Saturday, February 04, 2006

The status of Puerto Rico within the American Union

Sandy Levinson

I strongly recommend a story in today's Boston Globe by Bryan Bender tellingly titled "As its war sacrifices rise, Puerto Rico debates US tie: Some seek more political rights."

The story points out that "[t]he 3.9 million residents of Puerto Rico are losing a disproportionately high number of soldiers in Iraq and Afghanistan -- at least 48, including those who lived in Puerto Rico but signed up for the military on the US mainland." This is leading to renewed calls for Puerto Rican statehood. "Next week, Puerto Rican leaders plan to lobby Congress to act on a recent White House task force that recommends giving Puerto Ricans the chance to decide, through a referendum mandated by Congress, whether they want Puerto Rico to remain a commonwealth or to change its political status. And if Puerto Ricans want a change, the panel recommended, Congress should set up another plebiscite to let them choose full independence or becoming the 51st state."

Needless to say, there would be nothing binding about these votes. It is ultimately up to Congress to decide whether to admit Puerto Rico. The political and quasi-constitutional issues would be enormous: Although Puerto Rico's non-voting delegate to the House of Representatives is a Republican, it is hard to believe that the approximately 7 represenatives that a state would be entitled to wouldn't be largely Democratic (not to mention the two Senators), given the economic needs of what would instantly be the US's poorest state. (This hasn't stopped the Deep South from turning Republican, but that is almost certainly the result of racial and religious politics more than a "rational assessment" that tax cuts for the rich are really the best way to bring economic development to Alabama and Mississippi.) Even more to the point, of course, is the fact that Puerto Rico is largely Spanish-speaking, and any serious move toward Puerto Rican statehood is guaranteed to bring the politics of language to center state, with, I suspect, accompanying acrimony. Could/would Congress condition statehood on adopting English as its official language? Langauge politics played a role in the delayed admission of New Mexico and Arizona, and Utah, notably, had to renounce polygamy before being admitted in 1890. Could/should Congress be so heavy-handed in today's world?

And would Puerto Rico be allowed to declare its independence if rejected for statehood? Can one imagine, for example, an independent Puerto Rico being allowed to establish warm relations with the Chavez government in Venezuela or kicking the US Navy out of its bases there? Taney is Dred Scott argued that the Constitution didn't allow the US to possess long-term colonies; the dissenters in the 1901 Insular Cases embraced this aspect of Dred Scott to protest the acquiescence by the majority in an "imperial vision" of the US that allowed us to become just like Great Britain, France, Germany, and other expansionist powers with their subordinate colonies. Will the US find itself in the position of allowing neither statehood nor independence to Puerto Ricans, whatever may be their wishes because, after all, "we" have our own conception of "our" interests that includes neither possibility.

Puerto Rico, though the world's largest remaining colony--in the specific sense that its residents have no formal rights to participate in the politics of the country that claims sovereignty over it--usually remains way off the radar screen of most Americans (who will undoubtedly be surprised to learn that the island has its own Olympic team, which would presumably be disallowed if it joined the Union). The Globe piece suggests that we could all find ourselves thinking more about Puerto Rico in the future, with significant consequences for the American polity.

Friday, February 03, 2006

Senator Roberts Declares FISA Unconstitutional

Marty Lederman

Senator Pat Roberts of Kansas, Chairman of the Senate Intelligence Committee, today issued a 19-page letter to the Senate Judiciary Committee in which he became (as far as I know) the first member of Congress to opine that the NSA's doemstic wiretapping program is lawful. Senator Roberts's argument is, almost in its entirety, that to the extent FISA purports to provide the "exclusive means" for the President to engage in electronic surveillance -- and Senator Roberts agrees that FISA does so (pp. 10-11) -- FISA is unconstitutional. (For a contrary view, sent to the Congress yesterday by 14 constitutional law professors and former government lawyers, see here.)

Notably, Senator Roberts does not really indulge DOJ's untenable argument that Congress gave the President the authority to override FISA -- and that Congress impliedly repealed the "exclusive means" provision of FISA -- when it enacted the force authorization related to Al Qaeda on September 18, 2001. To be sure, in the Conclusion to his letter, Senator Roberts mentions en passant that he "do[es] not discount" the AUMF argument -- but he doesn't try to defend it in the slightest. Indeed, he does not even suggest that when he himself voted for the AUMF, he intended -- or had any inkling -- that FISA was being overriden and in part repealed. His argument, instead, is that the President's constitutional authorities "should be the beginning and end of our legislative inquiry into the 'legality' of this program. It is quite clear to me that Congress could not, through passage of FISA, extinguish the President’s constitutional authority to conduct the terrorist surveillance program at issue." Senator Roberts concludes (p.13) that the Supreme Court would, "even after FISA, determine that Congress cannot define the 'exclusive means' for the conduct" of the President's electronic surveillance within the United States.

[UPDATE: On a closer read of the letter, something -- or rather, the absence of something -- jumped out at me: There's no argument -- none at all -- about why FISA is unconstitutional. Senator Roberts argues that the President had the constitutional authority to engage in such surveillance prior to FISA; that FISA was specifically designed to limit that Executive authority by statute; that therefore the President's authority is at its "lowest ebb" as described in Justice Jackson's Youngstown concurrence; and that the surveillance in question is very important. But he nowhere explains why the President prevails in the constitutional analysis even at the "lowest ebb." Did I miss an argument in there somewhere to support the "I believe the Supreme Court would recognize" assertion? (In a parenthetical, Roberts suggests that the Court "arguably has recognized" that Congress violated the Constitution by enacting FISA. But his only citation for that suggestion consists of the denials of certiorari in Truong and Butenko, neither of which raised the question of FISA's constitutionality because both cases involved surveillance prior to FISA's enactment.)]

It's a rather remarkable and unusual event when the Chair of a congressional intelligence committee asserts that the landmark framework statute over which his committee has jurisdiction is unconstitutional. But that is what we've seen today. (One wonders why Senator Roberts did not, over the past five years, respond to the several enacted and proposed amendments to FISA, including in the PATRIOT Act, by saying they were unnecessary because FISA cannot limit the President's foreign-terrorism-related electronic surveillance.)

One other important thing about the Roberts letter: He reveals what many of us had suspected -- namely, that one reason the Administration is circumventing FISA is because it is engaged in interceptions that the FISA Court could not approve under the law as currently drafted: "FISA’s burden of proof -– probable cause that [the targeted] individual is an agent of a foreign power -– is higher than the 'reasonableness' the Fourth Amendment requires and does not enable surveillance of all the assistants and collaborators of our enemies that the President should target for intelligence collection."

Now, it should be understood what Roberts is saying here: FISA does not regulate at all the surveillance of "all the assistants and collaborators of our enemies" insofar as the interceptions occur overseas -- even if the communications are with persons in the U.S., NSA may freely intercept those calls (or that's my understanding, anyway). And even if the interception is made here in the U.S., FISA allows for a judicial order upon a showing of probable cause that the person in the United States whose phone or computer is targeted is "an assistant or collaborator of our enemies." Therefore, what's at issue here is (i) the targeting of U.S. persons who are not suspected of being Al Qaeda assistants or collaborators, but who are calling persons overseas who are suspected of being such; and/or (ii) the targeting of U.S. persons who the NSA suspects of being "assistants or collaborators," but where there is not probable cause to believe it.

(By the way, Roberts confirms that "assistant or collarborator" is defined very broadly, to include not only members of Al Qaeda or those who assist in Al Qaeda's terrorist operations, but also persons "affiliated with" Al Qaeda and persons who are members of "organizations affiliated with Al Qaeda." Thus, some of the intercepted calls might not involve any party who is in league with Al Qaeda or who is otherwise even suspected of having had anything to do with the attacks of September 11, 2001.)

In defense of underlying principles


Randy Barnett's recent Taft Lecture, available here, is a good short introduction to his contributions to constitutional theory. It is couched as a criticism of Justice Scalia, but in fact it's really an excellent summary of the main themes of Randy's book, Restoring the Lost Constitution. I was particularly interested in it because Randy offers a new foil to distinguish his theory of original meaning originalism. He calls it the "underlying principles" approach, which in his words, "discern[s] from the text the deeper underlying principles that underlie is particular injunctions." He claims that this is a very widespread approach, which, indeed, it is. More controversially, he also claims that adherents of this approach "appeal to these underlying principles to limit the scope of the text or ignore it altogether," while his approach is presumably more faithful to the constitutional text.

Randy does not identify any particular adherents of this underlying principles approach, although he claims that it is very common. He might well have picked me as his foil, for as I have argued here, the combination of the original meaning of the constitutional text plus underlying principles is a pretty fair first approximation of my normative approach to constitutional interpretation. (As opposed to my positive theories of how the Constitution actually changes over time).

So I want to use this opportunity to defend what I shall call the "text and principles" approach from Randy's criticism. But I want to do more than this. I want to suggest that Randy's own approach is actually quite close to if not indistinguishable from the "text and principles" approach he seems to criticize. That is, if Randy believes that I am now an originalist, I want to claim that he is actually an adherent of the text and principles approach, or, at the very least he should be.

I begin by considering why Randy thinks the underlying principles approach is objectionable. He offers three reasons:

First, as his account suggests, he is worried that an appeal to underlying principles will be used "to limit the scope of the text or ignore it altogether."

Second, he argues that "because the underlying principles are not themselves in writing and are often far from incontestable, it is hard to be sure they are not just the preference of whoever is doing the 'interpreting.'"

Third, he argues that "since the underlying principles, even if correct, are usually very abstract, how they are to be applied in particular cases can be very uncertain." Thus, "if pretty much anyone can play this game to reach virtually any result, then the Constitution is no longer the source of law for law-makers. Instead it is those in the courts who discern the underlying principles who are the real arbiters of government power."

These are all valid concerns. But it is hardly clear that an appeal to underlying principles per se creates any of these dangers, or, to put the point more bluntly, that it creates any of these dangers more than the direct appeal to the original meaning of the text, particularly where the text is open-ended as the privileges or immunities clause and the Ninth Amendment are. Indeed, as I shall argue, the point of appealing to underlying principles is that they help articulate and limit the discretion of judges and legal decisionmakers when the relatively abstract provisions of the text do not provide much guidance.

In fact, Randy has no objection to the use of underlying principles to the extent that "we often do need to consider the principles underlying the text to make sense of it." His real concern is that the principles will displace the text. But for this displacement to occur we have to know what the text really means independent from the principles that it promotes. Sometimes that is easy to do when the text is relatively clear cut. The Framers said that the President must be 35, and perhaps the underlying principle is that he or she be relatively mature. However, the specific age limit controls, and it may not be displaced by the more general principle it enacts.

But when we move to the more abstract and general features of the constitutional text, like the Equal Protection Clause or the guarantee of freedom of speech-- to say nothing of the Privileges or Immunities Clause, or the Ninth Amendment-- it is much harder to see when the underlying principles are displacing the text. Indeed, we need such principles in order to understand how to apply the text to concrete circumstances.

Let me take two examples that Randy offers. First, he asks whether restrictions on paid political advertisements (issue ads) within 60 days of a federal election violate the first amendment. He seems to think that underlying principles would justify the restriction while the original meaning of the text of the first amendment would not. Since I am probably more likely to be on the same side as Randy on the merits, let me play devil's advocate. We don't know whether the limits on issue ads is an abridgment of the textual protection of the "freedom of speech" until we figure out what underlying principles the text promotes. Note that the text of the first amendment guarantees not "speech" but "the freedom of speech," as Alexander Meiklejohn famously pointed out. That freedom does not include every act of speech, and it is subject to reasonable regulations. To decide whether the ban on issue ads violates "the freedom of speech" we need to generate a theory about what kinds of regulations are reasonable and what kinds are not. To do that we will have to figure out what principles underlie the first amendment's text. But we are not done yet. We will also have to come up with some implementing rules in the form of doctrines that will help us apply the text and its underlying principles to concrete cases. Much of the work of courts that is called "interpretation" is actually the construction of these implementing rules. These implementing rules are not foolproof, and they are often controversial, and their scope and reach change over time. But they are necessary to the workaday task of articulating and applying an abstract textual guarantee. For example, if we think that time place and manner regulations are consistent with "the freedom of speech," and we believe that the 60 day limit on issue ads is part of a more general scheme of time place and manner regulation, then the limit is not inconsistent with "the freedom of speech." In fact, I am fairly dubious that this is so for reasons I cannot get into here, but that is how you would go about thinking about the problem.

Or take Brown v. Board of Education. The text of the Equal Protection Clause does not tell us which inequalities violate the Fourteenth Amendment; moreover, the law abounds in practices and statutes that treat things differently. To understand how the Fourteenth Amendment applies to the case of school segregation (and, here, in particular, we would have to look to the Privileges and Immunities Clause as well as the Equal Protection Clause) we have to have some sense of the underlying principles that animate the amendment. If, for example, the amendment promotes a conception of equal citizenship and is designed to prohibit class legislation that creates or maintains a caste of citizens by operation of law, then we have to go on and ask whether school segregation by race does this. And we will need implementing rules just as in the First Amendment case. It is by no means clear that the original meaning of the Fourteenth Amendment conclusively decides Brown v. Board of Education unless we also look to underlying principles to help give us a sense of what the text means. Even when we get to very controversial issues like affirmative action in state institutions of higher education, it is by no means clear that the original meaning of the text definitively tells us how to decide the case. And, more to the point, if we must make use of these underlying principles and implementing rules to decide the case, it is hardly clear that either is trumping or causing us to ignore the original meaning of the text in the manner of my previous example of the 35 year age limit for the Presidency.

I agree with Randy that underlying principles (and, for that matter, implementing rules in doctrine) should not cause us to "ignore or trump" the original meaning of the text. And when it is clear that this has occurred, that is a reason to rethink the principles and modify or even discard the implementing rules. But I do not believe that it is always so clear when this has occurred, when we are interpreting and applying a relatively abstract text like the First Amendment, or the Fourteenth Amendment's equal protection clause, precisely because we need these principles and implementing rules to help us understand how the text applies in concrete circumstances. What Randy does not emphasize sufficiently, I think, is that in many cases we cannot treat underlying principles and implementing rules as a merely extraneous element, unnecessary to the practical task of fidelity to the original meaning of the constitutional text. They are required by the goal of fidelity. Discovering, developing, and applying them is how we can be faithful in our own time. We cannot apply the Constitution's most abstract provisions without the use of principles and implementing rules.

Not only will I agree with Randy that underlying principles and implementing rules may not allow us to "ignore or trump" the original meaning of the text, I will assert that this precept is, in fact, my general view of when constitutional change through interpretation is authorized. Like Randy, I do not believe that stare decisis is an inexorable command when it is inconsistent with the Constitution's meaning, and unlike many liberal constitutionalists these days, I do not think that the best way of preserving the Constitution's guarantees is to force judges to swear at their confirmation hearings that they will respect precedent above all else. We should discard old doctrines when we come to recognize that they no longer comport with the original meaning of the text and the principles underlying the Constitution (principles which themselves must always be consistent with the original meaning of the text.). People regularly disagree about when this has happened, and that is why people fight over existing doctrines and seek to overrule and change them. Social movements (and political parties) organize around the belief that their view of the constitutional text and underlying principles is more correct, and they seek to persuade others that their views are the best ones. Constitutional revolutions occur when they succeed in persuading enough people. That does not guarantee that the positive law of the Constitution always reflects the best interpretation of the Constitution. What our system does do is allow everyone a chance to have a say in the interpretation and application of constitutional doctrine in addition to their ability to participate in actual changes to the constitutional text through constitutional amendment.

Randy concludes his essay by arguing that people are tempted to look to underlying principles because "it appears to yield better results than respecting the text and nothing but the text." He gives Brown as an example. But he is wrong to suggest that the choice is either underlying principles or "the text and nothing but the text." As I have argued, we cannot look only to the text when it is relatively abstract. We need both underlying principles and implementing rules to decide concrete cases. We need them to be faithful to the original meaning of the text. The requirement of fidelity demands that the underlying principles and implementing rules must always be consistent with the text. However, as, I have also argued, people will often disagree about the best way to do this and each group will insist that the other side is ignoring the original meaning when in fact they are offering competing interpretations of what it means to be faithful to that meaning in current circumstances. Therefore much constitutional interpretation requires persuasion over long periods of time, both in courts and in the public sphere generally.

Randy gives Dred Scott, Plessy, and Korematsu as three examples of cases where courts used an underlying principles approach and substituted underlying principles for original meaning. I wish he would spell this argument out in more detail, for although I agree that all three of these cases are wrongly decided, I don't think that any of these cases actually involved judges who said they would not follow the text's original meaning. Korematsu, after all, was written by Justice Black who always believed that what he was doing was applying original meaning. Chief Justice Taney insisted that blacks could not be citizens because precisely because the court could not "give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted." At most he is making an (bad) argument from original intention, but he is certainly not abandoning originalism for some underlying principles that could change over time. And Justice Brown's opinion in Plessy says nothing about displacing original meaning in favor of underlying principles; quite the contrary, he assumed that the principle that the Constitution did not secure social equality between the races was fully consistent with the text of the Fourteenth Amendment. And, I am afraid to say it, but his views about the original meaning of the Fourteenth Amendment (and the exclusion of social equality from its requirements) was not altogether uncommon at the time he wrote Plessy. (Indeed, the case was decided 7-1.)

The Justices in these cases may have gotten the meaning wrong, but that does not mean that they are members of the underlying principles school that Randy wishes to criticize. Indeed, the examples of Dred Scott, Plessy, and Korematsu serve only to show that people who all seek to enforce the text's meaning will sometimes have very different views about what the original meaning of open ended clauses of the Constitution requires. And as fallible human beings influenced by the political demands of their day, they will sometimes be right and sometimes be wrong.

Near the end of his lecture, Randy gets to the heart of why Scalia has adopted his approach. Scalia wants to protect democratic majorities, and he wants to promote judicial restraint and cabin in judicial discretion. What Randy's original meaning approach does not do, particularly with respect to the open ended clauses of the Ninth Amendment and the Privileges and Immunities Clause, is suggest how to cabin in that discretion. Randy points out that "broad as both these provisions are, they are neither unlimited nor entirely open-ended." I think someone like Scalia would concede the point but respond that they are plenty open-ended enough for judges to impose their personal values in the guise of constitutional interpretation. Randy responds that this discretion "is not a bug" but "a feature." I think he is right about that. However, this is the sort of thing that software companies often say to end users who find their software defective, and for many users it is cold comfort. And in the same way, telling someone like Scalia that of course unelected jurists will have discretion in filling in the meaning of open ended clauses is a feature not a bug will be cold comfort to him.

And that brings me to the point on which I will close, and about which I hope to write more. We ask theories of interpretation to do several different things. We ask them to articulate basic rights and structures of government and apply them to concrete cases, and we ask them to constrain interpreters in performing this function. It turns out that given the Constitution and legal system we have, it is very difficult to do all these things at once. Therefore my view is that the work of constraining interpreters can only be partially achieved by the theory of interpretation. That is a good thing too, because the work of the Supreme Court, as a multimember body, is unlikely over time to correspond with the products of any single coherent theory of constitutional interpretation. Rather, we should look for the mechanisms of constraint elsewhere in the constitutional system. As I've explained elsewhere, the most important sources of constraint come from constitutional structure-- the combination of the party system and the appointments process, which continually pushes the Supreme Court toward the views of the national political coalition. This constraint is not the same as a constraint that forces judges only to produce correct interpretations of the original meaning of the Constitution, but it is, on the whole, a more reliable constraint than announcing the best theory and expecting a multimember court to apply it faithfully over time.

Thursday, February 02, 2006

Scholars' Reply to DOJ "White Paper" on NSA, FISA, the AUMF and Article II

Marty Lederman

I'm honored to be part of a diverse group of 14 constitutional scholars and former government officials who have joined together to question the legality of the NSA domestic eavesdropping program. I've previously posted about our original letter to Congress, which can be found here. The Department of Justice thereafter made public an unsigned "White Paper" attempting to provide a legal justification for the NSA program and addressing several of the arguments we had made.

Today, we sent to Congress this letter in which we respond to the DOJ White Paper. Here's the Summary:
The administration has continued to refuse to disclose the details of the program, and therefore this letter, like our initial letter, is confined to responding to the DOJ’s arguments. The DOJ Memo, while much more detailed than its initial letter, continues to advance the same flawed arguments, and only confirms that the NSA program lacks any plausible legal justification.

In our initial letter, we concluded that the Authorization to Use Military Force against al Qaeda (AUMF) could not reasonably be understood to authorize unlimited warrantless electronic surveillance of persons within the United States, because Congress had clearly denied precisely such authority in the Foreign Intelligence Surveillance Act (FISA), and had specifically addressed the question of electronic surveillance during wartime. We also found unpersuasive the DOJ’s contentions that the AUMF and FISA should be construed to authorize such surveillance in order to avoid constitutional concerns. FISA is not ambiguous on this subject, and therefore the constitutional avoidance doctrine does not apply. And even if it did apply, the constitutional avoidance doctrine would confirm FISA’s plain meaning, because the Fourth Amendment concerns raised by permitting warrantless domestic wiretapping are far more serious than any purported concerns raised by subjecting domestic wiretapping to the reasonable regulations established by FISA. The Supreme Court has never upheld warrantless domestic wiretapping, and has never held that a President acting as Commander in Chief can violate a criminal statute limiting his conduct.

As explained below, these conclusions are only confirmed by the more extended explication provided in the DOJ Memo. To find the NSA domestic surveillance program statutorily authorized on the ground advocated by the DOJ would require a radical rewriting of clear and specific legislation to the contrary. And to find warrantless wiretapping constitutionally permissible in the face of that contrary legislation would require even more radical revisions of established separation-of-powers doctrine.

Why the Administration is stonewalling on its justifications for the NSA program


This New York Times article notes that the Bush Administration is unwilling to provide the Office of Legal Counsel's original legal justifications for its NSA program, arguing that a memo released last month contains all the relevant legal arguments. If that is so, one wonders why it is so unwilling to release the original memos, like many other OLC memos that are publicly available.

One reason is that the memos contain classified material, but that material can be redacted. We are particularly interested in the legal reasoning, not the classified data.

Another reason is that the legal advice given to the President must remain confidential in order to encourage frankness by his lawyers. But that argument is undermined by the wide range of OLC memos that are publicly available as a matter of course, and also by the fact that the White House claims that the legal advice in that memo is the same as that contained in the January 2006 response. Indeed, if the President is directing his subordinates to act on legal advice that affects the civil liberties of American citizens, there is a strong argument that citizens have a right to know the basis of his reasoning that their rights are not being violated.

Another, more interesting possibility, adverted to by Anonymous Liberal here, is that the defense of the NSA program is premised on the same legal arguments as Assistant Attorney General John Yoo's (in)famous but as yet undisclosed March 14th, 2003 legal memo, which Marty has described here.

As best we can tell, that memo-- which probably dealt with the Uniform Code of Military Justice and the Federal assault statute-- offered an extremely strong Article II argument which authorized the President to disregard statutes (including criminal laws) that he felt interfered with his authority as Commander in Chief. That memo was disavowed by Jack Goldsmith (and others) at the OLC in December 2003; but, notably, the constitutional claims made in Yoo's memo were never specifically disavowed by the Administration, and, indeed, Attorney General Gonzales dodged the ultimate legal question of the President's Article II authority to disregard criminal statutes when it was posed to him at his confirmation hearings.

The Justice Department's current position is twofold. First, it argues that Congress's September 18th, Authorization for the Use of Military Force (AUMF) provides the President with all the authority he needs to conduct surveillance of American citizens. Second, it retains a modified version of Yoo's Article II on steroids theory-- so that the AUMF is actually unnecessary to justify surveillance-- but the argument has now been made more complex. It is now posed as the claim that one should construe FISA and the AUMF as in perfect harmony with each other and with the President's Commander-in-Chief powers under Article II so to avoid possible constitutional problems. (It also argues, however, that if the constitutional question is not avoided, FISA is *unconstitutional* to the extent it interferes with the Commander-in-Chief power).

If all this is true, why can't we see the March 2003 memo? One likely reason is that if the original basis for the NSA program was indeed Yoo's Executive power on steroids theory, it would be extremely embarrassing to the Administration. First, the theory as Yoo originally proposed it has no logical stopping point. Second, were the original memo to see the light of day, it would make clear that the full throated version of the theory-- that the President is not bound by criminal laws when acting as Commander-in-Chief-- was never, in fact, disavowed by the OLC or by the Administration. One can only imagine the political fallout from such a revelation. It would put, for example, the President's signing statement accompanying the McCain Amendment in a particularly bad light.

But political embarrassment is not a sufficient reason to stonewall when constitutional theories this radical are driving the Executive's actions. It is incumbent on the Administration to state its constitutional claims forthrightly and have them debated publicly, rather than to concoct them surreptitiously and direct its employees and agents to disregard federal law on the sly. If the members of the Administration secretly believe that the Commander in Chief power cannot be constrained by criminal laws-- particularly those limiting domestic surveillance-- the American public needs to know the sort of people in whom it has entrusted Executive power.

Wednesday, February 01, 2006

The NSA program and the rule of law


Judge Richard Posner's comments in the New Republic on how he would go about deciding the constitutionality of the NSA surveillance program are refreshing for their honesty:
You [Professor Philip Heymann] say that "First we have to address ... the defiance of legislated prohibitions and the absence of published standards and any known system of accountability to the other branches." Why first? The way I approach a case as a judge--maybe you think it heresy--is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion. That is how I would proceed if asked to decide a case challenging the legality of the NSA surveillance program. I would try to find out as much as I could about the program--its contribution to national security and the inroads it makes on liberty and privacy--before I started waxing indignant over it, and that indeed is what I have tried to do, and the result of that inquiry is my article. I missed such an inquiry in the letter to Congress you co-signed that was published in The New York Review of Books.

Posner then goes on to add that, even so, "not every good thing is legal," and he does not want to pre-judge the legality of the NSA program, only discuss the virtues of its policy so that Congress might amend the statute. Yet at this point the cow is out of the barn door. If Posner's view about how to judge a case means deciding whether the policy result is good and then "ask[ing] whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion" he has sent pretty strong signals about his priors if he were asked to decide the case.

The ironies abound. If this is how defenders of the NSA program must proceed in order to argue for its legality, they well fit the caricature of judicial activism that generations of conservatives have tarred liberals with when liberals argue for extensions of civil rights and civil liberties protections. That is, instead of being constrained by law in the first instance, defenders argue that a program would be good policy and therefore strain to find that it is not illegal or unconstitutional.

Posner, however, is no ordinary conservative. He has long abandoned the belief that one must speak in pious platitudes about doing what the framers intended, or not legislating from the bench. He regards all this as mere blather designed to mystify what is really going on in legal decisionmaking. Instead, he views the judicial task "pragmatically," in his words, as an extension of ordinary policy discourse, which is only mildly constrained by legal texts and doctrines, if at all.

Posner's candor lays bare a jurisprudential problem for both sides of the ideological spectrum. Defenders of the President must come up with what I can only regard as makeweight legal arguments for justifying what he has done, arguments that would indeed require judges to legislate from the bench, if that hackneyed phrase has any meaning. (For those of who you want a detailed defense of that claim, I direct you to Marty's many posts on this site.)

Moreover, the muscular presidency that the Republican Party now promotes also has little connection to the original understanding of the President's power, despite Professor Yoo's valiant efforts to selectively quote sources to suggest that it is so. Rather, the best defense of expanded Presidential power is that the Constitution must keep up with the times, or as it is so often put, that "9-11 changed everything." That is to say, to justify their constitutional claims, defenders of the President must become that most dreaded and hated of liberal stereotypes, a bevy of living constitutionalists.

But lest liberals rejoice in this irony, it is worth noting that Posner's candor challenges them as well. Posner has dared critics of the President to abandon a debate about what the rule of law requires and concern themselves only with what the best policy is. To respond to this challenge, critics must rediscover and renew their faith in the rule of law-- in the importance of law as an institution that constrains arbitrary power even when that constraint also prevents *them* from doing what they think just and right.

The rule of law, as I have said before, is a political value as well as a legal value. It is a political value of restraint that we take upon ourselves so that we can demand the same restraint from others when the power of the state rests in their hands. The rule of law can be, and has been, used to perpetrate or apologize for many injustices in human history. But it has one saving grace-- that it offers us a place to stand when we object to the aggrandizement of power by those who are utterly convinced that they come to us as saviors. For many years conservatives warned us about would-be saviors of the left, who would sweep away legal restraints to pursue their vision of a just society. It is time to stand up to the would-be saviors of the right, who seek to concentrate unaccountable power in order to pursue their vision of national security.

Tuesday, January 31, 2006

Life Tenure: An Idea Whose Time Has Passed

Sandy Levinson

I will gladly accept the invitation of my friend Marty Lederman to say a few words about life tenure, largely because I can also bring to your collective attention a new collection co-edited by Roger Cramton and Paul Carrington, REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, just published by the Carolina Academic Press. It brings together a collection of people from across the political spectrum (including, for example, Steve Calabresi, one of the founding fathers of the Federalist Society). Most, though not all, of the participants oppose life tenure. Calabresi and his Northwestern colleague Jim Lindgren point out, for example, that the average length of tenure between 1911-1940 was 16 years and dropped to 12.2 years between 1941-1970 )perhaps skewed by the one-year term of James Byrnes and the 4 or 5 year term of Charles Whittaker). The average length between 1970-2005 is 26.1 years! And the average age of leavetaking in this period has been just short of 80. This is crazy. Almost no other country has this kind of "real" life tenure, as distinguished, say, from "life tenure with age limits." And most countries, at least in constitutions written since World War II, have wisely chosen to have limited terms for their highest courts.

The best defense of our system is offered by Ward Farnswroth, who offers a shorter version of an article that has also been recently published in the Illinois Law Review. Farnsworth is an interesting (and independent) thinker, but I think it's fair to summarize his argument as of the "if it ain't broke, it doesn't need fixing" genre. He freely admits that no one advising some other country on "constitutional design" would suggest the US system. Most of us believe that the system IS broken, for reasons ranging from the political gaming of appointments (with an incentive to appoint youngsters) and resignations, not to mention the fact that a depressing number of judges have stayed on even after losing (at least) a step in mental acuity. The worst example was William O. Douglas, but, alas, he's not the only one. (David Garrow has a piece in the Carrington-Cramton book on this.)

The major disagreement between Calabresi-Lindgren and myself is whether one would need a (practically unattainable) constitutional amendment in order to establish term limits (we all agree that 18 years would be the right term) or whether this could be done by legislation. My piece in the book argues for the latter, since the Constitution simply does not SAY "life tenure." It, instead, says that a judge can't be impeached so long as his/her "behaviour" is "good."

My thanks to Marty for giving me this chance to plug an interesting collection.

Less Information, Better Decisions

Ian Ayres

Here’s a Forbes column that Barry Nalebuff and I just published exploring yet another context – executive compensation -- in which keeping decisionmakers in the dark improves their choices.

Rob Gertner and I long ago extolled the virtues of information-forcing rules but it turns out that there are lots of contexts where information-dampening rules or information-screening rules do a better job.

The secret ballot led Bulow and me (and Ackerman and me) to the donation booth.

But mandating ignorance is also behind the idea of blind grading and double-blind experiments and the wonderful Toblin letter.

Even the “you cut, I choose strategy” that underlies break up strategy is an example of information-screening because the cutter doesn’t know which side the chooser will choose.

A really interesting question is whether there is a general theory for when the law should adopt information-forcing, and information-dampening strategies (and when the law should just sit back and let private parties decide whether or not to become informed). I'd love to hear any suggestions from this blog's wise readers . . .

Speaking of Entrenchment

Marty Lederman

Over on SCOTUSblog, I was just noting the remarkable fact that Justice Alito will be only the third person to hold the "eighth" Supreme Court seat in my lifetime -- and then I realized that it wasn't so remarkable, in that come this June 5th, the "fifth" seat, currently held by Justice Stevens, will have changed hands only twice in ninety (yup -- 90) years!

That's a provocation to my co-blogger Sandy Levinson, who's been valiently carrying the torch for a constitutional amendment to establish 18-year Terms for Supreme Court Justices.

Monday, January 30, 2006

Partisan entrenchment


This New York Times article describes a twenty year plan among conservative legal elites to stock the federal courts with conservatives, in preparation for packing the Supreme Court with more of the same. At the margin, the various machinations described in the article may have mattered some. Far more important, however, were repeated victories at the polls and the transformation of the Republican Party into a social movement party. It is the success of that social movement (or more correctly, interlocking set of different conservative social movements) that produced today's conservative Supreme Court majority. If you don't like what the Supreme Court is doing today, you or your parents shouldn't have voted for Ronald Reagan, George H.W. Bush and George W. Bush. And if you want more moderate Republican appointees to the federal courts, you or your parents should have returned more Democrats to the Senate. Sure there can be variations at the margin, but you have to look at the larger structural features that have help shape the current situation. When you have a Republican President and 55 Republican votes in the Senate, you should pretty much expect appointments like John Roberts and Samuel Alito.