Money and Symbols in Establishment Clause Cases

Mark Tushnet

Because priority in academic matters is important, I'd just note that the distinction Noah Feldman draws between money cases and symbols cases was discussed in 1994 by Kenneth Karst in Law's Promise, Law's Expression, and elaborated by Chip Lupu in an article in 2001, Government Messages and Government Money, 42 William & Mary Law Review 771 (2001). (Excerpts from the article are included in the Stone et al. casebook, 5th edition, at page 1548-49. Space constraints dictated the elimination of a quotation from the Karst book that the fourth edition contained.)
Posted 5:26 PM by Mark Tushnet [link] (1) comments

The Heterosexual Case for Same-Sex Marriage

Ian Ayres

Posted 5:24 PM by Ian Ayres [link] (26) comments

Privatizing Civil Rights

Ian Ayres

Greetings from a T-mobile hotspot in New Brunswick (where I'll be making a presentation this evening to the Yale Law School New Jersey alumni association).

Here are two additional takes on the simple idea that we should move from non-discrimination policies to non-discrimination promises that I published with Jennifer Gerarda Brown in the Economist’s Voice and with Barry Nalebuff in Forbes. Any employer can privately contract for the Employment Non-Discrimination Act with a few clicks of the mouse at www.fairemploymentmark.org. This last couple of weeks I’ve pitched licensing the Fair Employment Mark to both Citigroup and Goldman Sachs. The game’s a foot.
Posted 5:18 PM by Ian Ayres [link] (22) comments

Originalism, Objectivity and History

Mark Graber

One interesting difference between the use of history and philosophy in constitutional interpretation is that while a great many philosophers endorse some version of Ronald Dworkin's call for a fusion of moral theory and constitutional law, hardly any prominent historian is an originalism. The reason is not that most contemporary historians are liberal. As numerous Supreme Court briefs demonstrate, constructing originalist arguments for liberal positions has not proven particularly challenging. Rather, the standard versions of originalism exhibit little knowlege of historical practice.

One commonly claimed virtue of originalism is that anchoring constitutional meaning in original understandings/meanings is more objective than turning to philosophy. But as any good historian knows, debates over objectivity in history are just as intense as debates over objectivity in philosophy (see THAT NOBLE DREAM, a history of the history profession that ought to be mandatory reading for anyone doing originalism). Of course, maybe proponents of objectivity in history are right. But it might also be the case that proponents of objectivity in philosophy are right. The more important point is that no powerful reason exists for amateurs (i.e., law professors and judges without advanced degrees in the relevant subject) to assume that one discipline is more objective than the other.

Even assuming history is objective in theory, the practice hardly provides much objectivity for amateurs. Consider the history of Reconstruction (Randy Kennedy has a nice piece on this in the Yale Law Journal). Historians at different time periods have told different stories about what and who was important from 1865-1876. Did Radicals have to compromise their principles to Conservatives (Benedict), or did Republicans constitutionalize the fundamental free labor principles underlying the anti-slavery crusade of the 1850s (Foner). Worse, as Pamela Brandwein demonstrates in a wonderful book, Reconstructing Reconstruction, both politics and internal changes in history structure how past events are interpreted and the very sources historians use when making interpretation.

In short, the history of the history of interpreting the original meaning/understanding of constitutional provisions is likely to reflect the dominant philosophical understandings of those principles. The correspondence will not be perfect, but close enough to suggest that originalism is not that dramatic an alternative to more moral constitutional readings. And where there is a difference, historians are likely to point out that the lack of correspondence is based on the framers holding understandings that we now reject or cannot fully recover.

Good histories typically find that constitutional meanings were contested even as they were framed and ratified. Good legal history can identify important strands of our constitutional tradition, but the choice among those strands is ours, even when we claim James Madison made us do it.
Posted 11:01 AM by Mark Graber [link] (19) comments

Noah Feldman's Church State Solution

JB

Noah Feldman has an intriguing solution to the current legal conflicts over religion. He offers a general principle for interpreting the Constitution's religion clauses that he believes will resolve many of our current problems: Feldman would relax judicial oversight of religious symbols and allow nondenominational and even some sectarian endorsement by government, as long as there is no coercion of nonbelievers. This would include issues like creches, displays of the Ten Commandments, school prayer and teaching creationism in the public schools. At the same time, Feldman would greatly increase judicial oversight of money going to religious institutions, requiring very strict separation, a combination he calls "no coercion, no money."

In the courts, the arrangement that I'm proposing would entail abandoning the Lemon requirement that state action must have a secular purpose and secular effects, as well as O'Connor's idea that the state must not ''endorse'' religion. For these two tests, the courts should substitute the two guiding rules that historically lay at the core of our church-state experiment before legal secularism or values evangelicalism came on the scene: the state may neither coerce anyone in matters of religion nor expend its resources so as to support religious institutions and practices, whether generic or particular. These constitutional principles, reduced to their core, can be captured in a simple slogan: no coercion and no money. If no one is being coerced by the government, and if the government is not spending its money to build religious-themed monuments or support religious institutions and practices, the courts should hold that the Constitution is not violated.

Admittedly, this approach goes against the trends of the last several decades, which are for stricter regulation of public religious symbolism and more permissive authorization of government financing and support for religion. At first blush, then, the proposal may strike both sides of the current debate as mistaken, since it requires each to give up some victories in exchange for an alternative solution. Nonetheless this approach is not only faithful to our constitutional traditions; it also stands a chance of winning over secularists and evangelicals alike and beginning to close the rift between them.

The reason this solution is intriguing is that it acknowledges that fights over symbols are different than fights over money. Feldman thinks the latter are more dangerous for democratic life than the former. If evangelicals get really upset by not having religious displays in the public square, Feldman argues, let them have their displays. The real issue, he argues, is money, and once you get religious groups fighting over money, they are far more likely to undermine democratic values. The real issue that will divide Feldman from many of his critics is whether fights over symbols really are less troublesome than fights over money.

I strongly believe we should rethink church state issues, and so I broadly support Feldman's larger goal of going beyond the current debate and looking at the issues from a new perspective. Nevertheless, I would offer a few (actually three) caveats to Feldman's proposed solution.

First, it has proven very difficult to come up with rules that keep religion out of government expenditures. That is because the concept of separation of church and state does not square easily with the existence of a wide range of government programs and benefits that are widely distributed across the population; constitutional scholars call this aspect of modern governance the "welfare state;" it applies to much more than welfare benefits narrowly conceived, and includes things like government contracting programs, licenses, employment decisions, public works, support for education and health, even basics like police and fire protection.

When the government refuses to extend benefits in an otherwise general program to religious organizations or institutions, religious groups feel that they are being singled out or punished for being religious. This happens in a wide variety of contexts ranging from voucher programs for private schools (can religious schools get vouchers if private secular schools can?), to charitable choice programs (can religious organizations be government contractors if non religious organizations can?) to government funds for restoration of landmark buildings (can money go to the Old North Church if it is still being used by a congregation who would like to use the funds to make the Church more comfortable for parishoners?)

The problem is that it is very hard to draw lines between support for religion and mere inclusion of religion in a general program. And perhaps more relevant to Feldman's key distinction between symbols and money, distribution issues often have symbolic overtones. Not only do religious groups feel slighted monetarily when they cannot enjoy government expenditures under these welfare state-style programs, they also feel insulted and alienated. On the other hand, if one adopts a position of strict neutrality, i.e., that government may not discriminate in a general program because a recipient is religious, then you have a position which is in some ways more solicitous of money going to religious institutions than doctrine currently allows. This is, in some ways, Justice Thomas's solution, and combined with Feldman's call for relaxation of the rules in government endorsement cases, it would give religious organizations both symbols *and* money.

Thus, Feldman needs to say much more about how he would enforce strict separationism in the welfare state (that is, the money) context. He can't mean neutrality in the sense now being demanded by religious conservatives. Does he mean a return to the Brennan era rules of the early 1970s? To really make his solution work he will have to spell out more of the details, which means, in effect, that he will have to solve many of conundrums that have divided constitutional scholars in this area for the past half century.

My second caveat is that it is by no means clear that "symbolic" religious displays are costless. Many religious displays involve comparatively minor expenditures. But once states and municipalities are freed from judicial oversight, they may find increasingly creative ways to spend their money to benefit the majority denomination in the locality. This is just the flip side of Feldman's point-- that money corrupts, and a free flow of money to religion corrupts freely.

To be sure, Feldman emphasizes that he would not allow government to "spend[] its money to build religious-themed monuments." But government endorsement of religion can take other forms, particularly in the educational context, for example in curriculum development. Perhaps more to the point, the ban on expenditures for religious monuments overlooks how truly clever governments can be when they seek to please favored constituencies. If the government can spend money on public buildings, why can't it include a little religious endorsement in them as long as it doesn't spend too much money doing so? For example, suppose the government is spending money on a multimillion dollar court house. Can it put a large copy of the Ten Commandments on the building if the cost is relatively small? Is this a large expenditure on a religious monument (forbidden) or a relatively small expenditure on a large project with secular purposes (presumably permissible). Suppose that the government creates a very expensive war memorial and includes a huge cross or other religious symbolism prominently displayed on the monument. Since the government was going to build the war memorial anyway, should we say that this is a large expenditure on a religious monument-- and therefore forbidden-- or a large expenditure on a war monument that has some incidental extra expenditure on religious symbolism, and therefore is permissible. (In fact it may cost no more to include religious symbols like a cross on the monument than it does to include secular alternatives, in which case the cost attributed to religion in the monument is effectively zero). Feldman probably needs to spell out in more detail how the doctrine of "no money for religion" would work in these sorts of situations.

My third and final caveat is that Feldman may understate the degree to which relaxation of judicial restraints on sectarian public symbolism would defuse religious conflict. It might increase religious conflict, particularly if governments can be more overtly sectarian in their endorsements as opposed to blandly nondenominational.

The problem is that conflicts over religious symbols are key elements of status politics. People fight over symbols to show who has greater status in the community, that is to say, whose beliefs are considered normal and mainstream, which is another way of saying who counts. The difficulty is that status conflicts tend to be zero-sum in the short run-- if I have more status, you have less-- and that is what makes them particularly bitter and divisive. Feldman thinks that fights about money (as opposed to fights about symbols) tend to be zero-sum. This is, I think, wrong. Government can always raise more money through the tax system and it can spread it around among many different denominations. The real zero sum fights are about comparative social status; those tend to be fights about symbols, and particularly about government endorsement of certain symbols.

Feldman's argument is that if we let those he calls "values evangelicals" have their moments of silence, their creationism in the schools and their creches, they will be mollified and less antagonistic because they will feel appropriately respected. Put in status terms, their social status will be raised. The question is whether this increase in status will cause other groups to feel that their comparative status has been lowered, and whether these groups will then become increasingly militant, so that the benefits to democracy and social peace turn out to be illusory. (This issue of comparative social status, I should point out, is separate from the issue of coercion that Feldman is primarily concerned with.)

Perhaps Feldman is banking on the fact that contemporary secularists will turn out to be milquetoasts. Once government engages in more overt disiplays of religiosity, secularists will get used to it because they are not being coerced into doing anything. Certainly the social movement energy in the last thirty or so years has been on the side of values evangelicals. But things change, and Feldman may have picked exactly the wrong moment to discomfit secularists. Feldman is surely correct that many values evangelicals currently are unhappy and feel slighted, but it takes (at least) two sides to make a status conflict.

There is no guarantee that allowing values evangelicals to increase their comparative social status through creches, school prayer and creationism in the schools will mollify religious social movements; to the contrary, it may energize them further, so that they demand ever greater tribute, ever greater signs that their views are mainstream and dominant. After all, we are dealing with the most powerful social movements in American society; once judicial restraints are thrown off, why should they not flex their muscles in the public square? From one perspective, they would be foolish not to take as much as they can get. Obviously, this is not Feldman's desire, but one needs to have an argument for thinking that this won't happen.

In this context, it is worth noting that the more sectarian we allow public symbols of religion to become, the more status conflicts will arise between different religious groups, rather than simply between secularists and values evangelicals. (Consider as an example a legislative prayer that ends by thanking Jesus Christ, our Lord and Savior, or a municipality erecting a large cross to honor America's Christian heritage). For this reason, it is unclear whether Feldman means to relax judicial scrutiny of government displays of religion generally or only blandly "non-denominational" displays. If the latter, his solution would, perhaps ironically, put him in the same ballpark as Justice Scalia in the McCreary case. Thus, Feldman needs to flesh out exactly how denominational or nondenominational government endorsement could be. It is a tricky business: The more sectarian government endorsement can be, the more likely it is that his solution will buy neither social peace nor egalitarian democracy. And the more strictly he requires that government displays be non-denominational, the more he falls into the some of the difficulties of Scalia's position.

Posted 12:39 AM by JB [link] (22) comments

Of Privacy and Poop: Norm Enforcement Via the Blogosphere

Anonymous

By way of BoingBoing comes this fascinating incident in Korea. A young woman’s dog pooped inside a subway train. Folks asked her to clean it up, but she told them to mind their own business. A person took photos of her and posted them on a popular Korean blog. Another blogger, Don Park, explains what happened next:

Within hours, she was labeled gae-ttong-nyue (dog-shit-girl) and her pictures and parodies were everywhere. Within days, her identity and her past were revealed. Request for information about her parents and relatives started popping up and people started to recognize her by the dog and the bag she was carrying as well as her watch, clearly visible in the original picture. All mentions of privacy invasion were shouted down with accusations of being related to the girl. The common excuse for their behavior was that the girl doesn't deserve privacy.

While the girl clearly behaved badly, those Korean netizens' behavior is even worse and inexcusably so. Abuse by the mob is indistinguishable from abuse by dictators yet they just don't see it in the heat of righteousness.

I posted a while ago about how norm enforcers can be valuable in promoting social norms of etiquette and civility. These norm enforcers police norms for free, sometimes even doing so at a cost to themselves. According to the article I discussed, the “tendency to sanction breaches of social norms is the key to human cooperation.”

But norm-enforcement also has a dark underbelly. As Richard McAdams argues, certain norms are unnecessary and undesirable; and even desirable norms can be enforced to an undesirable degree. See Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 412 (1997).

The dog-shit-girl case involves a norm that most people would seemingly agree to – clean up after your dog. Who could argue with that one? But what about when norm enforcement becomes too extreme? Most norm enforcement involves angry scowls or just telling a person off. But having a permanent record of one’s norm violations is upping the sanction to a whole new level. The blogosphere can be a very powerful norm-enforcing tool, allowing bloggers to act as a cyber-posse, tracking down norm violators and branding them with digital scarlet letters.

And that is why the law might be necessary – to modulate the harmful effects when the norm enforcement system gets out of whack. In the United States, privacy law is often the legal tool called in to address the situation. Suppose the dog poop incident occurred in the United States. Should the woman have legal redress under the privacy torts?

Some commentators to Don Park’s blog contend that the behavior of these cyber norm-enforcers is justifiable because that the woman was in public and thus had no privacy:

The initial blogger. Do I think he had every right to post her? Yep. She was in public, and it really doesn't matter if she was in front of 100 or 1,000,00 people, she was willing to act that way in the public sphere. So an upset person chose to mention how upset he was to others. I agree with the earlier poster's mention of a college newspaper doing something along the same lines: it is a minor issue, but sometimes we have power to change behavior with our voices. In this case, I'd bet that many other people are suddenly more conscious of their dog poop and are more likely to serve the public good by cleaning it up.

Yet another commentator writes:

I really don't think it matters that it came out on the internet. It happened in a public place so it is excusable to discuss it in a public forum. This isn't going to ruin her life, it might make her clean up her dog's mess for a month though while the story goes around. We are a fickle bunch and she will be forgotten before the end of the season.

But this comment is wrong. She will not be forgotten. That’s what the Internet changes. Whereas before, she is merely remembered by a few as just some woman who wouldn’t clean up dog poop, now her image and identity are eternally perserved in electrons. Forever, she will be the “dog-shit-girl”; forever, she will be captured in Google’s unforgiving memory; and forever, she will be in the digital doghouse for being rude and inconsiderate.

Consider the famous incident involving the “Star Wars Kid,” a sad tale of a nerdy 15-year kid who filmed himself waving a golf ball retriever around as if it were a lightsaber. To tease him, some other kids digitized it and posted on the Internet along with his name. It was downloaded by millions around the world, and new versions of it quickly emerged replete with special effects and music. Forever, this person will be known as the Star Wars Kid. There’s even a Wikipedia entry for him!

Another tale involves involves a person whose private email to her friends was spread around cyberspace. James Grimmelmann has a wonderful essay about this email incident and social norms on LawMeme.

The easy reaction is to steel ourselves and chalk it up to life in the digital age. But that’s just giving up. The stakes are too high to do that. Consider the thoughts of another commentator to Don Park’s blog:

It reminds me of the struggles that editors face when deciding about what pictures to run in the newspaper. Those editors need to make a judgement call based on the value of the picture and its relevance to the story. But here, the person was outraged and ran the picture of the girl. That's totally different. It shows the dangerous flip side of citizen media. Moral outrage is easy to flame. But the consequences can be mortal. Will the ease in inciting moral outrage create a mob driven police state? It may be when the powerful realize how they can use citizen "reporters," to influence mobs. That seems to be one of the real dangers of citizen journalism. . . .

Compounding the problem is the fact that the norms of the blogosphere are just developing, and they are generally looser and less well-defined than those of the mainstream media. Thus, cyberspace norm police can be extremely dangerous – with an unprecedented new power and an underdeveloped system of norms to constrain their own behavior. Remember the famous saying about police surveillance: Who will watch the watchers? In the blogosphere, we might ask: Who will norm the norm police?

I believe that, as complicated as it might be, the law must play a role here. The stakes are too important. While entering law into the picture could indeed stifle freedom of discussion on the Internet, allowing excessive norm enforcement can be stifling to freedom as well.

All the more reason why we need to rethink old notions of privacy. Under existing notions, privacy is often thought of in a binary way – something either is private or public. According to the general rule, if something occurs in a public place, it is not private. But a more nuanced view of privacy would suggest that this case involved taking an event that occurred in one context and significantly altering its nature – by making it permanent and widespread. The dog-shit-girl would have been just a vague image in a few people’s memory if it hadn’t been for the photo entering cyberspace and spreading around faster than an epidemic. Despite the fact that the event occurred in public, there was no need for her image and identity to be spread across the Internet.

Could the law provide redress? This is a complicated question; certainly under existing doctrine, making a case would have many hurdles. And some will point to practical problems. Bloggers often don’t have deep pockets. But perhaps the possibility of lawsuits might help shape the norms of the Internet. In the end, I strongly doubt that the law alone can address this problem; but its greatest contribution might be to help along the development of blogging norms that will hopefully prevent more cases such as this one from having crappy endings.
Posted 12:05 AM by Anonymous [link] (43) comments

It’s Not Only Security vs. Liberty, But Also Security vs. Security

Anonymous

The government spends millions of dollars in attempts to develop protections against terrorism in the name of national security. These measures often raise privacy and civil liberties concerns, and so the typical debate about a trade-off ensues. But in the larger scheme of things, terrorism is probably not the biggest national security risk we face. Historically, the numbers killed or injured by terrorism have been small; it is the possibility of a terrorist with nuclear or biological weapons that presents a very serious threat. I doubt that data mining and other government initiatives that are so threatening to civil liberties are really well-suited to addressing these threats. I have argued more in depth about why I believe the government is severely overreacting to terrorism as a security issue in a post on PrawfsBlawg.

The most devastating national security issue is, in my opinion, the possibility of a pandemic. But there is little attention to this issue. Sadly, it’s because all of the folks crying out to protect our security are so myopically focused on terrorism that they’re neglecting to think rationally about where the most likely risks are. It seems that countless world health experts are predicting an impending pandemic. We’re woefully unprepared, this Reuters article says:

Half a million Americans could die and more than 2 million could end up in the hospital with serious complications if an even moderately severe strain of a pandemic flu hits, a report predicted on Friday.

But the United States only has 965,256 staffed hospital beds, said the report from the Trust for America's Health.

The non-profit group's state-by-state analysis adds to a growing clamor of voices contending that the United States is not prepared for a large outbreak of disease, whether natural or brought on by war or terrorism. . . .

In an average year, influenza kills an estimated 36,000 Americans and puts 200,000 into the hospital.

A more serious strain strikes every few years and a so-called pandemic strain emerges once every 27 years, on average. The more virulent strains sweep around the world within months.

Pandemics hit in 1918 -- killing up to 40 million people globally -- 1957 and 1968. Health experts all say the world is overdue for another and fear the avian flu in Asia may be it.

The World Health Organization says an H5N1 avian flu pandemic could kill up to 7.4
million people globally, because people lack immunity to it. . . .

"The U.S. has not adequately planned for the disruption a flu
pandemic could cause to the economy, daily life, food and supply distributions,
or homeland security," the Trust's report reads.

"The U.S. lags in pandemic preparations compared to Great Britain and Canada based on an examination of leadership, vaccine development, vaccine and antiviral planning, health care system surge capacity planning, coordination between public and private sectors, and emergency communications planning." . . . .

When I read stories like this, I think of all the money wasted by TSA on developing airline passenger screening systems based on crunching through personal data or the Department of Defense’s expensive data mining research programs such as Total Information Awareness. Wasting money on programs where security benefits are highly questionable and where the civil liberties costs are significant is even more harmful because this is money not being spent on other measures that have more definite benefits.

So instead of talking about the usual trade-offs between security and civil liberties, perhaps we should begin talking about the trade-offs when we expend so many resources addressing one security issue while neglecting other security issues. Pandemics are national security issues too, but sadly “national security” appears to be co-opted as a synonym for “terrorism prevention.”

Posted 4:09 PM by Anonymous [link] (67) comments

Recent Public Opinion: Distrusting (Yet Still Liking) the Media

Anonymous

An interesting survey was just released from Pew Research Center of public opinion about the media:

Public attitudes toward the press, which have been on a downward track for years, have become more negative in several key areas. Growing numbers of people question the news media's patriotism and fairness. Perceptions of political bias also have risen over the past two years.

Public attitudes toward the press, which have been on a downward track for years, have become more negative in several key areas. Growing numbers of people question the news media's patriotism and fairness. Perceptions of political bias also have risen over the past two years. Yet despite these criticisms, most Americans continue to say that they like mainstream news outlets. By wide margins, more Americans give favorable than unfavorable ratings to their daily newspaper (80%-20%), local TV news (79%-21%), and cable TV news networks (79%-21%), among those able to rate these organizations. The margin is only slightly smaller for network TV news (75%-25%).

A very interesting result is that the public increasingly distrusts the media yet still views it favorably:

The gap is most striking between the public's evaluations of the credibility, and favorability, of their daily newspapers. The percentage saying they can believe most of what they read in their daily newspaper dropped from 84% in 1985 to 54% in 2004. But the number expressing a favorable opinion of their daily newspaper, based on those familiar enough to give a rating, declined just eight points over the same period (from 88% to 80%). For both network and local TV news, the patterns are similar though somewhat less dramatic. More people feel favorably toward these media organizations than say they can believe what they read, see and hear from these outlets.

For both network and local TV news, the patterns are similar though somewhat less dramatic. More people feel favorably toward these media organizations than say they can believe what they read, see and hear from these outlets.

What conclusions can be drawn from these trends? One conclusion is an ominous one -- that the public doesn't use credibility as a major factor in analyzing media performance. After all, if the media still receives high favorability ratings in spite of declining credibility, then this shows that credibility is not tied much to favorability. Shouldn't there be a better connection? It would seem to me that credibility is a critical component of what the media should be all about. People should expect credibility, and if they're not getting it, they should not still be liking the media.

Another conclusion is an optimistic one. Perhaps this means that the public is watching the news with a healthier skepticism; people are less willing to take whatever is reported in the news as the truth. And a healthy skepticism is a good thing, right? To some extent, yes, but what if this skepticism increasingly means that people are just dismissing facts that run against their ideologies and partisan interests?

Pew commentary by Tom Rosenstiel and Bill Kovach doesn't offer any great insight into this issue, but it does discuss the growing influence of blogs in a way that strikes me as very apt:

A majority of online news consumers now report that they visit blogs or online news columns. Yet nearly half of all Americans still have a scant notion of what blogs are, and less than a third recognize them as mostly a place for opinion and ideas.

Since consumer expectations about blogs are still being shaped, in other words, the blogosphere is nowhere near fully formed. This is an arena where traditional media still have a significant opportunity to distinguish themselves. And commerce, or the demand of making a profit online, is likely to change the nature of blogs in time more than its proponents expect. Consider that in the late 1920s, radio was still predicted to be largely a medium for education and public safety. . . .

The ratings data about where people are going online reinforce this. The traditional news brands with their traditional news values dominate. Blogs and alternative forms of information and debate are growing. But they are not replacing traditional news. They are growing up alongside the old journalism of verification, with its emphasis on substantiating facts, on independence, on scrutiny of those in power. People increasingly want both. And the evidence suggests the audience is not splintering over this. The same consumer who visits blogs also visits traditional news sites, but for different reasons.

Posted 1:06 PM by Anonymous [link] (25) comments

I've Been Balkinized

Anonymous

I'm honored to be invited to post alongside Jack Balkin and his terrific blogging team. I've been a huge fan of Balkinization for quite some time -- it was one of the first blogs I began reading too. I'm relatively new to the blogosphere, having started blogging at PrawfsBlawg for the past month and a half. I'm an associate professor at the George Washington University Law School, and my scholarly writing focuses mainly on information and technology issues, with a very strong focus on information privacy. I also write about criminal procedure, First Amendment, law and literature, and legal theory issues. My blogging topics range from those I write about and teach to whatever half-baked (even quarter-baked) idea happens to be buzzing in my head at a particular moment. Just as the key to robust free speech is battling attempts at censorship, the key to robust blogging is, I think, battling internal censors. With that said, I'll begin sneaking some ideas out of the oven while my internal censors aren't watching.
Posted 12:40 PM by Anonymous [link] (0) comments

Justice Scalia Puts His Cards on the Table

JB

In his dissent in McCreary County v. ACLU, Justice Scalia forthrightly explains that the Establishment Clause is not about preserving neutrality between religion and non-religion. It is not even about neutrality among religions. Rather, it requires neutrality among monotheistic religions that believe in a personal God who cares about and who intervenes in the affairs of humankind, and in particular, among Christianity (and its various sects), Judaism, and Islam. From the United States as a Christian Nation, we have traveled to our "Judeo-Christian heritage," and now, apparently, to the "Judeo-Christian-Islamic" tradition. There is no such tradition, of course, as various members of all of these religions (and the various sects of these religions) have fought with and persecuted each other for many years. And one effect of Justice Scalia's theory is that he is willing to enshrine a notion of first class and second class citizens based on religion-- first class citizens can have government acknowledge their religion in public pronouncements and displays, while second class citizens cannot. Well, who said that the Constitution prohibited different classes of citizens, anyway? The Fourteenth Amendment? Who cares about your stinking Fourteenth Amendment!

Even so, it is refreshing to have Justice Scalia put his cards on the table:

[T]oday's opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. That is indeed a valid principle where public aid or assistance to religion is concerned, [ed.-- Why?] or where the free exercise of religion is at issue, but it necessarily applies in a more limited sense to public acknowledgement of the Creator. If religion in the public square had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities [does he mean, Deists, like many of the Framers?-- ed.] just as it permits the disregard of devout atheists
. . .
[T]here is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as Marsh v. Chambers put it, "a tolerable acknowledgement of beliefs widely held among the people of this country." The three most popular religions in the United States, Christianity, Judaism and Islam-- which combined account for 97.7% of all believers [do all of the 97.7% believe in a personal God who intervenes in the affairs of mankind?-- ed.]-- are monotheistic. All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life [Again, do all of the 97.7% actually believe that the Ten Commandments are the actual word of God actually given to Moses on Mount Sinai? What happened to liberal Protestantism and Reform Judaism?-- ed.] Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. [Except, of course, if you are a Christian, Jew or Muslim who doesn't believe in the Bible literally and who may actually be opposed to sects with such views, in which case the government is taking sides in a theological dispute within the various monotheistic religions-- ed.] Both practices are recognized across such a broad and diverse range of the population-- from Christians to Muslims-- that they cannot reasonably be understood as a government endorsement of a religious viewpoint [unless, of course you look at the actual views and theological disputes among Christians, Jews, and Muslims, which Scalia doesn't bother to do-- ed.]

And there you have it. If you aren't a monotheist who believes in a personal God, the government may disregard you. You don't count. We won't persecute you, of course, that would violate the Free Exercise of Religion. But we can disregard you. You are insignificant. You are not us, or perhaps more correctly, we count you as part of us when government acknowledges God, and disregard your protestations to the contrary that you have been left out.

I must respond to JUSTICE STEVENS' assertion that I would "marginaliz[e]" the belief systems of more than 7 million Americans" who adhere to religions that are not monotheistic. Surely that is a gross exaggeration. The beliefs of those citizens are entirely protected by the Free Exercise Clause, and by those aspects of the Establishment Clause that do not relate to government acknowledgment of the Creator.

An interesting distinction . Why can't government support flow only to monotheistic religions? Because that would discriminate among religions, or between religion and non religion? Why then can government engage in such discrimination in its public symbolism? Is it because money is more important than symbols, or because symbols are more important than money? Scalia continues:

Invocation of God despite their beliefs [i.e., the beliefs of whose who believe in many gods, no gods, or who do not believe in a personal god] is permitted not because nonmonotheistic religions cease to be religions recognized by the religion clauses of the First Amendment, but because governmental invocation of God is not an establishment. JUSTICE STEVENS fails to recognize that in the context of public acknowledgements of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling "excluded,"; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority

Now, at this point, you may be wondering, why did Jews and Muslims get thrown in the mix of first class religious citizens? After all, if you exclude them you still have about 91% of the population. So why couldn't the government offer prayers to Jesus Christ, our Lord and Savior? Why couldn't we say that "Invocation of [a Christian] God despite the[] beliefs [of non-Christians] is permitted not because [non-Christian] religions cease to be religions recognized by the religion clauses of the First Amendment, but because governmental invocation of [Christ] is not an establishment." Justice Scalia replies that George Washington himself famously promised the Hebrew Congregation of Newport, Rhode Island "All possess alike liberty of conscience and the immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights." But this is a promise of unhindered free exercise of religion, not a promise about state sponsored displays of religion. That is the very distinction that Scalia himself made in the passage quoted above: "The beliefs of those citizens are entirely protected by the Free Exercise Clause, and by those aspects of the Establishment Clause that do not relate to government acknowledgment of the Creator."

Justice Scalia might respond that tradition going back to the very founding of our country secures the inclusion of Jews and Muslims, but not other religious minorities and not agnostics and atheists. If this is indeed his argument, I must beg to differ. The widespread notion of a "Judeo-Christian" heritage is very recent, a product of the twentieth century-- the idea of a Christian nation was far more common in the 19th century. And even if we take Washington's letter as proof about the inclusion of the Jews in the meaning of the Establishment Clause, there is no long history or tradition of inclusion of Muslims, among other reasons, because there were very few Muslims in the country until after the reform of the immigration laws in 1965. The idea of a Judeo-Islamo-Christian" tradition is just made up in light of 9/11, the increasing number of immigrants from Muslim countries, and our foreign policy imperative to establish that we are not at war with Muslims, just with terrorists. Justice Scalia's tradition of establishment of monotheism is, like so many other traditions, an invented tradition which he has made up to produce an outcome that he politically prefers.

Once again, I must insist, as I have before in other posts, that although Justice Scalia repeatedly claims that his theory of adherence to text, original understanding and tradition is superior because it constrains judges from imposing their personal views into the Constitution, it does nothing of the sort. This case is a perfect example. Justice Scalia has particular views about religion and about what sorts of government invocations of religion should or should not be regarded as offensive or as marginalizing people with different religious beliefs than his own. These political beliefs produce the outcome he takes in this case.

I sympathize with religious people who do not want the government to treat them as second class citizens. But surely the solution is not to make the sort of distinction between religions that Justice Scalia advocates in this opinion.

Posted 12:53 PM by JB [link] (78) comments

Misunderestimating the President

JB

David Ignatius engages in a bit of wishful thinking when he argues that President Bush's fatal flaw is that he "treats every political fight as if it's the Battle of Gettysburg, and any hint of political compromise as if it's a potential dagger in the heart of his presidency."

I disagree. Bush compromises all the time. He just does it in a way that makes it look as if he hasn't ever compromised. This makes him, more, not less effective as a leader.

Take the Department of Homeland Security. Bush opposed creating such a cabinet level department vigorously, then, when it looked as if it might go through anyway, he became a cheerleader and pretended as if it was his own idea. And then he had the gall to criticize Democrats for opposing the department (when what they really opposed was Bush's proposal for imposing weaker labor and employment protections for civil service employees than enjoyed by most government employees).

Or take tax cuts. Bush asked for much more in the first round of tax cuts than he got. He waited until the last moment, then took half a loaf, and claimed victory.

Or take judicial nominations. Bush has now gotten three of the formerly filibustered judges by insisting on all of his nominees and letting the Senate fight it out; they have effectively created a compromise for him.

The fact that Ignatius doesn't remember these events in the Bush Presidency suggests that Bush has succeeded in creating the impression of a President who is steadfast and never compromises, while leaving himself room to make lots of compromises. That's a pretty good strategy, if you ask me. A pity that Ignatius was taken in so easily. But he's not the first of the President's political opponents who has "misunderestimated" him.

If Bush is weakened at this point in his presidency, it is not because he refuses to compromise. It is because he is a second term president pushing an extremely ambitious and controversial agenda while simultaneously fighting a difficult and unpopular war. Such circumstances would undermine the effectiveness of even the canniest of politicians. Whether they will undermine this extremely canny politician remains to be seen.

Posted 10:07 AM by JB [link] (6) comments

Original Meaning and Original Application

JB

Responding to Brian Leiter's recent criticisms of originalism, Mike Rappaport makes the interesting argument that the original meaning of the Constitution should control in interpretation because the Constitution itself is the product of a supermajority requirement:

McGinnis and I root the normative basis for following the original meaning of the Constitution in the fact that constitutional provisions can only be enacted by passage under strict supermajority rules. (See Articles V and VII of the Constitution.)

Laws that must pass under a strict supermajority rule are apt to be better than laws passed by majority rule. . . . supermajority rules require the approval of a greater percentage of the legislature operates to protect minority interests from being exploited . . . [and] laws must in general produce significant public benefits in order to pass. . . . The supermajoritarian process also suggests that the Constitution should be given its original meaning: it is only the original meaning of the provisions that would have been reviewed by the participants in the strict supermajoritan process.
. . . .
This supermajoritarian defense of the Constitution is reinforced by the fact that original meaning interpretation guides and constrains judges. Under the loose interpretive approach favored by . . . . most liberal academics, there is little to stop the Supreme Court Justices from imposing their own views on the nation. Since this amounts to constitutional amendment by a majority of 9 unelected judges, as opposed to constitutional amendment by a supermajority of elected officials, this process of judicial amendment is far worse than following the original meaning.

For the moment, let me accept Mike's argument. Consider that often when the language of a Constitution is relatively abstract or vague, the language chosen is chosen because it is a compromise that many people with different expectations can agree upon. An example would be the words "privileges or immunities" or the words "equal protection of the laws." Supermajorities may rally around these words not because they limit future interpreters, but precisely because the words do not have clear boundaries of application, and they expect that people will fight out their application later on. Indeed, in particularly contested issues like fundamental rights (or federalism) this vagueness is precisely what is necessary to gain assent from a supermajority with very different substantive views.

In addition, supermajorities may believe that it is better to speak in abstract or general terms rather than address constitutional provisions to specific problems of their day, because of a desire to allow the language to be applied in new ways to meet the challenges of the future. This seems to be the case with respect to the history of the adoption of the Fourteenth Amendment, to take only one example.

If that is so, then it is true in a sense that the sort of vague and abstract constitutional language that gains a supermajority is of "higher quality," and produces significant public benefits. But what makes it of higher quality is its abstraction, its vagueness, and the ability of its applications to be worked out later on in response to ever new situations. I.e., what gives it higher quality is that it is compatible with some form of living constitutionalism.

It does not, however, seem to follow from Mike's argument that judges interpreting the Constitution should be bound by the original understanding of how these abstract or vague words would be applied. Quite the contrary; disagreement about how the words would be applied is precisely what led to the use of vague and abstract language that garnered a supermajority. Although Mike argues that his supramajority argument shows why appeals to original meaning operate as a constraint on judges, it is far from clear why it does so if we understand why abstract and vague constitutional language about rights and powers sometimes commands a supermajority. This language does so because it does not constrain, because it leaves things open for future development.

The argument I'm presenting here is a variant of Randy Barnett's plea for original public meaning originalism as opposed to a focus on original intention. However, I would take the idea one step farther than Randy sometimes does in practice (although not necessarily in theory, as I read his book). There is a further distinction I'd emphasize between original public meaning and the original public expectation about the application of original public meaning, a convoluted phrase which I shall henceforth abbreviate as "original application."

Let me distinguish these concepts: Original public meaning asks what did the words used in the Constitution generally mean at the time they became law. Original intention asks what did the persons who had authority to create the law intend to be law (prohibited or permitted) by their use of those words. Original application asks how did people who lived at the time expect that the words of the Constitution, taken in their original meaning, would be applied to various situations?

In many contexts, original meaning, original intention, and original application converge. However, where the words used in a constitution are relatively abstract, these three ideas tend to come apart. An example are the words "cruel and unusual punishments." Under original public meaning originalism the original meanings of the concepts used (and their meaning in combination with each other) should be preserved, but we are not necessarily bound by either the intentions of the persons who framed the words, or by the general public expectation of how those words would be applied. The concept of cruelty stays the same, but what we have to figure out what that concept means in our own time.

Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application. It also conflates the nature of a concept with the particular set of issues before people at the time they considered constitutional language. This is where I think Randy and I part company (although I am not sure).

So, for example, Randy points out that the debates over the power to regulate "commerce" talk about trade and bargain, but (to me at least) that doesn't prove that the original public meaning of the word "commerce" was limited only to economic issues. As my colleague Akhil Amar points out in his latest book, America's Constitution: A Biography, it was not necessarily so limited; Amar's example is Congress's power to regulate "commerce" with the Indian tribes, which included lots of noneconomic matters. However, "commerce" with the Indian tribes did not dominate the debates; trade and bargain between states did. Relying on those debates conflates original meaning with original application and with what public attention in debates was fixed upon.

Note that if one is committed to original public meaning only in the limited sense I have offered, it is arguably consistent with Brown v. Board of Education, Roe v. Wade, and Lawrence v. Texas (I leave the derivation of these results as an exercise for the reader). One normally does not think of these decisions as originalist, but then, original public meaning is not very originalist in the original public meaning (or original public application) of that term.

I offer these points simply to note that Mike's argument proves far less than it might appear. It seems, at most to be an argument that the text of the Constitution should be interpreted in terms of its original public meaning, but not necessarily its original application. Lots of living constitutionalists like me could sign on to that. (I should point out, however, that it is not clear whether Mike's argument would forbid the use of other modalities of interpretation for fixing meaning, like, for example, precedent and structure. If those modalities are precluded as legitimate sources of interpretation, then there is still a disagreement.)

Posted 4:06 PM by JB [link] (59) comments

Death Trials as Games

Mark Graber

"Touch move" is a central rule of tournament chess. You intentionally touch a piece, you must move it (assuming the piece can be legally moved), even if you realize you could have made a much better move. Most games have similar rules, reflecting a belief that strategy is an important component to determining winners and losers.

The Supreme Court's recent decision in Rompilla v. Beard highlights how similar death trials are becoming to games of strategy. The issue was whether two public defenders were constitutionally ineffective because they did not find evidence concerning the defendant's mental condition and history of abuse that might have been a mitigating factor at his trial. A 5-4 majority found ineffective assistance. As an opponent of the death penalty, this is good news. But I have to confess there is much to Justice Kennedy's dissenting opinion that this was not ineffective assistance. I've certainly seen courts let much worse go by.

The more interesting political and constitutional question is why we should care very much about the ineffective assistance question when even the dissent admits that a different investigation would have turned up "useful information." So what if it turns out that the reason counsel failed to turn up mitigating evidence was a reasonable use of scarce time and resources rather than a clear legal mistake. I've lost chess games because I made a mistake an intentionally touched the wrong piece. Do we also execute people because their counsel made a reasonable decision that in hindsight turns out to be a mistake.
Posted 10:32 AM by Mark Graber [link] (29) comments

Which Waterfountain?

Ian Ayres

Few whites nowadays would drink from a "whites only" waterfountain if there was a non-discriminatory fountain next to it... but how far would you literally be willing to go to avoid taking a discriminatory benefit.

White waterfountains are now illegal. But a parallel question is now in place for heterosexuals who are deciding where to marry. Would you cross the street to avoid marrying in a heterosexuals only jurisdiction? Would you be willing to travel to Massachusetts?

Jennifer Brown and I discuss the new choices that Mass. marriage gave to heterosexuals in this oped from the New Haven Advocate.
Posted 1:00 PM by Ian Ayres [link] (30) comments

Progressive Political Science: Feminism

Mark Graber

Not being an expert on the subject, I have always wondered whether feminists in political science who write on legal matters speak with a different voice or accent than feminists in the legal academy. Consider Our Lives Before the Law, by Professor Judith Baer of Texas A&M, who (along with Leslie Goldstein) is the most distinguished senior feminist in public law. One virtue of the book, I think, is that Professor Baer recognizes that liberalism, republicanism, and broad isms are not inherently male, that all have variants that are more or less attractive for women (perhaps one place where political scientists speak with a different accent is most of us who write on constitutionalism have taken several graduate courses in political theory). Theories fail in practice, Our Lives Before the Law asserts, because fundamental responsibilities in all societies tend to devolve downwards. Whatever the master theory, liberalism, socialism, feudalism, etc., social life is organized so that such basic duties as providing care for the young, care for the elderly, and cooking and cleaning are poorly compensated and assigned to the least powerful segments of society. No matter what the general organizing principle of a regime, men are always better placed to take advantage of opportunities and better positioned to foist certain undesired responsibilities off on women. The solution to this problem, Professor Baer astutely observes, is neither to celebrate female capacity for caring or assert in the abstract that women are the same as men, but simply to empower those who engage in those tasks that are necessary for society to survive. Just as the early abolitionists observed that we cannot determine much about the capacity of persons of color until they have equal opportunities for education and jobs, so Baer correctly notes that we cannot determine the capacities of women until society equally values soldiering and childbirth, both risky activities, or lawyering and childraising. Rather than focus on women per se, Professor Baer wishes us to focus on certain activities necessary for societies to survive. This is valuable for feminists and non-feminists alike, an important insight for political theorists of all persuasions.
Maybe 37 feminists in the legal academy are saying the same thing, but not from my limited reading. The theory and empirical analysis struck me as sharper, possibly because, like other political scientists, Baer's work is peer reviewed. Still, readers of this blog looking for alternative legal feminists might try Our Lives Before the Law, then post comments on the virtues or vices of the piece compared to the standard feminist law review essay.
I thought about Our Lives Before the Law last night when I accidentally stumbled into the national meeting for the American Constitutional Society. It really is a wonderful program, filled with terrific speakers. And, as important for me, it takes place the week after swim season ends (parents of summer swimmers know the significance of that). But, of course, all the speakers are lawyers and law professors. Maybe that is okay. After all, the American Constitutional Society sometimes seems simply an organization of lawyers. My fussing about speaker selection is a bit like my complaint that no Jew was allowed to vote on the pope. Still, I suspect that conversation will not be limited to legal method and doctrine, that a good deal of political science, philosophy, history, sociology, etc., will be central to many presentations. In this vein, might it be reasonable to think that debate on progressive alternatives might be improved by having Professor Baer on the panel devoted to reproductive rights (and/or Professor Frymer--who has a law degree--on the panel devoted to unions). Maybe next year?
Posted 10:27 AM by Mark Graber [link] (23) comments

Our President: Stupid or Evil?

JB

President Bush to reporters yesterday:

Q Mr. President, many in Europe are worrying that with the fight against terrorism the commitment of the United States to human rights is not as big as it used to be -- that is not only to do with Guantanamo, but also with the secret prisons where the CIA holds terror suspects. My question is, what will happen to these people who are held in these secret prisons by the CIA? Will they ever see a judge? Or is your thinking that with some terror suspects, the rule of law should not apply or does not have to have applied.

PRESIDENT BUSH: First of all, I appreciate that question, and I understand we -- those of us who espouse freedom have an obligation, and those who espouse human rights have an obligation to live that to those -- live up to those words. And I believe we are, in Guantanamo. I mean, after all, there's 24 hour inspections by the International Red Cross. You're welcome to go down yourself -- maybe you have -- and taking a look at the conditions. I urge members of our press corps to go down to Guantanamo and see how they're treated and to see -- and to see -- and to look at the facts. That's all I ask people to do. There have been, I think, about 800 or so that have been detained there. These are people picked up off the battlefield in Afghanistan. They weren't wearing uniforms, they weren't state sponsored, but they were there to kill.

And so the fundamental question facing our government was, what do you do with these people? And so we said that they don't apply under the Geneva Convention, but they'll be treated in accord with the Geneva Convention.

And so I would urge you to go down and take a look at Guantanamo. About 200 or so have been released back to their countries. There needs to be a way forward on the other 500 that are there. We're now waiting for a federal court to decide whether or not they can be tried in a military court, where they'll have rights, of course, or in the civilian courts. We're just waiting for our judicial process to move -- to move the process along.

Make no mistake, however, that many of those folks being detained -- in humane conditions, I might add -- are dangerous people. Some have been released to their previous countries, and they got out and they went on to the battlefield again. And I have an obligation, as do all of us who are holding office, to protect our people. That's a solemn obligation we all have. And I believe we're meeting that obligation in a humane way.

As well, as we've got some in custody -- Khalid Shaykh Muhammad is a classic example, the mastermind of the September the 11th attack that killed over 3,000 of our citizens. And he is being detained because we think he could possibly give us information that might not only protect us, but protect citizens in Europe. And at some point in time, he'll be dealt with, but right now, we think it's best that he be -- he be kept in custody.

We want to learn as much as we can in this new kind of war about the intention, and about the methods, and about how these people operate. And they're dangerous, and they're still around, and they'll kill in a moment's notice.

In the long run, the best way to protect ourselves is to spread freedom and human rights and democracy. And -- but if you've got questions about Guantanamo, I seriously suggest you go down there and take a look. And -- seriously, take an objective look as to how these folks are treated, and what has happened to them in the past, and when the courts make the decision they make, we'll act accordingly.

As a matter of fact, reporters-- and many others too-- have taken a look at what has been going on at Guantanamo, aided by information from the FBI. Here, for example, is Anthony Lewis in today's New York Times. (Lewis, by the way, recapitulates many of the legal points made by our own Marty Lederman on this blog):

Agents of the Federal Bureau of Investigation observed what went on in Guantanamo. One reported on July 29, 2004: "On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more."

Time magazine published an extended article last week on an official log of interrogations of one Guant?namo detainee over 50 days from November 2002 to January 2003. The detainee was Mohamed al-Kahtani, a Saudi who is suspected of being the planned 20th hijacker on Sept. 11, 2001, but who was unable to enter the United States.

Mr. Kahtani was interrogated for as long as 20 hours at a stretch, according to the detailed log. At one point he was put on an intravenous drip and given 3 1/2 bags of fluid. When he asked to urinate, guards told him that he must first answer questions. He answered them. The interrogator, not satisfied with the answers, told him to urinate in his pants, which he did. Thirty minutes later, the log noted, Mr. Kahtani was "beginning to understand the futility of his situation."

F.B.I. agents, reporting earlier on the treatment of Mr. Kahtani, said a dog was used "in an aggressive manner to intimidate" him. At one point, according to the log, Mr. Kahtani's interrogator told him that he needed to learn, like a dog, to show respect: "Began teaching detainee lessons such as stay, come and bark to elevate his social status to that of a dog. Detainee became very agitated."

At a minimum, the treatment of Mr. Kahtani was an exercise in degradation and humiliation. Such treatment is forbidden by three sources of law that the United States respected for decades - until the administration of George W. Bush.

The Geneva Conventions, which protect people captured in conflict, prohibit "outrages upon personal dignity, in particular, humiliating and degrading treatment." The scope of that clause's legal obligation has been debated, but previous American governments abided by it. President Bush decided that the Geneva Conventions did not apply to the suspected Al Qaeda and Taliban members who are detained at Guant?namo.

The United Nations Convention Against Torture, also ratified by the United States, requires signatories to "prevent in any territory under its jurisdiction ... cruel, inhuman or degrading treatment." The Bush administration declared that this provision did not apply to the treatment of non-Americans held outside the United States.

Finally, there is the Uniform Code of Military Justice. It makes cruelty, oppression or "maltreatment" of prisoners a crime. Armed services lawyers worried that some methods of interrogation might violate the Uniform Code and federal criminal statutes, exposing interrogators to prosecution. A Pentagon memorandum obtained by ABC News said a meeting of top military lawyers on March 8, 2003, concluded that "we need a presidential letter" approving controversial methods, to give interrogators immunity.

The idea that a president can legalize the unlawful evidently came from a series of memorandums written by Justice Department officials. They argued, among other things, that President Bush's authority as commander in chief to set interrogation methods could trump treaties and federal law.

Although President Bush decided to deny detainees at Guant?namo the protection of the Geneva Conventions, he did order that they must be treated "humanely." The Pentagon, responding to the Time magazine article on the treatment of Mr. Kahtani, said, "The Department of Defense remains committed to the unequivocal standard of humane treatment for all detainees, and Kahtani's interrogation plan was guided by that strict standard."

In the view of the administration, then, it is "humane" to give a detainee 3 1/2 bags of I.V. fluid and then make him urinate on himself, force him to bark like a dog, or chain him to the floor for 18 hours.

No one can seriously doubt now that cruelties and indignities have been inflicted on prisoners at Guantánamo. Nor is there any doubt that worse has happened elsewhere - prisoners beaten to death by American soldiers, untold others held in secret locations by the Central Intelligence Agency, others rendered to be tortured by governments such as Uzbekistan's.

And yet the President keeps insisting that we are treating our prisoners consistent with democracy, human rights, and the rule of law.

Two questions come to mind. First, does the President actually believe what he is saying? If so, then he is being willfully blind to the evidence. The second is whether he indeed does know what is going on but believes that he can continue with the status quo and that the American public and the rest of the world won't pay attention or hold him accountable. If so, then his repeated announcements that nothing wrong is happening at Guantanamo are not only cynical, but deeply immoral.

Which word, then, best describes our President, the leader of the free world, the self-proclaimed champion of democracy, human rights, and the rule of law? Stupid or evil?

Posted 6:24 AM by JB [link] (26) comments

Impeachment Legalisms

Mark Graber

Inspired by Ralph Nader, several progressive websites are now debating whether President Bush should be impeached, a debate slightly less realistic than progressive debates over whether, say, Hilary Clinton would make a better Chief Justice than Bill Clinton. The point that should be emphasized over and over again is that President Bush and too many members of his administration use repeated professions of faith to cover up a basically amoral conception of politics. The administration has repeatedly misled the American people on what it knew about Iraq, before and after the invasion. The administration is engaging in indiscriminate and religious offensive torture, violating both domestic and international law with impunity and arrogance. Whether these practices constitute impeachable offenses is irrelevant in the present political climate. The greater challenge is convincing Americans that we have an amoral administration that unless it is replaced as soon as possible will do irreparable damage to America's reputation abroad, the only lasting weapon the United States can wield in the war against terrorism.
Posted 1:31 PM by Mark Graber [link] (28) comments

Political Science and the Progressive Constitution I: Race and Labor

Mark Graber

Recently, progressives have been making significant efforts to elaborate an alternative constitutional vision to those being elaborated by the Bush Administration, the Rehnquist Court and the constitution-in-exile movement. For the most part, this effort has been limited to elite law professors, legal activists, and a few political activists. If, however, as progressives have come to understand, constitutionalism outside of courts is as vital to political movements as the elaboration of legal doctrine then we might want to expand the ranks of progressive intellectuals thinking about how to create a more just regime. What I thought I would do in the next few weeks is highlight the work of some political scientists who I think ought to play more active roles helping elaborate the progressive constitution and, as important, the sort of politics necessary to bring forth that constitution.

Consider the important work Paul Frymer of U.C. Santa Cruz is doing on the relationship between persons of color and labor unions. In a forthcoming book and an award winning article, "Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935-1985," published in the August 2003 issue of the American Political Science Review. Frymer details some of the constitutional struggles between two key components of the Great Society coalition. The good news is that he finds, contrary to the work of Gerry Rosenberg, that courts were able play a significant role integrating unions. Litigation was not a "hollow hope" in this endeavor. The bad news is that the litigation substantially weakened labor unions and may have increased Republican support among workers.

One potential teaching is that important differences may exist between progressive elites and potentially progressive constituencies. Most progressive intellectuals buy pretty much the full progressive agenda. We are anti-death penalty, for gay marriage, believe in affirmative action, favor strong unions, want substantial economic redistribution, etc. As Frymer points out, however, different progressive constituencies have only partially progressive agendas. White workers may be for strong unions, but are not as enthusiastic about integration, much less affirmative action. Hence, a crucial issue is not simply laying out elite ideals ,but figuring out the necessary compromises to ensure a more progressive constitution. Getting better judges is not likely to solve this problem, because what is crucial is that accommodations be worked out between progressive constituencies, not simply that we figure out who has the more progressive position.

At any rate, Frymer's work clearly should be central to elaborating progressive constitutional visions and politics. Crucial to Republican success has been an uncomfortable modus vivendi between social conservatives and libertarians (as well as big business). Creating similar accommodations will be crucial to any future leftist political success.
Posted 10:58 AM by Mark Graber [link] (21) comments

Guest Blogger-- Brian Tamanaha

JB

I'm please to announce that Brian Tamanaha, the author of several books on law and society and jurisprudence, will be guest blogging on Balkinization. Please give him a warm welcome.

Posted 6:55 PM by JB [link] (24) comments

US Chamber of Commerce Vindicates Vulgar Marxism

Brian Tamanaha

At a time when Marxism has appeared all but dead in the United States, its flag carried mainly by ignored holdouts in university social science departments, it is ironic that compelling support for Marxist thought is now being provided by the United States Chamber of Commerce (USCC). This is no half-hearted Marxist stuff but “vulgar Marxism” in its most unabashed form: the USCC has engaged in a systematic and comprehensive effort to seize control of the various instruments of the legal apparatus to wield the law on behalf of corporate interests.

According to Chamber President Tom Donohue, in the 2004 election “the Chamber put 215 people on the ground in 31 states; sent 3.7 million pieces of mail and more than 30 million e-mails; made 5.6 million phone calls.” After the election, in a memo to the Chamber’s Board of Directors, Donohue drooled over the anticipated fruits of this effort: “The expanded numbers of pro-business votes in the Senate and the House—along with a team of reasonable regulators and appointees in the executive branch—will mean a more favorable hearing for some of our key priorities, including legal reform, comprehensive energy legislation, permanent tax relief, market-based healthcare, and pension reform, and balanced workplace, environmental and corporate governance rules.”

By a wide margin, the Chamber leads all other single organizations in lobbying expenditures, spending $53 million in 2004 and almost $40 million in 2003 to promote these positions.

The Chamber also engaged in a “targeted campaign” in 16 State Supreme Court electoral contests in 2004 to secure the election of pro-business judges. Stanton D. Anderson, the Chamber’s Chief Legal Officer, claimed after the election that the Chamber “won every race in which we were involved.” Anderson proudly held up this successful effort to seat friendly judges as “an example of what the business community can do.” The Chamber has put an estimated $50 million into state judicial elections since 1998.

The Chamber has its own in-house litigation firm, the National Chamber Litigation Group, which actively brings suits and intervenes in ongoing litigation to defend business interests. Among other cases, the Chamber recently sued the Securities and Exchange Commission to invalidate a new rule which requires that three fourths of the board of directors of mutual funds be independent.

The Chamber of Commerce has thus implemented a well-funded and well-executed effort to seat favorable legislators, to secure the laws and regulations they desire, to have friendly executive branch and administrative agency officials carry out these laws and regulations, to aggressively participate in litigation to advance their agenda, and to insure that presiding judges are receptive to their positions.

This is just one organization. Add the activities of individual corporations and the various industries the Chamber represents, combined with the activities of other similar organizations (including another heavyweight, PhRMA, the pharmaceutical trade association), and the vast scope of this impressive effort will come vaguely into view. And there are many indications that this effort to seize control of the law and use it as an instrument to further corporate interests is proving successful.

So inured to this have we become that mention of it is regularly greeted by the Left, after a flash of outrage, with a shrug of resignation. Perhaps the only consolation is for the few die hard vulgar Marxists (if there are any left) who get to say that they were correct after all in claiming that law is a raw instrument of elite economic domination. A fascinating characteristic of this effort is that it is carried on openly, brazenly, with no pretense about the supposed neutrality of law, and little bother with hiding behind an ideological cover. When pressed for a justification, the stock line is offered (albeit dressed up a bit) that what’s good for Corporate America is in the public interest. But most often no justification in terms of the common good is asked for or given. Today the law is seen as an instrument by the Right and the Left, and whoever is able to control it gets to use it.

My thanks to Jack Balkin for inviting me to participate as a guest blogger.
Posted 1:19 PM by Brian Tamanaha [link] (43) comments

Race and the Constitution-in-Exile

Mark Graber

Yesterday's Miller-El opinions raise interesting and overlooked questions about the directions of a future Bush/DeLay/Frist Court. Justice David Souter, no flaming liberal by any liberal standard, in an opinion joined by Justices O'Connor and Kennedy (neither, particularly the latter, inclined to play race cards), found that Dallas prosecutors had engaged in unconstitutional race discrimination when they used peremptory challenges to get rid of 10 of 11 black jurors, when they asked different questions of those black jurors, when they excused black jurors who gave more death penalty friendly answers than white jurors, and when there was a long history of discrimination in the Dallas prosecutor's office. Justices Thomas, Scalia, and Rehnquist, however, insisted that such evidence was not sufficiently clear and convincing, demanding almost that the prosecutor announce that racial criteria were being used.

The broader significance of Miller-El is that a great many constitutional cases are more about weighing of evidence than general standards. What Miller-El demonstrates is that the Justices George Bush and company admire the most are unwilling to see race discrimination (against persons of color) even when moderate conservatives are grossly offending by the state action. Under what conditions, one might ask, would a Bush Court ever find race discrimination when a prosecutor or state official gave a race-neutral explanation. Brown and related decisions need not be overruled when a court simply credits any excuse states make for flagrant racial disparities
Posted 11:11 AM by Mark Graber [link] (7) comments

GTMO: Where Was the Law? Whither the UCMJ?

Marty Lederman

One of the more interesting, and disheartening, things about the interrogation of Mohammed al-Qahtani at Guantanamo in 2002-2003 -- the official log of which is examined in detail in this week's Time Magazine -- is that the military appears to have been fully aware that the techniques it was employing were unlawful. The Pentagon's efforts to provide legal justification for its activities are quite revealing.

As I've previously explained, there are numerous legal norms that could potentially have applied to the interrogation techniques employed at GTMO. The four most important potential constraints were:

(i) the Geneva Conventions;

(ii) Article 16 of the Convention Against Torture, which requires the U.S. 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";

(iii) the President's February 7, 2002 directive that the Armed Forces must treat al Qaeda and Taliban detainees "humanely";

and (iv) the Uniform Code of Military Justice (UCMJ).

The first obstacle was largely overcome when the President decreed that suspected al Qaeda and Taliban detainees are not POWs and are not entitled to any of the protections of the Geneva Conventions. In my view, the most important component of this determination was one that was made quietly, largely outside public purview: The Administration determined that Common Article 3 of the Geneva Conventions, which prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment," does not apply by its terms to our conflicts with al Qaeda and the Taliban; and, more importantly, it appears that the Administration also determined that it would not uniformly apply the standards of Common Article 3 as a matter of policy, thereby deviating from more than a half-century of U.S. practice.

The Article 16 problem was circumvented when the Administration decided that Article 16 does not apply to the treatment of aliens overseas, including at Guantanamo. (This conclusion is hotly contested, and may well be mistaken -- but it is the view of the Executive branch.)

I explained yesterday that the President's "treat[] humanely" directive is hardly an obstacle at all, because the Pentagon is of the view that "humane" treatment includes, for example, giving a detainee three and a half bags of IV fluid and then refusing to grant him permission to urinate; using dogs "in an aggressive manner to intimidate the detainee"; and forcing a detainee to stand nude, bark like a dog and growl at pictures of terrorists.

That brings us, finally, to the Uniform Code of Military Justice -- which is the most difficult-to-crack part of the legal puzzle. The UCMJ is a federal statute that prohibits U.S. armed forces from, among other things, engaging in cruelty, oppression or maltreatment of prisoners (art. 93), assaulting prisoners (art. 128) (a prohibition that includes a demonstration of violence that results in reasonable apprehension of immediate bodily harm), and communicating a threat to wrongfully injure a detainee (art. 134). The UCMJ plainly prohibits many of the techniques the military used against al-Qahtani -- and (as explained below) the Pentagon acknowledged as much -- but the military did not let the UCMJ stand in the way. Why? What was the legal theory according to which the Pentagon could blithely ignore binding U.S. law?

Frustrated that detainees at GTMO, especially al-Qahtani, "have tenaciously resisted our current interrogation methods," on October 25, 2002 General James Hill forwarded to the Pentagon, for its review, proposed "counter-resistance techniques." Although General Hill was "uncertain whether all the techniques . . . are legal under US law," he expressed his "desire to have as many options as possible at my disposal and therefore request that Department of Defense and Department of Justice lawyers review" some of the techniques.

The proposed techniques included many that were eventually used on al-Qahtani, including forced nudity, forced grooming, "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress," 20-hour interrogations, stress positions, and the use of mild physical contact such as grabbing, poking and light pushing. The proposed techniques also included waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

In an extensive legal memorandum appended to Major Hill's request, Staff Judge Advocate Diane Beaver acknowledged the problem posed by the UCMJ. She writes:

"U.S. military personnel are subject to the Uniform Code of Military Justice. The punitive articles that could potentially be violated depending on the circumstances and results of an interrogation are: Article 93 (cruelty and maltreatment), Article
118 (murder), Article 119 (manslaughter), Article 124 (maiming), Article 128 (assault), Article 134 (communicating a threat, and negligent homicide), and the inchoate offenses of attempt (Article 80), conspiracy (Article 81), accessory after the fact (Article 78), and solicitation (Article 82). Article 128 is the article most likely to be violated because a simple assault can be consummated by an unlawful demonstration of violence which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm, and a specific intent to actually inflict bodily harm is not required."

Beaver then notes, almost in passing, that physical contact with a detainee "will technically constitute an assault under Article 128, UCMJ." In an earlier paragraph, Beaver is still more candid in acknowledging that physical contact, as well as the "water cure" version of waterboarding, "would constitute a per se violation of Article 128 (Assault)," and that threats of death "may also constitute a violation of Article 128, or also Article 134 (communicating a threat)."

Well, then, if some of the proposed techniques are acknowledged to be "per se" federal crimes, how is it that Beaver can then recommend their use and (in a cover memo) conclude that they "do not violate applicable federal law"? Here's the only clue: She writes that because of the "per se" prohibitions of the UCMJ, "[i]t would be advisable to have permission or immunity in advance from the convening authority, for military members utilizing these methods." No explanation here of the legal theory pursuant to which such ex ante "permission or immunity" to violate the law could be conferred.

As Beaver's memo went up the chain of command, it appears that virtually everyone (with the possible exception of General Hill, who expressed some legal trepidation) agreed with Beaver's conclusion that the UCMJ somehow would be no obstacle -- perhaps because they assumed that interrogators would be provided some sort of "permission or immunity in advance from the convening authority." Major General Michael Dunleavy concluded "that these techniques do not violate U.S. or international laws." Similarly, DoD General Counsel Haynes, following discussions with Deputy Secretary Wolfowitz, Doug Feith and General Myers, informed Secretary Rumsfeld that all of the proposed techniques "may be legally available." (Haynes also advised that, for policy reasons, "a blanket approval" of waterboarding and threats of death "is not warranted at this time.")

These legal understandings of the UCMJ continued into the spring of 2003, as the DoD was producing its comprehensive Working Group Report. That report, however, is much more revealing about the possible legal basis for giving interrogators "permission or immunity" in advance to violate federal law. The final report, promulgated on April 4, 2003, acknowledges that assault and maltreatment are offenses under the UCMJ, but adds that "[d]efenses relating to Commander-in-Chief authority, necessity and self-defense or defense of others may be available to individuals whose actions would otherwise constitute these crimes, and the extent of availability of those defenses will be fact-specific. . . . Where the Commander-in-Chief authority is being relied upon, a Presidential written directive would serve to memorialize this authority." [UPDATE: And ABC News reports (based on notes of a DoD official) that in a meeting held March 8, 2003, a group of top Pentagon lawyers concluded that "we need a presidential letter approving the use of the controversial interrogation to cover those who may be called upon to use them."

This is, I think, the key to the puzzle. The Pentagon understood that federal statutory law -- the UCMJ -- stood in the way of what it wished to do, and rendered unlawful what it already had done in the case of al-Qahtani. It had in its back pocket, however, the legal immunity conferred by the Department of Justice's authoritative legal opinion that the President has the absolute authority, pursuant to his Commander-in-Chief power, to determine "what methods to use to best prevail against the enemy," notwithstanding any statutory restrictions that Congress may have imposed.

Is there such a presidential order approving the use of certain otherwise unlawful techniques? Well, at least one FBI e-mail suggests that there is. I'm a bit skeptical -- I have a hard time believing that Alberto Gonzales and the White House Counsel's Office would have created a paper trail that includes specific authorization of unlawful activity signed by the President (although stranger things have happened). (The ABC News report states that "[n]o such letter was issued." But it doesn't provide any basis for this conclusion.) But I do suspect that there is at least one document out there purporting to "immunize" interrogators from culpability for such activity:

Not surprisingly, there were those within the Pentagon (JAG lawyers, in particular) who were skeptical of the legal justifications for the approved techniques. But, as Senator Levin noted in a March hearing, the Church Report on interrogation at GTMO (a report that remains classified) notes that the DoD working group "was stopped from developing its own legal analysis and instead, was required to accept the legal analysis contained in a memorandum from the Justice Department's Office of Legal Counsel, a memorandum [with] which the working group strongly disagreed. According to [the Church] report, that memo, entitled 'Military Interrogation of Alien Unlawful Combatants,' was prepared by Deputy Assistant Attorney General John Yoo for Department of Defense General Counsel Haynes, and . . . had a date of March 14, 2003. This memo was presented, as [the Church] report indicates, to the working group as 'controlling authority' on all legal issues. . . . You [Admiral Church] also noted that conclusions of that memo are nearly identical to those of the August 1, 2002 Office of Legal Counsel memo which is known as the Torture Memo."

When, if ever, will we see the March 2003 OLC Opinion to the Pentagon, without which we cannot fully understand the legal basis for the interrogation techniques approved and implemented by the Department of Defense? Don't hold your breath.
Posted 8:25 AM by Marty Lederman [link] (61) comments