Friday, August 25, 2006

Pluto and Constitutional Theory

Mark Graber

The New York Times reports that Pluto has been reclassified as one of three dwarf planets in the solar system, ending a controversy among astronomers over that sphere's status. Pluto was not reclassified, as I understand the Times story, because scientists discovered some fact about Pluto that was inconsistent with existing definitions of "planet." Rather, discoveries over the past generation have raised problems with existing definitions of "planet," requiring astronomers to adjust general understandings of what constitutes a planet before determining whether Pluto should be considered a planet.

The reclassification of the solar system and Pluto raise some questions about any variation of original meaning, whether we focus on specific expectations or general principles. Imagine that astronomers had discovered that, contrary to previous knowledge, Pluto did not actually revolve around the sun. In which case, Pluto could have been reclassified consistent with the original meaning of "planet." That the persons responsible for the original meaning of planet (or the most recent authoritative definition) thought Pluto met the conditions for being a planet is of no relevance to whether Pluto is a planet, if new evidence reveals that Pluto does not meet the general conditions for being a planet. Similarly, whether the persons responsible for the Fourteenth Amendment thought the equal protection clause protects abortion rights is of no relevance to whether the Fourteenth Amendment protects abortion rights if, on reflection, we come to believe that abortion rights are consistent with the general conditions for being an equal protection rights or, more accurately, the general principles underlying equal protection. This, I think, is the attraction of the new improved originalism.

The problem, in the case of Pluto, is that what astronomers discovered was that the existing principles of astronomy did not adequately describe astronomic phenomenon. Their discoveries meant that they could determine whether Pluto was a planet only by adjusting the broader principles determining what constituted a planet. The same phenomenon is likely to occur in constitutional societies. Constitutional developments do not simply create conditions under which practices originally classified as constitutional must be reclassified as unconstitutional (and vice versa), new conditions also challenge the capacity of existing constitutional principles to provide adequate criteria for classifying practices as constitutional or unconstitutional. For example, constitutional principles that insist we protect speech but not property do not resolve issues of campaign finance, where the question is whether the regulation is of speech or property. Unless we decide the framers were committed to such abstractions as equality, liberty or human dignity, abstractions that might justify any policy, we are likely to discover that principles the framers in 1789 or 1868 thought would be sufficient to classify practices as unconstitutional or constitutional no longer do so, that as was the case with Pluto, when determining whether abortion is an equal protection right, we will have to adjust general principles as well as specific applications.

Let me be clear on one point. My argument is not that the proponents of abortion cannot rely on the original meaning of the Fourteenth Amendment. My claim is that no one can because the original meaning of the Fourteenth Amendment, understood even in terms of general principles, cannot fully resolve modern problems. Constitutional theory, Pluto suggests, needs a theory of political development which cannot simply be a theory that relies on improved understandings of the general principles underlying constitutional norms.

Thursday, August 24, 2006

My defense of originalism (and the living constitution)


For the past year I've been rethinking my views on constitutional interpretation, and rereading some of the very rich literature that has developed in the past fifteen years or so, as well as studying the history of the Fourteenth Amendment.

This summer, I wrote up the results, offering a method of interpretation I call text and principle, which is both a form of originalism and a form of living constitutionalism.

Many faithful readers of this blog know that I have been very critical of originalism as it has been practiced, and have defended the idea of a living constitution. But I have gradually become convinced that these two positions are not really inconsistent with each other; only particular versions of them are. This article gives a fuller account of my views.

Not shying away from a challenge, I then decided to take on one of the defining constitutional controversies of the day, namely the constitutional right to abortion. It seemed to me that no attempt to offer a method of constitutional interpretation these days would be worthwhile unless one can explain how it applies to the constitutional controversies that concern people the most. If a theory can give a reasonable account of the right to abortion-- whether for or against-- most other issues will probably be a lot easier.

The second half of the paper applies the theory, first giving an account of the original meaning of the fourteenth amendment and then applying the theory to the right to abortion. (Actually, I conclude that there are two different rights).

About three years ago, I wrote up my best arguments for the right to abortion and published them in my edited collection, What Roe v. Wade Should Have Said. Because my views on interpretation have changed in the interim, this argument is has some important differences from the one I gave there.

I don't contend that reasonable people using my method of interpretation could not disagree with my conclusions about the right to abortion. The point of such a method is that different people using it can have a common language for discussion and analysis. I do claim that my arguments about abortion are consistent with the original meaning of the Constitution, and that, in my opinion, they are a better interpretation.

Here is the abstract for the article:

This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.

Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

The article applies this method to the most contentious constitutional issue of our generation-- the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.

The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.

UPDATE: Both Randy Barnett and Larry Solum have graciously recommended this piece, and in return I want to thank both of them for the influence they have had on my thinking on these questions. Randy's book, Restoring the Lost Constitution, was a real advance in the debate about originalism, and showed how nonoriginalists could come to terms with the arguments that originalists were making; he has elaborated these themes in various blog posts on The Volokh Conspiracy. Larry and I engaged in a long (and to my mind, very interesting) debate on our respective blogs about formalism and historicism in constitutional interpretation that also helped me sharpen my thinking. This is one example where the combination of traditional scholarship and blogging can really help scholarship.

Wednesday, August 23, 2006

New Orleans Plus One

Stephen Griffin

In the next week, everyone will be inundated with images and stories about New Orleans, plus one year after Katrina. President Bush has been busy already preemptively defending himself against charges that the recovery of the city has been going too slowly. The most important positive step Bush and Congress have taken so far is provide billions for a state-run program that provides a minimum amount for rebuilding for those who did not have flood insurance. But sadly, the federal government has paid too little attention to certain preconditions essential for full recovery. I’ll review those preconditions in this post, saving for another day the failures of local and state government.

In general, the problem with the national response is not enough attention to looking around corners, to anticipating problems before they occur. One doesn’t need hindsight here. All of the preconditions for recovery I mention here were fully anticipated last fall, just one or two months after the storm.

Electricity. It’s very difficult for a city to recover without reliable electrical power. But many areas of New Orleans either have no power or no reliable electrical power one year after. The local utility declared bankruptcy in late September and sent all out of state crews home, stretching the initial recovery out by months. The utility is still hoping to be bailed out by the federal government and has not yet been required to file a bankruptcy plan. Whatever the merits of a bailout, local takeover, or a takeover by the utility’s larger parent, it is long past time for the executive branch to take an interest, knock some heads together, and get this problem behind us.

Criminal Justice. It actually looks like some officials expected the normal “let’s skate by with a system that barely functions” to be adequate for recovery. Hasn’t worked out that way. Police incompetence pre-Katrina and during the storm has remained a topic unexplored in the various government investigations. The public defender system collapsed and is being rebuilt only slowly. Despite widespread public unhappiness, cooperation among the different parts of the system remains poor. Here is a system in which a relatively small amount of federal money with some accompanying performance conditions could still make a real difference.

Medical Care. More hospitals are open but the crucial supporting facilities, such as long-term care and mental health, are still doing poorly. Too many doctors, especially mental health professionals, have left town. And this is a system profoundly influenced by federal funding. This is the most obvious example of where confident, proactive federal leadership could have made a real difference to the state of the city a year later.

No one of these failures alone would be enough to suggest negligence and inattention on the part of President Bush. But collectively, they speak of a continuance of the failure of will and moral imagination that has plagued the federal effort from the moment the storm passed. Polls and anecdotal evidence suggest strongly the public still cares about the effects of Katrina and whether New Orleans recovers. But it has evidently been a low priority for political elites in Washington, and I do not except the Democrats. They have been willing to let Republicans take the blame without offering any solutions of their own.

One more point worth mentioning about the federal government. As a recent book review in The New Republic points out, Congress is one of the main culprits in the tragedy of Katrina. Congress controls the Army Corps of Engineers and it is that body that is ultimately responsible for the failure of the levees. But I don't believe we've seen any intensive investigations of Congress. . .by Congress and I don't expect we will. Our system expects the executive to execute the law. When Congress executes the law by controlling executive agencies, there's no other branch to provide oversight. It would be nice if some foundation were to exercise countervailing power to fund an inquiry, but I won't hold my breath.

Tuesday, August 22, 2006

Originalism, History, and Objectivity

Mark Graber

Originalism promises to constrain justices more than theories of constitutional interpretation or constitutional adjudication (the two are not identical as Keith Whittington and others remind us) that depend on contested moral and political theories. Consider, however, three problems.

First, objectivity is contested in both history and philosophy. The debates are not identical. Still, the overlap suggests that claims that we can have an objective understanding of history sufficient to have an objective understanding of the original public meaning of, say, "cruel and unusual punishment" are likely to be similar to claims that we can have an objective understanding of what ethically constitutes cruel and unusual punishment. Put simply, solving the objectivity problem in history is likely (though only likely) to go a long way toward resolving the objectivity problem in philosophy. (there is a more general lesson here. Lawyers who look to another discipline to solve legal debates are likely to discover either that an analogous debate exists in the other discipline or, at any event, that they must rely on a theory that is contested within the other discipline).

Second, and more significantly, historians who are committed to objectivity nevertheless vigorously dispute the best interpretation of crucial moments in American constitutional development. Moreover, dominant histories change and those changes typically reflect, consciously or unconsciously, changes in dominant political coalitions. Winners write history (I think it was C.Vann Woodward who described historians as "camp followers of victorious armies") and who the winners are in American politics changes. Both Randy Kennedy (a review essay in Harvard 15 years ago reviewing Eric Foner) and Pamela Brandwein (Reconstructing Reconstruction) have written wonderful histories demonstrating how historical memory changes (and even how what constitutes the relevant history changes). The book to the right of this blog offers a revisionist history of the original meaning of the constitution (eventually, I'll explain why you should buy the thing). Most of my friends (see, i.e., Howard Gillman, Ken Kersch, Julie Novkov) have written similar revisionist histories. Others will revise us. A constitution that depends on the dominant interpretation of the framing or post-Civil War regime is unlikely to be more stable than the one we have.

Third, one might note that originalism in practice does not seem all that objective. Several years ago, I wrote an essay on Justice Thomas in Maltz, REHNQUIST JUSTICE (University of Kansas Press) detailing how Thomas relied extensively on history when the history supported his conservative convictions, consistently relied on the most conservative historian around on matters in which historians disagreed (consider originalism and Brown) and when discussing affirmative action and advertising, matters on which history favors liberals, ignored history altogether. In short, given the choices, originalism in practice is not likely to constrain justices any more than moral philosophy.

The main lesson of the above may be that, whatever the merits of originalism in theory compared to other theories in practice, originalism in practice so far has not looked much different from more Dworkian theories in practice. History is not identical to philosophy, but the practice of both is more closely connected than much debate suggests. If justices in practice are going to rely heavily on the respectable historian whose conclusions best support preexisting philosophical understandings, I'd like their justifications to defend those philosophical understandings as well as the historian selected.

Evidence and ideology

Sandy Levinson

Mark Graber's post explaining his otherwise inexplicable devotion to a team I have loathed for roughly 55 years actually raises interesting issues about commitments far more important (if such is possible) than one's devotion to the Yankees, Red Sox, or any other team. Jack's Yale colleague Dan Kahan has energetically argued (often in articles with Donald Granham), with regard particularly to the debates concerning gun policy, that evidence is basically 'irrelevant," that one's commitments concerning the extent to which firearms should be regulated have far more to do with one's underlying values, or ideology, that with the evidence submitted by either side of the debate. (E.g., proponents of gun control, who often cite the number of children killed by guns, simply refused to confront seriously the fact that more children die in backyard swimming pools every year than are killed by guns; opponents of gun control policy tend to dismiss the importance of the fact that guns do in fact account for the death of X number of "innocent" persons every year, and so on.) It may be that the discussion going on right now on another thread about "1% solutions, civil liberties, environmentalism, etc." is an illustration of Kahan's basic point. (What sort of empirical evidence, if any, would persuade a strong civil libertarian to bend his/her principles or Christopher Caldwell that one should indeed continue to honor the rights of criminal defendants even when they are suspected of terrorism. Indeed, I suggested in an article in the University of Pennsylvania Law Review responding to one of Dan's pieces that his argument might well apply to the debate about Iraq more generally, particularly in 2003, when I wrote the reply. What now seems clear to almost everybody--that the Bush Administration was basically indifferent to evidence, that their zeal to invade was based on the same kind of emotion and ideology that describes Mark's commitment to the Yankees--seemed absolutely clear to me then, but, of course, many people, perhaps plausibly, would have argued that I was too consumed by loathing for the hBush Administration to credit them as making a good case. We want to believe that our political commitments are "evidence based" and not comparable to our decisions to root for sports teams. But Kahan, who is not alone, would challenge this. I take it that no amount of evidence about the "objective" awfulness of George Steinbrenner and the loathesomeness of the Yankee's using their market dominance to crush the opposition could overcome the emotions generated by his youth as a New Yorker.

One wants to believe--or at least I want to believe--that Kahan is wrong, and that we can make public policy arguments on the basis of "rational evidence." Paradoxically or not, I think the evidence is far too mixed to allow any confident conclusion that Kahan is wrong. But if he is not, then we have to reconceive what we think "democratic deliberation" is really about.

Dicey Versus Posner On Ordinary Courts

Brian Tamanaha

Marty offers a detailed response to Judge Posner's WSJ Op-Ed piece below. I will focus on a very narrow point. Posner argues:
As a judge I cannot comment on the correctness of her decision. But I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security.

A further strangeness is that the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review (which hears appeals from FISC) have been bypassed, with regard to adjudicating the legality of the NSA program, in favor of the federal district court in Detroit. The reason is that the jurisdiction of those courts is limited to foreign intelligence surveillance warrants, and the NSA program under attack involves warrantless surveillance.
Five years after the 9/11 attacks, the institutional structure of U.S. counterterrorism is in disarray. The Department of Homeland Security remains a work in progress -- slow and painful progress -- and likewise for the restructuring of the intelligence community decreed by Congress in the Intelligence Reform and Terrorism Prevention Act of 2004. And now, in the wake of Hamdan and the Detroit case, we learn that we do not have a coherent judicial dimension to our efforts to combat terrorism. (One reason may be that there is no official with overall responsibility for counterterrorism policy.) Other than the judges assigned to the two foreign intelligence courts, federal judges do not have security clearances and, more to the point, have no expertise in national security matters. Moreover, the criminal justice system is designed for dealing with ordinary crimes, not today's global terrorism, as is shown by the rules, for example, that entitle a person who is arrested to a prompt probable-cause hearing before a judge and require that criminal trials be open to the public....

At first blush, it might appear odd that an arguably momentous decision for national security could be rendered by a randomly selected lowly district judge with no particular expertise in such matters. Posner proposes that "The dilemma of defeating terrorism while respecting essential civil liberties can perhaps be resolved by a change of focus from the adjudicative process to executive and congressional oversight." He suggests that, at the very least, such decisions should be made by judges with special knowledge about national security.

That sounds sensible, but is it right? A.V. Dicey, the conservative English constitutional law giant, identified the following as the core element of the rule of law: "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the law." Dicey repeatedly emphasized the significance of ordinary courts in maintaining the rule of law: "In England the rule of law is coterminous with the cognizance of ordinary courts: it is the rule of the judicature."

Dicey insisted that government officials must be accountable before courts, and he was wary of specialized courts as--to put it in modern terms--susceptible to capture. Posner's position runs counter to both of these ideas.

I do not pretend to know what Dicey would say about these matters today; nor would I say that he was always right. But there is wisdom in his insight that the rule of law is preserved by a decentralized system comprised of a multitude of ordinary judges rendering decisions--including decisions regarding the propriety of the actions of government officials--on a range of issues according to their best reading of law.

Why Should We be "Boxed In" by the Constitution and Laws of the United States?

Marty Lederman

In today's Wall Street Journal, Judge Richard Posner laments the fact that the federal courts are available to adjudicate whether the President's chosen methods of fighting the war on terror are consistent with the Constitution and laws of the United States. (Thanks to Howard Bashman for the link.)

Referring to what he obviously views as the misguided decisions of the Supreme Court in Hamdan and Judge Taylor in ACLU v. NSA, Posner complains that "we are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court." He further objects that the majority of the Hamdan Court was "unsympathetic to arguments that our understanding of certain provisions of the Constitution needs to be revised to meet contemporary needs." He hopes that the Court will eventually "bow" to the President's judgment, but warns that "we cannot wait for that to happen." Presumably this is a not-so-veiled suggestion that Congress should attempt to strip the federal courts of jurisdiction to hear claims challenging the legality of the Executive's conduct.

Regardless of its merits, Judge Posner's complaint is slightly off-the-mark in one important respect: The Court in Hamdan did not rule that the President's commissions were inconsistent with an 18th-Century Constitution -- it ruled that the commissions violated statutes enacted by a 20th-Century Congress (and a treaty ratified by a 20th-Century Senate), with the approval of 20th Century Presidents. And although Judge Taylor's decision was largely based on the Fourth Amendment, the central and clear problem with the NSA program (which Judge Taylor also emphasized, albeit not as much as she should have) is that it is in violation of another statute, FISA, which was carefully enacted, over a long period of time and after extensive deliberation and investigation of past abuses, by yet another (late) 20th-Century Congress, with the approbation of two late-20th-Century Presidents.

The courts in these cases, in another words, are merely requiring the Executive branch to follow the law enacted by the political branches. Why on earth should Congress seek to strip the courts of the power to ensure that its own enactments are honored? Judge Posner does not say. (He obviously is not fond of those statutes, enacted as they were decades before 9/11/01; but if he's right that they're obsolete, why is the proper remedy not a legislative (and public) debate about whether and how to amend them to respond to modern exigencies?)

Judge Posner's principal complaint is that it is "strange" to "confid[e] so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security."

Of course, it is not "strange" at all to give federal courts the jurisdiction to adjudicate whether the President is abiding by duly enacted laws in times of war. As countless Supreme Court cases challenging Executive conduct during war will attest, that has been the ordinary course of things since the founding. What would be strange, and fairly unprecedented, would be for Congress to attempt to strip the courts of such power, and thereby allow the President free reign to mangle or ignore congressionally enacted statutes as he sees fit.

Contrary to Judge Posner's suggestion, the courts in these and related cases are not simply second-guessing the President on "issues of national security," such as by overturning his judgments as to the extent of a threat or the efficacy of an Executive response to the threat. It's not as if five Justices of the Supreme Court, or Judge Taylor, disagree with the President on the nature of the Al Qaeda threat, on how effective the NSA surveillance program would be at detecting terrorists, or at how efficient it would be to convict detainees under the President's military commissions. Indeed, there's no reason to think that the judges would not substantially agree with the President on all such factual assessments.

Instead, what these courts are doing is vindicating the judgments that Congress has made, in conjunction with the President, on questions relating to the proper balance between addressing an external threat and preserving constitutional, statutory, and treaty-based protections of individuals.

It appears not even to occur to Judge Posner that perhaps the Executive's judgments during a time of war might occasionally be less than ideal, not only with respect to preserving individual rights, but also with regard to how to best defeat the enemy -- and that the Executive's judgments will be most suspect, and least reliable, where they are made and implemented in secret, and in the heat of battle, and are not subject to the ordinary checks and balances of our constitutional system. It is conceivable, mind you, that, left to his own devices, a President might actually make poor decisions concerning how best to prosecute a war. (Just hypothetically speaking, of course.) There is, in other words, some practical value in prosecuting a war "by the books," i.e., in accord with the rule of law. Or so our "18th Century Constitution" presumes, anyway. As Justice Kennedy explained in Hamdan, the Constitution's structure of war powers stresses "the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms":
Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment. . . . If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so.
[UPDATE: I should clarify that Judge Posner does not expressly advocate unchecked Executive authority. In this Op-Ed and in other places, he has proposed a new statute that would theoretically minimize potential abuses of warrantless surveillance, "without judicial intervention, by rules limiting the use of intercepted communications to national security, requiring that the names of persons whose communications are intercepted (and the reasons for and results of the interception) be turned over to executive and congressional watchdog committees, and imposing draconian penalties on officials who violate civil liberties in conducting surveillance." This is certainly a proposal worthy of serious consideration in Congress. Three questions, however: (1) Why exclude judicial review to ensure that the President at least abides by such requirements? (2) This Administration would never agree to provide Congress with "the names of persons whose communications are intercepted (and the reasons for and results of the interception)" -- indeed, they would likely contend that such a requirement is unconstitutional. Therefore either the Posner proposal would be a nonstarter (because of a veto threat), or there would be a good chance of Executive nonenforcement. (3) Until the day that Congress enacts such a law, and the Executive abides by it, what is wrong with permitting the courts to hold the President to the laws that are currently in place?]

Will the Geneva Conventions Be the First "Universally Accepted" Treaties?

Marty Lederman

This announcement just in from the International Committee of the Red Cross:
For the first time in modern history an international treaty has achieved universal acceptance. The recent accessions by the Republic of Nauru and the Republic of Montenegro to the 1949 Geneva Conventions confirm the status of these conventions as the most widely accepted international treaties and represent a landmark in the development of protection for victims of armed conflict. . . . Nauru acceded to the four Geneva Conventions on 27 June and Montenegro on 2 August, bringing the number of States party to these instruments to 194.
Perfect timing, isn't it, for the Administration and Congress to now enact a law authorizing the CIA to violate the Geneva prohibition on "cruel treatment" of detained persons?

[UPDATE: I just noticed that Michael Froomkin offered the same juxtaposition this morning.]

Is a Federal Tax on Damages for Emotional Distress Unconstitutional?

Marty Lederman

The U.S. Court of Appeals for the District of Columbia Circuit today held that a federal statute, which imposes a tax on awards of compensatory damages for emotional distress and loss of reputation, is unconstitutional because such awards are not "income" within the meaning of the Sixteenth Amendment.

I know very, very little about tax, and not much more than that about the Sixteenth Amendment, so please excuse me if the following question is obviously ridiculous for one reason or another:

Assuming the court is correct that such an award is not "income" for purposes of the Sixteenth Amendment -- which I will assume because I don't know enough about the meaning of "income" in that Amendment -- why does it follow that the tax is unconstitutional?

[I have edited this post to elaborate on certain points.] To say, as the court of appeals does, that "[t]he Sixteenth Amendment simply does not authorize the Congress to tax as 'incomes' every sort of revenue a taxpayer may receive," is not to explain why Congress is prohibited from doing so. The Sixteenth Amendment is not a limitation on congressional powers -- it's an authorization, or, more precisely, a clarification. Thus, even if the court of appeals were correct that an award for emotional distress is not "income" in a constitutional sense, the next question should be "SO WHAT?" After all, the federal government taxes plenty of things other than income, and those taxes are not all unconstitutional.

Congress has the power under Article I, section 8 to lay and collect Taxes. This, in and of itself, is presumably sufficient authority for the tax in the Murphy case, for "[t]he subject-matter of taxation open to the power of the Congress is as comprehensive as that open to the power of the states, though the method of apportionment may at times be different." Charles C. Steward Machine Co., 301 U.S. at 581. Indeed, the tax in that case was on a damage award provided by a federal agency (the Department of Labor), pursuant to a federal law, and therefore Congress could impose a tax on that federally-authorized award under the Necessary and Proper Clause, too (i.e., Congress obviously was not required to provide a mechnaism by which Ms. Murphy could recover damages in the first instance, and thus it can decide that it will not provide full compensation for injuries to emotion and reputation, but will instead direct that some of the "compensation" be remanded to the federal government itself).

So where does the Sixteenth Amendment come into play? It was ratified in order to clarify that income taxes may be assessed whether or not they are direct taxes. The constitutional restriction on Congress's power appears, not in the Sixteenth Amendment, but in Article I, section 9, which provides that "direct" taxes must be proportional to census results. The Sixteenth Amendment was ratified in order to effectively overturn the Supreme Court's 1895 decision in Pollock v. Farmers' Loan and Trust Co. -- a mistaken, outlier decision -- that a personal income tax was "direct" and therefore had to be apportioned by state census figures.

[Next three paragraphs updated.] Prior to Pollock, the Court had regularly held, beginning in the 1796 case of Hylton v. United States, that numerous taxes were not "direct," and thus did not have to be apportioned by census. So, for example, the Court held that federal taxes on corporate capital (Pacific Insurance v. Soule), estates (Scholey v. Rew), and even personal income (Springer), were not "direct." The general consensus during this century had been that the term "direct taxes" as used in Article I referred only to taxes on real estate and poll or capitation taxes.

Pollock, a 5-4 decision, took a sharp turn away from this long line of cases: The Court held that a tax on property-based income was a "direct" tax, prohibited by Article I, section 9 because it was not apportioned by state population. Pollock was widely criticised and reviled. President Taft would later say that "[n]othing has ever injured the prestige of the Supreme Court more."

The Court heard the criticism. After Pollock, the Court in effect returned to the Hylton line of cases. Between 1899 and 1911, it held that a trade tax on the Chicago Board of Trade (Nicol v. Ames), a graduated estate tax (Knowlton v. Moore), and a tax on a corporation's gross receipts (Spreckels Sugar Refining), were all not direct taxes, and thus permissible even if not apportioned. (Thanks to Calvin Johnson's 2004 article Fixing the Constitutional Absurdity of the Apportionment of Direct Tax for some of these historical details.) Finally, in 1911 the Court more or less relegated Pollock to its facts, by holding in Flint v. Stone Tracy Co. that a tax on corporate income was not a "direct tax."

In other words, even before ratification of the Sixteenth Amendment in 1913, virtually no federal taxes other than the personal income tax were deemed "direct." In 1913, the Sixteenth Amendment put the final nail in Pollock's coffin, by declaring that Congress could tax income without regard to census figures, i.e., whether or not it was a "direct" tax.

Thus, in order to invalidate the tax in the Murphy case, it is not enough to hold that the award is not "income." It would be necessary further to hold that the tax is a "direct" one, prohibited by Article I -- and to explain why it is not otherwise authorized by the Necessary and Proper Clause. The court of appeals did not peform these analyses, and thus its opinion is woefully incomplete. My rough sense is that the tax on the award in Murphy is authorized by Article I, section 8, and by the Necessary and Proper Clause, and, more importantly, is not a prohibited "direct" tax under Article I, section 9, just as with estate taxes (see Manufacturers National Bank, 363 U.S. 194) and gift taxes (see Bromley v. McCaughn, 280 U.S. 124). (In addition to the Johnson article cited above, see Bruce Ackerman's 1999 article Taxation and the Constitution.) Indeed, even the Court in Pollock acknowledged that taxes on "gains or profits from business, privileges, or employments" are not direct, and thus can be assessed without apportionment. 158 U.S. at 635. The award of damages in the Murphy case is a "privilege" created by federal law, and thus a tax on such damages would not appear to run afoul of any apportionment limitation in Article I.

If I'm correct about this, then the tax on the award of damages therefore is constitutional, wholly without regard to whether it is a tax on "income" -- although, again, I caution that I'm out of my league on this question, and would appreciate further information or clarification in the comments.

In any event, even if I'm wrong and the direct/indirect question is closer than that, the court's opinion today does not so much as mention Article I, or the direct/indirect distinction. Indeed, the court does not even acknowledge Congress's broad taxing power under Article I, section 8, nor does it identify where in the Constitution any restriction on such taxing power might appear, or describe the nature of that constitutional limitation. Thus, even if the judgment is correct because this is a "direct" tax and the award is not "income," the court's reasoning leaves a great deal to be desired. And this inexplicable failure in the opinion is especially conspicuous in light of the fact that the district court judge in the case, Judge Lamberth, specifically noted that the possible constitutional limitation derived from the apportionment requirement of Article I, and indicated that the tax was permissible either if it was assessed on "income" or if it was not "direct." 362 F. Supp. 2d at 217. Judge Ginsburg simply ignores one half of the equation -- and without that, he's provided no reason to invalidate the federal statute. [UPDATE: Surprisingly, the court of appeals judges are not the only ones who skipped right over the central question. In her brief, appellant Murphy stated, in a footnote and without any authority, that "[t]he taxation of damages received on account of personal injuries or personal sickness is a direct tax." But DOJ does not appear to have contested that assertion in its brief, which appears to (implictly) suggest that the constitutionality of the statute turns entirely on whether the award was "income." It's safe to predict, I think, that DOJ won't repeat that mistake in its petition for rehearing.]

If I'm right about all this -- and again, that remains to be seen -- it'll be interesting to see if Judge Ginsburg comes in for the same blogospheric slam-down that greeted Judge Taylor's craftwork in her recent opinion on the NSA surveillance question.

UPDATE: A commentor correctly notes that, in addition to section 9, section Section 2, clause 3 of Article I also provides that "direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers." This reminds me that, if I recall correctly, the census-based requirement for direct taxes in Article I was crafted as a protection against congressional discrimination against particular states. If this is correct, then it would be very odd to impose such a restriction, not simply on property held pursuant to state law, but on an award issued by a federal agency pursuant to federal law. That is to say, the rationale of the proportionality requirement of the direct-tax provisions of Article I appears at first glance to be especially ill-adapted to taxes on federally prescribed awards of money.

Cheering for the Evil Empire

Mark Graber

These are glorious days for true fans of the evil empire, sometimes known as the New York Yankees. The hated Red Sox, humilitated on Friday and Saturday, had their hearts broken on Sunday and Monday. ESPN, committed to discovering every imaginable statistic possible (are any of their research assistants interested in going my law school!), points out that the Yankees have not won five from the Sox in more than a half century and that this is the first time since 1923 that a first place team has swept a 5 game series from a second place team.

Vigorous support for the New York Yankees is not politically correct in many progressive circles. How, I am often told, can I cheer madly for a team that succeeds by outspending its opponents. Besides the owner donates to Republican causes and our sacred manager, Joe Torre, has a public friendship with Rudy Guiliani. One response is that better an owner who spends lots of money trying to win than an owner interested only in profit lines (the Yankees also make a nice profit), and that the star of the Red Sox, the politically correct team, publicly used the one success the Red Sox ever enjoyed to push the re-election of George Bush. The better response is that the United States is too polarized already and that choosing our sports teams (or matinee movie idols) on the basis of politics will further aggravate things. Sports has historically provided what Robert Putnam describes as bridging social capital, a means for bringing persons of different races, ethnicities, and politics together. My passion for the Yankees (NY Giants, Ny Knicks, NY Rangers) reflects an identification as a traditional New Yorker, even though I have not lived in New York for almost 30 years. Given the great difficulty many Americans and many self-identified traditional New Yorkers have talking with each other on such issues as abortion, the war in Iraq, and welfare, preserving a space where we can celebrate and mourn together seems valuable. Cross-cutting identities are good for democratic societies and sports are a major source of such identities.

So, fellow Yankee fans, whether you be democratic socialists, libertarians, militant supporters of the Iraqi war, committed Zionists, proponents of bans on abortions ofr gay marriage, let us rejoice together in the success of Derek Jeter and company, and remind Red Sox fans, be they advocates of complete withdrawal from Iraq or President Bush's wiretapping program, that they will again have reason to celebrate, though only in May, when the games do not really matter.

Sunday, August 20, 2006

The 1% solution and the marginalization of civil liberties

Sandy Levinson

An article in today's New York Times by a British writer, Christopher Caldwell, is, I suspect, symptomatic of the declining support for civil liberties even among elites. The key part of his article comes toward the end: "Blair’s opponents equate today’s civil liberties protections with core British values." Caldwell appears to believe that they are best conceived only as "temporary adjustments that were useful under certain specific circumstances in part of Europe between World War II and the late 20th century.

"Even before Sept. 11, social critics noted that our culture has tended to mistake relatively ephemeral 20th-century phenomena for eternal truths. " Caldwell offers an analogy to modernism in art, borrowed from the writings of art historian T.J. Clark. "Modernism, after all, was presented to every educated Westerner born after 1930 as a new canon that would permanently overshadow the old one. But one could infer from Clark’s reading that, after the fall of the Berlin Wall, much of 20th-century art and culture would be revealed as a timebound fad, albeit a big and influential one. As indeed it was. "

"Some of Britain’s Muslim leaders may also be susceptible to this mistake. Muslims have, after all, been present in Europe en masse for only a very few decades. Many community leaders have rightly understood that contemporary Britain’s commitment to multiculturalism and tolerance hardly amounts to a license of lawlessness. But not all. The sharp-tongued chairman of the Birmingham Central Mosque, Mohammad Naseem, greeted the worries about the potential mass murder of flying civilians with a cavalierness almost unbelievable under the circumstances. “With the track record of the police,” Naseem told The Guardian, “one doesn’t have much faith in the basis on which people are detained. And it poses the question whether the arrests are part of a political objective, by using Muslims as a target, using the perception of terrorism to usurp all our civil liberties and get more and more control while moving towards a totalitarian state.” Until five years ago, this kind of talk might have won him a few allies, as well as enemies. Now it is hard even to understand. If Naseem thinks that the rights of defendants are a cause around which 21st-century Britons will rally, he is making a minor misjudgment. If he thinks that the Britain he is addressing is the same Britain that existed from the 1940’s until a few years ago, eager to build bridges between communities and classes, no matter the cost, he is making a major one."

Perhaps one should commend the Times for opening its pages to all points of view. But Caldwell is not contributing the equivalent of an op-ed. He is a "contributing editor" of the Times Magazine, and one presumes that he is viewed as someone whose perceptions about politics should be taken with due seriousness. So the bottom line is whether Caldwell would just as easily condemn Judge Taylor and Laurence Tribe for believing that 21st century Americans should really care about rights of defendants and/or people suspected of complicity with terror. But we should ask ourselves what the right language of response is to Caldwell. Do we make arguments along the lines that we have to bear certain risks (including increasing the probability of serious terrorist incidents) in order to maintain a free society? Or do we say that respecting civil liberties does not in fact increase such risks? Is the latter argument really plausible? (Isn't it like arguing that criminals do not in fact ever go free (merely) because the constable blundered, to quote Cardozo's critique of exclusionary rules?) If we must address the former argument, how do we frankly confront what level of risk is worth running? (Regular readers of Balkinization will recognize the structural similarity of the argument to the debate about torture and whether there are ever any costs (as well as obvious moral gains) to an absolute prohibition on torture.)

This, then, brings me to my title and its reference to the 1% solution, which has gained currency because of its use--and implicit criticism--in Ron Suskind's recent book about the "Cheney doctrine," which is that we must engage in pre-emptive attacks whenever there is a 1% risk of something truly untoward happening. Many of Cheney's critics attacked that notion because of the way it leads to a paranoid form of politics. But don't we all engage in such analysis, depending on the magnitude of the risks involved? Lawyers in the audience will recognize this as the question posed by Learned Hand in his opinion in the Dennis case, in which he reconfigured the "clear and present danger" test to include a multiplication of the probability p by the gravity g of the risk. Obviously, if g approaches infinity, then the weighted number is very high even if p is quite low, including only 1%.

As Cass Sunstein and others have pointed out, many environmentalists, writing about global warming, embrace the "precautionary principle," which suggests that quite drastic action be taken even if there is only a relatively low risk of, say, rising ocean levels and the like. The strong appeal of Al Gore's movie, which I was much impressed by, ultimately rests on a version of the "1% solutioin."

So, returning to Caldwell, how do we decide what incursions on our liberties are worth paying, given very low p's but quite high g's? And how do we weigh in our analyses the costs c to individuals whose liberties are being infringed? Consider the triviality of no longer being able to bring toothpaste onto airplanes in carryons. For many, including myself, this is a considerable inconvenience that imposes considerable costs on each and every traveller in terms of time spent either checking (and then waiting around for) one's bag or having to purchase toothpaste whenever one arrives at one's destination. Presumably we accept the inconvenience because the cost to the "innocent" individual is very low. But what if c is considerably higher, involving deprivation of liberty for, say, 28 days, without a lawyer and confronting police interrogation? And so on. Caldwell apparently believes that the gravity of a blown-up plane is sufficiently close to, say, a Nazi takeover of Europe so that it justifies a similar decline in respect for civil liberties. Is he correct? As Bruce Ackerman argues in his new book, no one can seriously argue that al Qaeda is trying to displace the US government. But is an attempt functionally to shut down much of American society as we ordinary conceive it, including readily available air travel, to be dismissed "merely' because bin Laden is making no effort to march onto Washington and take over the White House?

I ask these as genuine questions. They are obviously linked to the rise of the National Surveillance State about which Jack and I have begun writing. How is what Foucault called the "gaze" of the state being "renormalized" to make decidedly "old-fashioned" the kind of respect for civil liberties, including the necessity for a decisive congressional role in their diminution, displayed in Judge Taylor's opinioni and Professor Tribe's defense?

A final analogy: Frank Michelman's perhaps best known article is his 1968 piece in the Harvard Law Review "Protecting the Poor Through the Fourteenth Amendment," in which he set out the basic arguments for "constitutionalizing" the welfare state. Cass Sunstein has recently argued that if Hubert Humphrey had won the 1968 election, then it is altogether possible that Michelman's vision (and FDR's call for a "Second Bill of Rights in 1944) would have been realized with the replacement of Warren, Fortas, Harlan and Black by judges quite diferent from Burger, Blackmun, Rehnquist and Powell. That obviously did not happen, and Michelman's arguments were decisively rejected by the Supreme Court in 1973. But the real point is that by the 1990s, Michelman's arguments were basically "unsayable," at least by "mainstream" law professors (including Michelman himself). Ronald Dworkin seemed almost to take delight in pointing out in 1996 that his "moral reading" of the Constitution didn't include anything so outlandish as "welfare rights," and most liberal law professors spent most of their time, like Dworkin, in demonstrating how the Constitution, properly read, protected sexual autonomy and reproductive choice. And, of course, it ws Clinton himself who led the attack on the "welfare system as we knew it." Similarly, if Bill Clinton had an agenda in his appointments to the bench, it was making sure that Roe would be protected (even though some of us believe that that has in fact worked contrary to the institutional interest of the Democratic Party). He might also have been concerned to protect affirmative action. Otherwise, he certainly exhibited no interest in the judicial expansion of welfare rights and was, moreover, the most anti-civil libertarian president since World War II, as seen in his willingness to support and sign various "anti-terrorism" legislation that basically eviscerated habeas corpus as a meaningful protection for criminal defendants deprived of their constitutional rights in state and federal courts.

So at what point will the "standard-form" ACLU arguments on civil liberties become equally marginalized and sound anachronistic? When will proponents of such views be told, dismissively, that they are sooo 20th century? And, more to the point, when will the proponents accept their own marginalization and stop making them? We're clearly not at that point yet. But, frankly, Professor Tribe, like myself, is now a "senior citizen," socialized in a different era. There are clearly some younger professors who are admirably continuing in that tradition. I think especially of David Cole and Neal Katyal. But how representative are they? And how representative are Christopher Caldwell and the legal academics who almost certainly share his views, including, say, Eric Posner and Adrien Vermeule? Who will more successfully shape the views of the next generation of lawyers (and law-oriented journalists and pundits)?