Balkinization  

Monday, September 15, 2003

JB

The Return of Bush v. Gore

Today the Ninth Circuit Court of Appeals issued an injunction staying the California recall election on the grounds that about 44 percent of the California population will be using outmoded punch card technology to cast their ballots, leading to the likelihood that many of their votes will not be counted. (More on the court's decision here). The court argued that this violated the Equal Protection Clause of the Fourteenth Amendment, citing prominently as justification the Supreme Court's decision in Bush v. Gore.

For those of us who were deeply skeptical of the politics if not the reasoning of the Bush v. Gore opinion, the 9th Circuit's use of it to delay-- at least for the moment-- a Republican plan to replace California's elected Democratic governor with a Republican candidate is deeply amusing. Nevertheless, there are several important differences that are worth noting.

First, the objectionable portion of Bush v. Gore was not its equal protection holding, but rather the remedy, which was inconsistent with the equal protection theory. Indeed, the only thing odd about the equal protection holding was that it was a liberal innovation supported by the Court's most conservative members, who usually fight shy of such social engineering, at least where election of Republican Presidential candidates is not at stake.

Second, the Bush v. Gore decision, by its own terms, limited the scope of its equal protection holding to the precise facts of the case, that is, the rules governing hand recounts by the judiciary. Although the case made noises about the fact that punch card ballots were more likely to be spoiled than other forms of balloting, the court stopped well short of holding that different voting technologies violated the equal protection clause. For had it so held, it would have opened the door to a much more extensive complaint about the Florida election. Nevertheless, the dissenting justices noted that the logic of Bush v. Gore might well apply to technological differences as well.

One possible distinction is that technological differences in ballot spoilage do not necessarily mean that there has been any sort of deliberate intent to discriminate against voters or deny them the right to have their ballots counted. The Bush v. Gore holding could be read narrowly to hold that judicial hand recounts required a single standard in order to avoid invidious discrimination against voters. That is to say, the Bush v. Gore opinion may be about the Court's distrust of the Florida judiciary's bona fides in conducting the recount. That would pose a different problem than the problem of different voting technologies used in different parts of the state.

Nevertheless, the Court's precedents in the voting area do not always require bad intent in order to find a violation of voting rights under the Fourteenth Amendment. The principle of one person, one vote should, in theory, apply whether the dilution of the voter's rights was deliberate or negligent. Hence the Ninth Circuit's argument, even though it does not follow directly from Bush v. Gore, nevertheless makes some sense in the light of the Court's other voting rights precedents.

Nevertheless, there is a delicious irony in watching Bush v. Gore used in this way. The Supreme Court apparently believed that it could resolve the 2000 election by issuing an opinon that would never be used or cited by any court again. It hoped to expand equal protection doctrine for this one case but then hold that the decision was limited to the precise facts of Bush v. Gore. The Ninth Circuit has called its bluff, suggesting, in effect, that if the Supreme Court wants us to believe that Bush v. Gore was a legal opinon, then it should be treated as law, with real precedental consequences, rather than as a one-time imposition of will by five Justices who wanted to install the Republican candidate, George W. Bush, as President.

Long live the rule of law!


JB

Report On WMD's Will Surface After All

The London Times reported Sunday (an abbreviated account can be found here) that both the U.S. and Great Britain had blocked release of the Iraq Survey Group report on WMD's because the report failed to find any evidence of WMD's. CBS News now reports that the report will be published after all, but that it will be inconclusive.

The Times reports the decision by Britain and America to delay the report's release comes after efforts by the Iraq Survey Group, a team of 1,400 scientists, military and intelligence experts, to search Iraq for the past four months to uncover evidence of chemical or biological weapons ended in failure.

In July, David Kay, the survey group's leader, suggested that he had seen enough evidence to convince himself that Saddam Hussein had had a program to produce weapons of mass destruction. He expected to find "strong" evidence of missile delivery systems and "probably" evidence of biological weapons.

But last week, Defense Secretary Donald Rumsfeld said he had met with Kay, and that the onetime weapons inspector had not informed him of any finds.



UPDATE: CBS originally reported, consistent with the Times article, that the WMD report would be blocked indefinitely, but later was informed that the report would in fact be issued. It seems clear, at any rate, that once the original story alleging that the report would be blocked ran in the London Times, the report would eventually have to be released to the public whatever the Bush and Blair Adminstrations' qualms about it might have been.

JB

No Nukes in Iraq

A UN arms inspectors report leaked to the Associated Press suggests that Iraq had no nuclear program worth worrying about:

International Atomic Energy Agency chief Mohamed ElBaradei reiterated that his experts uncovered no signs of a nuclear weapons program before they withdrew from Iraq just before the war began in March.

"In the areas of uranium acquisition, concentration and centrifuge enrichment, extensive field investigation and document analysis revealed no evidence that Iraq had resumed such activities," ElBaradei said in the report, made available to the AP by a diplomat.

"No indication of post-1991 weaponization activities was uncovered in Iraq," he said.



Tuesday, September 09, 2003

JB

Ah, February

As Jay Bookman explains:

Last February, with invasion just weeks away, sources in the Bush administration told Newsweek that they were expecting a postwar occupation of Iraq of 30 to 90 days.

"Every day you get past three months, you've got to expect peacekeepers to have a bull's-eye on their head," the sources explained.

Even at the time, a spokesman for Defense Undersecretary Douglas Feith suggested that three months might be too optimistic. It was probably wiser to think five or six months on the outside, Lt. Col. Michael Humm said.

At the time, Pentagon officials also claimed that Iraq's oil wealth would make it unnecessary to ask other countries for financial help with reconstruction. "I don't see the need for panhandling like that," the Pentagon source said.

A month later, in a speech to the Veterans of Foreign Wars, Deputy Defense Secretary Paul Wolfowitz issued his own warning of how tough the occupation would be. Ruling Iraq, he said, would be like ruling liberated France after World War II.

He and his colleagues ought to be fired. Not only did they believe those fantasies, they also made their ideological pipe dreams the basis of our postwar planning, and today we're reaping the consequences.


And, to make you feel even more nostalglic, USA Today reports that the monthly expense of the Iraq and Afghanistan wars (*not* including the costs of reconstruction) is now comparable to the monthly expenses of the Vietnam War, adjusted for inflation.

Well, we should have the money for this. It's not as if we're running humongous deficits due to ill-advised tax cuts largely benefitting the rich.


JB

Questions About Same Sex Marriage and DOMA

The noted copyright theorist Siva Vaidhyanathan asks whether if the Massachusetts courts hold that the state may not refuse marriage to same sex couples, this will have ramifications around the country under the federal constitution. The answer is that the decision would probably be rendered under the Massachusetts constitution, and therefore would not directly affect the construction of the Federal Constitution. If for some reason the Federal Constitution were invoked as a justification, the court will probably also find independent grounds under the Massachusetts Constitution to prevent an appeal to the U.S. Supreme Court.

Siva's other question has to do with the effect of the Defense of Marriage Act (DOMA) and Article IV of the U.S. Constitution. The Defense of Marriage Act is designed to alleviate any responsibility that other states might have for recognizing same-sex marriage if one state legalizes it.

Siva wants to know if the Privileges and Immunities Clause of Article IV, section 2 would require states to recognize same sex marriages despite DOMA.

The Privileges and Immunities Clause of Article IV, section 2 does not apply because a state that does not recognize same-sex marriage is not treating outsiders from other states differently than it treats its own citizens, who cannot engage in same-sex marriages.

It is more likely that if DOMA is unconstitutional it is because of the Full Faith and Credit Clause of Article IV section 1, which provides that "Full Faith and Credit shall be given in each State to the public Acts, and Records, and judicial Proceedings of every other State." Although the Supreme Court has held that divorces are "judgments" that must be recognized in all states, unless the state of divorce lacked subject matter jurisdiction, Williams v. North Carolina, 317 U.S. 287 (1942), it has never held the same for marriages. However, marriages are arguably "acts" or "records" for Full Faith and Credit Purposes. If so, then one important question is whether the Clause means what it says or whether states may refuse to give recognition to marriages that violate their public policy. This question is unsettled.

Assuming that marriages are "acts" and that there is no public policy exception, then DOMA arguably allows States to refuse to give effect to rights protected by Article IV of the Constitution, and is therefore unconstitutional. Nevertheless, the next sentence of Article IV, section 1 states that "And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." Supporters of DOMA could argue that Congress is merely refusing to give effect to same-sex marriages or other forms of domestic partnership. The problem with this argument is that if Congress can by legislation let states refuse to give same-sex marriages any effect at all, (as to opposed to specifying the nature of the effect) it has undermined the purpose of the Full Faith and Credit Clause. This question is also unsettled. Congress has invoked its powers under the Clause to require states to give effect to certain judgments (e.g., child support judgments) but the question is whether it may permit states to refuse to give any effect at all to out of state judgments.



Monday, September 08, 2003

JB

Why Dissent Remains Important

Secretary of Defense Donald Rumsfeld has recently grumbled to reporters that criticism of the Administration's war policies can encourage terrorists and make America's war on terrorism more difficult, Newsday reports.

Many, I assume, will accuse Rumsfeld of trying to stifle dissent. My objection is somewhat different. I think Rumsfeld does not properly recognize the reason why dissent about the war can be important to the success of American foreign policy, even if it does complicate the Administration's efforts.

Rumsfeld and other members of the Administration have shown a decided penchant for disdaining the views of people who disagree with them. They were supremely confident about how easy it would be to topple Saddam and install a friendly democratic state in Iraq. We would be greeted as liberators, we were told, and our victory would smooth the Israeli-Palestinian peace process. How naive these assertions now sound in light of recent events.

The Administration also refused to disclose how much its Iraq adventure would cost, and how long American troops would have to stay. Rumsfeld was determined to show that a war of preemption could be performed on the cheap, with minimal forces, and without dragging the U.S. into a quagmire. He and others in the Administration wanted to show that preemption was a viable policy for the future, and that we could act without very much international cooperation.

The Administration's critics protested repeatedly that the Administration was underestimating the dangers of a preemptive attack on Iraq, that even if victory would be swift, stabilizing the country would take many years and great expense, and that an unacceptable number of American lives would be lost in the process. Critics also argued that the Administration's overconfidence, its refusal to level with the American people about how much the war woud cost and how long it would take, and its thumbing its nose at nations that disagreed with its policies would come back to haunt it someday.

Almost all of these warnings of critics have come to pass. The President has given up the triumphalist tone of his May 1st strut around the deck of the U.S.S. Abraham Lincoln, in which he asserted "Mission Accomplished." He now has somberly informed the American public that he will need 87 billion dollars to stabilize the country, an astonishing sum if you consider that it is more than the cost of the 1991 Persian Gulf War. He has grudgingly come to agree that international assistance will be necessary, although he cannot yet bring himself to request help. Instead he simply notes that other countries "should" help the United States.

This brings me to the value of dissent. If the President and his Administration had listened to the dissenters in this country and throughout the world, and taken their arguments seriously, he might well have chosen a wiser path, even if he did not follow their advice in all respects. He might have prepared more thoroughly for the occupation. He might have spent more time working out the details of how to search for weapons of mass destruction in the chaos of war. He might have waited until October and picked up the support of more countries, or even gotten the U.N.'s blessing.

The President and his advisors did not listen to dissenters before, dismissing them as pessimists and mere impediments to the realization of his grand plan. They proved to be much more able and prescient than he was willing to believe. He has now grudgingly come to see the value in much of what they said.

Given this lesson, perhaps the President might try listening more closely to those who disagree with him and consider their objections and concerns more seriously. Dissent provides a crucial counterweight to wishful thinking. If the Administration simply dismisses the dissenter today, as it did in the past, it risks making the same mistakes it made in the past two years-- the mistakes of hubris, the mistakes of overconfidence, the mistakes of a naive belief that the truth and good and righteousness lie only on your side, and that all those who disagree with you are either fools or knaves.

The Administration has made those mistakes once before, and now is beginning to see the consequences of its arrogance and its blindness. Isn't it time for it to gain a bit of humility, and begin recognizing the practical value of dissent?


UPDATE In my original posting, I posted to a Washington Post story at the following location that had the same quotes as the Newsday story. (A version of that story from Reuters, by Tabassum Zakaria, is here.) However, a day later, a different story by Dana Milbank, which omitted all of Rumsfeld's quotes about dissent, had replaced the original story. Does anyone know why this would be the case?


JB

Wounded Soldiers in Iraq-- Classified and Forgotten

Although the number of soldiers killed in Iraq has been widely reported, the number of wounded is far larger. The Pentagon, however, has treated the exact number of soldiers wounded as classifed, as Bill Berkowitz reports. The Florida Sun Sentinel reports that around 10 soliders a day are wounded in action, although the news of these injuries is not routinely covered by the media:

The number of those wounded in action, which totals 1,124 since the war began in March, has grown so large, and attacks have become so commonplace, that U.S. Central Command usually issues news releases listing injuries only when the attacks kill one or more troops. The result is that many injuries go unreported.

The rising number and quickening pace of soldiers being wounded on the battlefield have been overshadowed by the number of troops killed since President Bush declared an end to major combat operations May 1. But alongside those Americans killed in action, an even greater toll of battlefield wounded continues unabated, with an increasing number being injured through small-arms fire, rocket-propelled grenades, remote-controlled mines and what the Pentagon refers to as "improvised explosive devices."

Indeed, the number of troops wounded in action in Iraq is now more than twice that of the Persian Gulf War in 1991. The total increased more than 35 percent in August -- with an average of almost 10 troops a day injured last month.

Fifty-five Americans were wounded in action last week alone, pushing the number of troops wounded in action since May 1 beyond the number wounded during peak fighting. From March 19 to April 30, 550 U.S. troops were wounded in action in Iraq. Since May 1, the number totals 574. The number of troops killed in Iraq since the beginning of May already has surpassed the total killed during the height of the war.

Pentagon officials point to advances in military medicine as one of the reasons behind the large number of wounded soldiers; many lives are being saved on the battlefield that in past conflicts would have been lost. But the rising number of casualties also reflects the resistance that U.S. forces continue to meet nearly five months after Hussein was ousted from power.

With no fanfare and almost no public notice, giant C-17 transport jets arrive virtually every night at Andrews Air Force Base outside Washington, on medical evacuation missions. Since the war began, more than 6,000 service members have been flown back to the United States. The number includes the 1,124 wounded in action, 301 who received non-hostile injuries in vehicle accidents and other mishaps, and thousands who became physically or mentally ill.

At Walter Reed Army Medical Center in Washington, a half-hour drive from Andrews, Maj. Gen. Kevin C. Kiley, the hospital's commanding general, said there were only two days in July and four in August that the hospital did not admit soldiers injured in Iraq.



Sunday, September 07, 2003

JB

Bush Approved War Strategy For Iraq in August 2002

According to a classified report, obtained by the Washington Times.

A secret report for the Joint Chiefs of Staff lays the blame for setbacks in Iraq on a flawed and rushed war-planning process that "limited the focus" for preparing for post-Saddam Hussein operations.

The report, prepared last month, said the search for weapons of mass destruction was planned so late in the game that it was impossible for U.S. Central Command to carry out the mission effectively. . . .

The report also shows that President Bush approved the overall war strategy for Iraq in August last year. That was eight months before the first bomb was dropped and six months before he asked the U.N. Security Council for a war mandate that he never received.

Senior U.S. officials, including Deputy Defense Secretary Paul Wolfowitz and Deputy Secretary of State Richard Armitage, conceded in recent weeks that the Bush administration failed to predict the guerrilla war against American troops in Iraq. Saddam loyalists and foreign fighters have killed more than 60 soldiers since May 1, mostly with roadside bombs and rocket-propelled grenades.

The Congressional Budget Office projected yesterday that the demands of troop rotations globally will leave the Pentagon without any fresh Army units for Iraq in 2004 unless tours are extended beyond one year.

The Joint Chiefs report reveals deficiencies in the planning process. It says planners were not given enough time to put together the best blueprint for what is called Phase IV — the ongoing reconstruction of Iraq.


JB

Bush Reasserts Connection between Iraq War and War on Terror

In his Sunday speech to the nation, President Bush once again artfully attempted to suggest a connection between deposing Saddam Hussein and the war on terror that began with the September 11th attacks:

And for America, there will be no going back to the era before September the 11th, 2001, to false comfort in a dangerous world. We have learned that terrorist attacks are not caused by the use of strength. They are invited by the perception of weakness. And the surest way to avoid attacks on our own people is to engage the enemy where he lives and plans. We are fighting that enemy in Iraq and Afghanistan today so that we do not meet him again on our own streets, in our own cities.

This is cleverly done, but in fact, there is still no evidence that Iraq was behind the 9/11 attacks. Nor does there seem to be any evidence that the Administration's policy in Iraq has made Americans safer at home, or successfully deterred future attacks on American soil. Indeed, the evidence points to the opposite conclusion. By attacking Iraq, we diverted resources from Afghanistan, which has fallen into increasing political chaos, and from needed expenditures on homeland security. As a result of our attack, terrorist groups and Islamic fundamentalists who have no love for the U.S. have been pouring into Iraq to assist with the guerilla war now being conducted against our troops. That war, and the cost of rebuilding the country, have sapped American resources even more. And, as I have repeatedly suggested in this blog, there is also the very unsettling possibility that if weapons of mass destruction, or materials used to construct them, did exist before the war (a prospect that seems increasingly less likely, see the post below), were spirited out of the country as a result of the chaos produced by our attack on Iraq, and are now in the hands of terrorist groups.

Our show of strength, as the President puts it, has had exactly the opposite effect that the President claims it would have. Instead it seems that President Bush is the one offering the nation "false comfort" when he suggests that his Iraq policy and his refusal to fund homeland security at proper levels has made Americans safer.

JB

Iraq Survey Report Due Soon

The Iraq Survey Report, which took over the task of finding weapons of mass destruction from the U.S. Army, is due to issue an interim report in the next week. The Survey headed by David Kay, has been especially tight lipped about its findings. The New Zealand News reports, however, that recent statements by British and U.S. officials suggest that they believe that the report will state that no weapons have been found, and that, at best, the Iraqi weapons programs were in a state of what is has been called "suspended animation;" i.e., preserving a coterie of scientists who would make it possible for Iraq to develop these weapons some day.

If so, this cannot be heartwarming news to either the Administration or to Tony Blair's government, which asserted repeatedly that Saddam actually possessed weapons of mass destruction and offered this as grounds for war. Indeed, in his Sunday night speech to the nation, President Bush said nothing about the hunt for Saddam or Osama bin Laden, nor the search for the missing weapons of mass destruction.


Tuesday, August 26, 2003

JB

The Taliban Is Back

And they're gonna be trouble, or so says this report from Reuters about the rapidly deteriorating situation in Afghanistan.

You remember Afghanistan; it was our first victory-- excuse me, I meant, our first "end to major military operations."

The problem is that we already have our hands full in Iraq.

Well, at least it's a good thing the Bush Administration didn't stretch our resources thin by running huge deficits.

Oh wait, I think it did.


Friday, August 22, 2003

JB

ACLU censors John Ashcroft

The New York Times reports that Ashcroft is getting entirely predictable flak, but with an interesting twist:

Representative John Conyers Jr. of Michigan, the ranking Democrat on the House Judiciary Committee, told Mr. Ashcroft in a letter that he should either "desist from further speaking engagements" or explain why they do not violate restrictions on political activities by government officials.

Mr. Conyers said that the speeches in defense of the USA Patriot Act, as the antiterrorism law is known, appeared to conflict with Congressional restrictions preventing the use of Justice Department money for "publicity or propaganda purposes not authorized by Congress." He said they might also violate the Anti-Lobbying Act and its restrictions on grass-roots lobbying on legislative matters.

Lawyers with the American Civil Liberties Union raised similar concerns about Mr. Ashcroft's speaking tour, which began this week in Washington, Detroit, Philadelphia, Cleveland and Des Moines and will continue over the next three weeks. The message in all the speeches has been that despite rising criticism the Patriot Act has proved an essential tool in fighting terrorism.

Barbara Comstock, the Justice Department spokeswoman, said Mr. Ashcroft's speaking tour had been thoroughly reviewed by department lawyers and was "entirely appropriate" under federal law.


The proper criticism of Ashcroft is that the Patriot Act is a bad law and that he has overreached in using it, not that he is violating federal law for defending it. I think what Conyers and the ACLU are doing in these accusations is misguided and counter-productive. I, for one, would not interpret the Anti-Lobbying law [18 USC section 1913] to reach this sort of activity. It should not apply to speeches by the President or Cabinet members to drum up support for legislation through public speeches or personal appearances. What it should apply to-- at most-- are surreptitious attempts by lower-level government bureaucrats (i.e. those who are not appointed by the President and confirmed by the Senate) to induce private citizens to lobby Congress or write their Congressmen and Senators. It's possible that Ashcroft might fall afoul of other language designed to keep government servants from spending money to engage in self-aggrandizement or puffing of their achievements, but these laws really shouldn't apply to this case. Ashcroft is not going on a frolic and detour trying to puff himself up. He is doing Bush's bidding-- going on the stump on issues that Bush doesn't particularly want to face the public on.

I think there is some irony in the ACLU trying to keep John Ashcroft from speaking.


JB

John Ashcroft's Dog and Pony Show

Both Phil Carter and The Rittenhouse Review, among others, have been discussing Attorney General John Ashcroft's traveling road show defending the Patriot Act.

What is the point of this public relations tour? I asked my Yale Law School colleage Michael Levine recently. His theory was intriguing. He suggested that the Administration wants to figure out how well its civil liberities policies are selling by sending out their most visible symbol and seeing how the public reacts to him. If Ashcroft can sway the public, then it will be more of the same, including the submission of the Patriot Act II, either before the election or shortly thereafter. But if Ashcroft's publicty tour doesn't sell well, then the Bush Administration will change its public face with respect to civil liberties (as opposed to its practices), in order not to lose moderate support in the upcoming election. Indeed, if Ashcroft does particularly poorly he may even be replaced in the next Bush administration.

In short, Ashcroft is being sent out as a miner's canary, in order to gauge the political consequences of Bush's civil liberties policies. The Bushies are worried that lots of communities have passed anti-Patriot Act resolutions and that the bill has generally gotten a bad press. It's one thing if it's just Beltway grumbling and objections by liberals and members of the chattering classes. It's quite another if it could actually cost them votes among independents and moderate voters.

Why is Ashcroft in particular being sent out? Well, for one thing, he's expendable. He's not a long-time Bush loyalist, and so not so much loyalty is owed to him. It's true that he's an important liason to the Christian Right, but it's my sense that George Bush himself is now seen as a major political figure in (or major political ally of) much of the Christian Right, so Ashcroft is not as necessary as he once was. And there are many other people who could replace him as Attorney General, and thus put a kinder, gentler face on the Administration's policies.

It's not a good sign, however, that Ashcroft has been speaking mostly in front of friendly audiences of law enforcement officials and conservative groups. The real test of Ashcroft's publicity tour will come when he faces the sort of voters who might ditch the Republican Party in 2004.



Thursday, August 21, 2003

JB

Chief Justice Moore As Administrator, Not Judge

Atrios raises an interesting point when he suggests that it's important that Chief Justice Moore is a judge rather than a legislator. He says

one thing [Balkin] doesn't address (note he's the really smart lawyer and I am not) is that even if one thinks, as [Alan] Keyes does, that states do still have the right [to establish religion], that would seem to be the job of the state legislature and not a lone judge.

Well, yes and no. Atrios is making the familiar argument that judges shouldn't make policy or otherwise exercise legislative functions; quite apart from Moore's misinterpretation of the Constitution, what Moore is doing is institutionally improper because he's a judge and the decision to promote religion, if permitted, should be left to the Alabama Legislature.

But one thing that's been overlooked in the Chief Justice Moore Controversy is that when Moore put up his monument he was not acting in his capacity as a judge. He was acting in his capacity as chief administrator of the Alabama courts. Moore has decided no case that says that he has the right to put up the Ten Commandments in the state court house. He could not do so anyway, because as a party to the controversy he would have to recuse himself from deciding it. Rather, he is acting as an administrative functionary, like a member of an administrative agency. And administrative agencies do make policy. They make it all the time. (It's also true but irrelevant that Chief Justice Moore is an elected official; although judges are elected in Alabama, they are elected to be judges. The important point is that as Chief Justice, Moore has the additional responsibilities of maintaining the courthouse and administering the Alabama judicial system.)

That's important for two reasons. First it is precisely because Moore is acting in his capacity as administrator that his actions can be considered by a *lower federal court.* Decisions of state supreme courts are appealed to the Supreme Court, not the lower federal courts, and in most cases (except for federal habeas corpus proceedings), lower federal courts have no power to review decisions by state courts. So the only reason that Judge Thompson could order Moore to move the monument is because Moore is not acting as a judge but as an administrator.

Second, even though Moore is not acting as a judge, but as an administrator, he still has an independent obligation to interpret and obey the U.S. Constitution. That is true of legislatures, members of the executive branch, and judges. All of them are sworn to uphold the U.S. Constitution as required by Article VI. So whenever a legislature or an administrative agency makes a decision concerning religion, they must independently assess whether what they are doing violates the Establishment Clause. They should not simply leave it up to the courts to decide. Often legislatures don't do this (no matter what portion of the Constitution is involved), because they are pandering to their constituents. They think that it is ok to let the courts take the heat instead of voting against popular legislation or engaging in executive action that they know (or should know) is unconstitutional. When they do so, they are violating their obligations under the Constitution and their oaths of office.

Chief Justice Moore, in this case, *is* engaging in independent constitutional interpretation. His interpretation is wrong, but at least he is making a claim about what the Constitution really means. Having made his interpretation, and having had it rejected by the courts, he should bow to their decision. This is not a case where the Court says that Moore may do something and in his heart he knows that the best interpretation of the Constitution means that he should not. In that case he may disregard the Court's more lenient interpretation and refuse to violate the Constitution as he interprets it. Rather, this is a case in which a court has told Moore that a specific action he has taken violates the Constitution, regardless of his interpretation to the contrary. In that situation, after having had his day in court, he should follow a direct order by the courts.


UPDATE: The administrative nature of Chief Justice Moore's action is clear from the order issued by the other members of the Alabama Supreme Court, ordering that the Building Manager of the Alabama Judicial Building remove the monument. (Link via Howard Bashman via Findlaw)


Wednesday, August 20, 2003

JB

Keep Alabama Baptist

At a rally in support of Judge Roy Moore's installation of a 5,300 pound granite copy of the Ten Commandments, former Republican presidential candidate Alan Keyes endorsed the idea of allowing states to establish their own religions, and impose religious tests for office as long as they did not otherwise violate "the fundamental rights of individuals":

Contrary to popular belief, state-sanctioned churches and religious tests are not unconstitutional and do not run counter to what the nation's founders believed, former presidential candidate Alan Keyes said at a rally Aug. 16.

Arguing for a radical shift in constitution interpretation, Keyes said that the founders wanted states to make their own laws in matters concerning religion. Keyes, a Catholic, was speaking at a rally supporting Alabama Chief Justice Roy Moore, who has placed a 5300-pound granite monument of the Ten Commandments inside the state judicial building. . . .

If religious tests and established churches were unconstitutional, Keyes said, then they would have been abolished prior to the First Amendment's passage. Such a state-sanctioned church would be sanctioned not by the federal government but instead by an individual state, he said.

With such a change in American thought, there would be no controversy over a Ten Commandments monument in Alabama, Keyes said. Of course, that would mean that people of a particular faith might decide to avoid living in certain parts of the country. For instance, a Baptist might decide not to live in Mormon-dominated Utah, which logically could have Mormon-controlled schools. . . .

The founders believed that local people "in their states and localities have the right to live under institutions they would put together to govern themselves according to their faith," he added.

Federal courts today, Keyes said, are "imposing a uniform national regime of disbelief and atheism on the people of this country." . . .

In the civil rights movement in the 1960s government officials were defying federal court orders in an attempt to violate the individual rights of blacks, Keyes said.

"[But] today it is the courts that are seeking to violate that basic principle, and the people of Alabama are demanding that it be respected," he said.


Keyes is partly right about the original understanding. The Establishment Clause was designed to prevent the establishment of a national church, and Article VI of the Constitution states that "no religious test shall ever be required as a qualification to any office or public trust under the United States." That suggests that the concern was not with state establishments of religion but national establishments. Hence the Establishment Clause states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." It says nothing about the states.

That's all well and good, but what Keyes omits is the subsequent history of the country, and in particular the effect of the Fourteenth Amendment. The states abandoned their established churches before the Civil War, and because territories of the United States could not have an established church, when new states entered the Union they did not have established churches either. Eventually, courts recognized that an important function of the Fourteenth Amendment was to apply basic liberties in the Bill of Rights to state governments. One lesson of the civil war was that states could violate people's liberty and equality every bit as much if not more than the national government could. The Fourteenth Amendment was passed to prevent states from infringing on basic liberties, and those liberties included many of the provisions of the Bill of Rights. (In fact the modern doctrine of incorporation should have been unnecessary but for the Supreme Court's misinterpretation of the Fourteenth Amendment in the Slaughterhouse Cases, but I'll leave that story to another day).

Once the First Amendment was applied to the states through the Fourteenth Amendment, the interpretation of the Establishment Clause as merely a federalism provision made no sense. To apply the First Amendment-- including the Establishment Clause-- to the states meant that the same principles of non-establishment that bound the federal government must also apply to state governments. And the substantive values that the Establishment Clause protects-- preserving religious equality and preventing non believers or members of minority religions from being treated as second class citizens-- had to apply to the states as well as to the federal government.

So what Keyes is arguing for is what we might call disincorporation-- holding that portions of the Bill of Rights no longer apply to state governments. In particular he is arguing that the Establishment Clause should be disincorporated and should no longer apply to state governments. Quite apart from the fact that this position has been rejected by federal courts, I think it is a particularly bad idea. There is good reason to think that religious factions will be more oppressive to non-believers and people of other religions at the state level than they will be at the national level: This is just another version of Madison's famous argument in Federalist 10. At the national level, religious groups need to form coalitions with people of other religions to get things done, and this will tend to temper their excesses; at the state and local level they will be less restrained and therefore will be more likely to overreach.

The supporters of Judge Moore's monument, who are encouraging his defiance of a federal court order, should not, I think, be equated with George Wallace, who resisted federal civil rights law in order to maintain a racist regime. I'm not particularly in favor of having the government promote religious values or religion in general, but limited recognition of religion in public life is not particularly harmful to the body politic and may actually do considerable good. However, that is an argument about the proper scope of the Establishment Clause, not an argument that the Establishment Clause should be completely disregarded by state governments. The latter argument is quite troubling, and would cause all sorts of mischief.

The reason I believe this is that I take the concerns of Judge Moore's most vocal supporters quite seriously. Many of these supporters are people who are very much devoted to their cause. One can see this from the sincere passion with which they state their demand that God and God's laws be returned to government, and the genuine anger with which they denounce the federal courts' enforcement of the principle of non-establishment. They are quite sure that they are right and that other people with different views are wrong-- so wrong, in fact, that those who disagree with them are leading the country down the path to perdition. God must be returned to a prominent role in government if the country is not to be lost. Thus, for Judge Moore's supporters something quite serious is at stake and it is something quite important to fight for and to impose by law even on those who are misguided and unwilling. Thus, their version of religious establishment is unlikely to be the rather modest and toothless version we find in some European countries, like Great Britain, where the established church is unable to generate very much religious fervor. Rather, it is likely to be much pronounced and thus much more intrusive on the ordinary citizen's liberty and equality. Even though Keyes insists that fundamental rights of religious minorities and non-believers would be protected under his theory of state establishments, I think that there is a strong possibility that they would not be in practice.



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