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 If Democrats Had Spine (or were Thinking like Republicans) The Military Commissions Act of 2006 Does the Military Commissions Act apply to citizens? What Hamdan Hath Wrought The Senate Vote The Party of Torture And what did the Democrats get for selling out? Civilized is as civilized does "Tyranny": "Our Generation’s Version of the Alien and Sedition Acts" Thucydides on Democratic Imperialism Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely Spineless Democrats Deserve to Lose Union Dues and Don'ts Further tales from a banana republic Hate to Rain on the Torture Parade . . . It Gets Worse Barbaric Euphemism Alert . . . And From the Roman Republic More Advice from Classical Greece Thucydides weighs in Contemplating a convention "Our Undemocratic Constitution" Why Iraq is Worse than Vietnam How language works Senator McCain's Understanding of His Own "Compromise" Legislation Ariel Dorfman on Complicity Is a filibuster really unthinkable?
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Saturday, September 30, 2006
If Democrats Had Spine (or were Thinking like Republicans)
Anonymous
The passage of the Military Commissions Act is far from the end of the debate over how we should handle suspected terrorists. The debate now is just as much over how the Act will be perceived as it is a legal struggle. Democrats should be thinking about how to frame the debate and I have a few suggestions. In what follows, keep in mind I'm trying to think like a Republican (Karl Rove or Frank Luntz perhaps, although I can't tell whether they were involved with the Act). The Military Commissions Act of 2006
Marty Lederman
There were several differences between the versions passed by the House on Wednesday and the Senate on Thursday. But the House on Friday afternoon voted 250-170 to approve the Senate version (S.3930). Friday, September 29, 2006
Does the Military Commissions Act apply to citizens?
JB
Many people have been asking about whether the new MCA applies to citizens. The answer seems pretty straightforward. (1) Yes, a few parts of the MCA do apply to citizens; and (2) the MCA is probably unconstitutional in many of its applications to citizens; and (3) some constitutional applications of the MCA to citizens are deeply troubling. A U.S. citizen may be an unlawful enemy combatant under section 948a. Section 948a(1) defines an unlawful enemy combatant as "(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces; or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." Section 948b states that "[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants." So the MCA's procedures apply only to aliens; not to citizens. Nevertheless, Congress has declared that persons falling into the definition in 948a are unlawful enemy combatants whether they are aliens or citizens. Why does this matter, if the military commission procedures in the MCA don't apply to citizens? The answer is that the government might seek to detain citizens as unlawful enemy combatants using the new definition in section 948a. Hamdi v. Rumsfeld states that the President had authority to detain enemy combatants according to the laws of war based on a fairly narrow definition of the term "enemy combatant": Hamdi, however, states that citizens have the right under the Due Process Clause to contest their designation as enemy combatants. Because section 948a(1)(ii) purports to make determinations of enemy combatant status conclusive, it is unconstitutional to that extent. Moreover, some applications of "material support" in section 948(1)(i) would violate the Due Process Clause or the First Amendment. But even putting those cases to one side, the new definition is still troubling: there would be many cases where the new definition is not otherwise unconstitutional but sweeps up people who pose no serious threat to national security. For example, suppose a person knowingly lets an al Qaeda operative stay at their house overnight. That person may be in violation of federal law, but it's hardly clear that the government should have the right to detain such a person indefinitely in a military prison without Bill of Rights protections until the end of the War on Terror, whenever that is. The problem with 948a(1) is that it may place Congress's stamp of approval on a definition of "unlawful enemy combatant" that is far too broad and that allows the government to move a wide swath of citizens outside of the normal procedural protections of the criminal justice system and into a parallel system where the Bill of Rights does not apply. One last point: Section 7(a) of the MCA strips habeas and federal court jurisdiction with respect to aliens. It does not strip jurisdiction with respect to citizens. However, what if the DoD determines that a U.S. citizen is an alien in a Combatant Status Review Tribunal, claims that its determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo? As I noted before, section 948a(1)(ii) is probably unconstitutional to the extent that it suggests that DoD determinations are conclusive. The citizen should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction. To the extent that the MCA would prevent such a determination, it is unconstitutional. What Hamdan Hath Wrought
JB
The Military Commissions Act of 2006 (MCA), which the President will soon sign into law, was a response to the June decision in Hamdan v. Rumsfeld. Hamdan made three basic claims: (1) The President's military commissions proposal violated the Uniform Code of Military Justice (UCMJ) and was not authorized by the September 18, 2001 Authorization for the Use of Military Force or the Detainee Treatment Act of 2005; (2) Common Article 3 of the Geneva Conventions -- including its absolute prohibition on all "cruel treatment and torture" of detainees -- applies to the conflict with Al Qaeda, and is binding on the President and his subordinates; and (3) Congress had not suspended judicial review at least with respect to some cases pending at the time of the Detainee Treatment Act. In response, the Bush Administration sought and obtained a bill that (1) gave explicit authorization for a new form of military commissions not based on the UCMJ; (2) limited the practical enforceability (but not the legal status) of the Geneva Conventions; and (3) attempted to obliterate all judicial review of what happens to alien detainees except for reviews of the verdicts of military commission trials (and very limited review of a few final detention decisions.). This meant that some detainees who are never brought to trial would have no practical method of challenging their detention or their possible mistreatment even if it was in violation of federal law, the Constitution, or the Geneva Conventions, while others would have only a very truncated and delayed opportunity for review of detention decisions. Viewed from one perspective, Hamdan was nothing more than a democracy-forcing decision that required the Administration to prove that Congress supported what he was doing. The President pushed through a bill that did just that. Viewed from another perspective, the Military Commissions Bill was nothing less than a smackdown of the Supreme Court; the Congress withdrew habeas review for aliens (and all other forms of review except for the appeals of military commissions and Combatant Status Review Tribunals (CSRTs) mentioned above), limited the enforceability of Geneva, insulated previous and future practices from criminal sanction, and made the President the final interpretive word for non-grave breaches of Common Article 3. It does indeed look like a smackdown, but there's more here than meets the eye. The gang here at Balkinization will no doubt have more to say about these issues in the days to come, but here are some initial thoughts: First, the MCA puts the President in an interesting position: the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva's status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly. Second, the President remains bound by the prohibitions against cruel, inhuman and degrading treatment found in the McCain Amendment, and the substantive tests of the Fifth, Fourteenth and Eighth Amendments, whether the conduct occurs in the United States our outside of it. Indeed, the MCA reaffirms these substantive standards and makes them applicable throughout the world. If the President violates these standards, or directs others to do so, he violates the law. That means if the President interprets these standards narrowly and tendentiously to permit certain interrogation practices, he also violates the law. There is just no judicial remedy for the violation. Let me repeat what I have just said: The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations. That means that if the President violates the MCA, he still fails to take care that the laws be faithfully executed, which is his constitutional duty under Article 2, section 3 of the Constitution. (And in case you are wondering, he might well be guilty of a high crime and misdemeanor, but don't hold your breath.) The President wanted it this way: He wanted to be able to say that he was following the law, but, just in case he wasn't, he didn't want to be held to account for it in any court proceeding. But the fact that the courts can't offer a remedy doesn't mean, I repeat, that the President has no duty to obey the law. And although he now has virtually conclusive authority to interpret non-grave breaches of Geneva, he does not have virtually conclusive authority to interpret either the Bill of Rights or the McCain Amendment. Third, although the MCA attempts to eliminate judicial review, and in particular the writ of habeas corpus, it is by no means certain that it has succeeded. The suspension of habeas may be unconstitutional. Any such suspension must be consistent with the Suspension Clause of Article I, section 9. I won't get into all the details now, but the Supreme Court's decision in Rasul v. Bush, and, perhaps most ironically, Justice Thomas' dissent in Hamdi v. Rumsfeld, suggest a few reasons why the habeas stripping provisions of the MCA might not be fully constitutional. (I will leave this tantalizing point as an exercise for you to figure out. I'll get back to it later on). In addition, it is by no means clear that the MCA can successfully eliminate rights that detainees have under the Fifth Amendment's Due Process Clause. But, you may wonder, how can detainees sitting in Guantanamo Bay have judicially enforceable rights under the Fifth Amendment? And what is the possible source of jurisdiction if Congress has stripped away all the standard avenues of relief? All these questions will be answered in the fullness of time. I leave you only with this thought: Although it may seem that the Supreme Court doesn't have the last word on these questions, the Congress and the Executive Branch don't either. Thursday, September 28, 2006
The Senate Vote
Marty Lederman
65-34 (Snowe not voting). All Republicans but one (Chafee) voted in favor. Democrats voting in favor included Carper, Johnson, Landrieu, Lautenberg, Lieberman, Menendez, Nelson (Fla.), Nelson (Neb.), Pryor, Rockefeller, Salazar and Stabenow.
The Party of Torture
Mark Graber
In light of the recent Democratic performance on the terror bill, might there be good reason for thinking that a future Republican president might be more inclined to protect human rights than a future Democrat. Consider the following logic. A future Republican president considering the appropriate level of human rights is unlikely to be influenced by the Democratic opposition. We know the Democrats will not put up much of a fight if they think the chosen policy does not protect basic rights sufficiently and the Republican is unlikely to have a rights policy Democrats think is insufficiently rights protective. Nor is it likely that any Republican will be too out of step with the Republican majority, even if they support a stronger rights policy than the present incumbent. And it does seem reasonable to think that McCain, maybe even Frist, would be slightly less barbaric than Bush. But think of the dilemmas of future Democratic presidents. If they adopt a stronger rights policy than the present incumbent, they will face sharp GOP attacks. And the fundamental political imperative of Democrats on the war on terrorism has almost always been to neutralize the Republicans so that the election will be decided on other issues (or Republican incompetence, which is not a policy choice). Far better for electoral purposes, the Clintons and Dick Morrises of this world know, to maintain and probably exceed President Bush's policies. No doubt this is a bit exaggerated, but should there be any doubt in anyone's mind that a president from the present Democratic Party will err radically on the side of superduper caution before supporting any greater rights for suspected terrorists, that a Republican would probably be more likely to support what their conscience thinks right, however misguided that conscience might be. And what did the Democrats get for selling out?
JB
The New York Times reports: Underscoring the political stakes involved, White House spokesman Tony Snow said today that President Bush will emphasize Democratic opposition to the bill in campaign appearances. “He’ll be citing some of the comments that members of the Democratic leadership have made in recent days about what they think is necessary for winning the war on terror,” Mr. Snow told reporters en route to a fundraiser in Alabama, according to a transcript provided by the White House. After the bill passes, the President plans to paint them as soft on terrorism. What a spineless, worthless lot the Democrats in the Senate are. They deserve every lost Senate and House seat that comes from this. Civilized is as civilized does
David Luban
One of the less conspicuous grotesqueries in the new Military Commissions bill is section 948b(f), which states: "A military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of Common Article 3 of the Geneva Conventions." Well, that settles it! Of course, nothing prevents Congress from deciding detainees’ fate by a coin-flip and attaching the same declaration to it. The declaration is really nothing more than decoration. "Tyranny": "Our Generation’s Version of the Alien and Sedition Acts"
Marty Lederman
I don't recall ever having seen a more strongly worded New York Times editorial (see below). "The Democratic leadership in the Senate seems to have misplaced its spine." "Americans of the future won’t remember the pragmatic arguments for caving in to the administration. They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts." Wednesday, September 27, 2006
Thucydides on Democratic Imperialism
Guest Blogger
Alan Gilbert I agree with the content of Mark Graber's earlier post on Thucydides but not on the attribution. Kant is the author of the notion that democratic citizens are slow to go to war and do so only for good cause (in his essay on Perpetual Peace). His contrast is with monarchical subjects, sacrificed in the "pleasure party" of war by kings who never fought. Are the latter not Bush and Cheney and Rumsfeld? And even our professional military is utterly at odds with the administration's practice of torture. Inverting the cliche about the Constitution, the civilian tyrants are blocked mainly by the military, the last refuge of decency and democracy. In Pericles' funeral oration, he praises Athens for the eccentricity (we would say individuality) of its citizens who still rally to the public good. But he also praises Athenian empire and says that it is the splendor of Athens which makes the more timid, defeated subjects of its empire accept its rule. He was an imperialist, not a leader who avoided imperialism. There is no element in Thucydides's account of Athenians being slow to fight. Quite the contrary, as the Corinthian ambassador says (an ally of Sparta), they are restless, ever seeking new conquests, even "above their reason" (a phrase that will haunt Athens in its decadence, at the conclusion of the History). The striking parallel with Thucydides is in the decline in public debate in Athens and its ever more crazed imperial adventures, wiping out peoples (its murder of the men at Melos and enslavement of the women and children) and war against a large democracy - Syracuse - of which it was ignorant. That aggression ended in the slaughter of the Athenians in the Syracusan quarries. "And this" Thucydides says, "is the greatest event in history so far seen. Few of many returned home. And thus ended the episode at Syracuse." At the beginning of the book, Thucydides praises the W. Robert Connor in his 1984 Thucydides talks about how the Jonathan Schell's reporting during the Vietnam War brought home to him the full meaning of Thucydides (I comment on this in Must Global Politics Constrain Democracy? ch. 4). American democratic imperialism or aggression led in Vietnam to a debacle. But the situation of public corruption today - the arrogance and lying of Tyrant Bush and the inability of Democrats, with the exception of John Murtha, representing the military, to mount any principled response - has led to the debacle in Iraq; the horrifying and Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely
Marty Lederman
Yesterday I explained that the definition of "unlawful enemy combatant" (UEC) in the latest draft of the detainee bill was so ridiculously broad and open-ended that it could not possibly be intended to establish the authority of the Executive to militarily detain all persons so defined. Spineless Democrats Deserve to Lose
JB
From the New York Times: "We want to do this," said Senator Harry Reid of Nevada, the Democratic leader. "And we want to do it in compliance with the direction from the Supreme Court. We want to do it in compliance with the Constitution." I am puzzled by and ashamed of the Democrats' moral cowardice on this bill. The latest version of the bill blesses detainee abuse and looks the other way on forms of detainee torture; it immunizes terrible acts; it abridges the writ of habeas corpus-- in the last, most egregious draft, it strips the writ for alleged enemy combatants whether proved to be so or not, whether citizens or not, and whether found in the U.S. or overseas. This bill is simply outrageous. I doubt whether many Democratic Senators or staffs have read the bill or understand what is in it. Instead, they seem to be scrambling over themselves to vote for it out of a fear that the American public will think them weak and soft on terror. The reason why the Democrats have not been doing very well on these issues, however, is that the public does not believe that they stand for anything other than echoing what the Republicans have been doing with a bit less conviction. If the Republicans are now the Party of Torture, the Democrats are now the Party of "Torture? Yeah, I guess so." Not exactly the moral high ground from which to seek office. The Democrats may think that if they let this pass, they are guaranteed to pick up more seats in the House and Senate. But they will actually win less seats this way. For they will have proved to the American people that they are spineless and opportunistic-- that, when faced with a genuine choice and a genuine challenge, they can keep neither our country nor our values safe. The current bill, if passed, will give the Executive far more dictatorial powers to detain, prosecute, judge and punish than it ever enjoyed before. Over the last 48 hours, it has been modified in a hundred different ways to increase executive power at the expense of judicial review, due process, and oversight. And what is more, the bill's most outrageous provisions on torture, definition of enemy combatants, secret procedures, and habeas stripping, are completely unnecessary to keep Americans safe. Rather, they are the work of an Executive branch that has proven itself as untrustworthy as it is greedy: always pushing the legal and constitutional envelope, always seeking more power and less accountability. If the Democrats do not stand up to the President on this bill, if they refuse to filibuster it or even threaten to filibuster it, they do not deserve to win any additional seats in the House or in the Senate. They will have delivered a grievous blow to our system of checks and balances, stained America's reputation around the world, and allowed an obscenity to disfigure the American system of law and justice. Far worse than a misguided zealot is the moral coward who says nothing and allows that zealotry to do real harm. Tuesday, September 26, 2006
Union Dues and Don'ts
Mark Graber
When I was a teenager, I sold soda and sometimes peanuts at the Nassau coliseum for (then) Long Island Nets and New York Islander games. A certain percentage of our earnings went to the vendors union. We had no choice in the matter. The benefit, we were told, is that they had to use us when we showed up for work, even if we only sold water. Since we worked solely on commission, this was not much of a benefit (though we did get to see games, sort of). I also had the sense that protesting was not advisable. Further tales from a banana republic
Sandy Levinson
I strongly recommend a column in today's Boston Globe by Peter Canellos. It is tellingly titled "Congress heads into torture debate blind." It concludes as follows: Congressional leaders have made only token gestures of demanding briefings by the administration. And the Globe reported over the summer that only about a dozen members of Congress had availed themselves of the opportunity to read the national intelligence bill, which outlines the Bush administration's policies in the war on terrorism. Many members told the Globe that they didn't read the bill because they would then be barred from discussing it, making any debate impossible. But watchdog groups have suggested that no debate -- or a debate behind closed doors, with security rules in place -- might well be preferable to a debate that offers only a false appearance of congressional oversight. Having no debate indicates -- correctly -- that the administration is on its own in deciding which interrogation techniques are lawful. Having a debate conveys the impression that the constitutional system of checks and balances is in operation. But with most members left in the dark, so is the constitutional system. Posted 8:39 AM by Sandy Levinson [link] (20) comments Hate to Rain on the Torture Parade . . .
Marty Lederman
The Wall Street Journal and National Review, among others, are downright giddy with delight at the prospect that, because of the new "compromise" legislation, the CIA will be able to resume its so-called "alternative" interrogation techniques. On this view, no longer need the Journal editors "fear" that techniques such as stress positions, sleep deprivation, and temperature extremes "are a thing of the past." It Gets Worse
Marty Lederman
I'm told that this is the latest version of the commissions/Geneva/War-Crimes bill. According to the Washington Post, there is indication Senators McCain, Warner and Graham have acceded to it. (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. Thus, if a person purposefully and materially supports hostilities, he will be an unlawful combatant, even if he never engages in any hostilities himself. [NOTE: At least one of the Administration's supporters believes that the mere filing of a habeas petition is a form of "aggression against the United States." Presumably that is not the intent of the drafters, or else all those attorneys now representing military detainees would become "unlawful enemy combatants"!] Barbaric Euphemism Alert
Marty Lederman
"being able to make life uncomfortable"
Monday, September 25, 2006
. . . And From the Roman Republic
Anonymous
Mark Graber uses Greek democracy to critique the Iraq war. Let's add to that the relevant example of the Roman republic, which limited military dictatorship in time of invasion (and thus the excuse of military necessity) to one year. The example set by the Roman republic (familiar to the framers of our Constitution, of course) is particularly relevant to the 9/11 Authorization to Use Military Force (AUMF) and the apparent authority it provides to prosecute an endless "war on terror." Unlike Mark, I do not consider the absence of a formal declaration of war to be significant. However, there is a great question (not faced by the otherwise analytically sharp Harvard Law Review article by Goldsmith and Bradley on the AUMF) as to whether our constitutional system is compatible with a war without end. Surely the Roman republicans would have thought not.
More Advice from Classical Greece
Mark Graber
Democracies, many classical Greeks believed, were slow to fight, but more effective when they fought (ancient memory suggests this assertion is somewhere in Thucydides, but I could not find the exact citation). The idea was that a democracy required a broader consent than an oligarchy before going to war, that the people who actually did the fighting and dying in a democracy had to approve for battle to be waged. Obtaining such consent was not as easy as talking five knights into taking their peasants across the seas. Lots of people had to be convinced that war was in the national interest. On the other hand, once proponents of war in a democracy persuade the population, democracies are thought able to bring far more resources to bear in combat than other regimes. People who support a war, classical Greeks believed, are more likely to make the necessary sacrifices than people who don't. Common sense. Thucydides weighs in
Sandy Levinson
A reader of Balkinization was kind enough to send me the following quotation from Thucydides: Contemplating a convention
Sandy Levinson
A reader of my previous post wrote, with regard to the "(And How We the People Can Correct It)" part of my new book, "I'm new to Balkinization, but wouldn't a new constitutional convention be a total disaster for the country?" "Our Undemocratic Constitution"
Sandy Levinson
I take it that anyone who's been reading Balkinization for the past several months knows that I have a new book, "Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It"). It sets out a variety of arguments, some of them already familiar to Balkinization regulars, about the deficiencies of our Constitution and calls for a new constitutional convention to correct them. I am relieved to say that not all of the arguments have been rehearsed on Balkinization, so there IS some new stuff in the book, e.g., an attack on policy-based presidential vetoes and a discussion of the "second-class citizenship clauses of the Constitution." In any event, you can find the cover of the book just to the right, with hyperlinks to Barnes and Noble and Amazon. This turns out to be an interesting test of economic theory, inasmuch as B&N is offering the book at a price at least 20% lower than Amazon. (And for "members" of B&N, it goes down another 10%, to just over $20.00. And if you order another book, say Mark Graber's wonderful book on Dred Scott, you get free shipping!) Sunday, September 24, 2006
Why Iraq is Worse than Vietnam
Sandy Levinson
"Henry," responding to my previous posting, writes that "there are no senators like Al Gore Sr. or Fulbright now, but the gutless Democrats are called "liberals." (For those of you too young to remember, Gore and Fulbright opposed the war in Vietnam in terms that no Democratic senator dares do today with respect to Iraq.)" How language works
Sandy Levinson
For an article that Jack and I are completing, I had occasion to look up the entry for James Byrnes in the Oxford Companion to the Supreme Court. (One of the points of the article is that if Byrnes had not resigned in 1942, after one year on the Court, and had remained on the Court until, say, 1954, he could easily have dissented in Brown v. Board of Education, with presumptively disastrous consequences.) So I find it interesting to find the following sentences in the short entry on Byrnes: "In 1951 he was elected overwhelemingly governor of the Palmetto State [South Carolina]. As a Southern governor in the 1950s, Byrnes was a racial moderate: he supported segregation in schools and public facilities, but successfully pushed for a bill to suppress the Ku Klux Klan." Presumably "racial moderate" is meant to be (reasonably) complimentary: He was not an "extremist" like, say, George W. Wallace or Ross Barnett, and one should be grateful for that. That being said, he was certainly a racist who contributed to many years of continued backwardness in the Palmetto State, even if he was unwilling to support the Klan. Senator McCain's Understanding of His Own "Compromise" Legislation
Marty Lederman
From today's Face the Nation. A decidedly mixed bag. I've included some marginal notations, but not, for the most part, with respect to McCain's central assertions and characterizations -- which, at least for the time being, will have to speak for themselves: Ariel Dorfman on Complicity
Marty Lederman
In this morning's Washington Post: Saturday, September 23, 2006
Is a filibuster really unthinkable?
Sandy Levinson
One might think that only Republicans inhabit the US Senate, inasmuch as Democrats have seemingly been more than happy to have sat back while McCain, Graham, and Warner ostensibly took on the Bush Administration. But it is clear that that strategy has failed: The troika's Republican loyalties (not to mention conservatism) have taken precedence over a bitter-end fight, and we are left with a disgraceful bill, as explicated in many of the previous posts by Marty Lederman and others.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |