JB

I have been spending two very pleasant days in Auckland, New Zealand, and am about to travel to Sydney, Australia, where I'm going to give a lecture on Democratic Culture and Digital Speech on Thursday.

The basic idea is that the Internet makes particularly salient features of freedom of speech that must now be central to any robust theory of freedom of expression.

Freedom of speech is interactive and appropriative; it involves continuous exchange and influence between people and it builds on cultural materials that lay to hand. Even dissent builds on what it critiques.

Freedom of speech is important and valuable because it promotes a democratic culture, which is the fair ability of everyone to participate in the processes of meaning making and cultural production that, in turn, help shape and constitute them as individuals.

The focus on democratic culture is far broader than a concern with democratic governance or democratic deliberation-- the most prominent free speech theories of the twentieth century. And it emphasizes liberty, popular culture, and popular participation in culture far more than theories of democratic deliberation tend to do.

More about this in the days ahead.

JB

The Washington Post reports that the Bush Administration was warned in October that attacking Saddam might make the country less safe, not more. Although Saddam was unlikely to give chemical or biological weapons to terrorists unprovoked, he might do so if attacked by the United States:

[D]eclassified portions of a still-secret National Intelligence Estimate (NIE) . . . which began circulating Oct. 2, shows the intelligence services were much more worried that Hussein might give weapons to al Qaeda terrorists if he were facing death or capture and his government was collapsing after a military attack by the United States.

"Saddam, if sufficiently desperate, might decide that only an organization such as al Qaeda, . . . already engaged in a life-or-death struggle against the United States, could perpetrate the type of terrorist attack that he would hope to conduct," one key judgment of the estimate said.

It went on to say that Hussein might decide to take the "extreme step" of assisting al Qaeda in a terrorist attack against the United States if it "would be his last chance to exact vengeance by taking a large number of victims with him."

The declassified sections of the NIE were offered by the White House to rebut allegations that the administration had twisted prewar intelligence on Iraq's nuclear weapons program. The result, however, could be to raise more questions about whether the administration misrepresented the judgments of the intelligence services on another basis for going to war: the threat posed by Hussein as a source of weapons for terrorists.

The NIE's findings also raise concerns about the dangers posed by Hussein, who is believed to be in hiding, and the failure to find any of his alleged stocks of chemical and biological weapons. If such stocks exist, a hotly debated proposition, this is precisely the kind of dangerous situation the CIA and other intelligence services warned about last fall, administration officials said. A senior administration official said yesterday that the U.S. intelligence community does not know either "the extent to which Saddam Hussein has access or control" over the groups that are attacking U.S. forces, or the location of any possible hidden chemical or biological agents or weapons. Asked whether the former Iraqi leader would today use any chemical or biological weapons if he controlled them, the senior official said, "We would not put that past him to do whatever makes our lives miserable."

The official said the judgment of last fall's intelligence estimate -- that a desperate Hussein, in hiding and with U.S. troops searching for him in Iraq, could turn to al Qaeda -- "had not been supplanted."

It speaks volumes that in order to rebut charges that it deliberately misled the public about the use of intelligence, the Administration must make public documents (which it released this Friday) that suggest that members of the Administration had tunnel vision. Again and again we have seen the Administration refusing to admit unpleasant facts about its little adventure in Iraq: the cost of the war, the number of troops necessary to secure the peace, and the length of the subsequent occupation. We now discover that it also refused to consider secret intelligence warning that the war would actually undermine the War on Terror by leading to the proliferation of weapons of mass destruction and their distribution into the hands of terrorists.

The question that emerges most strikingly is this: Did the members of this Administation deceive the American people about the war or were they simply incompetent to run the Nation's foreign policy?

JB

Terry Neal's column in the Washington Post describes the contortions that pro-War Democrats like Kerry, Edwards, and Gephardt have been going through as the country becomes more and more fed up with the Administration's misleading justifications for the war, the failure to find weapons of mass destruction, the mounting costs of occupation and the prospect of fighting what looks to be a protracted guerrilla war:

Simply put, with anger among the party's base off the charts about the basis for going to war, the pro- war candidates can't afford to not challenge the president.

Many grass-roots Democrats were questioning the administration's assertions about the threat posed by Iraq long before the White House acknowledged last week that it should not have included the Iraq nuclear assertion in the president's State of the Union speech. War opponents questioned the administration's claims about Hussein's links to al Qaeda, Iraq's ability to launch a quick strike against U.S. allies in the region and the Iraqi government's alleged attempts to purchase high-strength aluminum tubes to be used as centrifuges for enrich uranium. . . .

But the pro-war Democrats can't backtrack too far. In choosing to support Bush last fall, the four candidates decided to accept the administration's reasoning over the doubts of many in the party. To switch gears now would be to acknowledge that they should not have done so.

With Vermont Gov. Howard Dean surging, it's clear that he is being rewarded at least in part for his consistent stance against the war. In forums in Iowa and New Hampshire, the war issue has become an even hotter topic in recent weeks, with voters pressing some of the pro-war candidates to reconcile the growing doubts about a key reason for going to war with their votes on the matter.

Therefore any Democrat (and indeed any Republican) who voted for the war on the President's assurances that Iraq was a threat should be given the opportunity to say: I was wrong and the President misled the country. There is no shame in having been deceived by a bad leader. There is only shame in refusing to admit your mistake and failing to have the courage to denounce bad leadership that is harming the country.

Nevertheless, we did invade Iraq, and we have taken over the country, and so Democrats who supported the war and Democrats who opposed it must stand for a just solution in Iraq. That means spending the money necessary to put the country back on its feet. It also means coming out strongly for a multilateral approach to the reconstruction of Iraq. And thus, it also means going to the United Nations and securing a resolution that allows countries who opposed us on the war to help us in cleaning up the mess that the Administration has created. We will have to swallow our pride a little bit, but not very much. For once Bush and company are out of the White House, I suspect that for most countries in the world-- and particularly France and Germany-- it will be back to business as usual. They can distinguish between a foolish Administration and the United States of America. Bush has lost credibility around the world, but members of a party not tainted with his dishonesty can repair the mess he has created.

So the Democratic position can be stated clearly and simply:

(1) Bush is a bad leader who got us into an unnecessary war, deceived the public, and is mangling the occupation.

(2) We are in Iraq for the long haul and let's make the best of it. We cannot abandon the Iraqi people and we should try to live up to our own ideals.

(3) We need the support of the international community to succeed.

(4) As long as Bush is in the White House, things will only get worse, because the rest of the world does not trust him or his Administration, and he has lost credibility with the very people we need most.

(5) Only the Democrats have the credibility with the rest of the world to succeed in Iraq. They have a long history of support for internationalism. They are the party best suited to succeed given our current position.

Finally, the Democrats should point out that the war in Iraq has proved to be a distraction from the War on Terrorism, and, indeed, if the weapons of mass destruction are now missing because they were looted and fell into the hands of terrorists, then the war has been not only a distraction but a serious setback. The United States should recommit itself to winning the war on terror, by making necessary investments in homeland security (which were actually left out of Bush's budget), by increasing support for military personnel (also, amazingly cut out of Bush's budget). The more the American people learn about how little the Administration really has invested in combatting terrorism, the better the Democrats should look; Democrats have a long history of supporting investments in infrastructure necessary for government to achieve its goals; they can and should argue in the spirit of that tradition of wise government investment that we need to spend the money necessary to make our country safe.

If Kerry and the other pro-war Democrats would simply admit that they made a mistake, they would actually have a much stronger position on foreign policy than the Administration does. They would be standing for something-- internationalism, a just solution in Iraq, and a renewed recommitment to winning the War on Terrorism-- rather than simply complaining.

JB

The New York Times reports that members of the Bush Administration, realizing they badly underestimated the costs of securing the peace, are now reaching out to the U.N. for assistance in stabilizing and rebuilding Iraq.

With the costs of stabilizing Iraq hovering at $4 billion a month and with American troops being killed at a steady rate, administration officials acknowledge that they are rethinking their strategy and may seek a United Nations resolution for help that would placate other nations, like India, France and Germany.

Administration officials contend that they are being practical, but within their ranks are policy makers sharply critical of the United Nations and those who would consider it humiliating to seek its mantle after risking American lives in the invasion that ousted Mr. Hussein. . . .

The discussions reflect a growing sense that the reconstruction of Iraq will require a new international alliance. For all their rapid success in the military phase, the American-led forces are struggling to establish stability and normalcy in Iraq. A Pentagon advisory panel that just returned from Iraq reported a pressing need for international assistance.

Even supporters of the administration's policy say its efforts are in jeopardy, and minute military planning gave way to disarray once the major combat ended.

"It's increasingly clear there was really some underestimation of the number of people who would be required after the regime fell, and the length of time required to stay there," said Paul Saunders, director of the Nixon Center, a nonpartisan research organization whose honorary chairman is Henry A. Kissinger.

Why didn't the Administration listen? It is a combination of hubris and arrogance on the one hand, and on the other, an almost visceral hatred and contempt for international organizations like the United Nations, which were seen as hindering American ambitions and undermining American sovereignty.

It is time to put those prejudices aside. Having taken over Iraq, we cannot now abandon it. We must do what it takes to secure a stable regime that will not become a hot bed of terrorism or a continuing rebuke to American foreign policy. The war on Iraq did not make America safer, but having started the war, we must now make the best of it. We will need the U.N.'s help.

JB

It's official, the war is not over. It has turned into what Gen. John P. Abizaid, commander of allied forces in Iraq, calls "a classical guerrilla-type campaign" whose fighters, drawn from Saddam Hussein's most unyielding loyalists and foreign terrorist groups, are increasingly organized. The United States will have to keep a large number of troops in the country for the foreseeable future, at the cost of billions of dollars. In case you are wondering, the Bush Administration also revealed yesterday that the deficit is predicted to be 455 billion dollars, by far the largest in the country's history. And with a weak economy, and continuing military obligations in Iraq and Afghanistan, matters are not likely to improve anytime soon.

I was a war skeptic, and one of the reasons for my skepticism was that I thought that winning the peace would be more difficult than winning the war. Let me repeat what I said in January:

But before going to war, you must ask: How many casualties are likely to your people and to the other side, and what collateral consequences will occur? How will this affect your strategic situation, five, ten, twenty years from now? While the war with one enemy is going on, what will your other enemies do in response while you are preoccupied? If you do manage to win, how long will you have to occupy your former enemy’s country? How much will the occupation cost? What new wars and conflicts will your occupation provoke? If you don’t ask these sorts of questions, you are just being foolish. This is exactly what the great military strategist Sun Tzu said two thousand years ago. He who reduces uncertainty before going into battle wins, he who embraces uncertaintly loses. That is what I meant by my previous post. The problem is that right now we are not reducing uncertainty. We are embracing it.

There is some evidence that the war with Iraq will not be as painless or quick as the President hopes, but put that aside. Even if the war is painless and quick, as I hope it will be, there is good reason to think that the occupation following the war will be particularly difficult and complicated. Jim Fallows has offered a good summary of the problems, and I recommend it to Gary and to anyone else who is interested. I don’t think one can make a decision about going to war without taking these issues into account. I fear that the Bush Administration is not being sufficiently realistic about these issues. I think there is a lot of wishful thinking going on about about American invulnerability, and about America's ability to remake Iraq any way it wants.

The Administration has been boastful, arrogant, and reckless. It has been reckless with the American economy, through its dogmatic insistence on greater and greater tax cuts. It has been reckess with foreign policy, by refusing to swerve from its policy of attacking Iraq, exaggerating the nature of the threat, dissembling about the real reasons for war, and refusing to explain in any honest fashion how long the war would cost and how long the occupation of the country would last. Now its recklessness in the latter arena is compounding its recklessness in the former. For the Administration is well on its way to seriously compromising both the domestic economy and its foreign policy goals.

In both cases, the Administration's strategy has to been to entangle the country in a policy that, once begun, will be difficult to undo. The tax cuts are politically difficult to undo, for any attempt to restore fiscal discipline will be met with outraged cries that the government is raising taxes, whether that accusation truly makes sense, given the strange way the tax cuts were actually structured. Perhaps equally important, by invading Iraq and taking it over, we have made it very difficult, if not impossible for ourselves to leave soon. For if there is chaos now, there is sure to be even more chaos if we abruptly depart.

What is most galling, I think, is that although the Administration's tough talk was designed to make Americans feel that they were being made safe in the wake of 9-11, it is clear that the Administration's policies have not made the country safer. The economy is sliding downhill. Insufficient funds have been appropriated for homeland security. The failure to find weapons of mass destruction may demonstrate not that the weapons were never there, but that they were smuggled out of the country and into the hands of terrorist groups during the chaos that came with the war. This is, of course, something that the Administration was repeatedly warned about, but which it dismissed, just as it dismissed the costs of the war, and the length of the occupation that would inevitably follow it. But wishful thinking of this sort does not make Americans safer from the threat posed by 9-11 or the war on terror in which we now find ourselves.

Being a decisive leader is not the same thing as being a good leader. Decisive action may make a person appear tough and principled, but it may just be a cover for recklessness, stubbornness and the refusal to listen to reason. These are characteristics that leaders can do without. For that sort of leadership, willfully blind to consequences, engaged in wishful thinking, and disgusing its real motives, may cause enormous problems for the country down the road. I have long believed that this President, and this Administration, are not providing strong leadership, but rather reckless leadership. That recklessness is becoming more apparent every day, as the economy worsens, the deficits soar, and more and more Americans die in a war that the President stated was officially over as he strutted like a popinjay up and down the deck of the U.S.S. Abraham Lincoln. Good government is not a crap shoot, nor is it best achieved through bluffing. It is a sign of the President's failure of leadership that all he has to offer now is what he has always offered-- tough talk, vague generalities, and attempts to change the subject. Such forced machismo rings increasingly hollow as the casualties mount, the predicted duration of occupation lengthens, the forces necessary to our self-defense are stretched to the breaking point, and the long term economic health of the nation is endangered by a massive redistirbution to the wealthy and the powerful.

America deserves a better government than this.

JB

There has been considerable discussion about Justice Scalia's accusation that the Lawrence majority had signed on to "the so-called homosexual agenda." I believe what has irked some people is that the expression "the homosexual agenda" has a history. It is a form of code often used by Jesse Helms and other social conservative politicians to whip up resentment against moderates and liberals who support gay rights. The use of the term "homosexual agenda" has been a shrewd way of intimating without overtly stating that people who supported gay rights were somehow disloyal to the country (like the hidden communist agenda) because they were assisting in the destruction of America by destroying its moral fibre, or extremist, because they supported a deeper, hidden agenda whose real goals cannot be openly announced and are instead disguised in the plausible sounding garb of equal rights.

Here's a representative quote from Sen. Helms in support of a bill he introduced to roll back President Clinton's executive order prohibiting discrimination against gays in federal employment:

Mr. President, for many years the homosexual community has engaged in a well-organized, concerted campaign to force Americans to accept, and even legitimize, an immoral lifestyle. This bill is designed to prevent President Clinton from advancing the homosexual agenda at the expense of both the proper legislative role and the free speech rights of Federal workers.

From the standpoint of constitutional theory, what is interesting here is the extent to which such rhetorical appeals have any place in a Supreme Court decision. If Justice Scalia began speaking in code in a case involving race relations, one assumes he would be roundly condemned. But the social movement for gay rights has not won out in the same way that the Civil Rights Movement has. (As Trent Lott recently learned. Remember that Lott also said that gays were mentally ill like kleptomaniacs, and he wasn't thrown out of the Senate Majority Leader's position for saying *that.*).

If, as I suspect, in the long run, homosexuals are going to gain legal protection by legislatures and courts from most forms of discrimination, Scalia's accusation that the Court is marching to the tune of the homosexual agenda and Lott's equation of homosexuality with kleptomania will take on a very different cast for future generations. In the meantime, however, my prediction is that we are going to see a lot more code talk about gay rights in the future precisely because gays are gradually winning the battle for equal rights, and so the most overt forms of name calling and hate mongering won't be permitted. It will no longer be permissible to call Barney Frank "Barney Fag," as former House Majority Leader Dick Armey once did. Rather politicians will have to say that Representative Frank has worked all his life to promote the radical homosexual agenda that is slowly destroying America from the inside.

Finally, although many people are quite annoyed at Scalia's reference, my own view of what Scalia was doing is that he was simultaneously using this form of code and distancing himself from it through irony. He is well aware of what the words "homosexual agenda" mean when they are invoked by social conservatives. That is why I think he used the prefix "so-called."

JB

Will Baude, who runs Baudesblog, asks how far back the practice of federal courts citing to international authorities runs. Is it just a new idea beginning with Atkins v. Virginia and Lawrence v. Texas, or does it go further back?

The answer is that the practice of American courts, and in particular the Supreme Court, citing to "the law of nations" goes back to the very beginnings of the country's history. If you think about it, you can see why this would have to be the case. When the country was first founded, it had very little law of its own, and, moreover, it was also a naval power continually engaged in international commerce. Go to Lexis and/or Westlaw and plug in "law of nations" and date pre 1900 in the Supreme Court library. You'll get scores (actually hundreds) of Supreme Court decisions referring to international law. Following World War II there was also an increasing number of international organizations, and thus more international law, which the Court also refers to.

Here, for example, is an early discussion of the law of nations by Chief Justice John Marshall in 30 Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cranch.) 191, 198 (1815):

The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a s[e]ries of judicial decisions. The decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the Courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this.

Thus, for those who think that citation to international sources is somehow inconsistent with the genius of the American Constitution, the hallowed practices of the founding generation, or the authority of the American Constitution and our country's devotion to the Rule of Law, I say, take it up with John Marshall.

And for those of you who are interested in further legal niceties, there is currently an interesting debate in the legal academy about the extent to which customary international law should be recognized as part of federal common law, in which two very fine scholars, Curtis Bradley and Jack Goldsmith have criticized the standard view that customary international law forms part of federal law. See Curtis A. Bradley and Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997). I am concerned here only with the more narrow question of whether the Supreme Court may look to international law and to the decisions of foreign courts as persuasive authority, rather than as part of federal law. Even if Bradley and Goldsmith are correct that some elements of customary international law should not be regarded as part of federal common law, the practices by federal courts and the Supreme Court for well over two centuries of looking to foreign decisions, international law, and treatises on international law as persuasive authority would not be affected.

JB

In a column at NRO online, Quin Hillyer bitterly denounces Justice Kennedy's citation of a 1981 decision by the European Court of Human Rights, Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981), in his majority opinion in Lawrence v. Texas:

There you have it: The values of Europe, and the decision of its (misnamed, borderline anti- Semitic) Court of Human Rights, are deemed somehow relevant for American constitutional jurisprudence.

On one level, Anthony Kennedy's line of reasoning should be familiar to American youngsters and parents nationwide. It's not much more than a gussied up version of "Johnny's mommy lets him do it, so why can't I?" (Or, more precisely, if Johnny can do it, shouldn't Billy's mom let him do it too — and by extension, if Billy's mom lets him do X, shouldn't I be able to do Y?)

But on a deeper level, the citation borders on the subversive. If the authority of extra-national courts is held to be even partially dispositive in the United States (especially without a formal treaty yielding a specific measure of American sovereignty on a particular issue), then the same foreign authority cited in supposed defense of liberty could be cited to take an American individual's liberty away. . . Unable to find clear authority in the U.S. Constitution for its raw exercise of judicial will, the Kennedy majority looked to a foreign source for justification. But any American with native intelligence can see that down that road lies alienation from our country's rule of law.

I don't find Hillyer's fears or his objections very plausible. There's nothing in American constitutional jurisprudence that prevents American courts from looking to the decisions of other courts, any more than they are prevented from citing treatises, or law review articles, or, for that matter, learned books written in foreign languages. American courts, including the Supreme Court, have done this from the country's inception. No loss of sovereignty is involved in citing such cases, because the cases are what lawyers call persuasive authority rather than controlling authority.

Within our federal system, state courts routinely cite decisions of other state courts on common law issues (or interpretations of uniform acts or statutes that are roughly similar between states). They well understand that these decisions are not controlling. State A's common law is not binding on State B's. More to the point, interpretations of State A's statute are not binding on interpretations of State B's similar statute. Within the federal judiciary, decisions of one circuit are not binding on those of other circuits. Nevertheless, courts look to what other courts have decided for guidance, even if they ultimately reject those decisions. Why? Because there is some advantage to considering how other judges in similar positions facing similar problems have handled a particular issue. It helps to know what they have decided, and often equally important, why they decided it that way.

Yet, one might object, what if courts in Europe take positions that are at odds with cherished American liberties? For example, many countries around the world have restrictions on free speech that are inconsistent with American free speech law. What is to stop American courts from citing those decisions? Well, nothing prevents an American court from citing such decisions, but citing such a decision does not make it convincing to other judges, nor, more to the point, does it make the decision controlling legal authority. Judges often cite law review articles or treatises for positions inconsistent with existing doctrines, (and other judges cite contrary law review articles and treatises) but that doesn't mean that judges have to follow what the law reviews or treatises say unless the judges are convinced by their reasoning. In like fashion, judges are free to reject or completely ignore the decisions of foreign courts if they think that they are irrelevant or unconvincing. That is precisely what circuit courts do with decisions by other circuit courts they disagree with, and state courts do with decisions by other state courts they think are wrong. That's what it means for authority to be merely persuasive rather than controlling authority. (Perhaps Hillyer is worried that American judges will read these foreign court opinions and become convinced by them. If that's his real worry, I think there is a long list of law reviews and treatises he should keep out of their hands as well, not to mention books, movies and television shows.).

Hillyer might resent judges using foreign court decisions to support liberal causes he thinks are inconsistent with the best interpretation of the Constitution. But there is no reason why Justice Scalia or other conservative jurists couldn't cite other constitutional courts as support for positions they happen to admire. And, in the long, run, I suspect that this is exactly what will happen, once people get over the shock of seeing foreign court opinions cited: Decisions by various foreign courts will be cherry picked and cited by both sides of a dispute selectively to make their points, just as law review articles and treatises are cited.

I strongly suspect that the reason why Justice Kennedy picked the European Court of Human Rights is because it agreed with a position he otherwise supported, and because he regarded it as a respected court. It is very doubtful that he would cite with approval a court that he didn't agree with, or one that he thought was from a country with a long history of human rights abuses, because that would undermine the citation's persuasive authority. Here again, citiation of foreign court decisions seems to me very much like the way that judges currently cite law reviews or treatises. They cite them if they agree with them, or to underscore particular points in an argument they are making. They do not, and cannot cite them as controlling authority.

Presumably Hillyer accepts the practice of cross citation between American courts, and the use of treatise and law review articles as persuasive authority. Nevertheless, he insists that there is something insidious, or as he puts it, "subversive," about looking to the decisions or the reasoning of a foreign court. Unless he is merely engaged in a xenophobic rant against all things not truly "American," I cannot see why this should be so. Countries outside the United States also have laws and constitutions. They also have judges, many of whom were trained in or have familiarity with common law modes of argument. Many many others have been deeply influenced by American constitutionalism, which is one of our most lasting legacies to the world. American constitutional ideas shaped the formation of post-World War II constitutions around the world, which, in turn, innovated on American models and synthesized them with parliamentary ideas. It is hardly surprising that American lawyers might be curious about the forms of constitutional argument that have grown up in the past half century. We planted seeds years ago in many other lands that have now borne fruit. Americans can hardly take credit for all of these innovations: The Canadians and South Africans, to name only two, would surely disagree. But America played an important role in inspiring much of the constitution making that followed the Second World War, and we should not disdain the experiences that might be gleaned from it.

Indeed, it is quite commonplace these days for constitutional courts around the world to cite the decisions of other constitutional courts, including the American Supreme Court, as persuasive rather than as controlling authority. Nobody believes that these citiations somehow deny these countries their sovereignty or undermine their constitutional systems. (Hillyer does not explain why frequent citation of American Supreme Court decisions by other counties' constitutional courts has not destroyed their constitutions and made them mere appendages of America). For the past half century, constitutional courts in Canada, Europe, Asia, Africa, and Australia have looked at what other constitutional courts around the world are doing in an effort to learn from each other as well as to avoid each other's mistakes. They have created a rich conversation about constitutions and constitution making. Here too they were not original; for the American Framers-- particularly James Madison-- undertook a deep study of the constitutions of the past and present when they began their deliberations in Philadelphia. That sort of interest in what other people are doing is not loss of sovereignty. It is wisdom and common sense.

The citation in Lawrence is quite modest when you compare it to what other constitutional courts are doing. All that Kennedy wanted to establish is a minor point: If Bowers is premised on the idea that homosexuality is inconsistent with Western values, (Chief Justice Burger's claim), or on the notion that any argument for homosexual rights "is, at best facetious," (Justice White's claim) we might look to see what other Western countries and constitutional courts have done. They are not American courts, to be sure, but they give some evidence of what Western values are and what is a reasonable as opposed to a facetious claim about liberty, just as decisions by state courts in the United States give some evidence.

What is remarkable is the degree of upset this modest citation has produced, of which Hillyer's op-ed is only one example. I wonder whether this upset is about something other than a desire to protect American sovereignty, for, as I have pointed out, that sovereignty is in no danger from the use of persuasive authority by foreign sources, any more than it is endangered by the citation to law reviews and learned treatises. What I think is going on is a certain visceral fear of something un-American creeping into the discourse of American constitutionalism. This is hardly the first time such xenophobia and No-nothingism have arisen in American history. Nor is it the first time that the purity of the American Constitution and American sovereignty have been defended by sanctimonious self-appointed champions against the poisonous ideas and tendencies of dreaded foreigners. It arises everytime people feel confronted with change. They strike out at that change by blaming it on something un-American.

The irony, of course, is that the American constitutional and legal system has never been so pure as its defenders believe. We have assimilated many different ideas into American law in the course of our history (many from Europe, I might add), and we remain a proud and free people. Indeed, Americans' ability to draw on ideas from all around the world, synthesize them and integrate them into our lives and our institutions is one of the abiding features of American ingenuity and one of the abiding strengths of American law. Something tells we that we will survive the occasional citation of a European court.

JB

Brad Delong reprints the famous memo that William Rehnquist wrote when he was a clerk for Justice Robert Jackson in 1952. The Court was considering Brown v. Board of Education and related cases (which were carried over to the next Term). Rehnquist argued that states should be permitted to retain Jim Crow laws, and argued against overturning Plessy v. Ferguson, which he contended was correctly decided. At his confirmation hearings, Rehnquist stated that the memo reflected Justice Jackson's views, not his own, but the weight of the evidence seems fairly strongly against this. That suggests that Rehnquist may have given false testimony before the Senate in 1971, but hey, why should that matter?

In any case, Delong finds a number of statements in the memo puzzling. Here is one of them:

To the argument made by Thurgood Marshall [in Brown v. Board of Education] that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are. One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind--whether those of business, slaveholders, or Jehovah's Witnesses--have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men.

In fact, Rehnquist is competely right that majorities determine the constitutional rights of minorities. They do so through Article V amendments, through the passage of civil rights bills, and, equally importantly, they do so through their influence on the Supreme Court. As political scientist Robert Dahl pointed out many years ago, the Supreme Court is part of the national political coallition, it does not sit outside it; and it is heavily influenced by national political forces. Both what we call judicial restraint and judicial activism can and do serve the purposes of national elites and the dominant political coallition in the country. What Rehnquist did not understand is that although majorities do determine what rights minorities have, it does not follow that the Supreme Court should not protect minority rights, because it is part of the majority that runs the country.

Scot Powe's recent history of the Warren Court shows, I think, rather convincingly, that the Warren Court was neither the fearless judicial hero of liberal mythology or the judicial bogeyman of conservative mythology, a lone actor single handledly remaking American according to its own sense of justice. Instead, the Warren Court was working hand in hand with the dominant political forces of its time-- in the 1960's' the Cold War Liberalism of the Kennedy and Johnson Administrations. The Warren Court imposed national political values on Southern states, followed Congress's lead in civil rights policy, and (with a few exceptions) generally deferred to Congress. For example, although Brown was decided in 1954, the Supreme Court doesn't really get serious about desegregation of the South until after Congress passed Title VI of the Civil Rights Act of 1964, threatening to withdraw federal funding from southern school districts that did not desegregate. Much of the Court's work on protecting the poor either follows or is contemporaneous with Johnson's War on Poverty. And, as the dominant forces of politics changed following the 1968 election, the Supreme Court began, slowly at first, and then with greater rapidity to shift to the right. It did so both because of Presidential appointments, and because of the Court's role as part of the national governing coallition.

We can see the decisions in the most recent Supreme Court Term as reflecting these features of American politics. Here let me quote my friend and long time co-author Sandy Levinson, writing in Village Voice:

So what might explain last week's spate of "liberal" decisions? They are best understood in terms of how the court—and especially Justice O'Connor—perceives the current American center of gravity on such matters. With regard to affirmative action, the court—which is, after all, only permitting affirmative action rather than requiring it—is basically vindicating a national majority, especially among elites, that accepts relatively "soft" and opaque affirmative action—but not "quotas" or the use of ham-fisted point systems that are too transparent in the weight given to race or ethnicity. (And if local majorities, as has happened in California or Washington, ban affirmative action completely, that will clearly raise no constitutional problems.) Two crucial briefs were submitted in the Michigan law school case, one by 65 major American corporations, the other by a plethora of military leaders. Both testified to the importance of affirmative action in providing businesses and the military with minority executives and officers. One can be certain that most of the corporate CEOs and retired military officers who signed the briefs are Republicans, and that is just the point.

With regard to the second issue, gay and lesbian rights, the court realizes that 2003 is already far distant from 1986, when the court in Bowers v. Hardwick upheld Georgia's anti-sodomy law. The homophobia exemplified by such statutes is increasingly disdained by most Americans. (In his dissent, Clarence Thomas indicated that he would vote against such laws were he a legislator.) In 1986, after all, 24 states had anti-sodomy laws. By now the number is down to 13, and enforcement is rare. Even the 13, including Texas, are more complicated than one might think. Austin, the state's capital, several times elected a gay representative to the state legislature, and its elected sheriff is lesbian.

So the Lawrence sodomy decision fits the Warren Court model of actively protecting the rights of a minority once it has demonstrated it is not generally reviled, but is well on its way to general acceptance and integration. After all, the lesbian daughter of the vice president of the United States is herself a member of the Bush administration. It is no coincidence, moreover, that Justice Kennedy cited criticisms of Bowers by libertarian Republicans Charles Fried, Ronald Reagan's solicitor general, and Judge Richard Posner of the Seventh Circuit Court of Appeals.

What Rehnquist did not understand in 1952 is that even then his views on race were retrograde, and that lots of people in the United States had moved past his petty and parochial view that Jim Crow was perfectly constitutional and that Plessy v. Ferguson was correctly decided. He thought that if the Supreme Court stood up for racial equality, it would "see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men." How wrong he was-- and for such a intelligent man, how narrow his vision not to have understood the forces changing around him in politics and in society. In like fashion, the older Rehnquist has been unable to wrap his mind around the fact that the country's views about homosexuality have changed. What Rehnquist did not understand in 1952 is that the Court is part of the American political system, not outside it, that judicial independence and decision of cases according to legal argument is not inconsistent with its role as part of the national governing coallition but is rather the way that it properly performs its function of contributing to the continuing development of America's higher law.

JB

Of course they can.

Andrew Sullivan, relying on a Wired Magazine story about a recent Ninth Circuit decision, engages in a little wishful thinking: "Libel laws may not apply to bloggers," he says hopefully.

What the 9th Circuit held (and what the 4th Circuit also held before them) is that section 230 of the 1996 Telecom Act protects people who run websites from being sued for republishing the libels of another person. Section 230 states that " no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

This does not mean that bloggers are immune from libels they themselves write. It means that they are immune from (for example) libels published in their comments section (if they have one) because these comments are written by other people and the blogger is merely providing a space for them to be published. Congress wanted to treat operators of chatrooms and other interactive computer services differently from letters to the editor columns in a local newspaper.

So if bloggers defame somebody, they can still be sued for what they say, just not for what someone else who publishes on the blogger's site says. The Ninth Circuit extends this immunity to people who run e-mail lists and republish the e-mails they receive to the list, even if they edit the e-mails a bit or do not republish every e-mail they receive. That is different from the rules that apply to print journalism. A newspaper is responsible for defamation in letters to the editor or op-ed columns that are published in the newspaper.

Linking is a more interesting question, still unsettled in the courts. My view is that if a blogger links to defamatory content, the blogger should ordinarily not be held liable for defamation; there might be an exception if the blogger is specifically vouching for the truth of what the blogger is linking to, thus incorporating the claims by reference. (Merely providing a link with approving commentary should not be enough to subject you to liability.) If the blogger redescribes the content in his or her own words, that redescription can be the basis of a libel suit.

Of course, much of what "pundit" bloggers write about concerns public figures, so the public figure would have to show actual malice (reckless disregard for truth or knowledge of falsity) in what the blogger said.

Finally, one of the great things about the blogging community is that people are always checking each other's work. (Indeed, I fully expect I will get some responses checking this post!). And bloggers often print retractions or modifications of previous postings, with links to the previous post so that the reader can see what has been modified. So the blogosphere has a few built in safeguards that other interactive computer services often don't. That doesn't mean that the blogosphere should be fully immune from defamation, and it isn't. But it does mean that this form of journalism serves a very valuable public function; not only do bloggers check each other's work, they can often help print journalists check their facts and do their jobs a little better. That improves the quality of public discourse, which, after all, is one of the purposes of defamation laws.

JB

There appears to be some confusion about what the Supreme Court's recent decision in Lawrence v. Texas actually holds. The confusion has been encouraged by Justice Scalia's dissenting opinion, which, I think, systematically misreads Justice Kennedy's majority opinion.

For the record, Lawrence extends the fundamental right of privacy to same-sex intimate relationships. It does not strike down Texas' sodomy law on the ground that it fails the test of rationality, as Justice Scalia seems to assume. Nor does it hold that appeals to morality cannot be a legitimate government interest under the rational basis test for ordinary social and economic legislation. Rather, it holds only that when a fundamental right or interest is involved moral disapproval is not a sufficient interest to overcome the fundamental right.

In Lawrence, Justice Kennedy argues that Eisenstadt, Carey, and Roe each extended the rights of intimate association and decisional privacy protected by Griswold beyond married adults. He then argues that homosexuals have similar rights to form intimate associations, which are more than mere sexual conduct. Finally, he endorses the reasoning of Justice Stevens’ dissent in Bowers. All of this suggests that, Lawrence holds that the right to form same-sex intimate relations is part of the fundamental right of privacy. Note, moreover, that only after arguing for the importance of the ability to form intimate relations does Kennedy quote Stevens' dissent in Bowers, suggesting that Stevens' argument about morality applies only to fundamental constitutional interests like the right of privacy.

We can also see that Justice Scalia’s characterization cannot be correct by changing the justification for Texas's law: Suppose that Texas repassed its statute arguing that same-sex relations are harmful to public health. Or suppose that Texas argued that there is some evidence that homosexuality is a mental disorder (a position once taken but now long abandoned by the psychiatric profession) and that allowing same-sex sodomy might tend to exacerbate this mental disorder, while banning it would give marginal incentives for homosexuals to experiment with heterosexual relationships. Neither of these justifications is merely a claim of moral disapproval. Both are concerned with questions of harm and public health. But there is no doubt that neither justification would be sufficient to overcome the right of intimate association recognized in Lawrence. All this suggests that Lawrence is not, in fact, an application of the rational basis test.

The notion that mere moral disapproval is not sufficient to overcome a fundamental right is not a new idea. It follows directly from Griswold v. Connecticut, Roe v. Wade and Stenberg v. Carhart (the partial birth abortion case). Mere moral disapproval of contraception, abortion, or even of partial birth abortion is not sufficient to overcome a married couple's fundamental right to engage in family planning through use and purchase of contraceptives, a woman's fundamental right to chose (in Roe) or her right to choose the safest available method of abortion (in Stenberg). Thus, on this question, Lawrence makes no new law. (Scalia, of course, has long sought to overturn Roe and dissented in both Casey and Stenberg. He does not believe that abortion is a fundamental right and therefore moral disapproval would be sufficient to outlaw both abortion and partial birth abortion.)

Why, then, didn’t Justice Kennedy simply say that there is a fundamental right to engage in same-sex sodomy? The most likely reason is that he objected to this characterization of the right, because it demeaned homosexuals by reducing their intimacy to a sex act in a way that would never be done to heterosexual couples. The right to privacy, Justice Kennedy argues, is the right to form personal and intimate relationships of which sex is only a part. Justice Kennedy’s view, in short, is that there is more to a relationship than just sex.

The question that Lawrence leaves unanswered is how far the right of intimate association extends. Kennedy seemed to suggest that the right applies to noncommercial sexual relations. He also argued that the right of intimate association “should counsel [as a general rule] against attempts by the State, or a court, to define the meaning of [a personal intimate] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Note that this language does not explain the scope of the right; rather it explains what kinds of justifications the state might make when it wants to regulate conduct which falls within the scope of the right.

So after Lawrence, we have two questions.

First, is a certain practice within the scope of the right of intimate association/sexual autonomy/reproductive autonomy?

If not, then regulation of the practice is subject to the ordinary rational basis test and the state may invoke morality as a reason for regulating the practice or even prohibiting it completely.

Second, if the practice falls within the scope of the right of intimate association/sexual autonomy/reproductive autonomy, then the State may not regulate the relationship absent a showing of harm or in order to protect the abuse of an institution the law protects. Examples of the latter would be marriage, parent child relations, or family relations generally. Mere moral disapproval of the practice is not sufficient; although it is clear that what constitutes abuse of the marital relationship, parent-child relations, or family relations will be heavily affected by moral considerations.

Lawrence leaves open many issues, including the question whether states may limit marriage to opposite sex partners. It does seem to foreclose the argument that the state may criminalize opposite-sex sexual relations between unrelated persons who are not married (fornication) and, if there was any doubt about this, masturbation. (Why Justice Scalia thought it important to assert the state's right to regulate masturbation on the basis that it is immoral is beyond me. I leave this very interesting question to your imagination.).

Finally, what about consensual incest between adults where there is no danger of pregnancy? The answer to this much more complicated question depends on how we understand the nature of the liberty protected by the Due Process Clause. Let me offer my views on what fundamental rights adjudication should be about.

My view is that a practice should be recognized as a fundamental right under the Due Process Clause only when social movement contestation has changed people's attitudes about a practice sufficiently so that it has become effectively normalized and large numbers of people feel that to criminalize the conduct intereferes with people's basic liberties and with their equal citizenship. Put another way, the scope of fundamental rights under the Due Process Clauses of the Constitution should be and usually is worked out through politics and culture, from the bottom up, not the top down. What courts usually do (and should do) is ratify large scale changes about beliefs in society that have long since occured. Then they recognize as part of American's basic law what most Americans themselves have already accepted as their basic law. I often explain to my students that once Jackie Robinson entered the major leagues in 1947, and Truman desegregated the Armed Forces, something like Brown v. Board was a foregone conclusion. Similarly, once Will and Grace becomes a Top Ten show in the Nielsen ratings, we may assume that gays have achieved a basic degree of acceptance in American society, even if they are not treated equally in all respects. What courts do in these fundamental rights cases is reflect changing social mores that are worked out in political struggles about basic values and then translated into constitutional doctrine. After recognizing these rights, what courts then do is work out the logical consequences of the shift in popular views about basic liberties. This is as true with respect to enumerated rights as unenumerated rights. After all, changing views about sexuality have also affected the scope of freedom of speech.

Note, by the way, that when I speak of a change in social mores, I am not claiming that the majority of Americans now think that homosexuality is morally unproblematic or that it is just as good as heterosexuality. Rather, I am claiming a more modest shift: the position that most Americans have adopted is that these matters are none of the government's business. A basic level of tolerance for gays has been achieved, and is still growing, full social acceptance for gays is still years away.

My view about the constitutional status of incest is fairly straightforward: There has been no sustained social movement in favor of incest between adults, arguing that it is moral and appropriate and that it's none of the government's business persecuting people who simply have a different lifestyle and who are genuinely in love with their brothers or sisters, or their sons and daughters (or their uncles and aunts). Large numbers of states have not decriminalized incest and it is unlikely that they will do so any time soon. There has been no constitutional law making from the ground up on this question. For this reason, courts should not extend the reasoning of Lawrence to cover incest. When there is a top ten sitcom on NBC called "Grace and her Father," about a father-daughter affair, then we can have a conversation about whether the right of intimate association should be extended to include consensual incest. Until that point, it should be subject to state regulation.