappropriate to the judicial role in the way that the pursuit of “high politics” is not.

Larry seems to think that my use of the “high politics/low politics” distinction means that there is only politics and no law. I take issue with that characterization. I think that the distinction captures what we mean by decisions according to law where people disagree about constitutional values and doctrine is moderately underdetermined. High politics is the great engine of constitutional change. It is inextricable from the life of our Constitution. It is the explanation of the great doctrinal transformations that we see in history of constitutional doctrine, and, I would submit, the explanation of the conservative constitutional revolution we are living through now. I disagree with that constitutional vision. I think that the doctrinal innovations of the conservative five are ill-considered and false to the best interpretations of our Constitution. But I don’t think that judges should refrain from pursuing deeply held constitutional visions in the development of constitutional doctrine through legal arguments. Quite the contrary: that is their job.


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