The end of Tribe's treatise

Mark Tushnet

I've been hesitant to write about Laurence Tribe's decision to suspend work on his treatise, because of my notoriously intemperate review of the treatise's first version. (What can I say? I was young, it was a time of political tension of a particular sort -- different from today's, I refused to follow the advice of my older and wiser colleagues. So, to quote Justice Jackson, "Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' . . . But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.")

One (better) way to put my earlier concern is this: Was it possible to write a treatise when the first edition was published, on Tribe's premises about what a treatise is? To the extent that the premises require a certain degree of stability in the central themes of constitutional doctrine, I think it was possible to write a treatise at that time. As I've suggested elsewhere, the degree of uncertainty about the direction of constitutional law is now substantially higher -- as a practical matter, not as a jurisprudential one -- than it's been for a while.

But the inserted point referring to practicality is important. To put it somewhat polemically: There are times when there is practical stability but never times when there is jurisprudential stability. At those times what I will call "centrism" -- the identification of the practically stable themes in constitutional law -- presents itself as a non-political position. But, because there is never jurisprudential stability (the standard legal realist point taken either seriously or to an extreme), also at those times there's work to be done to demonstrate how (and that) centrism is indeed a political position. Read generously (which, I acknowledge, no one could reasonably have been expected to do), my review of the first edition was an effort to do that.

Now, a question/observation: I wonder to what extent even the first edition succeeded on its own terms. I haven't done a comprehensive survey, but my sense is that the treatise was not terribly successful in the legal academy. (For a soon-to-be-published book chapter I did a LEXIS search for citations to the treatise in Supreme Court opinions and found what I regarded as a surprisngly large number. An eyeball survey suggested that the citations were not on any analytically interesting points, but I could be wrong about that.) That is, my sense is that few people found that the various "models" Tribe offered were really helpful in inducing thought about unresolved problems -- in the way, I think, that at least parts of Corbin or Farnsworth on contracts were. One could use the treatise to gather citations to obscure cases, or to important cases on obscure issues, but I'm just not sure that it had any larger uses. But I'd be interested in finding out whether my sense is accurate or inaccurate.
Posted 12:43 PM by Mark Tushnet [link] (18) comments

Lingle v. Chevron -- the short version

Mark Tushnet

"Never mind." (In memory of Emily Litella.)
Posted 12:40 PM by Mark Tushnet [link] (13) comments

What is Torture?: An Interactive Primer on American Interrogation

JB

Created by Emily Bazelon, Phillip Carter, and Dahlia Lithwick at Slate, it gives you an excellent introduction to what the Bush Administration has done since September 11th, including a description of the chain of command the key legal memos, discussions about various forms of torture, and the key military reports on American interrogation practices.

Posted 4:40 PM by JB [link] (17) comments

Optional Law

Ian Ayres

Posted 8:35 AM by Ian Ayres [link] (20) comments

Apparently Newsweek Should Have Just Cited The Washington Post

JB

who in turn got their information from FBI documents.

Numerous detainees at the Guantanamo Bay military prison in Cuba told FBI interrogators that guards had mistreated copies of the Koran, including one who said in 2002 that guards "flushed a Koran in the toilet," according to new FBI documents released today.

The summaries of FBI interviews, obtained by the American Civil Liberties Union as part of an ongoing lawsuit, also include allegations that the Koran was kicked, thrown to the floor and withheld as punishment and that guards mocked Muslim prisoners during prayers.

The release of the new FBI documents comes in the wake of an international uproar over a now-retracted story by Newsweek magazine, which reported that an internal military report had confirmed that a Koran was flushed down a toilet. The retracted story has been linked by the Bush administration to deadly riots overseas.

Nearly all of the hundreds of pages of documents consist of FBI summaries of detainee interrogations, and therefore do not generally provide corroboration of the allegations. At least two detainees also conceded that they had not personally witnessed mistreatment of the Koran but had heard about incidents from other inmates, the records show.

But the records, many of which were heavily edited by the government, further underscore the widespread nature of allegations related to the Koran and Islam among detainees at Guantanamo. Red Cross investigators in 2002 and 2003 documented what they considered reliable allegations of Koran mistreatment at the facility, and some detainees have made similar allegations through their attorneys.
. . .

Posted 4:52 PM by JB [link] (14) comments

Tribe Says "No Mas"

JB

Professor Laurence Tribe has announced that he will not publish the second half of the third edition of his famous treatise, American Constitutional Law. He gives his reasons in two fascinating letters here.

Orin Kerr called his post noting Tribe's decision "Professor Tribe and the Constitutional Moment." One assumes that this is a pun on my colleague Bruce Ackerman's theory of constitutional moments. Ackerman argues that American constitutional law is structured into different historical regimes with very different assumptions about constitutional law; these regimes are brought into being by revolutionary periods of constitutional change called "constitutional moments." Whether or not a "constitutional moment" in Ackerman's sense is truly in the offing (more about this in a future post), it seems clear that a key reason why Tribe is giving up his project at this point is that he thinks that the times are particularly unsettled, and that the grounds of constitutional law may shift significantly in the next decade or so.

For many years, Tribe has been a key exponent and defender of a liberal synthesis of the constitutional law created by the Warren and Burger Courts. Because Tribe has seen his job as synthesizing and reconstructing the larger themes of constitutional law as it actually exists, several of his positions have changed over the years as the Supreme Court (and existing doctrine) have become more conservative. Yet at the same time, the Rehnquist Court has pushed the liberal civil rights agenda in ways that the Warren and Burger Courts never did, for example, in the area of gay rights. Hence, until this moment, Tribe has worked on the assumption that the Supreme Court, even if it has not decided every issue in the ways he would prefer, has been working within the basic paradigms of reasoning established by the Warren and Burger Courts. Apparently, Tribe now believes that this may no longer be the case, and that a Supreme Court stocked with new Bush appointees will shift constitutional doctrine in important new directions. Perhaps equally important, Tribe appears to believe that the new Court will shift doctrine in directions that will make his synthesis of existing doctrine outmoded or irrelevant.

Whether or not he turns out to have been correct, Tribe's decision to suspend his treatise marks an important moment in American constitutional scholarship. It is important not simply because Tribe and his treatise are important, but because Tribe has symbolized the liberal establishment in American constitutional law for many years, and because, as a seasoned litigator, he is as good a judge of future trends as anyone else in the country. When Larry Tribe says that a paradigm shift may be on the way, it is worth sitting up and taking notice.

I cannot think of a scholarly decision of similar symbolic importance. Perhaps the closest is Henry Hart's decision, before a stunned audience at the Harvard Law School, to sit down and refuse to deliver the third of his Holmes Lectures in January 1963 because he was not satisfied with his solution to the problem of judicial discretion in interpretation. In retrospect, Hart's decision to sit down signaled that he could not make his understandings of public law (including in particular statutory law) cohere with the Rights Revolution that was about to sweep American jurisprudence. Tribe's decision to "sit down" and leave his Third Edition unfinished may, in time, come to have a similar meaning-- that Tribe foresaw that he could not make his vision of what the Constitution means cohere with what he believes the constitutional law of the future will become.

Posted 8:52 PM by JB [link] (12) comments

Bettye Sue Balkin is 80 Today

JB

Happy Birthday, Ma!

Posted 9:38 AM by JB [link] (7) comments

Newsweek Delenda Est

JB

The Medium Lobster speaks truth to liberal media power.

Posted 11:46 AM by JB [link] (15) comments

Behind the filibuster controversy

JB

This New York Times article mentions in passing two key background issues in the filibuster fight.

So far, administration and Congressional aides said, the White House has avoided any strong-arm lobbying of Republican senators to end the use of filibusters to block nominees to federal judgeships.

The aides said any heavy-handed pressure from the White House could backfire by making the issue seem less about fairness than about the balance of power between the executive and legislative branches, a topic on which senators of any political stripe might be loath to side with the administration.

But of course, the filibuster is all about the balance of power between the President and Congress. Because the President and the Senate majority are from the same party (as is the House), the President would like to nominate whoever he likes with as little back talk as possible from Congress. Bush has fought hard for a model of Presidential leadership, in which the White House controls the legislative agenda and his lieutenants in the House and Senate twist arms to push it through. That is what happened to a very large degree with his tax cuts, the Medicare bill, and Social Security. It is also one of the reasons why Bush was happy to replace Trent Lott as Majority Leader with Bill Frist, who was far more indebted to him.

The second issue is connected to the first:

At the same time, the White House is publicly turning up the pressure on Democrats, accusing them of being obstructionist on judicial nominations and portraying that position as part of a broader problem that Democrats have used to keep Mr. Bush from addressing issues like Social Security and high oil prices.

In doing so, the White House is also pressing Democrats not to use the bitterness of the filibuster fight as a reason to slow the Senate to a crawl and cut off any remaining hope of bipartisan agreement on the rest of Mr. Bush's agenda. "The president is concerned that you've had leaders from the Democratic Party in the Senate who have been more intent on blocking progress than they have been on coming to the table and working with us to solve the important priorities that we face," Scott McClellan, the White House spokesman, said. "Let's remember that this matter is being discussed right now because Senate Democrats have gone to an unprecedented level of blocking the president's nominees to the bench from simply receiving an up-or-down vote on the floor of the United States Senate."

It will not be enough for Bush to win the filibuster issue on judges. He must also make sure that the Democrats do not dare muck up the legislative agenda over the next one and a half years leading up to the 2006 elections. Bush well knows that after these elections, his influence will decline markedly (unless, of course, he can make a credible threat that his brother will replace him as the Republican nominee). So Bush is playing a dangerous game: If he gets his seven circuit court judges and his Supreme Court appointments, he may not get anything else of importance accomplished, including Social Security and tax reform.

Bush may be counting on the fact that he can successfully brand the Democrats as obstructionist if they delay Senate business in retaliation and start refusing to give universal consent to ordinary Senate procedures. He can use this to try to increase Republican margins in the House and Senate (or defend them from decline) in the 2006 elections. To be sure, he takes a significant risk in doing this. On the other hand, Bush is by nature a risk taker, and he may believe that by pressing for the nuclear option, he can not only win the fight over filibusters, but also make the Democrats capitulate, with the result that the Republicans will face a relatively toothless opponent in the years to come. This suggests that the struggle ahead is not simply about seven appellate judges. It is a battle for all the marbles.

Posted 12:33 PM by JB [link] (15) comments

Discrimination Warnings

Ian Ayres

I just published a short article with Jennifer Brown over at AlterNet suggesting a way that the New Jersey legislature might make peace with Supreme Court's decision upholding the boy scouts' right to descriminate. Freedom of association guarantees the right of private groups to discriminate, but the legislature might insist upon informed association.

The state might require that to avoid liability a private association must maintain records of written ackowledgements from each of its members indicating that they are choosing to associate with an organization that retains the option of discriminating on certain bases.

A lot of people couldn't bring themselves to sign such a document.
Posted 10:33 PM by Ian Ayres [link] (19) comments

And so it begins . . .

JB

The Senate debate over Priscilla Owen has started. Now we will see how far Bill Frist is willing to push things.

Here's an account of how things may play out.

Posted 4:28 PM by JB [link] (1) comments

Nebraskans Can Still Decide

Ian Ayres

Last week’s decision striking down Nebraska’s “marriage protection” amendment is an extraordinary use of the federal constitution to promote continuing legislative deliberation.

The opinion doesn’t strike down the state’s statutory prohibition of same-sex marriage. It just says that the prohibition cannot be locked into the state’s constitution.

The opponents of same-sex marriage are already castigating the decision as the most anti-democratic judicial intervention. When earlier courts in Hawaii, Vermont and Massachusetts required those states to give some legal recognition to same sex couples, they did so on the basis of their state constitutions. This left open the possibility for the people to overrule these decisions by amending their state constitution.

But the Nebraska opinion is the first decision to strike down a state constitutional marriage provision itself for running afoul of our federal constitution. It thus seems to preempt the people of state from defining the meaning of marriage.

You just know that President Bush will seize upon the opinion and argue that the only solution for this judicial activism is to amend the federal constitution.

But the opinion does not preempt the ability of Nebraskans to prohibit same-sex marriage. It just says that Nebraskans have to do this legislatively. The people’s representatives in state’s unicameral legislature can still deny recognition, but they have to be willing to hear continuing petitions to change the law.

What is extraordinary about the Nebraska opinion is that it is not about substantive marriage rights. It is centrally about maintaining a continuing democratic deliberative process.

The plaintiffs in the case did not seek any “recognition of same-sex marriages, civil unions or domestic partnerships as a remedy in this case.” They sought “only ‘a level playing field’ that would permit them to access the Nebraska Unicameral to lobby for legal protections.”

The judge found that the federal constitution prohibited the state from taking the recognition of legal rights of same-sex couples out of the legislative arena.

Even though more than 70% of the populace voted in favor of the state-wide constitutional initiative in 2000, the judge ruled that the federal constitution prohibits the state from limiting the ability of same-sex couples to petition the legislature for redress.

James C. Dobson, founder of Focus on the Family, has already decried as “ludicrous” the idea that the amendment somehow disenfranchises supporters of same-sex marriage: “they have every right to undertake the amendment process themselves and get a different measure passed – that's the way democracy is designed to work.”

But court disagreed. It was constitutionally unreasonable to abrogate the ability of minority to petition the legislature for relief. The court emphasized: “This case is about a fundamental right of access to the political process, not about the end result of that process. It matters not that the group is gay and lesbian. Members of all groups, which include those that are controversial, have a fundamental right to ask for the benefits and protections from the government.”

So in a sense this decision means that a state statute is superior to the state constitution. Normally we think of the constitution as superior law. But here is a special situation where a rule of law becomes unconstitutional merely because it is put in the less amendable constitution. After this opinion, the statutory prohibition stands, but the constitutional prohibition falls.

The statute’s weakness is its greatest strength. The fact that the statute is more easily amended means that same-sex couples retain a more vibrant right to petition a deliberative body for redress of their grievances.

The U.S. Supreme Court upheld similar reasoning in 1967 when it struck down an analogous California constitutional amendment. The infamous Proposition 14 prohibited the state’s legislature from considering fair housing measures. The Supreme Court found that the legislature might choose not to adopt such measures but the constitution could not ban them.

You can find a deeper analysis of this type of constitutional thinking in these two fine articles: Vikram D. Amar & Evan H. Caminker, Equal Protection, Unequal Political Burdens, and the CCRI, 23 Hastings Const. L.Q. 1019 (1996) (hereinafter Political Burdens); Vikram D. Amar & Evan Caminker, The Hunter Doctrine and Proposition 209: A Reply to Thomas Wood, 24 Hastings Const. L.Q. 1001 91997).

These opinions do not mean that all state constitutional provision are infirm. Most prohibitions protect individuals from government encroachment (“Congress shall pass no law . . .”). Other prohibitions restrict the rights of individual generally. The opinion only strikes at state constitutional provisions that preempt discrete minorities from access to their legislature.

Voter initiatives have many democratic advantages, but they preclude one kind of deliberation. Individual voters have no duty to listen or to speak to people they don’t like. But legislatures are different. A minority view that can find support of a single legislator has the right to be heard.

The supporters and opponents of legal recognition for same couples actually agree on one important point. They both know that the future belongs to equality. Polls show that each successive generation is more amenable to recognition. My own state of Connecticut just democratically embraced civil union. To paraphrase our president, equality is on the march. That is why it is so important for the opponents of same sex recognition to try to preempt future democracy by locking their non-recognition into state and federal constitutions now. They can also reading the writing on the wall.

The state of Nebraska in its brief argued, “There is no civil right to control the terms on which a political battle will be fought, i.e., on a . . . or legislative level rather than on a
state-wide voter initiative level.”

But the court found that Nebraskans will have to fight this battle in its legislature. Its legislatures will have to be continually open to petitions and debate and to give reasons for the denial of same-sex rights. They have to have the opportunity to change their minds.
Posted 9:18 AM by Ian Ayres [link] (21) comments

A threat to impartiality in the American Senate

Guest Blogger

By Bruce Ackerman

During the coming week, the US Senate will be struggling with a question that will affect the path of American constitutional law for decades. While senators are battling over Democratic efforts to filibuster George W. Bush's nominees to the courts of appeal, this conflict will set the stage for a larger struggle in June, when William Rehnquist is expected to announce his retirement as chief justice of the Supreme Court.

Mr Rehnquist's retirement will be the first of a series. Eight of the court's nine justices are over 65. Depending on the new appointments, the court may continue down its present course or launch revolutionary changes in constitutional principle. Under existing rules, it takes 60 senators to terminate debate, enabling Democrats to filibuster judicial nominations that pander too obviously to the religious right. But rightwing activists are pressing the 55 Senate Republicans to allow a simple majority to confirm the president's judicial nominations.

Their prime target is Bill Frist, the Senate majority leader. As a leading candidate for the presidency, Mr Frist is especially eager to pacify his religious constituency. But the Senate rules do not make this easy. A special provision requires "two-thirds of the senators present and voting" to end debate on rule changes and Mr Frist will fall far short of the 67 senators this requires. His predicament is exacerbated by another provision stipulating that no rule may be changed except as "provided in these rules".

Faced with this unambiguous command, the Republican leadership has manufactured a constitutional objection to the rules themselves. The constitution says each house "may determine the rules of its proceedings", and for two centuries the Senate has exercised this power in a distinctive fashion. As only one-third of its members enter with every election, the Senate has viewed itself as a continuing body. Unless there is a challenge at its opening session, the Senate continues to operate under its established rules.

Mr Frist is urging his fellow Republicans to repudiate this understanding. He claims that the Senate has the constitutional right to be like the House of Representatives, which approves its rules each session by simple majority vote. Conservatives do not often insist on repudiating a practice dating from the founding fathers. In any event, Mr Frist's analogy to the House does not get him where he wants to go. Once the House organises itself at its opening session, it must follow its own rules if it wants to change them later. In contrast, Mr Frist claims that a Senate majority may simply repudiate the rules at any time. This raises the question, according to the nonpartisan Congressional Reference Service, of wheth-er the Senate will become "a chaotic environment in which a temporary majority could change precedents any time it wanted to". The constitution gives the Senate the power to "determine its rules", but nothing gives it the authority to ignore them.

Nevertheless, the Republican leadership wants change before the Rehnquist vacancy opens. Mr Frist plans this week to make a pending judicial nomination into a test case. He is counting on vice-president Dick Cheney, as president of the Senate, to declare the key Senate rules unconstitutional, and to end debate on the basis of a simple majority vote. Unsurprisingly, he is having trouble rounding up 51 votes to support this manoeuvre, leading Mr Cheney to offer further assistance. As Senate president he has the power to break tie votes and has said he would cast the deciding ballot to destroy the rules.

There is more at stake than sheer lawlessness. The filibuster permits the Senate to play a moderating role within the constitutional system of checks and balances. Except when there is a decisive landslide, it requires the majority party to moderate its initiatives to gain the support of at least a few minority Senators. Mr Cheney's role in destroying the moderating role of the Senate is particularly problematic. For two centuries, the Senate president has been the pre-eminent guardian of the rules. Thomas Jefferson first put them in writing when he served as vice-president. His aim was to prevent political manipulation by the presiding officer, and Senate presidents have consistently served as impartial arbiters. In breaking with this tradition, Mr Cheney has a clear conflict of interests. As president of the Senate, he owes the institution fidelity to its rules, but as vice-president to Mr Bush, he wants to see his boss's judicial nominations confirmed. By allowing his executive interest to trump his duty to the Senate, Mr Cheney is undercutting the separation of powers.

Constitutional tragedy turns to farce in the light of Mr Cheney's professed aim: to appoint judges who will return to the original understanding of the constitution and the rule of law. Physician, heal thyself.

This essay is reprinted with permission from the Financial Times, May 15, 2005.

Posted 11:02 AM by Guest Blogger [link] (0) comments

Bad Originalism

JB

This argument by Edward Whelan tries to show that it is obvious that Brown v. Board of Education is consistent with the original understanding of the Fourteenth Amendment. But what Whelan shows instead is how difficult it is to make that case. More importantly, his essay shows that the desire to reach a particular result usually results in bad originalism, which engages in anachronisms and pays insufficient attention to the historical record. I'm all for serious historical analysis into the original public meaning of the constitutional text, but such inquiries will only take us so far. The fact that Brown cannot easily be reconciled with the original understanding should *not* be regarded as a knock-down argument against the use of originalist arguments generally; rather it simply shows that our practices of constitutional interpretation have, and legitimately have, made use of many other modalities of interpretation besides appeals to the original understanding. Failure to recognize this basic fact about the American constitutional tradition leads to Whelan's strained attempt to show that Brown is "really" an originalist decision. But let's get to his actual arguments.

Whelan first notes that although

the 37th Congress created segregated public schools for black children in D.C. in 1862, but it was a later, different Congress — the 39th — that in 1866 proposed the Fourteenth Amendment, which was ratified in 1868. As the brilliant scholar (and now tenth-circuit judge) Michael McConnell explains in his 1995 Virginia Law Review article "Originalism and the Desegregation Decisions": "At no time after the Fourteenth Amendment did Congress vote in favor of segregated schools in the District [of Columbia] (although Congress appropriated money for the segregated schools that already existed)." In addition, the restrictions of the Fourteenth Amendment apply only to states, not to Congress, so congressional action with respect to D.C. schools provides a shaky foundation for any inference as to the contemporaneous understanding of the Fourteenth Amendment.

But the very fact that Congress appropriated money to segregated schools that already existed following ratification of the Fourteenth Amendment doesn't really suggest that such schools were constitutionally suspect. In fact, it suggests the opposite, that such schools were constitutionally legitimate. Indeed, Congress's financial support for segregated schools in the District of Columbia is not surprising, for as I discuss later in conjunction with Michael McConnell's arguments, the idea of school desegregation was quite unpopular in 1868, and school segregation was widely practiced throughout the country.

Whelan's fallback position is that what Congress did, either in 1862 or in 1868, made no difference because Congress assumed that it wasn't bound by the Fourteenth Amendment (or by the equal protection clause), whose text seems to apply only to the states. This is perfectly reasonable, but given Whelan's originalist premises this suggests that Bolling v. Sharpe-- which holds that the federal government cannot segregate the D.C. public schools, and thus the 1995 Adarand case-- which holds that federal affirmative action programs are subject to strict scrutiny-- are inconsistent with original understanding. This is a result that will discomfit both liberals and conservatives.

Indeed, in my 2001 book What Brown v. Board of Education Should Have Said, Michael McConnell had the courage of his convictions-- he argued that the result in Bolling could not be sustained under the Due Process Clause of the Fifth Amendment(ratified in 1791), and that the Constitution does not forbid the federal government from engaging in race discrimination. (Judge Robert Bork took the same position in his 1991 book The Tempting of America). Instead, McConnell argued that segregating the D.C. schools was beyond the D.C. school board's power because Congress had not specifically authorized the school board to do so. Of course, Congress had not specifically told the school board that it could not do so, and throughout the early 20th century I suspect that most Congressmen and Senators, particularly those from the South, would be very surprised to learn that the D.C. schools didn't have the authority to segregate their pupils by race. Indeed, they expected that it did have such authority, and they expected those schools to be segregated, as in fact they were. McConnell's ultra vires argument is pretty unpersuasive given the actual history of segregation in the District of Columbia; it is his way of reconciling his sincere originalist views with the unpalatability of their consequences.

While I'm on the subject of McConnell's scholarship on Brown, his originalist argument for Brown is that Congress considered but ultimately rejected a ban on segregated public schooling in what ultimately became the Civil Rights Act of 1875, which was designed to enforce the Fourteenth Amendment. (There are many ironies here, including the possibility that if McConnell is right, then the Civil Rights Cases, which held that the 1875 Act was not a valid attempt to enforce the Fourteenth Amendment, is probably wrong. But don't get me started.).

McConnell correctly points out that many of the people who voted for the Fourteenth Amendment also voted for the school desegregation language in the 1875 Act, hence he concludes that this is evidence of what they intended in 1868.

The problem with McConnell's argument is that he must concede, as he does in his 1995 study, that at the time of the ratification of the Fourteenth Amendment, "school desegregation was deeply unpopular among whites, in both North and South, and school segregation was very commonly practiced." Indeed, McConnell contends that the Fourteenth Amendment, along with the Fifteenth, is virtually unique among amendments in the sense that it contradicted contemporary popular opinion rather than being consistent with it. As a result, he argues that the views of the actual ratifiers of the Fourteenth Amendment in the states-- who largely opposed school desegregation-- should be disregarded to the extent that they contradict the views of those framers who voted for school desegregation in subsequent debates over the 1875 Civil Rights Act in Congress. To put it mildly, this is a very controversial view about the Amendment process. Given the importance that originalists usually put on the ratification debates in the states, McConnell's argument, which rejects the views of the actual ratifiers of the Amendment, and which is based on what was, at the end of the day, a piece of legislation that failed in Congress, is not particularly persuasive.

Whelan's next argument is that the 1880 case of Strauder v. West Virginia demonstrates that segregation was prohibited by the Fourteenth Amendment.

As early as 1880 — a mere twelve years after ratification of the Fourteenth Amendment — the Supreme Court in Strauder v. West Virginia read the Fourteenth Amendment as "declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color."

Even in its notorious 1896 ruling in Plessy v. Ferguson, the majority stated that the "object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law." But then, in the sort of freewheeling non-originalist excursion that advocates of the phony "living Constitution" have come to celebrate, the majority looked to the mystery of the universe to assert that "in the nature of things" the Fourteenth Amendment "could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality." By contrast, Justice Harlan's celebrated dissent quoted Strauder and declared that the purpose of the Fourteenth Amendment was to "remove[] the race line from our governmental systems."

Whelan's argument associating Strauder with a strict colorblindness rule and Plessy v. Ferguson with nonoriginalist living constitutionalism suggests that he understands very little about the history of the ratification of the Fourteenth Amendment. The Fourteenth Amendment did guarantee "equality under the law," but that phrase meant civil equality-- equal rights to sue and be sued, make contracts, own property, and, under some formulations, equal rights to free speech and free exercise of religion. Civil equality was distinguished from political equality-- the equal right of blacks to vote, serve on juries or hold political office, and it did not mean social equality, including the rights of blacks to intermarry with whites or the right to associate in civil society with whites on an equal footing. A strict colorblindness rule was rejected because it would give blacks the vote and lead to racial mixing. That is why the language of the Fourteenth Amendment is carefully chosen to guarantee only civil equality-- this is what the words "privileges and immunities" and "equal protection of the laws" meant in 1868-- and that is why a Fifteenth Amendment specifically guaranteeing blacks the right to vote (a feature of political equality) was required in 1870. (One of the interesting features of Strauder is that it blurs the civil/political distinction recognized by the framers, on which see Justice Field's dissent in the companion case of Ex Parte Virginia). All of these historical features of the original understanding appear to be lost on Whelan, who reads the text through 21st century eyes. In 1868, moderate Republicans could not stomach the idea of giving blacks the right to vote permanently (although they did vote in various state conventions), and they could not stomach striking down existing laws against miscegenation. So when Whelan quotes Strauder, he is quoting language that in its own day would have been understood to refer to civil equality, and because the Fifteenth Amendment had been ratified by that point, to political equality as well. Moreover, when Plessy states that "in the nature of things" the Fourteenth Amendment "could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality," (emphasis supplied) it is essentially stating the original understanding of the Fourteenth and Fifteenth Amendments.

The great irony is that Whelan thinks that this language from Plessy is "living constitutionalism" because he appears to be unfamiliar with the history. He simply assumes that the Fourteenth Amendment must have been about colorblindness and that the Plessy Court must have been engaged in nonoriginalist judicial activism because he uses the doctrinal categories and the political debates of our own day to understand Plessy. This is a perfect example of what I regard as bad originalism-- anachronistic special pleading that is insensitive to the complications of history.

In fact the central issue in Plessy is not whether the constitution is colorblind in our modern day sense of that word. It is whether sitting next to whites in railway carriages (or, by extension, in public schools) is an attribute of civil or social equality. Seven Justices believed that it was an attribute of social equality, only one (Justice Harlan) believed that it was a matter of civil equality. Indeed, Justice Harlan-- the great prophet of colorblindness-- does not support the idea of colorblindness in our modern sense. He also believed in the distinction between civil, political, and social equality. Thus, he went out of his way to emphasize the very point that Whelan mistakenly associates with the dreaded doctrine of living constitutionalism-- that just because blacks are civilly and politically equal doesn't mean that they are socially equal, or indeed, ever will be so.

One of the great ironies of the Plessy dissent is that in the sentences immediately prior to Harlan's invocation that "our Constitution is colorblind"-- he points out that

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.

And later he notes that

social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.

So Harlan and the majority both agree that the Fourteenth Amendment does not guarantee colorblindness in all cases, only in cases of civil or political equality. The only issue that divides them is whether an issue of civil or social equality is being raised. In 1883, in Pace v. Alabama, which considered an Alabama statute that punished interracial cohabitation more stringently than cohabitation between members of the same race, the court unanimously upheld the law. Harlan did not dissent because this was a question of social equality, and where social equality is concerned separate but equal was perfectly constitutional.

All of this suggests the real problem with Whelan's originalism. He doesn't appear to understand the historical distinctions that animated the Fourteenth Amendment. If he was really serious about originalism, he would support the tripartite distinction between civil, political and social equality, and demand that the Court reinstate it in its jurisprudence. That would mean, among other things, that Loving v. Virginia-- the case that first announces the rule of strict scrutiny for all racial classifications under the Equal Protection Clause-- was wrongly decided. And that would mean, for example, that Virginia could today make the originalist Justice Clarence Thomas's marriage illegal, as indeed interracial marriage was in Virginia before the Loving decision.

Next Whelan rolls out Robert Bork's well-known argument for why Brown is consistent with original understanding:

Under an alternative originalist approach, as Judge Bork and others have argued, even if the ratifiers of the Fourteenth Amendment assumed that segregated public schools were consistent with equality, objective comparisons of facilities and resources had, by the time of Brown, long since disproved this assumption. Under this approach, an originalist opinion in Brown would therefore have concluded that the Fourteenth Amendment's clear purpose of establishing racial equality under the law required an end to segregated schooling.

The problem here is that Bork's argument isn't actually originalist. Here's Bork's actual argument, taken from his confirmation hearings:

[P]assing [some] historical evidence, which I think casts some doubt on the flat assumption that the 14th Amendment really meant separate but equal, let me say this. [The framers] wrote a clause that does not say anything about separation. They wrote a clause that says “equal protection of the laws.” I think it may well be true . . . that they had an assumption . . . that equality could be achieved with separation. Over the years it became clear that that assumption would not be borne out in reality ever. Separation would never produce equality.
I think when the background assumption proved false, it was entirely proper for the court to say “we will carry out the rule they wrote” and if they would have been a little surprised that it worked out this way, that is too bad. That is the rule they wrote and they assumed something that is not true.

And in that way I do not think any damage is done—you can even look at it more severely. You could say suppose they had written a clause that said “we want equality and that can be achieved by separation and we want that too.” By 1954 it was perfectly apparent that you could not have both equality and separation. Now the court has to violate one aspect or the other of that clause, as I have framed it hypothetically. It seems to me that the way the actual amendment was written, it was natural to choose the equality segment, and the court did so. I think it was proper constitutional law, and I think we are all better off for it.

One problem with this argument is that it is anachronistic-- it pays no attention to the civil/political/social distinction around which the language of the Fourteenth Amendment was crafted. It is no accident that the words "privileges and immunities" and "equal protection" were used instead of more general formulas that were proposed and rejected. Bork assumes that if faced with a conflict between equality and separation of the races, the framers would have chosen to promote equality even if this resulted in some racial mixing. That makes sense from the standpoint of our own values, in a post-Brown world, but not necessarily from theirs. As Paul Brest points out in the casebook that I co-edit, a more plausible translation of the civil/political/social distinction that animated the Fourteenth Amendment is "We want equality, but not if it requires mixing the races in schools or other such places." That is, in fact, why they chose the language they chose-- they wanted to exclude considerations of equality from certain spheres of social life, most prominently those having to do with marriage, family, and social integration.

It's important to recognize that this objection is about whether Bork gets his history right as an originalist, not whether his argument for Brown is a good or bad argument in general. In fact, I think that Bork's argument for Brown is quite plausible; it has similarities to the argument that I make in my own opinion in What Brown v. Board of Education Should Have Said. But my point is that it is not an originalist argument. Rather, it is, dare I say it, a perfect example of how one does living constitutionalism-- it views changed circumstances and prudential considerations as having significant weight in interpreting the meaning of the document.

I believe that originalist argument is an important modality of constitutional interpretation. My disagreement with today's originalists is that it is not the only or even the most important modality. I repeat, the issue is not about whether appeals to original understanding are legitimate or illegitimate. It is about whether originalism is the only touchstone of legitimate constitutional interpretation. I do not think that Brown can be justified solely on originalist grounds. However, that does not undermine the use of original understanding as a method of ascertaining constitutional meaning. What it does undermine is the view that judicial decisions are legitimate only if they can be squared with original understanding, and that decisions that appeal to text, post-enactment history, structure, prudential considerations, precedents (both judicial and non-judicial), traditions, and national ethos are illegitimate if they are unsupported by original understandings. The real debate is over unimodal versus multimodal interpretation. I am a multimodal interpreter, and I regard Brown v. Board of Education (and even more powerfully Bolling v. Sharpe) as strong examples for why a multimodal approach to constitutional interpretation is superior, and, I would say, far more legitimate than a unimodal approach. Indeed, the lesson I draw from Whelan's bad originalism is that people who claim to be strict originalists are usually multimodal interpreters too; they just don't recognize it or are not willing to admit it. As a result, they misunderstand or misuse history in order to shoe horn their conclusions into the language of original understanding. Whelan's essay is a good example of this unfortunate trend.

UPDATE: Whelan's response is here. It's a very puzzling performance, which seems to suggest that he hasn't done his homework. His argument seems to be that the Fourteenth Amendment's plain language reaches all distinctions based on race, i.e., that "the purpose of the Fourteenth Amendment was to “remove[] the race line from our governmental systems." I'm sorry to report that this just isn't the case. For one thing, it doesn't explain why a Fifteenth Amendment was necessary. Whelan doesn't seem to get why Congress used the actual language it did, rather than language that was offered to Congress (and rejected) that would have instituted a more general colorblindness rule. That is to say, Whelan reads the language of the Fourteenth Amendment anachronistically, rather than trying to figure out what it meant to people in its own day, as any good originalist (and any good historian) should. He also doesn't seem to get how the civil/political/social distinction worked, or what it was designed to achieve, and so he doesn't understand the reasons why Harlan could join in Pace v. Alabama and dissent in Plessy. (By the way, on Strauder, the reason why Strauder blurs the civil/political distinction is not because the distinction wasn't real in 1868, but because of the subsequent ratification of the Fifteenth Amendment, as my colleague Akhil Amar points out in his book on the The Bill of Rights. Justice Field dissented because he thought that Strauder was brought as a Fourteenth Amendment, and not a Fifteenth Amendment case.)

You can't really discuss what the Fourteenth Amendment "plainly" says from an originalist standpoint without understanding the theories of citizenship which generated that particular text. In this case, the basic idea was that all citizens-- men and women alike, were granted civil equality, but not political or social equality. Whelan is right that the text doesn't say "separate but equal." But it also doesn't say "no distinctions on the basis of color." That's because the idea behind the Fourteenth Amendment was not our modern idea of suspect classifications, but rather a vision under which *all* citizens had certain basic rights, the elements of civil equality, while a smaller group had rights of political participation, and the states were permitted to recognize and maintain certain features of social inequality that concerned marriage and racial mixing. (Hence Pace v. Alabama is unanimous even though it involves a clear racial classification and imposes a separate but equal rule). The underlying theory of citizenship is why the particular words used in the Fourteenth Amendment were chosen and not others. If you don't understand the history, you don't understand what the words actually chosen mean, and so you come up with anachronistic interpretations about what the words "plainly" meant at the time.

The irony is that Whelan argues that folks like me, who have spent some time thinking and writing about the history of the Fourteenth Amendment and about Brown v Board of Education, "can't be trusted", when in fact his posts suggest that he himself knows little about the history of the period. This is what I mean by "bad originalism."

Posted 9:38 PM by JB [link] (44) comments

What is at stake in the nuclear option?

JB

One might well wonder why the fight over President Bush's seven filibustered judicial appointments has become so confrontational. After all, it's just seven lower court appointments. If the President loses, he has gotten about 95 percent of his appointments through, a very high percentage for a President. If the Democrats lose, they simply have to put up with seven more very conservative lower court judges.

In fact, the controversy is about more than whether these seven individuals become federal judges. It is about the relative power of the two parties going forward and about the likely content of constitutional law in the next generation. Both of these things are eminently worth fighting about.

The Republicans currently hold all three branches of government. They have won what I call the "constitutional trifecta." During such periods, all three branches are working more or less in sync with each other, and American democracy, which is full of checks and balances, begins to approach the single minded efficiency of a parliamentary system ruled by a single party and led by a Prime Minister who is the head of the party. Such periods are relatively rare in the country's history and generally presage a significant revolution in legislation, in constitutional interpretation, or both. The last two sustained periods were the 1960s and the New Deal. (The New Deal is probably a better analogy because in the 1960s the liberal wing of the Democratic Party had to rely liberals and moderates Republicans to push through the Civil Rights Act of 1964, the Voting Rights Act of 1965, and many key Great Society programs).

Although the Republicans have won the trifecta, the country is fairly evenly divided in support for Democrats and Republicans (I put it this way because there are many independents who switch allegiances depending on the candidate or issue). So the current situation represents a serious malapportionment of power. The Republicans have too much power given their public support; the Democrats too little. The Republicans would like to consolidate their gains and become the majority party, not simply in terms of seats but in terms of public support, and drive the Democrats into a position of permanent minority status.

Because of the malapportionment of power, the only leverage that the Democrats have to represent the approximately 48 percent of the country that more or less supports them is their power to block legislation and appointments in the Senate. The Republicans would like to kick away this last remaining prop of counterbalancing power and govern unconstrained, so that they henceforth have only to contend with and reconcile the different forces within their own party.

Getting rid of the filibuster is a key device for achieving this goal. Although the current fight is over judicial nominations, if the Republicans are successful, there will probably be considerable pressure to eliminate the filibuster in other areas so that the Republicans can govern with a freer hand on important issues like taxes, tort reform, and Social Security. If this remaining tool of opposition can be eliminated, the Republicans can proceed to promote their policy goals with far less resistance. E.J. Dionne puts the matter succinctly in a recent column:

Grover Norquist, the president of Americans for Tax Reform and a leading figure in both the DeLay and Bush political operations, chose more colorful post-election language to describe the future. "Once the minority of House and Senate are comfortable in their minority status, they will have no problem socializing with the Republicans," he told Richard Leiby of The Post. "Any farmer will tell you that certain animals run around and are unpleasant. But when they've been 'fixed,' then they are happy and sedate. They are contented and cheerful."

In fact, eliminating the filibuster is about consolidating Presidential power-- the power of President Bush as leader of the Republican Party-- as much as it is about Republican power, as this story in the Post suggests:

The president, who initiated the conflict by renominating judges whom Democrats had blocked during his first term and demanding new votes this year, is essentially guaranteeing a showdown that is as much about the power of the presidency as Democratic obstinacy, according to numerous government scholars. The result could be a more powerful White House, a weakened Congress and the possible erosion, if not end of, the most powerful tool available to the minority party, the filibuster, the scholars said.

"This is being done to . . . help a president achieve what he wants to achieve," said former representative Mickey Edwards (R-Okla.), now a scholar at the Aspen Institute. "It's a total disavowal of the basic framework of the system of government. It's much more efficient [for Bush], but our government was not designed to be efficient."
. . . .
Although Republicans say the rule change would apply only to votes on judges, Richard Pious, a professor of political science at Barnard College, said there would be nothing to prevent this Congress or future ones from applying the precedent to non-judicial matters such as tax cuts or restructuring government programs. "Once you get the procedural method through, then if you have 50 votes and a vice president presiding, I think you can do it," he said.

Norman Ornstein, a scholar at the American Enterprise Institute, agreed. "There is absolutely no doubt in my mind if they do this, sooner rather than later . . . we will head down the slippery slope, probably first for executive nominations and then legislation," he said. "It erodes the Senate as an institution, but also clearly makes Congress less significant."

The second goal behind ending the filibuster is to smooth the way for Bush to appoint very conservative judges to the U.S. Supreme Court as well as the lower federal courts. This is a method of constitutional change that Sanford Levinson and I have called "partisan entrenchment," in which a determined President stocks the life-tenured federal courts with ideological allies. Through this strategy (1) the President can alter the positive law of the Constitution by tipping the working majority on the Court in the direction of his ideological allies; (2) the President can assure a more friendly federal bench that will cooperate with and support his legislative and policy initiatives; and (3) the President can install his ideological allies in life tenured positions where they will continue to have influence long after the President has retired and his Party has lost power in the political branches.

The first goal-- reshaping constitutional law-- is particularly important. Most constitutional change occurs not through Article V but through Article III-- not by explicit amendment but through judicial interpretation. Stocking the courts with ideological allies allows a President to reshape constitutional doctrine in line with his beliefs or with those of important constituencies in his party.

Not all Presidents have adopted this strategy of partisan entrenchment, but Reagan, Bush I, and Bush II have. They have done so in part because the contemporary Republican Party is a social movement party-- that is, it is dominated by key religious and conservative social movements that want to reshape the country. They well understand that the judicial interpretations of the Constitution have been a key part of the liberal agenda, and now they wish to use the power of the courts to promote their own policy goals. What is equally important, they wish to enshrine their vision of what they regard as the correct interpretation of the Constitution into the future, because once key constitutional doctrines (like those which followed the New Deal) are put in place, they usually resist significant alteration for long periods of time. Put in terms of my colleague Bruce Ackerman's theory of constitutional change, movement Republicans seek a "constitutional moment" that will usher in a new regime of conservative constitutionalism that will shape and dominate constitutional thought for generations to come. Eliminating the judicial filibuster is a key step in making that dream a reality.

Posted 7:43 AM by JB [link] (17) comments

Has Congress Prohibited "Torture Light"?

Marty Lederman

Article 16 of the Convention Against Torture requires the United States to “undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

In a series of posts on this blog back in January (see, for example, here, here, here, here, here, here, here, here, and here), I tried to show that the Administration construes current law, including Article 16, not to prohibit the CIA from engaging in what might be called “torture light” against aliens detained overseas—that is, to permit the CIA to engage in interrogation techniques, such as waterboarding and threatening the death of loved ones, that (in the Administration’s view) do not quite rise to the level of “torture” as that word is defined under current law—and to do so even where such conduct would “shock the conscience,” and thus be unconstitutional, if performed here in the U.S.

Senator Durbin (along with some of his colleagues on the Senate Judiciary Committee) has been working tirelessly to close this “loophole.” He sponsored an amendment to last year’s Intelligence Reform bill that would have attempted to prohibit all U.S. personnel from engaging in such conduct anywhere in the world, and the Senate overwhelmingly passed the amendment. But in this letter from Condoleeza Rice and Josh Bolten (see bottom of page 8), the Administration opposed the Durbin Amendment because it “would have provided legal protections to foreign prisoners to which they are not now entitled," and the Administration “persuaded” the conferees to strip the provision from the bill before final enactment of the law.

Today’s New York Times reports on the imminent enactment of a different Durbin amendment addressed to the same problem:

Congress barred the government on Tuesday from using any money in a newly passed emergency spending bill to subject anyone in American custody to torture or "cruel, inhuman or degrading treatment" that is forbidden by the Constitution. Proponents said the little-noticed provision, in an $82 billion bill devoted mostly to financing military operations in Iraq and Afghanistan, amounted to a significant strengthening of current policies and practices in the treatment of prisoners.

* * *

The administration, which helped defeat efforts to include antitorture restrictions in legislation last year, said it did not oppose the provision in the new military operations bill. The Senate passed that bill on Tuesday by a vote of 100 to 0, after approval by the House last week, and the administration indicated that President Bush would sign it into law.

* * *

Elisa Massimino, the Washington director of Human Rights First, formerly the Lawyers Committee for Human Rights, said the Congressional ban served to remove an important exemption claimed by the administration in its treatment of foreign prisoners.

At hearings on his confirmation as attorney general, Alberto R. Gonzales said the administration, backed by the courts, held that foreign prisoners "enjoy no substantive rights" under the Constitution or the Convention Against Torture, a United Nations agreement.

But the measure approved Tuesday drew no distinction between American citizens and foreign prisoners in forbidding cruel, unusual or inhuman treatment that is prohibited by the 5th, 8th and 14th amendments to the Constitution.

Ms. Massimino said the exemption cited by Mr. Gonzales was "a pretty big loophole, and this measure in Congress is a step toward herding the administration back toward the rule of law."

Unfortunately, this new measure is not what it seems. It is extremely well-intentioned, and it might “send a signal” of sorts—but it does not remove the loophole that permits the CIA to engage in conscience-shocking treatment of aliens overseas, which is no doubt why the Administration is more than happy to have the President sign it. [UPDATE: The President signed the bill on Wednesday; and he made no mention of the Durbin Amendment in his signing statement.]

Here's the text of the provision:

SEC. 1031. (a)(1) None of the funds appropriated or otherwise made available by this Act shall be obligated or expended to subject any person in the custody or under the physical control of the United States to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States.

(2) . . .

(b) As used in this section-
(1) the term "torture" has the meaning given that term in section 2340(1) of title 18, United States Code; and
(2) the term "cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the fifth amendment, eighth amendment, or fourteenth amendment to the Constitution of the United States.

There are two respects in which this law falls short of fixing the CIA problem:

First, the bill’s definition of “cruel, inhuman or degrading treatment” is the same definition that the Senate insisted upon when it ratified Article 16 of the Convention Against Torture. We now know that the Administration reads this definition not only to incorporate the substantive requirements of the Fifth Amendment (prohibiting conduct that “shocks the conscience”), but also to incorporate any geographical restrictions that apply to the Fifth Amendment. In particular, as the Department of Justice recently explained to Senators Leahy, Feinstein, and Feingold, the Administration takes the view that (i) the Fifth Amendment does not protect aliens who are in the custody of the U.S. overseas, and therefore, (ii) neither does Article 16. Both of these premises are highly contestable. (Indeed, one federal judge recently rejected the Administration’s view that the Due Process Clause does not protect aliens overseas. That ruling will soon be reviewed by the U.S. Court of Appeals for the D.C. Circuit in an extremely important case that I discuss further here.) But whether they are right or wrong, the Administration believes them, and therefore they currently govern the way the CIA does business overseas. The new statutory amendment would not change this definition, and presumably the Administration would construe it in the same tortured way that it construes Article 16—namely, not to protect aliens detained overseas.

Second, whatever its definitional scope, it is far from a categorical prohibition. The restriction applies only to "the funds appropriated or otherwise made available by this Act"—namely, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005. Thus, it does not restrict the CIA from using other appropriated funds to subject aliens overseas to any sort of interrogation techniques.

In sum, there is very good reason the President will eagerly sign this bill—namely, that it will not affect business as usual, but will instead (at most) recapitulate current legal restrictions that the Administration construes not to apply to CIA interrogation of aliens overseas. (When he introduced the amendment, Senator Durbin acknowledged its modest effect: “I am not putting in any new language, new ideas. I am restating existing law that governs the conduct of Americans. It is limited to the torture or cruel and inhuman or degrading treatment ‘that is prohibited by the Constitution, laws or treaties of the United States.’ In other words, it prohibits conduct already prohibited under U.S. law. It simply restates it. It is important we do restate it.” 151 Cong. Rec. S3976 (Apr. 20, 2005).)

Indeed, the Administration no doubt is thrilled to have this bill trumpeted across the pages of the New York Times, because even though it does not restrict the CIA’s "torture light" overseas, it does give the Administration one further opportunity to hide the ball while grandstanding about how unequivocally it is opposed to torture. (An Administration spokesperson is quoted in the Times as saying that the President will sign the bill because “[t]he president has made clear that this administration does not condone torture. . . . That is administration policy, and that still stands.")

It will be a serious mistake if Senators and others are lulled into thinking that they have solved this particular problem. In light of what we now know about the Administration's reading of current law, what is needed (at a minimum) is a very simple statute providing in no uncertain terms that no U.S. person, employee, official, officer, contractor or agent may, anywhere in the world, subject any other person (including alien detainees) to conduct that would, if performed in the United States, shock the conscience or otherwise violate the fifth amendment, eighth amendment, or fourteenth amendment to the Constitution of the United States. (What do you think are the odds the President would sign that one?)

Until such a law, or its equivalent, is enacted—or until the Supreme Court holds that alien detainees overseas are entitled to substantive rights under the Due Process Clause—the Administration presumably will continue to permit the CIA to engage in conduct just short of torture overseas, even where such conduct would violate the Constitution if performed domestically.
Posted 6:03 AM by Marty Lederman [link] (25) comments

Sunday Times: Secret British Meeting Says Americans "Fixed" Facts and Intelligence to Justify War in Iraq

JB

These secret minutes of a meeting between Prime Minister Tony Blair and his top aides on July 23d, 2002, leaked by the Sunday Times, have put Blair in hot water just before the British elections today. But they should also raise some concerns about President Bush's honesty:

C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record. There was little discussion in Washington of the aftermath after military action.
. . .
The Defence Secretary said that the US had already begun "spikes of activity" to put pressure on the regime. No decisions had been taken, but he thought the most likely timing in US minds for military action to begin was January, with the timeline beginning 30 days before the US Congressional elections.

The Foreign Secretary said he would discuss this with Colin Powell this week. It seemed clear that Bush had made up his mind to take military action, even if the timing was not yet decided. But the case was thin. Saddam was not threatening his neighbours, and his WMD capability was less than that of Libya, North Korea or Iran. We should work up a plan for an ultimatum to Saddam to allow back in the UN weapons inspectors. This would also help with the legal justification for the use of force.

The Attorney-General said that the desire for regime change was not a legal base for military action. There were three possible legal bases: self-defence, humanitarian intervention, or UNSC authorisation. The first and second could not be the base in this case. Relying on UNSCR 1205 of three years ago would be difficult. The situation might of course change.
. . .

Posted 8:08 AM by JB [link] (31) comments

When is a whistle blower a whistle blower?

Ian Ayres

Imagine that Jeff Van Gundy was telling the truth when he said "an official not working the playoffs" had called him and said that the league was targeting Yao Ming. And imagine that the league's action was part of an illegal "conspiracy" to bias the outcome of the games. Would Van Gundy's speech then be protected -- by whistle blower statutes, by antitrust law, by the first Amendment?

Has there ever been another case where a ref (a literal blower of whistles) was a metaphor whistle blower?
Posted 2:03 PM by Ian Ayres [link] (2) comments

TV Watch Launches

JB

TV Watch, a coalition designed to combat increasing attempts to censor broadcast television, radio, and cable programming, launched today. I've signed on as a member. This story from Reuters explains why the coalition was formed:

Most Americans believe that television networks should warn them about potentially unsavory content on their shows but disagree about whether to ban them from the air, according to a poll released on Wednesday.

About 90 percent strongly agreed or somewhat agreed that there should be advisories and ratings about potentially offensive content they may want to avoid, according to the survey done by pollsters Frank Luntz and Peter Hart.

But while 48 percent either strongly or somewhat agreed that television stations should not air such shows, 50 percent either somewhat disagreed or strongly disagreed, it said.

The poll is being issued by a new coalition, TV Watch, formed to counter a crackdown on what is aired on broadcast radio and television or cable and satellite services.

A large majority, 85 percent, said they preferred parents to exercise control over what they watch instead of the government, the survey of 1,002 people in March showed. The margin of error was plus or minus 3.1 percentage points.

Additionally, 89 percent said they believed parents would do a better job protecting their children from indecent material on television and radio, versus 10 percent who said the government would better protect them.

"We have formed TV Watch to speak for the majority of Americans whose views are unrepresented in the debate over rising government regulation of television programing and who want to protect their favorite shows from being forced off the air," said Jim Dyke, executive director of the coalition.

The group includes media companies as well as organizations that may not always see eye to eye on policy issues, such as the pro-business lobby U.S. Chamber of Commerce and the Center for Creative Voices in Media, which seeks media independence.

Parents groups, regulators and lawmakers have been pushing the media industry to tone down programing, offer choices to avoid it, or provide sufficient warnings about the content. One parents' group has criticized TV ratings as meaningless.

Television and radio broadcasters are prohibited from airing obscene material and can only air indecent content, like sexually explicit or profanity-laden shows, late at night when children are less likely to be in the audience.

After several headline-grabbing incidents like pop singer Janet Jackson's exposed breast on television, the Federal Communications Commission has increased pressure on broadcasters to clean up their act. The agency proposed fines or reached settlements totaling $7.9 million last year.

Lawmakers want to hike fines for broadcasting indecent content to as much as $500,000 per violation. Some in Congress are also seeking to apply the decency limits to subscription television and radio services.

Posted 11:11 AM by JB [link] (19) comments

You gotta be sincere

Ian Ayres

What parent hasn’t heard a child say with no small degree of indignation, "You lied to me; you said you would (take me to the park, buy me an ice cream cone…)." You want to respond, "No. Lying and promise-breaking are two different things. I might be a scoundrel for breaking my promise, but I never lied to you. I just changed my mind."

But there is still a way that the child's intuition can be right. A promise can be a lie if the promissor never intended to perform in the first place.

The law has long recognized this possibility and reacted harshly to insincere promisors. If you breach because you never intended to perform, you can be liable for punitive damages under the doctrine of promissory fraud (and can even be criminally prosecuted for false promise).

Because of the prospect of punitive damages, it shouldn't surprise us that promissory fraud is frequently claimed. In many jurisdictions, promissory fraud is litigated more than mistake and impossibility combined. But it is almost never taught in law schools.

Greg Klass and I are trying to change this state of the world. Yale University Press has just published our book Insincere Promises: The Law of Misrepresented Intent.

It is a complete guide to the law of promissory fraud. Here are four take-home lessons:

1. The Restatement of Torts says that every promise implicitly represents an intention to perform. But courts should acknowledge that not all promises include that representation, and they should allow promisors to disclaim it. Thus a business traveler who pays a non-refundable deposit to stay at the Holiday Inn can go ahead and immediately try for a reservation at the Ritz. Similarly, sophisticated parties drafting complex contracts should consider disclaiming representations of intent to perform, thereby minimizing promissory fraud liability.

2. Even promisors who don’t represent an intention to perform still must not intend not to perform. It would be promissory fraud (even with a non-refundable deposit) to book a reservation at the Holiday Inn that you know you are not going to use. And a party who disclaims a representation of an intent to perform should still be liable for promissory fraud if, when it entered into the contract, it affirmatively intended to breach.

3. Promissory fraud liability may not be appropriate when the promisor didn’t realize what she was promising. Any defendant who is mistaken about the scope of her promise – and testifies that she never intended to do X because she thought she had promised to do Y – currently runs the risk of beheld liable for promissory fraud. Every failed "mere puff" defense raises the risk of promissory fraud liability. Courts and litigators need to pay more attention to scienter.

4. Promissory fraud is usually inappropriate when a promisor breaches because of changed circumstances. But in some contexts, a defendant promisor makes an implicit representation of an intent not to breach even if a better offer comes along. Thus a landlord who rents to you and then immediately solicits tenants at a higher price is asking for trouble.

The act of promising often represents multiple facts about the world -- not just that the promissor intend to perform, but that it is probable that she will perform, and even that she will not change her mind for frivolous reasons. But promissors sometimes represent much less than this. Courts and litigators have been too wooden in their single minded notion of what promissory fraud is and is not. But a more nuanced approach which expands liability in some areas and contracts liability in others -- and which gives promissors more control over the extent of liability -- would better match modern contracting behavior and the needs of society.

Promissory fraud also provides a new way to view old common law chestnuts -- like Peeveyhouse, Carbolic Smoke Ball, and Red Owl. President Bush said "Read my lips', when he probably knew he might have to raise taxes. Justice Scalia promised Delta Airlines to take a return trip when he never intended to. Once you look, promissory fraud abounds not just in art and politics but in the world all around us.

You can also read the first chapter of the book here: or even (gulp) buy a copy here.
Posted 11:22 AM by Ian Ayres [link] (47) comments

If You're From the Future

JB

You probably already know about the first (and only) Time Traveler Convention scheduled for May 7th at the Massachusetts Institute of Technology. Drop me a line and let me know how it all turned out in advance.

Posted 8:14 AM by JB [link] (2) comments

Against People of Faith

JB

Forget the Democrats. Let a couple of pros show you how it is really done:

Televangelist and one-time presidential candidate Pat Robertson praised former New York City Mayor Rudolph W. Giuliani on Sunday, saying that despite disagreements on social issues, Giuliani would make "a good president."

Appearing on ABC's "This Week," Robertson — who founded the Christian Coalition — also said he would be wary of appointing Muslims to top positions in the U.S. government, including judgeships.

His comments on Islam drew a heated response from Muslim leaders, who criticized them as racist and inaccurate.

Another conservative Christian leader, the Rev. Louis P. Sheldon, was more cautious in an interview about embracing Giuliani as a presidential candidate, but said he was inclined to agree with Robertson's view of Islam.

Compare U.S. Constitution, Article VI section 3:

The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

In another discussion, Robertson further elaborated his position:

Federal judges are a more serious threat to America than Al Qaeda and the Sept. 11 terrorists, the Rev. Pat Robertson claimed yesterday.

"Over 100 years, I think the gradual erosion of the consensus that's held our country together is probably more serious than a few bearded terrorists who fly into buildings," Robertson said on ABC's "This Week with George Stephanopoulos."

"I think we have controlled Al Qaeda," the 700 Club host said, but warned of "erosion at home" and said judges were creating a "tyranny of oligarchy."

Confronted by Stephanopoulos on his claims that an out-of-control liberal judiciary is the worst threat America has faced in 400 years - worse than Nazi Germany, Japan and the Civil War - Robertson didn't back down.

"Yes, I really believe that," he said. "I think they are destroying the fabric that holds our nation together."

I get it now. Robertson isn't against Muslim judges because of their religion, or because he fears they might secretly be terrorists. He's against Muslim judges because he's worried that they might secretly be liberals!

Posted 11:47 PM by JB [link] (16) comments