Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts A Blatantly Unconstitutional Federal Religion-in-Prisons Program Army Confirms: Rumsfeld Authorized Criminal Conduct Oy vey! Der Star spengld bener! The Democratic Case for Network Neutrality West Wing and the Constitution What is Access to Knowledge? Rank(ing) thoughts Administrative Correctness? Access to Knowledge Beyond the Segregation/Integration Paradigm The Return of Separate But Equal Will Bush Pardon Rumsfeld? The basic structure of constitutional interpretation and the limits of interpretive theory Would Jesus Stay Out of Politics? Reductio Ad Dictatorem Our Honorable President New York Times on the Schumer Bill ASIL Takes Stand Against Bush Administration (Sort of) Slavery and the Framers Honest Proponents of the Death Penalty (and Judges): Please Read this Book
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Saturday, April 29, 2006
A Blatantly Unconstitutional Federal Religion-in-Prisons Program
Marty Lederman
The Department of Justice's Bureau of Prisons (BOP) has established "a residential multi-faith restorative justice program" entitled Life Connections. According to the Department of Justice: Friday, April 28, 2006
Army Confirms: Rumsfeld Authorized Criminal Conduct
Marty Lederman
Today the Army filed criminal charges against Lt. Col Steven L. Jordan, a military intelligence officer who was second-in-command of interrogation operations at Abu Ghraib prison in Iraq. Charge III of the Army's Charge Sheet accuses Jordan of "cruelty and maltreatment," based on the allegation that he subjected Iraqi detainees subject to his orders "to forced nudity and intimidation by military working dogs." Oy vey! Der Star spengld bener!
JB
Those who are interested in the controversy surrounding Nuestro Himno, the recently released Spanish language version of the National Anthem might take a look at this 1943 translation of the Star Spangled Banner into Yiddish by Dr. Abraham Asen, described as "the foremost Yiddish adapter of English poetry," and proudly presented in commemoration of the one hundred anniversary of the death of Francis Scott Key: Is this a patriotic act of affirmation of all that is great about America or just a shonda fur di goyim? We report, you decide! Thursday, April 27, 2006
The Democratic Case for Network Neutrality
JB
The current fight over network neutrality concerns whether broadband providers (owned or controlled by phone and cable companies) can discriminate between different types of content or sources of content. For example, they might allow content from their favored media partners to move more quickly, or, in some cases, they might filter content. A network neutrality rule would prevent such discrimination among content flowing through the "pipes" owned and operated by these broadband providers. The reason we are having a fight over network neutrality now is that the government took a wrong turn about five or six years ago, and decided not to require open access by broadband providers. Open access means that phone and cable companies would not be permitted to provide only one ISP (or a chosen few) for their customers. Instead, they would have to open their facilities so that many different ISP's could provide hardware and software services that allow Internet traffic to move along the pipes owned by cable companies and telephone companies. In particular, open access would require cable companies and telephone companies to provide access to the so-called "last mile" between the cable company facilities or telephone exchange facilities and individual homes. The ISP's would connect their Internet services at that point and then route to the Internet backbone; this would allow them to offer an alternative to the Internet services provided by the ISP's chosen (or owned by) the cable company or phone company. Because the U.S. rejected an open access policy, we now have a duopoly in broadband access in the United States. In most cases, you either get your broadband from the local cable company or the local telephone (DSL) company. Because these companies allow only favored partners to be ISP's and provide Internet connection services, there is less competition among ISP's to provide faster and more efficient broadband services. For example, broadband services could be much faster than they currently are, and we don't have to have the current rules that keep upload speeds (from end user's homes) much lower than download speeds (to their homes). Perhaps more important, having multiple ISP's to choose from would mean that if cable companies or phone companies tried to discriminate among content or among speakers, they would be countered by ISP's who would offer their customers a non-discrimination policy. Put another way, with a genuine open access rule that did not allow cable and phone companies to discriminate in any way against competing ISP's, network neutrality might not even be necessary. It's possible that both rules are necessary, but if I had to choose between them, I'd pick open access first. Thus, the demand for network neutrality arises because there is no competition to force cable companies and telephone companies to behave themselves properly. Having lost the battle over open access, people are now retreating to a demand for network neutrality. They may lose that struggle too. But nobody should think that network neutrality by itself is the best solution. Rather, it's a second best solution produced by the unwise policies of Congress, the FCC and the courts. There are two general arguments made for network neutrality. One is that network neutrality prevents anticompetitive practices by cable companies and telcos, who enjoy a duopoly. The second is that network neutrality will help promote innovation. These are both good arguments. However, I would like to offer a third. Network neutrality (and, before it, open access) are the best way to implement the goals of good information policy and democratic and free speech values. I am not claiming that network neutrality is required by the First Amendment or that courts could enforce such a policy on telcos and cable companies. Rather, my claim is that free speech values and the values of a democratic and participatory culture are best furthered by legislative and administrative rules that promote open access, and, failing that, network neutrality. These arguments are separate from arguments from competition (which primarily concern how to maximize consumer welfare) and innovation (which concern how to promote technological development) Open access and network neutrality promote the values of free speech and democratic culture because they prevent cable companies and telcos from structuring the Internet to hinder end users who want to produce and broadcast their own information rather than simply consuming information provided by cable companies, telcos, and their content partners. That is to say, cable companies and telcos hope to make money by viewing the internet as a device for content delivery, much as cable television, broadcast television and radio deliver content to a mass audience. Hence cable companies and telcos hope to charge content producers (including services like Google) for fast speeds to end users' homes. End users who want to broadcast their own content, including streaming content, will have to take the slow lanes. They won't be in the same league as the favored content partners. Cable companies and telcos want end users to be consumers of information provided at high speeds by their content partners, not producers in competition with their favored content partners. Don't get me wrong: they are not opposed to the interactivity that goes with the Internet; they just want the interactivity to be on their own terms. This model-- Broadband access as content delivery system from favored content providers to the home-- undermines the great promise of the Internet as a medium in which everyone, no matter how big or small, could be their own speaker, creator, and broadcaster. It undermines the participatory promise of the Internet, the promise of a technology that allows a truly free and democratic culture. This promise of equal opportunity and democratic participation in the forms and practices of knowledge production and cultural production is at the heart of the values behind the First Amendment. (Or so, at least, I have argued.) It is also a central goal of good information policy-- because it allows information to flow to and from the widest possible group of speakers and to and from diverse and antagonistic sources of information. Allowing cable companies and telcos to discriminate in speed and content won't keep people from having their own blogs and websites with primarily text-based applications that consume relatively little bandwidth (although traffic to these websites may still have to take a backseat). But content and source discrimination will put a damper on individuals and small groups using more sophisticated applications-- and applications that consumer greater bandwidth (like streaming video or audio)-- that could seriously compete with favored content providers in the future. If you believe that the future of the Internet is not just text but also moving pictures and streaming audio, and if you want everyone, no matter how rich or poor, to have the opportunity to communicate using this powerful medium, then you should be concerned about a legal regime that allows the most powerful media companies in the United States to gain favored access and allows discrimination against everyone else. The argument that network neutrality will promote innovation follows a similar logic; you want new businesses to be able come up with new applications that can be laid on top of the existing network, and you don't want incumbents to be able to stifle them easily by manipulating the flow of Internet traffic. Some of those new applications will be from large companies, some from small companies that may someday become large companies, and some applications will be from individuals and hobbyists whose efforts may grow into small and later large and successful companies. My focus in this post, however, is on ordinary individuals who want to express themselves using emerging new technologies for communication. We should build and maintain the Internet so that their ability to create, their ability to speak their minds, their ability to share new forms of expression and reach new audiences is honored just like everyone else's. In particular, we shouldn't allow end users' ISP's deliberately to slow down their traffic. Empowering people to spread their creativity and their ideas far and wide, to work with and reaching other people from around the globe, is what the free speech principle is all about. Given a choice in telecommunications policies, and all other things being equal, we should choose the one that best promotes these goals. Monday, April 24, 2006
West Wing and the Constitution
Sandy Levinson
Fans of "West Wing" got an interesting lesson last night in one of the manifest inadequacies--some of us would say "stupidities" or "dysfunctionalities"--of the U.S. Constitution. For those of you who missed it, President Bartlett has put thousands of American troops between Russian and Chinese armies somewhere in central Asia. The new President-elect, Matt Santos, is (rightly) dubious of the President's policy (though he, like Bartlett, is a Democrat). It is made absolutely clear to Santos that he is "merely" the President elect and, therefore, has no authority whatsoever until inauguration day, which, of course, occurs a full 10 weeks after the election. It is inaccurate to view Bartlett as a "repudiated" President (unlike, say, Hoover in 1932, Carter in 1980 or Bush in 1992), but the West Wing, not for the first time, did their viewers an important service in pointing to the way that we are disserved by a system that allows a true lame-duck to make very important decisions that can well prove albatrosses around their successors necks. Recall that George H. W. Bush placed American troops in Somalia in December 1992, much to the detriment of the Clinton presidency. No contemporary constitutional designer, I am confident, would advise his/her client to adopt anything close to the American system and its long hiatus between election (and, therefore, the granting of democratic legitimacy) and inauguration (the granting of legal authority). Friday, April 21, 2006
What is Access to Knowledge?
JB
The Yale Information Society Project Access to Knowledge Conference kicked off today. (You can learn more about the conference panels here and here.) I gave a speech on the first panel about framing access to knowledge, using insights from a year-long seminar that Yochai Benkler and I have been teaching on the issues. Here is the prepared text of my remarks: On behalf of the Information Society Project I want to express how happy we are to have you all here, and our pleasure at being a part of this wonderful movement that you, in the audience, have helped create. For the last year Yochai Benker and I have been running a research seminar at Yale with some very talented students on the theory and practice of access to knowledge, trying to understand the larger theoretical commitments behind the access to knowledge movement. This conference is the culmination of a long process of thought, study and reflection, which is part of the larger access to knowledge project here at the ISP. Wednesday, April 19, 2006
Rank(ing) thoughts
Mark Graber
As is the case with many academics, I have too morbid an interest in all the various rankings of departments, law schools, and universities that come out. Still, I wonder whether, given the deemphasis on teaching, whether various reputational indexes or citation counts may fool students. After all, should the presence of Professor Bigshot on the faculty be much of a reason to attend Hotshot U. if Professor Bigshot rarely, if ever teaches, and rarely, if ever advises. Moreover, as faculties, law school faculties in particular, begin to have more turnover than most teams in the NFL (or any team run by Isaiah Thomas!) is the presence of Professor Bigshot much an inducement when the odds are good that he/she will be visiting another university during your first year, have a course reduction in your second year, and accept an outside offer during your third year. Of course, the absence of Professor Bigshot may be compensated for by the presence of Professor Famous who visits during your first year and Professor Genius who accepts your university's outside offer during your third year. Still, I suspect free agency may have undesirable teaching influences (Bigshot may share your interests, Genius does not, and both may lack vital experience teaching in your school). Tuesday, April 18, 2006
Administrative Correctness?
Mark Graber
Lost in the debate over so-called "political correctness" is the new trend toward administrative correctness that is sweeping the university. Political correctness, in many forms, is actually intellectually interesting. While at the end of the day, I concluded that the standard restrictions on certain forms of invective would, particularly as applied, be likely to be inconsistent with the university's mission, I think their leading proponents fostered important debates on the meaning of free speech, equality, and intellectual life. The true threats to intellectual life on campus are a new generation of academic administrators, who seem to have little interest in the value of debate, some interest in pacifying constituents, and a great deal of interest in raising money. One example is the obsession with grant-funded research, even in disciplines (English) and fields (political theory) where grants are hard to come by. I stunned a prominent figure at the University of Maryland when I indicated that reputation in law did not correspond to dollars raised in funding. he literally could not conceive of any other objective grounds for merit. Access to Knowledge
JB
The Information Society Project at Yale Law School will hold an international conference on Access to Knowledge from April 21st-23rd at Yale Law School. This is a landmark A2K event that will bring together leading thinkers and activists on access to knowledge policy from North and South to talk about the theory and practice of the Access to Knowledge movement and to share their research and policy solutions. This is one of the first conferences to synthesize the many different facets of the theory of access to knowledge, drawing together issues involving access to medicines, intellectual property, cultural freedom, software innovation and telecommunications policy. The goal of the A2K Conference is to build a larger intellectual framework that will promote access to knowledge both as a human rights issue and as a method of sustainable development. Monday, April 17, 2006
Beyond the Segregation/Integration Paradigm
Guest Blogger
Heather Gerken At first glance, Saturday's New York Time article on Nebraska's decision to divide Omaha's public school into "three racially identifiable" districts looks like a familiar and ugly story. The city's school district absorbed a number of predominantly white schools into the system, with the aim to distribute public school funding more equitably among whites and racial minorities. The mostly white suburban districts "rebelled," says the New York Times, and the legislature "drew up a measure to blunt the district's expansion." The legislature ultimately decided to divide the school system into three racially identifiable districts – one predominantly white, one predominantly black, and one predominantly Latino. Thirty of the 31 lawmakers who voted the districting plan into place were "conservative lawmakers from affluent white suburbs and ranching counties with a visceral dislike of the Omaha school bureaucrats." What made the story unusual is that the 31st lawmaker to support the plan – and its author – was Ernie Chambers, the only African-American in Nebraska's legislature and a man famous for his devotion to the traditional causes of the civil rights movement. He proposed the plan because he wanted to "allow black educators to control schools in black neighborhoods." The basic question behind the story is whether Senator Chambers knows what he's doing. Rather than attempting to answer that question – an assessment that would require a good deal more knowledge than I possess about local Omaha politics and sound educational policies more generally — I want to underscore how impoverished a vocabulary we have for discussing it. Such discussions generally turn on the terms "segregation" and "integration. The Times headline, for instance, is "Law to Segregate Omaha Schools Divides Nebraska" – and who wants to be on the wrong side of that fight? And even Jack's typically thoughtful post on the subject could be enriched by moving beyond those terms. Some critical distinctions get lost when we cast this issue as a debate about integration v. segregation. The first is that these districts may be different from the racial enclaves of Jim Crow. The text of the story suggests that they are predominantly white and black and Latino, but not entirely segregated. We tend to assume that integration ideally means a statistical mirror – if blacks are 25% of the population, they should be 25% of the district – and often term institutions "integrated" even when they contain only a token number of minorities. Yet when racial minorities constitute statistical majorities in a district, we often call those districts as "segregated" and condemn them as such (forget the Times' headline – just think about the Supreme Court's Shaw jurisprudence). Even – or perhaps especially – in a world where significant racial disparities persist, we ought to think carefully before we affix the dreaded label "segregation" to school districts where racial minorities enjoy enough votes to control their own destinies. Jack's post says that our public education system should not be thought of as a system of "racial spoils." In doing so, he puts his finger on precisely what seems bothersome about Nebraska's plan. And yet one wonders what, precisely, makes this a "racial spoils" system. Jack is not worried that racial minorities rather than whites will exercise political control over two of the three districts (although anyone who has read the Supreme Court's decision in Croson, where it insinuated that an affirmative action plan enacted by a majority-black city council was little more than a system of racial spoils, knows that such a worry can animate similar language). Jack is plainly concerned about the fact that these districts were intentionally designed to give racial minorities control over some subpart of the school system, something that seems inconsistent with our broader normative commitment regarding the role race ought to play in public education. And yet in at least one part of our democratic system – voting rights – we often deliberately draw districts to ensure that racial minorities have a chance to control outcomes in some part of the system. It may be that the black legislator who proposed the Omaha plan was elected in just such a district. Jack himself notes the parallel, but he reminds us that the Supreme Court has allowed the deliberate creation of majority-minority districts for the sole purpose of creating integrated legislatures. And Jack – like the majority of the commentators quoted in the Times article – sees no possibility of integration here. Here again, I think terminology can get in the way. If we imagine members of Omaha's black and Latino communities as being represented by the decisions made in their districts – by the successes and failures of a school system where they played a decisive role in shaping its policies – we might see integration, albeit of an unusual sort. If we took a bird's eye view of the entire Nebraska school system, we would see a kaleidoscope, with majority-white and majority-black and majority-Latino communities being "represented" by the school systems they created rather than the legislators they elected. Arguably, representation by institutions of this sort could constitute a richer vision of representation than one where a community elects a single person to speak on its behalf. The point of this post, then, is not to disagree with Jack's analysis. He has intelligently canvassed the costs associated with Nebraska's plan, and his worries about potential dangers (like funding inequities or the danger that truly homogenous racial enclaves will develop in the long run) are especially well taken. The point is simply that we do not have a sufficiently capacious language, constitutional or otherwise, to describe the benefits that might be associated with Nebraska's plan. We need a language that moves beyond the segregation/integration paradigm, one that recognizes that minority-dominated institutions might be importantly different from homogenous minority enclaves. Without such a vocabulary, any discussion of Nebraska's plan seems likely to be one-sided at best. Saturday, April 15, 2006
The Return of Separate But Equal
JB
The Nebraska Legislature has adopted a controversial new plan that would divide the state's largest school district (in Omaha) into three districts of about 15,000 students each: one predominantly white, one predominantly black, and one predominantly Latino. These three districts, along with several (mostly white) suburban school districts, would become part of a single "learning community," i.e., a federation of school districts that share a common tax base. The learning community would be governed by a board member from each member school district. Originally, the Omaha school district had sought to use its powers to incorporate several of the mostly white suburban school districts. Although the district had no plans to engage in busing, parents in the suburban districts were afraid this might happen. They pressured the legislature to stop the Omaha school district's expansion. The legislature responded by creating a learning community that included 11 school districts, including the Omaha district. Later, at the urging of a black legislator, who sought black control of schools in black areas, the legislature divided the Omaha school district into three racially identified districts. The plan requires a study about how best to promote voluntary integration, and requires that school districts work together to achieve this end, but the bill does not require further integration beyond these aspirational goals. Superficially, at least, there are things in Nebraska's new plan that advocates of black self-determination, like Clarence Thomas on the right and Derrick Bell on the left, might like. The new school districts all share a common revenue base. At the same time the predominantly black school district will likely be run almost exclusively by blacks. In like fashion, Latinos will control the Latino district and whites will control the white district. However, blacks and Latinos will have only one vote each in the larger "learning community" that would set policy for all the districts. The NAACP's original push for racial integration was premised on the idea that "green follows white:" The NAACP assumed that whites would never fund separate black school districts as much as they did their own. Hence to ensure that black children received education of equal quality with those of white children it was necessary to integrate the schools. However, in this case the black school district shares the same revenue base as the white district; black families will control how money is spent within the district and black representatives will have some voice in the larger "learning community." So, at least in theory, it looks as if one of the major considerations against separate but equal has been eliminated. It all sounds great in theory, but in practice the issue is a bit more complicated. What prevents the legislature from changing the deal later on, once the racially identified districts are created? For example, the legislature might put each district on its own financial bottom, so to speak. There aren't enough blacks and Latinos in the Nebraska legislature to stop that later modification. This two step process would essentially produce a group of richer white districts and a poor black and a poor Latino district similar to many other parts of the United States. That might make black and Latino parents and children worse off then when they started. The Nebraska plan makes sense only if black parents can be assured both that the amount of financing going to predominantly black schools will in fact be equal to that going to white suburban school districts and that it can't be changed in the future. Indeed, even under the existing plan the black school district only gets one vote in the "learning community" which means that it can't veto rules that, in practice, might favor white suburban school districts in funding and resources. Putting aside these policy considerations for a moment, consider whether what Nebraska has done is constitutional. For ease of analysis, let's start with the assumption that the Omaha schools and the suburban schools have reached unitary status-- that is, that they no longer have any legal obligation to remedy the effects of past racial discrimination. The new bill changes the status quo and seems to have both a segregative purpose and a segregative effect. In earlier desegregation cases the state was required to remedy the effects of previous segregative purpose; the Court used various presumptions to put the burden on the state to remedy segregative effects of its policies. When school boards failed to adopt policies that reduced segregation, the argument was that they failed in their duty, and sometimes the school boards lost and sometimes they won. In this case, however, the school board's policy begins with a deliberately segregative purpose (and effect), even if the purpose can be articulated in terms of allowing minority communities govern their "own" schools. The idea that a set of unitary school systems could be deliberately refashioned and lines deliberately redrawn to create racially identified school districts and racially identified schools seems altogether perverse given the original goals of Brown v. Board of Education. It seems to fly directly in the face of a host of precedents that have never been overruled, including Green, Swann, and Keyes. Even Justice Thomas, concurring in Missouri v. Jenkins, argued that racially identifiable schools were permissible only if they were the result of private choices rather than government policies. Thomas did not claim that state policies which had a deliberate purpose of producing racial segregation were constitutional. Senator Ernie Chambers, the State legislature's only black member argued that the law was not intended to segregate because Omaha's schools are already segregated due to the fact that housing patterns are de facto segregated, students must attend neighborhood schools, and there is no plan to start busing students again. But this misses the point that the purpose and effect of the law is precisely to carve out black and Latino neighborhoods and place them in separate school districts. How the school district lines are drawn affects the future choices that people will make about where to live above and beyond any effects produced by the current demographics of neighborhoods. The demographics of neighborhoods within a larger multiracial Omaha school district can shift over time, particularly since the district as a whole contains many different types of students and parents of different races have a say in its governance and share equally in its future. By contrast, carving out a "black" school district that maps existing black neighborhoods tends to fix its character as "black" and shapes incentives to move in or out of these neighborhoods. By drawing school district lines to match black neighborhoods, Chambers and his allies in the Nebraska Legislature may have exacerbated the mutually reinforcing effects of school segregation and residential segregation. Many people have criticized the Nebraska plan as racist. I don't think that's entirely fair. Some whites probably voted for it because they thought it would keep their children from attending school with blacks and Latinos, while some blacks and Latinos may have supported it because they thought it would give them control over their "own" schools; some whites may have supported it for the same reason. But the more important issue, it seems to me, is whether the public school system, or parts of it, should be treated as "belonging" to one race. The public school system should be the common property of all; deliberately designing as a racial spoils system is not consistent with this goal. Justice Thomas has argued that black communities which are largely segregated because of housing patterns (and what he terms "private choices") should have local control like everyone else; but Thomas in particular has denounced the idea that the state should divide up public services or public entitlements by race and award them in a spoils system. That is why he has been so bitterly opposed to affirmative action policies. In fact, it's interesting to compare Nebraska's legislation with affirmative action policies like the ones the Supreme Court has upheld in Grutter v. Bollinger. The purpose of those policies was integrative-- to ensure a "critical mass" of minorities in what would otherwise have been a largely white law school. The goal of Michigan's affirmative action policy was not to create separate black law schools and Latino law schools within the University of Michigan, and the Court would not have deferred to the law school if it has announced that this was its purpose. Similarly, the Court has upheld a limited use of race in drawing voting district lines not simply because it allows minority communities to be represented by minority representatives, because it produces minority representation in larger integrated governing bodies. As I have said, I don't think we can reject what Nebraska has done as simple racism. Nebraska's law should be applauded if it in fact secures equal funding for black and white school children and gives black parents real voice in the education of their children, the sort of voice that many white parents have long had. But before we can embrace Nebraska's plan to create special black and Latino districts, we first have to decide whether to give up on the integrative ideal behind Brown v. Board of Education-- the idea that the public schools belong to everyone. I don't think we've given up on it quite yet, nor should we. Friday, April 14, 2006
Will Bush Pardon Rumsfeld?
JB
President Bush quickly rose to Donald Rumsfeld's defense after yet another retired general called for his resignation. Frankly, the really interesting question is not whether Rumsfeld will eventually resign but whether President Bush, as one of his last acts in office, will pardon him for any crimes he has or may have committed while serving as Secretary of Defense. Recent revelations seem to suggest that Rumsfeld was heavily involved in supervising the interrogation of al-Qaeda detainees, and he may have approved of or permitted interrogation techniques that are illegal under U.S. law as well as international law. Caspar Weinberger, who served as Defense Secretary for President Reagan, was facing trial on felony charges that he conspired to violate federal law as part of the Iran-Contra scandal. President Bush's father, President George H.W. Bush, pardoned Weinberger and several other Iran-Contra figures as one of his last official acts in office. The President's father, of course, was Vice-President in the Reagan Administration. By pardoning Weinberger and the other Iran-Contra conspirators, he avoided a public trial and ensured that criminal prosecutions and investigations into the Iran-Contra affair would proceed no further. This President Bush is famous for refusing to do what his father did. However, in this case, I think he might be tempted to make an exception. Wednesday, April 12, 2006
The basic structure of constitutional interpretation and the limits of interpretive theory
JB
I believe that it's helpful to break the topic of constitutional interpretation into four different questions: fidelity, interpretation, construction, and constraint. The question of fidelity asks what do you have to be faithful to to be faithful to the constitution? (My view is you have to be faithful to original meaning and underlying principles) The question of interpretation asks what sources may you or should you look to to (a) figure out what the original meaning of the text and the underlying principles are and (b) flesh out how to apply the Constitution in practice? (My view is that there are a wide range of sources you can look to, including history and traditions leading up to adoption, original expected application, previous precedents, past interpretations and traditions of practice. There are also a number of textual rules you can employ). The question of construction asks what kinds of doctrinal rules (if you are a judge) or laws or institutions (if you are the political branches) may you or should you create to implement the Constitution and constitutional values? (This is a far more complicated subject than I can do justice to here; I will only note that doctrinal construction and elaboration, over time, often gets out of sync with the requirements of fidelity, and when it does, judges should change doctrine. The basic idea is that doctrine implements text and principle; it serves the requirements of fidelity but does not and should not displace them.). Finally, the question of constraint asks what features of the system keep judges (or members of the political branches) from imposing arbitrary or extreme interpretations or constructions of the Constitution? Alternatively, what features of the system keep judicial interpretations and constructions (or intepretations and constructions by members of the political branches) within the mainstream of constitutional thought and practice? (Note that these two formulations are somewhat different. The first asks what avoids arbitrariness, the second asks what keeps interpretations and constructions within a bounded range whose center is roughly correlated with mainstream opinion). My central point is that the issue of what fidelity requires is not the same thing as the question of how the system produces constraint. That is to say, it's possible (in fact it is likely) that the requirements of fidelity permit people to arrive at a wide range of different answers to constitutional questions over time, and that the work of constraining interpretation and construction is achieved by other features of the system. It is often assumed that what constrains judges are a set of rules of interpretation and construction, that, if followed, will produce correct answers that will also constrain judges, or, less ambitiously, keep judges from making arbitrary decisions (and poor decisions) or keep them from moving too far out of the mainstream of constitutional thought. My view, by contrast, is that theories of constitutional interpretation, even the best theories, offer only part of the constraints necessary for the practice of judicial review, particularly when constitutional issues become most strongly contested. Rather, much of the work of constraint is produced by structural and institutional features of the constitutional system. These features include the following: These institutional features do not guarantee that judges will reach correct answers to difficult questions of constitutional law. They do not even guarantee that (some) judges will not occasionally overstep their appropriate role. However, they do keep the system of judicial review roughly functional and in sync with the political system. A related, but different reason to doubt that theories of interpretation can do most of the work of constraint is not premised on the limits of what even the best interpretative theories can do. It is based on the realistic assumption that whatever the best theory is, judges and legal commentators often disagree heatedly about what that theory is and how it should work in practice. Moreover, there is no reason to expect that the work of a multimember body like the Supreme Court, whose decisions are the result of shifting coalitions, will conform to the views of any comprehensive theory of proper interpretation. Therefore, whatever the best interpretive theory is, it does not and cannot, in real life, do most of the work in constraining judicial practice. Sunday, April 09, 2006
Would Jesus Stay Out of Politics?
JB
Gary Wills tries his very best to keep Jesus from being used by the two major political parties, arguing that "there is no such thing as a `Christian politics'", but at the end of the day he can't quite manage it. The tell-tale sign comes in this passage: But doesn't Jesus say to care for the poor? Repeatedly and insistently, but what he says goes far beyond politics and is of a different order. He declares that only one test will determine who will come into his reign: whether one has treated the poor, the hungry, the homeless and the imprisoned as one would Jesus himself. "Whenever you did these things to the lowliest of my brothers, you were doing it to me" (Matthew 25:40). No government can propose that as its program. Theocracy itself never went so far, nor could it. The state cannot indulge in self-sacrifice. If it is to treat the poor well, it must do so on grounds of justice, appealing to arguments that will convince people who are not followers of Jesus or of any other religion. The norms of justice will fall short of the demands of love that Jesus imposes. A Christian may adopt just political measures from his or her own motive of love, but that is not the argument that will define justice for state purposes. To claim that the state's burden of justice, which falls short of the supreme test Jesus imposes, is actually what he wills — that would be to substitute some lesser and false religion for what Jesus brought from the Father. Of course, Christians who do not meet the lower standard of state justice to the poor will, a fortiori, fail to pass the higher test. Wills hopes that once people understand that Jesus was a rebel, not of this world, who continually distanced himself from all forms of secular power, they will stop trying to quote him for their favorite political causes. But this is a fool's errand. People want to quote Jesus precisely because we live in a world of profound moral and political disagreement; tying our arguments to widely acknowledged moral symbols or authorities is a good way to persuade others, or, at the very least, to shame them in front of others. And since the United States is, after all, a predominantly Christian country, and since one of the most powerful and successful political movements in the last generation has been Christian conservatives, it seems only natural that both liberals and conservatives would put their rhetoric in the hand of the man from Galilee. The best way to make the argument that Wills wants to make is not to insist that Jesus is otherworldly and therefore beyond politics; it is, rather, to point out that not everyone in the United States is a Christian, and that, even among Christians, not everyone agrees about what Christianity requires. Therefore, in a world of pervasive moral disagreement and sectarian division, it is probably not a good idea to base public policy-- under which all Americans must live-- on a particular interpretation of Christian scriptures. People are free to argue about what Jesus meant and what religion demands in the public square, and government is free to recognize the important and powerful influence that religion plays in people's lives. But government officials should not make laws that are binding for all Americans on the basis of the religious views of a single religious group, even a dominant one. You don't need to have a particular view of what Jesus meant to believe this principle of politics. You only have to believe that there are good reasons, in a democracy with many different peoples and cultures, to keep the life of politics separate from any one religious orthodoxy. Friday, April 07, 2006
Reductio Ad Dictatorem
JB
Attorney General Gonzales' admitted on Thursday that President Bush believed that he could legally spy on American citizens' phone calls and e-mails occurring solely within the United States. Previously the Administration had argued that it had authority to intercept and listen to conversations coming from overseas or going overseas without a warrant and without abiding by the Foreign Intelligence Surveillance Act (FISA). It asserted that the President had inherent authority to intercept intelligence coming from the nation's enemies and that the President was also authorized to do so by the September 18th, 2001 Authorization for the Use of Military Force (AUMF) against Al-Qaeda and other organizations which participated in the 9-11 attacks. Thus, the Administration argued, either the AUMF superseded FISA's requirements prohibiting warrantless surveillance of U.S. citizens, or else FISA was unconstitutional to the extent that it conflicted with the President's inherent powers as commander-in-chief. Gonzales' latest admission-- that the President can also engage in purely domestic spying without a warrant-- might seem like a pretty significant grab of power, far beyond what the President said he could do before. But if you understand the Administration's theory of its own power, Gonzales' statement should not be at all surprising. The distinction between domestic communications and international communications is irrelevant to the theory. The latest revelation shows that the President's theory all along has been radical, unreasonable, and dangerous. The President's view is that because he is fighting a war against terrorist organizations, any persons that he believes are allied with those organizations against whom country is fighting should be treated according to the rules that apply to war, and not to the rules that apply to the U.S. citizens generally (including but not limited to the protections of the Bill of Rights). According to the President, Congress has authorized intelligence gathering against enemy soldiers, which includes electronic surveillance, and even if Congress did not authorize it, as Commander-in-Chief he has authority to engage in such surveillance as a reasonable incident of prosecuting the war against Al-Qaeda. Under this theory, the distinction between international calls and calls that are purely domestic is spurious. Our enemies are our enemies wherever they may be located, and their intelligence is enemy intelligence, whether or not they happen to be located overseas or within the United States. Hence if the President has power to wiretap conversations going overseas or coming from overseas, he has the same power to wiretap conversations within the United States. The problem is not that Administration has suddenly changed its theory of its own power and is now making unreasonable assertions. Rather, the problem is that the President's argument about his own power has always been unreasonable; the latest admissions simply show us where this argument leads. The central problem with the President's argument is that he (or his subordinates) get to decide whether or not a person is associated with a terrorist organization (or associated with an organization associated with a terrorist organization) without having to justify this decision to anyone else. As a result, he can withdraw an American citizen from the ordinary protections of the Bill of Rights (and statutory protections like those in FISA) merely by his own say so. The President argues that the AUMF has authorized him to do this, but the AUMF does not say that the President can disregard laws like FISA specifically designed to protect U.S. citizens (and persons living within the U.S.) from executive overreach. FISA is a far more specific statutory scheme than the AUMF, and we should not assume without a far clearer statement that Congress meant to give the President a blank check to elmiminate laws that restrain executive overreaching and protect the civil liberites of Americans. Nor can the AUMF permit the President to violate constitutional guarantees of Due Process or other constitutional protections. The President's other argument is that even if the AUMF does not give him this authority, he has inherent constitutional authority, and hence FISA is simply unconstitutional to the extent that it conflicts with the President's wishes. This means, in turn, that no law can keep the President from deciding to strip a U.S. citizen of ordinary Bill of Rights and statutory civil rights protections simply by asserting that the person is associated with Al Qaeda or with groups associated with Al Qaeda. To strip citizens of their rights in this fashion, the President does not have to prove his assertion to anyone. He need merely make it and then the person automatically loses his rights under the Constitution and statutory law. Does this argument sound familiar? It should. It is the same argument that the President previously made to justify his ability to detain two U.S. citizens, Yasser Hamdi and Jose Padilla, in military prisons. Hamdi was captured in Afghanistan, but Padilla was detained in Chicago. Again, the President's argument doesn't distinguish between what he does overseas and what he does within the United States. As far as the President is concerned, if he thinks someone is associated with our enemies (or associated with someone associated with our enemies), he can, without offering any proof of this accusation to a disinterested third party, treat them as an enemy soldier. And, as we know, the laws of war permit enemy soldiers to be captured, detained, and even killed. So, at least in theory, if he could capture Padilla in Chicago, he could also shoot him there. This theory, taken to its logical conclusions, gives the President the ability to treat anyone living in the United States, including particularly U.S. citizens, as wartime enemies without having to prove their disloyalty to anyone outside the executive branch. In so doing, it offers him what can only be called dictatorial powers-- that is, the power to suspend ordinary civil liberties protections on his say so. The limits on what the President may do under this theory are entirely political-- the question is whether the American people will stand for what the President has done if they discover what he has done in their name. But if the American people don't know what their executive is doing, they can hardly be in a position to object. And so the President has tried to keep secret exactly what he has done under the unreasonable and overreaching theory of Presidential power that his Administration has repeatedly asserted in its legal briefs and public statements. Attorney General Gonzales' latest admission should hardly surprise us once we understand how much power the President actually thinks he has. Given that we will probably never know what the President has been doing in our name, we can only hope that he has not actually tried to exercise all the power he (wrongfully) thinks he possesses. Our Honorable President
Brian Tamanaha
From the Washington Post: Thursday, April 06, 2006
New York Times on the Schumer Bill
Marty Lederman
Today's lead editorial. Couldn't have said it better myself (although Lord knows I've certainly tried). ASIL Takes Stand Against Bush Administration (Sort of)
Brian Tamanaha
The American Society of International Law held its 100th Annual Meeting last week, with a remarkable list of speakers, including Supreme Court Justice Anthony Kennedy, former Justice Sandra Day O'Connor, and Secretary of State Condoleezza Rice. This celebration also produced a resolution that reads in its entirety: Wednesday, April 05, 2006
Slavery and the Framers
Mark Graber
Over the weekend, I had the privilege of attending a wonderful conference on DRED SCOTT put on by Sandy Levinson, Jack Balkin, and Paul Finkelman. One of the central issues raised at that conference is the extent to which the constitution was a pro-slavery or anti-slavery document. I've never liked either of the alternatives. Those who claim that the constitution committed Americans to the eventual abolition of slavery treat the antislavery utterances of various framers as central to the constitution (and ignore South Carolina and Georgia). Those who claim the constitution was a proslavery document treat antislavery utterances as exercises in hypocrisy and ignore evidence that most framers did hope slavery would eventually disappear (along with, to be fair, free persons of color). Tuesday, April 04, 2006
Honest Proponents of the Death Penalty (and Judges): Please Read this Book
Brian Tamanaha
Despite the life and death stakes, one gets the impression that our society is suffering from "death penalty fatigue." Polls show that the majority of the public is for the death penalty, and proponents are sick and tired of the obstructionist efforts of opponents.
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