A looming constitutional crisis?

Sandy Levinson

I have, as many of you are painfully aware, been bewailing the constitutional unavailability of a mechanism by which Congress could declare "no confidence" in George W. Bush and replace him with a Republican (since the Republicans won the last presidential election) in whom there was sufficient confidence. Most of the discussion has been suitably abstract--the virtues of checks and balances, "republican government," and the like-- and/or rawly political, as exemplified by my repeated denunciations of Bush as stunningly ignorant, incurious, and incompetent.

But consider the following: We will very shortly receive the recommendations of the blue-ribbon Baker/Hamilton commission, made up of people far more distinguished, knowledgeable, and moderate in their language than I am, which by all accounts is going to recommend the commencement of a withdrawal from Iraq, coupled with negotiations--utimately direct ones, beween the US and Iran and Syria. Yet, the New York Times, in an article aptly titled Bush Dismisses Calls for Iraq Withdrawal, reports that Mr. Bush has already declared himself deadset against any withdrawals. “'I know there’s a lot of speculation that these reports in Washington mean there’s going to be some kind of graceful exit out of Iraq,' Mr. Bush said during a joint news conference in Amman with Prime Minister Nuri Kamal al-Maliki, referring to the final report by the Iraq Study Group that is expected next week. 'We’re going to stay in Iraq to get the job done so long as the government wants us there.'”

I suspect that there will be a lot of coalescence around the plan, and that Bush's approval ratings, already low, will plummet to perhaps historic lows if he adheres to his Amman intransigence. (It's possible, of course, that he's simply lying through his teeth, as in his pledge of term-long loyalty to Donald Rumsfeld even as he was actively working on his replacement, but surely the stakes are considerably higher. Why would he go to Amman and so completely lie about his intentions, given that there will be enormous pressures to change US policy within a matter of weeks, not in the distant future?) Republican senators seeking the 2008 nomination are unlikely to rally round the President; already, Nebraska Sen. Chuck Hagel has been promoted to the ranks of serious contenders as the leader of the serious and principled anti-Bush wing of the Republican Party. (John McCain is floundering around, increasingly appearing every bit as confused as the President to whom he apparently made a Faustian bargain before the last election, perhaps waiting to succeed Dick Cheney when "health problems" provoked his much hoped-for resignation.) In any event, Bush is almost certainly going to become ever more politically isolated. BUT HE WILL STILL HAVE ALL THE LEGAL AUTHORITY OF THE COMMANDER-IN-CHIEF, including the prerogative to send young Americans to futile battles (and deaths).

I'm old enough to recall the chant "Hey, Hey, LBJ, How Many Kids Did You Kill Today?" For a variety of reasons, that chant was a mistake, not least because a majority of Americans actually supported the War in Vietnam throughout LBJ's term and opposed withdrawal. Tet changed public opinion to some extent, but there was still sufficient support so that Richard Nixon could keep us there for five more years (and account for the bulk of US fatalities). Bush no long as this kind of cushion, and at some point people beond Cindy Sheehan are going to hold him accountable for the needless deaths of their loved ones. (James Webb has already caused quite a stir by breaking with standard-model etiquette with regard to a President for whom he has undisguised--and, of course, I believe completely justified--contempt. Those of you who are more polite will undoubtedly agree with George Will's column attacking the Senator-elect for his lese-majeste.)

I don't think we've ever been in this situation before, where the Commander-in-Chief will have been so completely discredited and the bulk of the American population so antagonistic to continuation of a war begun by the President in question. One might invoke Harry Truman, who had extremely low approval ratings in 1951-52 (thus, among other things, the Steel Seizure Case), but I don't recall many Americans saying that the Korean War was a mistake and that the US should get out. Most of the opposition to Truman came from people we would today call hawks who agreed with Gen. MacArthur that 1951 was a terrific time to go to war against "Communist China."

At what point will the military, whether grunts on the ground or generals in the Pentagon, begin an ever more active mutiny against a Commander-in-Chief who has lot any semblance of a "mandate to govern" beyond the argument that, after all, he was elected in 2004 and has an unbreakable lease on the White House until 2009? There is no possibility at all of Congress cutting off funding of the War--and, of course, Bush would veto any such legislation even if it could be passed. We will be faced, clearly and unequivocally, with the extent to which the Constitution, via the Commander-in-Chief power over the military (and we need not get into the collateral debates about torture, etc.), can act functionally as a dictator with regard to the all-important area of conducting a foreign war (that, arguendo, was fully authorized by Congress in 2002, thanks to Tom Dashcle's spectacularly misguided sense of political judgment) that sends many, many people to entirely indefensible deaths.

I generally agree with those who argue that serious constitutional discussion (and reform) takes place only after trainwrecks. I.e., there will be no serious attack on the electoral college until there is a true deadlock and the president is picked, following crude political wheeling and dealing, by a majority of state delegations in the House representing a minority of the US population (and running contrary to the plurality vote of the public). But could the spectacle of a completely discredited president--where the discrediting is in effect led by Jim Baker, not by Nancy Pelosi--putting American soldiers (including Jim Webb's son) in jeopardy for no truly defensible reason, relying only on his legal powers as president, be the trainwreck needed to generate serious discussion of the merits of a fixed-term, non-replaceable (save for criminal misconduct) president?

Do we have a great Constitution, or what?
Posted 5:56 PM by Sandy Levinson [link] (68) comments

The Haystack Terror Strategy

Ian Ayres

Ian Ayres and Rashad Hussain

Earlier this month an Arab American civil rights group sued the Department of Homeland Security, seeking information to determine whether the government is disproportionately enforcing immigration laws against Arabs and Muslims. The September 11, 2001 attacks sparked a national debate about the morality and effectiveness of targeting particular racial groups in our counterterrorism efforts. Many of us asked, if all nineteen hijackers were Arabs, doesn’t it make sense to focus our resources on people from this part of the world? It sounded like a reasonable question, and five years later, race and religion have played a major role in directing a number of the policies we have implemented.

Perhaps there is a more innocuous way of describing this strategy. While very few Muslims are terrorists, if finding a terrorist is like trying to find a needle in a haystack, it serves us well to use any means necessary to reduce the size of the haystack. And since 9/11, a number of initiatives such as the Absconder Apprehension Initiative (AAI), the National Security Entry Exit Registration System (NSEERS), the Voluntary Interview Program, the NSA’s secret wiretapping program, the closure of special interest immigration proceedings, and the round-up and detention of Arabs and Muslims have indeed shrunk the haystack. But after five years of experience, we should again ask, does this approach make us safer?

In the name of national security, government and private sources have documented the disproportionate deportation of Arabs and Muslims. Although only two percent of unauthorized immigrants are from twenty-four Muslim nations, there was a 31.4 percent increase in deportation of this group in the years following 9/11. The rise among the other 98 percent of the unauthorized population? Just 3.4 percent.

Many of those that aren’t detained or deported are so afraid of being swept up in the dragnet that they have left the country. In New York City alone, between forty and fifty percent of the 120,000 Pakistanis residing in Brooklyn’s “Little Pakistan” before 9/11 have been detained, deported, or have departed voluntarily.

The government concedes, however, that the people we are deporting are not terrorists. This should hardly come as a surprise. Given today’s climate, when we find people we consider threats, we don't send them home. We lock them up. As the President stated recently, “They are in our custody so that they can’t kill our people.”

So who are we deporting? Twenty-four of the twenty-five countries from which non-citizens were asked to register have predominantly Muslim populations. Of those that complied, 13,000 were deported. None had terrorist ties. Did we really believe that hardened terrorists would voluntarily submit themselves to the INS for fingerprinting?

Just as the internment of Japanese Americans during World War II didn’t make us safer, neither does the deportation of individuals unconnected to terrorism. In fact, such policies alienate immigrant communities that can serve as valuable allies. It was, after all, the Muslim community in Britain whose tip foiled the alleged recent plot to blow up U.S.-bound transatlantic airliners. So shrinking the haystack may actually cost us valuable intelligence.

Mistreating visitors within our borders also reduces U.S. credibility worldwide, undermines relations necessary for cooperative intelligence gathering, and increases the likelihood that our own civilians and soldiers will be abused abroad.

While terrorism is the most serious threat the country faces, and regulating our borders is one of our most important security tools, we must carefully examine whether we are going after the right people – whether current policies actually make us more secure, or simply make us feel safer.

Targeting individuals based on race is not only wrong; it also creates a false sense of security. Given the increasingly sophisticated nature of terrorist networks, focusing scarce resources on people that have a certain look is less effective than going after people that behave a certain way. During the eighteen months the Absconder Apprehension Initiative targeted 6,000 men from predominantly Muslim countries, the total number of absconders actually grew from 300,000 to 400,000.

As we continue the fight against terrorism, we must take a smarter approach. Otherwise, we will fail to secure our country and run the risk of creating policies that produce another shameful chapter in American history.
Posted 10:09 PM by Ian Ayres [link] (35) comments

The Two Rights to Abortion

JB

In my 2005 book, What Roe v. Wade Should Have Said, and again in my recent article on Abortion and Original Meaning, which will be the subject of a symposium in Constitutional Commentary, I argued that there are not one but two rights to abortion. In this post I want to explain what the two rights to abortion are and why it matters that there are two of them. The discussion that follows is adapted from the article.

The first right to abortion is a woman's right not to be forced by the state to bear children at risk to her life or health. The second right is a woman's right not to be forced by the state to become a mother and thus to take on the responsibilities of parenthood, which, in our society are far more burdensome for women than for men. Although the first right to abortion continues throughout pregnancy, the second right need not. It only requires that women have a reasonable time to decide whether or not to become mothers and a fair and realistic opportunity to make that choice.

The Supreme Court's decisions in Roe and Casey run these two rights together, producing Roe's complex trimester system and Casey's undue burden model. In both models, states must allow abortion up to the point of viability. After viability, states can "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Although the Court did not say this directly, it follows that abortions must also be available before viability when necessary to preserve the mother’s life or health. Thus, we can see that in the Supreme Court's model, what I call the first right-- the right not to bear children at risk to life and health-- continues throughout the pregnancy, while the second right-- the right to avoid compelled motherhood-- is available until the point of viability.

In his forthcoming Harvard Law Review article on Medical Self-Defense, Eugene Volokh offers a different take on the two rights. What I call the first right to abortion he views as the constitutional basis for a more general right of individuals to engage in medical procedures necessary to protect their lives. (By the way, Eugene has been serializing his article on his blog, and you can begin reading it here.).

There are some interesting differences between Eugene’s formulation and mine. For example, his right of medical self-defense is both broader and narrower than what I call the first right to abortion. Eugene's formulation is narrower because he focuses on the right to protect a persons' life and not the right to protect health. By contrast, I argue that the first right to abortion protects both a woman's life and her health. Eugene’s right of medical self-defense is broader because it is not specifically connected to reproductive rights, or for that matter, to gender equality. Finally, following Roe and Casey, Eugene finds the source of the right of medical self-defense in the Due Process Clause. In my work I argue that the Due Process Clause is not the proper source of the abortion right. I find the source of the first right, as well as the second, in the Equal Protection Clause's prohibition against sex inequality.

The first right to abortion is not time limited-- it continues throughout pregnancy. Women should always have the right to preserve their life or health when it is threatened by the continuation of a pregnancy. The second right, however, need not continue throughout pregnancy; it requires only that women have a reasonable time to decide whether to become mothers and have a fair and realistic opportunity to make that choice. The state's interest in protecting unborn life is most compelling in the later stages of pregnancy. But letting states vindicate this interest when it is strongest is not necessarily inconsistent with the second right to abortion. When a woman's health and life are not at risk, the second right requires that women have a right to a fair and realistic opportunity to choose whether or not to become a mother, and in most cases this choice can usually be made in the earlier stages of a pregnancy. In fact, about 88 percent of all abortions occur in the first twelve weeks of pregnancy (roughly the end of the first trimester). Only 7 percent occur between weeks thirteen and fifteen, and only 4 percent occur between weeks sixteen and twenty. Twenty weeks is about halfway through the average pregnancy. Only 1 percent of abortions occur after that point, and only a vanishingly small number of abortions occur past twenty four weeks, the point of viability.

Why is it important to recognize two rights to abortion? I argue that the two rights to abortion help us understand how legislatures can regulate abortion consistently with the Constitution, and why the Court's trimester system, which collapses the two rights, was unnecessary. Separating out these two rights also makes clear that courts face different problems in articulating and protecting them. Implementing the first right does not require courts to draw lines based on the progress of the pregnancy; rather it primarily concerns how much discretion legislatures must give doctors in determining whether a woman faces a genuine risk to her life or health that justifies exercising the first right.

In Roe and Casey the Court held that the test was one of "appropriate medical judgement." This right is implicated in the partial birth abortion cases, including Gonzales v. Carhart, and Gonzales v. Planned Parenthood, which are currently before the Supreme Court. In the partial birth abortion cases, the question is whether the state may require women to choose a method of abortion that a substantial body of medical opinion regards as less safe than the safest method. In Stenberg v. Cahart in 2000, the Court held that this is inconsistent with the abortion right.

Thinking about the question in terms of the first right helps us see why this is so. If women have a right to preserve their life or health according to appropriate medical judgment– and almost all late term D&X abortions are therapeutic abortions-- they also have the right to use the method that is medically indicated according to appropriate medical judgment.

The second right gives women a reasonable time to decide and a fair and realistic opportunity to choose whether to become mothers. What constitutes a reasonable time and a fair and realistic opportunity to choose combines a number of different factors. Surely it is concerned with the relative developmental state of the fetus. But equally important, it is concerned with the question of what it is reasonable to expect of women who are forced to make one of the most difficult and heart-rending choices in their lives. A reasonable time to decide requires that a woman has enough time to discover that she is pregnant, talk to people she trusts, decide what to do, locate a physician, arrange a time to visit the physician (which may require taking time off from work and arranging child care for other children), make excuses or dissemble to family, friends and employers to explain her absence, travel for the initial consultation, and then make another set of arrangements to go back for the procedure if necessary.

The amount of time necessary may take longer for poor women, women in rural areas, or women in states that impose a series of procedural obstacles that effectively limit the number abortion providers in the state or that impose waiting periods. One might expect that states would prefer that women who choose to have abortions carry them out as early in the pregnancy as possible. However, abortion regulations like waiting periods may require multiple trips to the doctor and perversely increase the amount of time it takes to make the decision and carry it out, thus causing women to seek abortions later in the pregnancy.

One reason why laws that burden poor women are unconstitutional is that they don’t respect the second right to abortion– instead of giving women a reasonable time and a fair and realistic opportunity to choose, they try to discourage the choice by delaying it and making it more difficult to make. The practical effect of post-Casey abortion regulations has been to protect the right of well-to-do and well-connected women to choose abortions, and to allow states to limit the effective rights of poor women because they are easiest to deter and the easiest to push around. In essence, states have been given far more leeway to compel motherhood on the poor than on the rich. From the standpoint of the purposes of the second right to abortion, this is particularly perverse. Precisely because poor women have fewer resources, the burdens of compelled motherood and the derailing of lives that may come with compelled motherood may be far greater for them. The point of the second right is to allow all women, not just affluent women, a fair and realistic opportunity to decide whether or not to become mothers and take on the responsibilities of motherhood. The undue burden test announced in Casey is flawed to the extent that it protects the second right to abortion for only a segment of American women.

In Roe and Casey, the Court chose the point of viability as the period at which the second right to abortion ends. That line is somewhat arbitrary; Justice Blackmun's original idea in Roe was to draw the line at the end of the first trimester, but other Justices pointed out that this would not give some women- particularly poor women-- sufficient time to decide, and so Blackmun eventually settled upon the end of the second trimester. But even this factor is arbitrary and subject to changes in medical technology. In Casey, the Court noted that by 1992, developments in neonatal care had pushed the average point of viability back from 28 weeks in 1973 to 23 or 24 weeks.

Despite these objections, the Court in Casey retained the viability rule first announced in Roe, arguing that "there is no line other than viability which is more workable." It offered two substantive justifications for its choice: First, "viability . . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman." Second, drawing the line at viability "has, as a practical matter, an element of fairness. In some broad sense, it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child." These arguments suggest that the Court thought it was making its own independent determination of what constituted a reasonable time for women to decide.

Perhaps the Court was ultimately correct that a uniform line should be drawn at viability uniformly, regardless of the age or poverty of pregnant women or the different circumstances that different women face. But it does not follow that the Court should have drawn the line, at least in the first instance. The issue of what is a reasonable time to decide combines a number of different factors and is inherently legislative. For example, legislatures might decide to extend the time for women in special circumstances in ways that would be inappropriate for courts. Instead of drawing its own line, the Court should have simply announced that women had certain basic rights- a right to preserve life and health and a right to a reasonable time to decide whether to become a parent, and then leave it to legislatures to balance the various considerations of fetal development, women's practical abilities, and the different obstacles faced by different women in different situations.

That would not mean that courts would have nothing to say on the matter. They would eventually decide whether state legislatures had met their constitutional obligations. The first right is relatively straightforward: legislatures would have to allow for abortions whenever life or health was threatened, and they would have to allow the safest methods as judged by a substantial segment of responsible medical opinion. But the purpose of the second right is to give pregnant women a fair and realistic opportunity to decide whether or not to become mothers. Hence legislatures rewriting their abortion laws would have to demonstrate that their statutory scheme had provided such a fair and realistic opportunity.

The approach I advocate is discourse shaping-- it demands that the arguments and justifications a legislature offers to support a law's constitutionality respond to particular constitutional goals and concerns that a court identifies. In this case, it requires legislatures to justify their abortion regulations in terms of how they affect women's practical equality in civil society and their practical ability to choose whether to become mothers, rather than solely in terms of the developmental stage of the fetus. If courts merely struck down existing abortion laws and demanded that legislatures passed new ones, legislatures might make their decisions based on pictures of fetuses. But if courts tell legislatures that they must justify the lines they draw based on whether they provide women a reasonable opportunity to decide whether to become mothers, they will have to organize their discussions and their justifications around the choices and obstacles that real women face. Courts would then decide whether those justifications were sound according to the basic constitutional principles they laid out in their original opinion.

There is a rough analogy between my "discourse shaping" approach and the Vermont Supreme Court's decision in Baker v. State, which held that the Vermont Legislature had a "constitutional mandate" under the state's constitution to find a way to give same-sex couples the "same benefits and protections afforded by Vermont law to married opposite-sex couples." (The New Jersey Supreme Court has recently adopted a similar solution). The Baker court explained the constitutional principles that the legislature had to comply with, but it left appropriate enforcement of those constitutional principles to the legislature in the first instance, noting that the legislature could extend marriage rights to same-sex couples or create a form of "domestic partnership" with similar rights and benefits. In response, the legislature created the nation's first civil unions law. By inviting legislative participation and innovation in enforcing constitutional guarantees, the Vermont Supreme Court diffused much of the political backlash that might have flowed from its groundbreaking and controversial decision. By contrast, when the Massachusetts Supreme Judicial Court held that gays were entitled to marry in Goodridge, it refused to give the state legislature any leeway in enforcement. Although the Massachusetts Legislature ultimately complied with the court's decision, the Goodridge case quickly became identified-- far more than the Baker decision in Vermont -- with courts imposing controversial solutions on majorities. Thus, it may have created a more powerful backlash.

My discourse shaping approach makes even fewer demands on the legislature than the Baker court, because it does not specify when the cutoff point for abortions must take place. It merely requires that legislatures make findings about what period of time is sufficient to give pregnant women a fair and realistic chance to end their pregnancies. It brings the legislature into the process of articulating constitutional guarantees and therefore gives them a sense of democratic responsibility and ownership for the result.

This approach is not "minimalist" in Cass Sunstein's sense of the word. Sunstein has argued that courts should rule narrowly on constitutional questions wherever possible and they should be reluctant to give controversial substantive reasons for their decisions, hoping instead to ground doctrine on reasons that most people can agree to. Sunstein believes that by proceeding in this manner courts make modest progress in promoting constitutional values and catalyze legislative protection of constitutional rights without generating a counterproductive political reaction.

I agree that these are worthy goals but doubt that minimalism is always the best method. Judges do not have to write minimalist opinions to respect democratic processes or to avoid a backlash. To the contrary, giving a legislature guidance about what constitutional principles are at stake may be a better way of facilitating a legislative solution that is both constitutionally and democratically acceptable. If the court says nothing, or very little, about what principles guide its decision, and simply throws the issue back to legislatures without explanation, legislatures may respond with solutions that courts must repeatedly strike down, and that experience may well exacerbate political tensions and lead to backlash effects. Instead of hiding the ball in a minimalist decision, courts should explain why the constitutional rights they seek to protect are important, and what they will be looking for when they review the legislature's work.

Under my approach, the Court would have done some something closer to what it did in the death penalty cases, which were decided around the same time. It would strike down old abortion laws and require the states to create new ones guaranteeing the two rights to abortion. Although the right to life movement was gathering steam before Roe was decided, there was still a strong push for abortion reform throughout the country. In the political climate of the early 1970's, most states would probably have guaranteed a basic right to abortion perhaps averaging around twenty weeks, halfway through the term of a normal pregnancy, along with a host of various regulations and exceptions. For example, in February 1972, almost a year before Roe was decided, the American Bar Association had advocated repeal of abortion laws up to the first twenty weeks, midway between the end of the first and second trimesters. We should not overestimate the degree of liberalization that the 1970's would have produced without Roe, particularly as the right-to-life movement was gathering steam. New abortion laws would probably not have given women guarantees as extensive as those which originally appeared in Roe and Doe v. Bolton.

After many states passed new abortion laws and created legislative records justifying them, the Supreme Court would be able to evaluate legislative decisions and fix upon a minimum set of standards for outlier jurisdictions. Because it would be reviewing comprehensive schemes that legislatures themselves had devised, the Court would be exercising less of a traditionally legislative and more of a traditionally judicial role. The legislative decisions would also possess a greater democratic legitimacy than a one-size-fits-all requirement imposed by a court. This would not end all controversies over abortion, but it would have given the abortion right a firmer, more democratic grounding than the actual decision in Roe did.

To be sure, a small number of states would have insisted on virtually no abortion rights, or would have made spurious determinations that a very short time- say three weeks-- was all the time that women needed to decide. However, precisely because these states would be outliers, it would be far easier for the Court to hold their restrictions unconstitutional. Instead of the Court choosing its own line and then imposing it on all of the states simultaneously, the Court could point to the laws created by the majority of states as evidence that these outlier states were not protecting women's rights adequately. In addition, it would be far easier for the Court to show that these legislatures had not seriously engaged with the substantive guidelines the Court set out in its initial opinion- to give women a right to protect their health and life throughout the pregnancy and give women a reasonable time and a fair and realistic opportunity to decide whether or not to take on the obligations of motherhood.

Finally, by leaving the length of the second right up to legislatures in the first instance, the Court would, ironically, have empowered defenders of abortion rights far more than it did by imposing a single national solution in Roe v. Wade. Roe's trimester formula- which effectively imposed a model abortion statute on the entire country-- simultaneously gave pro-choice forces a enormous victory and seriously demobilized them. Faced with mounting pro-life opposition, defenders of abortion rights repeatedly diverted resources to litigation because they assumed that the federal judiciary would ultimately back them up. But if courts had guaranteed only the basic outlines of a right to abortion and left many of the details of abortion regulation open, pro-choice advocates would have been forced to devote their resources to gaining public support for abortion rights and forging political compromises that would win in legislatures and would appeal to a broad segment of the American public. Having to fight the details of abortion regulation in the political process would probably have helped secure both the democratic character and the democratic legitimacy of abortion rights.
Posted 8:05 AM by JB [link] (46) comments

New Legal History Blog

JB

Mary Dudziak at USC has begun a new blog, Legal History Blog, devoted to legal history; it will feature discussions and reviews by law professors and legal historians of works in the field.
Posted 4:45 PM by JB [link] (2) comments

A Bit of Wishful Thinking on Civil Liberties

JB

Scott Turow, engaging in a bit of wishful thinking, suggests that Justice Scalia will prove to be the pivotal vote for civil liberties in upcoming cases on the War on Terror. In Turow's eyes, Scalia may be a veritable jurisprudential wild card who will stand up to President Bush in his assertions of presidential power in cases involving the NSA domestic surveillance program and the Military Commissions Act.

Turrow points to Scalia's decisions in Kylo and Apprendi, and his concurrence in Hamdi v. Rumsfeld as evidence of Scalia's maverick ways, and he deduces that Scalia's "occasional alliance with the court’s more liberal justices could be struck again in future terror cases. The result would be an unequivocal declaration that executive power must yield to constitutional liberties, even when the nation is on the prolonged war footing we seem to have adopted."

Would that it were so, but it is not likely. What Turow neglects-- and he is hardly alone-- is that the civil liberties issues raised in the war on terror do not primarily concern construction of the Bill of Rights. Rather, as the Hamdan case suggests, they involve questions of the separation of powers, the scope of Presidential power in wartime, and the President's (and Congress's) authority to regulate aliens.

The Bush Administration has not chipped away at civil protections liberties where they are strongest, but rather where they are weakest: cases involving statutory rights, the scope of habeas corpus jurisdiction, the rights of aliens, particularly aliens held overseas, and human rights protections under international law. The civil liberties cases of the War on Terror will not look like those of the past, which is why the Administration will be able to diminish civil liberties while claiming that it has not seriously limited the Bill of Rights as to American citizens. When Turow thinks about struggles over civil liberties, he is largely fighting the last war.

The next two key constitutional cases on the war on terror will probably involve the NSA domestic surveillance case and constitutional challenges to the Military Commissions Act. They involve presidential power and the power of Congress to strip the jurisdiction of the federal courts with respect to aliens. Scalia's previous decisions suggest that he is far more likely to be on the Administration's side in these controversies. His dissents in Rasul v. Bush, Hamdan v. Rumsfeld and INS v. St. Cyr are far better predictors of how he will look at key civil liberties issues in the War on Terror than the cases Turow cites.

Although the NSA case may involve the Fourth Amendment, most courts have held that the Fourth Amendment does not apply to foreign intelligence collection, and there are various other exceptions to the Fourth Amendment that may take the NSA program out of its ambit. That being the case, the key question turns on Presidential power to work outside of the Foreign Inteligence Surveillance Act. The argument against the legality of the NSA program is pretty much the same as the majority's argument in Hamdan v. Rumsfeld, an argument that Scalia rejected. Scalia has long been an advocate of a strong executive, and where Congress can be said to support what the executive has done, Scalia's degree of deference is likely to be even higher.

Things get no better with the Military Commissions Act. A passing acquaintance with Scalia's views on jurisdiction stripping in his dissent in Hamdan and his views on habeas stripping (especially with respect to aliens) in St. Cyr suggest that he is among the least likely of the Justices to be sympathetic to claims that Congress acted unconstitutionally in passing the Military Commissions Act. Remember that the Military Commissions Act primarily affects non-citzens held overseas, and if anything is clear from Scalia's concurrence in Hamdi v. Rumsfeld, it is that he makes a sharp distinction between the rights of citizens and non-citizens.

There may be some civil liberties issues in the future in which Scalia joins the liberals. I doubt, however, that many of them will be the key issues in the War on Terror. That is because the Bush Administration has found ways to limit civil liberties without making a direct assault on the substantive content of the Bill of Rights. Rather, the Administration has found ways to route around the Bill of Rights by creating a parallel system of military detention and surveillance justified by claims of emergency and national security. That is to say, the Bush Administration has produced an early version of what I call the National Surveillance State. To the extent that the coming constitutional struggles over the National Surveillance State involve the scope of Presidential power (often abetted by Congress) and the rights of aliens, particularly aliens who are in the country illegally or are behing held overseas, Justice Scalia is not likely to be the great civil libertarian that Turow hopes he will be.

But my larger point concerns more than Justice Scalia's jurisprudence. It is about civil liberties generally. Because the problems of governance and the nature of goverment responses are always changing, it is not enough to prevent governments from doing bad things that people fought over long ago and that we now firmly reject. Rather, in ever new situations, governments are able to find ever new ways to limit people's liberties under the forms and practices of law, making new distinctions, and creating new techniques that are plausibly distinguishable from old controversies. That is why the protection of civil liberties is not about making sure that governments don't repeat precisely the same mistakes they made fifty or a hundred years ago. It is about making sure that they don't abuse power in new ways based on the evolving forms of governance.

Posted 6:38 AM by JB [link] (11) comments

Our Undemocratic Constitution: The Lameduck Congress

Sandy Levinson

In my book I rail against the hiatus between what I call the repudiation of a sitting president (think of Carter and George H. W. Bush) and the inauguration of his successor, which offers the opportunity for the repudiated president nonetheless to make mischief for his successor. Think of Bush's sending American troops into Somalia, which turned out to have disastrous consequences for the Clinton Administration and, ultimately, the US. I spend less time on a linked problem, which is the "lameduck" legislature still in the hands of a repudiated majority. Well, that's our situation. The 20th Amendment, added to the Constitution in 1933, was arguably designed to alleviate, if not cure, the problem by establishing that new terms of Congress begin at the very beginning of January. One doubts that the framers of that amendment pictured a political reality where lameduck congressional sessions would, like filibusters, become the common currency of our politics and, therefore, that repudiated majorities would nonetheless claim a right to rule on important things. (Incidentally, for those of you who accuse me of being a mere partisan, I have elsewhere criticized the Clinton Administration's pushing through the GATT agreement in the waning days of the repudiated 1994 Congress.)

The Congress that will shortly meet has legal legitimacy, but not political legitimacy. The Democrats have no duty at all to allow the discredited "majority" (which, as I have also pointed out, in the Senate is an artifact of the indefensible bonus given small states, for a majority of Americans have, since 2000, voted for Democratic candidates for the Senate) to make any other than necessary "housekeeping" decisions. In particular, it would be scandalous if the discredited and politically illegitimate Republican "majority" attempted to confirm any of Bush's nominations to the judiciary.

There is no good reason why successful candidates for the House and the Senate should not take their offices, say, within a week of the election. The only rationale for the delay, beyond allowing for recounts, is to allow defeated legislators to shut down their offices and incoming ones to hire staff. "Convenience" scarcely overcomes the democratic illegitimacy of allowing discredited legislators to continue to rule. We recognized at the time of the 20th Amendment that we needed to do something both about the timing of presidential inaugurations and about setting times for the onset of new congressional sessions. To do anything further about the former would require elimination of the electoral college, something devoutly to be wished but obviously raising many political complexities. Reforming the date for congressional sessions raises no political complexities--it would clearly seem in the interest of each party to know that it would take over the Congress almost immediately after a successful election and that our political system would no longer have the "wild card" of lameduck congressional sessions as a feature of our politics. I will be interested (and astounded, frankly) if any of my regular band of critics who evoke "republican" government and the virtues of endless checks and balances with regard to proposals to eliminate the presidential policy veto or provide for a vote of no-confidence in presidents can come up with a principled defense of lameduck legislators.
Posted 3:12 PM by Sandy Levinson [link] (25) comments

What Makes a War?

David Luban

Today’s New York Times provides this analysis of a curious semantic question: whether the catastrophic violence ruining Iraq is or is not a "civil war." It turns out (unsurprisingly) that politics, not lexicography, drives the debate. The U.S. government refuses to call the bombings and killings in Iraq a "civil war" because that would imply American failure in the invasion’s aftermath. Instead, it is "ethnic violence" or an "insurgency," which to my ears connotes a relatively small-scale uprising against a legitimate government.

Curiously, a parallel debate exists over whether the U.S. conflict with Al Qaeda is or is not a "war." The conflict against Al Qaeda is of course far smaller than the violence in Iraq – not only in absolute numbers of casualties, but also in the density of casualties, that is, casualties per unit of time. But here the government’s position practically from 9/11 on has been that it is a genuine war. This, despite the fact that most of the time, in most of the world, it is indistinguishable from peace. So Iraq is an insurgency or ethnic violence, not a war; but the struggle against Al Qaeda is a war.

Here too, the motive is political, in two different ways. First, most obviously, it allowed President Bush to wrap himself in the mantle of "war president," a resolute, noble figure around whom Americans should rally. As "war president," Bush pretty much had his way in elections until November 2006.

But calling the conflict with Al Qaeda a "war" served a deeper political purpose as well. If it is a war, then the President’s "war powers" kick in. Bush, Cheney, and advisors such as David Addington and John Yoo had been searching for ways to expand executive power, and this was the golden opportunity. Their constitutional theory is this: the President is commander-in-chief of the armed forces, and as such he has wide, virtually plenary, powers over the battlefield – the power to order troops to kill the enemy, the power to detain enemy captives until the battle is over, the power to seek intelligence through fair means or foul. On the battlefield, commanders-in-chief are near dictators. They are like Patton at the Battle of the Bulge. And, in the Global War on Terror, the whole world is the battlefield.

Better yet for the executive power freaks, only the President is the commander-in-chief, so the separation of powers suggests that any efforts to limit what the President does in pursuit of his war on terror would be unconstitutional. The idea that Congress could stop the President from, say, warrantless wiretapping within the U.S. (the "battlefield"), or pass a law forbidding the President to interrogate prisoners through torture, would be – on this topsy-turvy logic – "unprecedented" interference by civilians with a battlefield commander. Not only unprecedented, of course – it would also be insanely unwise. You don’t let a bunch of congressmen and judges second-guess Patton’s tank tactics. In reality, of course, there is nothing "unprecedented" about asserting that the President is not above the law; it's the opposite assertion that is startling and scary.

The Bush constitutional theory of the "commander-in-chief override," according to which the commander-in-chief power trumps acts of Congress, appeared most famously in the August 1, 2002 "torture" memo, later withdrawn. There, the idea was that it would be unconstitutional interference for Congress to enforce criminal laws prohibiting torture, if the torturing was done by the President’s agents (pp. 33-39). Public outrage against this theory was one reason the Justice Department withdrew the torture memo.

But the commander-in-chief override also appears in an Office of Legal Counsel opinion (written by John Yoo) of September 25, 2001 – and that memo has never been withdrawn. Until we learn otherwise, it is still the way the executive branch understands its constitutional prerogatives. At every moment, therefore, we live under battlefield rules – virtual military dictatorship – if the President says we do.

Does that mean that it was a disastrous mistake to label the conflict with Al Qaeda a "war"? Many people, including friends in the human rights community, think the answer is yes. They reject the "war" label, insisting instead that peacetime rules of due process apply, and are sufficient for national security.

I don’t see matters that way. The U.S. government correctly interpreted 9/11 as an act of war, and retrospectively observed that Al Qaeda’s earlier attacks on the U.S.S. Cole and the U.S. embassies in Tanzania and Kenya were also acts of war. That is because they formed a pattern, indicating a plan and a campaign. I think this is right. While it may sound peculiar to say that a nation could be at war for several years without knowing it, there is nothing odd about noticing a pattern among attacks where at first there seemed to be no pattern. Most importantly, what makes these patterns of attack a "war" was the political reason they took place. They were launched by an enemy that had a political aim (restoring the Arab world to the greatness of a unified caliphate), a grand strategy (inciting popular uprisings against despotic Arab regimes), and a set of tactics (high-visibility terrorist attacks against Western targets, selected on political grounds). If war is politics by other means, this is war. (However, the Al Qaeda grand strategy has been a dismal failure. No popular uprisings occurred in the Arab world after 9/11, and the only despot who has fallen is Saddam Hussein, thanks to the U.S. rather than to Al Qaeda. Through the ironies of the Law of Unintended Consequences, Al Qaeda’s long-term plan of a restored Sunni caliphate has instead led, via the U.S. Iraq misadventure, to a resurgence of Shi’ite power from Iran westward through Iraq and Syria all the way to Lebanon.)

The real fallacy does not lie in labeling the struggle with Al Qaeda a "war," but in the false constitutional theory that gives the President a vast set of "war powers" to be used everywhere he discerns a "battlefield," which of course can be anywhere on Earth. Nothing in the Constitution suggests anything of the sort, and it is hard to see why a democratic constitution ought to do so. Perhaps, in a moment of supreme emergency, the President would be compelled to declare martial law. Bush’s constitutional theory turns a hypothetical "state of exception" into a long-term state of siege, the basic tactic of tyrants for the past two centuries, as Giorgio Agamben notes in his remarkable book State of Exception. Under the Bush theory, moreover, the President can have his martial law without ever declaring it publicly. That is the significance of the Administration’s secret illegal wiretapping. In their view, it was not illegal: it was part and parcel of the President’s war powers. But the public need not and should not know that the President was exercising those powers, because that might lead to political blowback that would interfere with his war plan. In other words, the fact that our phone conversations fall under a kind of martial law was a state secret.

Outrageously, we have seen U.S. courts extend the "state secret" logic to amazing extremes. Lawsuits by Maher Arar (414 F.Supp.2d 250 (E.D.N.Y. 2006)) and Khalid el-Masri (437 F.Supp.2d 530 (E.D.Va. 2006)) seeking justice for their kidnappings and renditions by U.S. agents were tossed out of federal court on the ground that revealing secret U.S. misconduct could harm national security. That is the same argument the government has now offered to deny Majid Khan (detained in Guantanamo) access to lawyers: he might tell them how he was tortured, and that is a state secret of utmost gravity. (See the posts by Jack and Marty.)

In the end, what's wrong with calling the struggle against Al Qaeda a "war" is not that the war label is inaccurate. Rather, it's that the administration uses that label to justify an outrageous presidential power-grab, which apparently includes the power to conceal just how much power the President has grabbed. Oddly, it appears that not calling the Iraq debacle a "civil war" serves the same purpose: concealment for political reasons. Language becomes a tool to obfuscate, not to communicate. War is peace.
Posted 12:02 PM by David Luban [link] (132) comments

Karpinski: Rumsfeld Approved Coercive Interrogation Methods

JB

Reuters reports that former General Janis Karpinski (later demoted to colonel because of her own actions arising out of the Abu Ghraib scandal) has now offered to testify against Donald Rumsfeld:

Outgoing Defense Secretary Donald Rumsfeld authorized the mistreatment of detainees at Abu Ghraib prison in Iraq, the prison's former U.S. commander said in an interview on Saturday.

Former U.S. Army Brigadier General Janis Karpinski told Spain's El Pais newspaper she had seen a letter apparently signed by Rumsfeld which allowed civilian contractors to use techniques such as sleep deprivation during interrogation.

Karpinski, who ran the prison until early 2004, said she saw a memorandum signed by Rumsfeld detailing the use of harsh interrogation methods.

"The handwritten signature was above his printed name and in the same handwriting in the margin was written: "Make sure this is accomplished"," she told Saturday's El Pais.

"The methods consisted of making prisoners stand for long periods, sleep deprivation ... playing music at full volume, having to sit in uncomfortably ... Rumsfeld authorized these specific techniques."
. . .
Rumsfeld also authorized the army to break the Geneva Conventions by not registering all prisoners, Karpinski said, explaining how she raised the case of one unregistered inmate with an aide to former U.S. commander Lt. Gen. Ricardo Sanchez.

"We received a message from the Pentagon, from the Defense Secretary, ordering us to hold the prisoner without registering him. I now know this happened on various occasions."

Karpinski said last week she was ready to testify against Rumsfeld, if a suit filed by civil rights groups in Germany over Abu Ghraib led to a full investigation.

These are not new allegations by Karpinski: She made similar ones last year.

We've long assumed that prisoner abuse in Iraq occured in part because the Pentagon entrusted detainee operations in Iraq to commanders who promultaged confusing and conflicting rules that were not consistent with Geneva. These confusions, in turn, were produced in part because the Pentagon had created special rules for the CIA and certain military Special Forces personnel. These ideas about what was appropriate migrated from the CIA and Special Forces rules to Iraq, Gitmo, and elsewhere. (See Marty's summary from August 2005). Although the United States' official positions were that (1) Geneva applied to the conflict in Iraq; and (2) U.S. forces complied with Geneva, Geneva was often flouted, particularly in Iraq.

Karpinski's statement is important because it suggests that there was more than mere confusion at stake, that this was not the accidental migration of CIA/Special Forces techniques to ordinary military detentions in Iraq. She is asserting that Rumsfeld deliberately approved techniques for Iraq that violated Geneva (and hence the War Crimes Act).

To be sure, the Military Commissions Act attempts to hold U.S. personnel harmless for what they did during this period. But whether or not this insulates Rumsfeld from prosecutions in the United States under the federal War Crimes Act (or other federal statutes), it does not insulate him from prosecution in other countries for violations of international law.

Posted 7:04 PM by JB [link] (64) comments

The threat to the dollar

Sandy Levinson

Several weeks ago, in response to a posting on whether increasing Chinese ownership of American debt posed any threat to the US economy, there were many postings celebrating the economic rationality of the Chinese, as good capitalists, and how they had a vested interest in maintaining a strong dollar, precisely because they owned so many of them (and, of course, depended on a strong dollar, relative to the undervalued Chinese currency, to finance the trade of Chinese goods to the US). So what are we to make of the fact tht the dollar crossed what analysts view as the psychologically significant $1.30 to the Euro mark? There is no immediate news that would trigger the selling of dollars, as Floyd Norris points out in the Times, so one might consider the role played first by the increasing trade deficit of the US and rumors that the Chinese, who have no trust in the competence of the current US government (my words, not his), might hedge their dollar funds by buying some Euros. Economic rationality might not, after all, counsel hanging on to the dollar for dear life.

Should the dollar collapse, one wonders what impact that might have on the complacence of Wall Street with regard to the acceptibility of the Bush White House. It's one thing, after all, if children of the lower orders lose their lives in Iraq; that has no influence on the obscene profits (and bonuses) made by hedge fund managers and other Wall Street barons. But a vivid collapse of the dollar might lead some of them to lament the fact that there's no way to dump the current Chief Executive (who gives no indication that he has ever thought seriously about economics, though we do know of his proclivity for firing anyone who dares to speak any truth about the costs of his policies, whether the Iraq War or the cost of his subsidy for the pharmecutical industry, also known as prescription drugs for the elderly) in favor of someone more competent. Though, of course, perhaps Secretary of the Treasury Paulsen, a Wall Street King, can beg and cajole Beijing into continuing to serve US interests, though one wonders, of course, what the price will be. But, hey, this is capitalism, and we all know that the invisible hand always works out for the best!

In response to my earlier postings along this line, Anne (from Holland) has suggested that the real problem is the presidential system, that parliamentarianism solves the problem of what to do with a leader in whom the majority has lost confidence. Perhaps he's right and that our fundamental error was to go the presidential route in the first place (in part, no doubt, because we had George Washington as a model of what a noble president would look and act like, which in many ways turned out to be the case). But how many of our 42 presidents since Washington have discernably contributed to leaving the country better off (as compared, say, with the various British Prime Ministers since William Pitt or the various Canadian Prime Ministers since 1866).
Posted 3:28 PM by Sandy Levinson [link] (28) comments

R.I.P. Linda Faye Williams and Kermit Hall

Mark Graber

This weekend I attended memorial services for Linda Faye Williams and Kermit Hall. Both were good friends and even better intellectuals. Both will be terribly missed by the academic community.

Linda Williams was a Professor of Government at the University of Maryland, College Park. She was a path-breaking scholar of race, gender, and class. Her THE CONSTRAINT OF RACE: LEGACIES OF WHITE SKIN PRIVILEGE IN AMERICA is a fascinating study of the continuing role of race in American public policy. Among other accolades, the book won the W.E.B. Dubois Book Award, the Michael Harrington Award, and an American Political Science Award for the best book in 2004 on Public Policy, Race and Ethnicity. Beyond her numerous scholarly achievements, Linda was a passionate teacher who, with Clarence Stone, was largely responsible for Maryland having a nationally recognized program in Urban Studies and producing more successful African-American PhDs than any other program in the country. Beyond that, Linda had the incredible capability, while being seriously ill while I knew her and writing on the most depressing topics, to always have a smile on her face and induce smiles in others. Those who knew her will have to struggle in the near future to keep that smile Linda would have wanted us to wear.

Kermit Hall was the President of the State University of New York at Albany, and one of the most distinguished constitutional historians in the United States. Indeed, he was one of a few handful of people who kept constitutional history going during the dark days of the 1970s and 1980s when it seemed that all historians wanted to do was social history and that all political scientists wanted to do was statistics. Kermit's interest in constitutional history and scholars doing constitutional history was inspiring. While the tent of constitutional historians was small in numbers, it was large in his spirit. He made younger scholars feel free to do constitutional history from any perspective. What mattered to him was keeping a tradition of inquiry alive, not scoring political points. One of his legacies is the Oxford Companion to the Supreme Court. Another are the numerous books written by his students for the Landmark Cases series at the University of Kansas Press.

Professor Williams and President Hall were quite different from one perspective. Linda was committed to an engaged university, one that taught students how to combat the continued legacy of racism on American public policy. Kermit was committed to a more cloistered university, one committed to constitutional history of all variety and forms. In a deeper sense, however, they were united. They were persons who believed ideas mattered at a time when universities are being taken over by MBA wannabees, who seem to think they are running a business corporation. We may no longer be blessed with Linda or Kermit's presence, but we can still be inspired by their works and example.
Posted 9:13 AM by Mark Graber [link] (13) comments

This Just In (And Why We Should be Very Afraid)

Sandy Levinson

The Agence France Press has a story, based on a forthcoming piece by Seymour Hersch in the New Yorker, that offers some ominous hints about potential forthcoming Bush actions, election or no election. Excerpts follow:

Seymour Hersh, writing in an article for the November 27 issue of the magazine The New Yorker released in advance, reported on whether the administration of Republican President George W. Bush was more, or less, inclined to attack Iran after Democrats won control of Congress last week.

A month before the November 7 legislative elections, Hersh wrote, Vice President Dick Cheney attended a national-security discussion that touched on the impact of Democratic victory in both chambers on Iran policy.

"If the Democrats won on November 7th, the vice president said, that victory would not stop the administration from pursuing a military option with Iran," Hersh wrote, citing a source familiar with the discussion.

Cheney said the White House would circumvent any legislative restrictions "and thus stop Congress from getting in its way," he said.

[Another major part of the story is that the CIA "has found no firm evidence of a secret drive by Iran to develop nuclear weapons."]

A current senior intelligence official confirmed the existence of the CIA analysis and said the White House had been hostile to it, he wrote.

Cheney and his aides had discounted the assessment, the official said.

"They're not looking for a smoking gun," the official was quoted as saying, referring to specific intelligence about Iranian nuclear planning.

"They're looking for the degree of comfort level they think they need to accomplish the mission."

On Wednesday, Israel's outgoing US ambassador Danny Ayalon said in an interview that Bush would not hesitate to use force against Iran to halt its nuclear program if other options failed.

"US President George W. Bush will not hesitate to use force against Iran in order to halt its nuclear program," Ayalon told the Maariv daily.

**************************************

So the question is this: Does "democracy" entail that an incompetent President and a demented Vice-President should be able to lead the country into another absolutely disastrous war? Is it really better to run the risks that Hersch describes than to have a procedure by which their tenure in office could be terminated with dispatch? Perhaps we would have been better off sticking with King George III than revolting in the name of something called "consent of the governed," especially with regard to going to war. "Don't Worry, Be Happy"?

Posted 5:26 PM by Sandy Levinson [link] (112) comments

"Don't Worry, Be Happy"

Sandy Levinson

You will find below some interesting, courteous, and thoughtful replies to my post criticizing the Constitution for its failure to provide a mechanism to displace an incompetent (and, by stipulation, not a criminal) President through a vote of no confidence. I confess, though, that I find myself frustrated by the replies, and I hope not only because they disagree with me. All of them, I believe, rest either on an insufficiently complex theory of "democracy" or, perhaps even worse, an indefensible complacence about the disastrous implications of 26 additional months of a quite-likely-to-be-unreformed Bush presidency. (Can anyone gain any confidence from what he has said in Vietnam are the lessons he draws from that venture?)

Let me begin by acknowledging that I find all citations to the Constitutional Convention basically irrelevant. Even if one stipulates that they may provide guidance as to how to interpret the Constitution we have (which, obviously, has been the subject of many other postings), they provide nothing at all by way of guidance as to what would be a sensible constitutional structure for the century we actually live in, rather than the one in which (and for which) the Constitution was written. The Founders had no conception whatsoever of, to name only three of our own realities, a) the rise of the party system; 2) the power the President would come to enjoy; and 3) the place of the United States in an international system with modern weaponry. It is no insult to the Founders, who after all justified their own basically revolutionary act in 1787 of utterly ignoring the limitations placed on them by the Articles of Confederation, to say that we should spend more time discussing the lessons of the American experience than engaging in what are nothing more, at the end of the day, than "arguments from authority."

There is nothing at all "undemocratic" about 2/3 of the collective Congress (or 2/3 or each House, if one prefers that), having the power to displace a president in whom they have lost confidence. The collective Congress, for all of the acknowledged problems associated with partisan gerrymandering in the House and the over-representation of small states in the Senate, is far more democratic than a single president who, recurrently, does not get even a majority of the national vote (which George W. Bush did not in 2000, but did, of course, in 2004). The 2/3 supermajority would, in all but truly exceptional circumstances that in fact have never once existed in our history, assure that any successful vote would have to be bi-partisan.

We have a highly "complex democracy," including, of course, judicial review. It it is a deep mistake to reduce "democracy" to the felt need to maintain in office a truly incompetent president whose incompetent decisions threaten the lives not only of our troops and of thousands of innocent Iraqis but also each and every one of us if his incompetent foreign policy proves incapable of doing anything at all with regard to the growing proliferation of nuclear weapons. The elections two weeks ago constitute the greatest repudiation in our entire history of a wartime president, for good reason. As I argue in the book, I would not allow a vote of no confidence to lead to a change of political party with regard to the White House. I agree that an intervening election is necessary for that to occur.

This is, incidentally, one of the things that is potentially disastrous--and, Akhil and Vik Amar have argued, unconstitutional--about the present succession in office act, by which Nancy Pelosi is now second in line for the White House should anything happen to Bush and Cheney. The problem with Dennis Hastert was simply rank unsuitability for the office of President. Whatever one thinks of Nancy Pelosi on that metric, she should certainly get the office only by running for it rather than as the result of a series of mistortunes. Perhaps this would be a propitious moment for the Democrats actually to behave in the country's interest and revert to the pre-1947 Succession in Office Act, by which the second-in-line would be the Secretary of State, then Defense, Treasury, etc. Fortunately, this would take no constitutional amendment, only an unfortunately surprising amount of public-spirited conduct. I presume that any such proposal would receive unanimous Republican support right now. They can't initiate the legislation, as it would look too much like pure special pleading and opposition to the San Francisco liberal (and female to boot). So Speaker Pelosi herself should take the lead and prove, in one moment, that she indeed does represent a genuinely reformist sensibility. (While she's at it, she could also move to co-sponsor a constitutional amendment repealing the bar on naturalized citizens from running for the presidency, which should also have bi-partisan support and, to the extent it doesn't, further expose the nativism that has captured much of the Republican Party.)

My critics seem to see no cost in the retention in the White House of the worst president in our history. Presumably, it's just ducky with them--and what "democracy" requires-- if he continues to have de facto carte blanche with regard to making foreign policy and retains the veto power with regard to any legislation that might actually get through the Congress with regard, say, to beginning to come to grips with global warming.

Perhaps all of us should take out our old copies of Bobby McFerrin's "Don't Worry, Be Happy," because that seems to be the ultimate message that is being offered. Is no one else worried by the immense amount of damage that this utterly incompetent, ignorant, and incurious President is doing to the country and to the world? (As to incurious, I recommend the story in the New York Times about Bush's "visit" to Vietnam and his stop-over in Indonesia.) If the American system constitutes what "democracy" means, then that is reason enough for any country trying to draft a new constitution to look away from our model and toward almost any alternative. I'm genuinely curious if my critics disagree with this, or would they actually say that the best guide to contemporary constitution-drafting is the comments of people who met in Philadelphia almost 220 years ago or the special-pleading of the Federalist Papers (much of which was certainly not genuinely believed by their authors, such as the praise of the Senate)?

I have elsewhere suggested that one explanation for the failure to take seriously the consequences of Bush's continued occupation of the White House is provided by cognitive dissonance theory. I.e., precisely because, under our defective Constitution, there is in fact nothing we can do about it, we have every incentive in the world to believe that it is really quite all right, that things won't be that much worse and that we can go on with our lives as usual. Maybe God really will protect the United States and everything will turn out all right. (We could all wake up one morning and discover that the Iraq War is simply a nightmare, and that Colin Powell actually prevailed over Donald Rumsfeld and Dick Chaney.) But maybe not....
Posted 4:45 PM by Sandy Levinson [link] (35) comments

No confidence (either in Bush or the Constitution)

Sandy Levinson

I note an especially interesting story in today's Washington Post about all of the rats who are leaving Bush's obviously sinking ship. Can there be any doubt that if we had a truly functional Constitution, we would today be discussing the forthcoming vote of "no confidence" in a criminally incompetent (and, perhaps, criminal as well) administration by, say, 2/3 of Congress assembled together and which Republican would be picked by the Republican caucus in Congress (subject to confirmation by the entire Congress meeting) to serve out the remainder of the term before a new election could designate a popularly-supported successor? Or are there still Balkinization regulars (among the discussants, obviously, not the "masthead" contributors) who thank their lucky stars that George W. Bush will be Command-in-Chief for twenty-six more months and thus bless a Constitution that assures his continued occupancy of the White House.
Posted 1:26 PM by Sandy Levinson [link] (16) comments

A Remembrance of Kurt Sontheimer

Scott Horton

On a recent trip to Germany, I learned of the death last year in Murnau of the great Munich-based political scientist Kurt Sontheimer. There are a number of teachers and mentors who introduced me to the world of political theory and philosophy. One of them, Sandy Levinson, is among the most industrious contributors to this blog space. However, Kurt Sontheimer was the first. The fact that I learned only this week of his death reminds me how detached I have become from the language and educational institutions of my youth; it reminds me of a lost world filled with intellectual inquiry and peace. I felt a doubled loss.

Kurt Sontheimer was always enshrouded in a quiet, unpretentious greatness. Arrogance and wit are pretty commonplace at universities in almost any society. But Sontheimer was always the other end of that spectrum. He reflected humility and an appreciation of the worth of all those about him. I don't recall ever having had another professor who quite managed to pull this off. One day, slated for one of the innumerable teach-ins that dotted the leftist landscape of German universities in the seventies, a young woman stood up and began to deliver a spontaneous diatribe on state monopoly capitalism in the midst of one of Sontheimer's lectures. I had seen this same sort of stunt used many times to bring the teaching process to a grinding halt. However, Sontheimer listened patiently to what the young woman had to say and then addressed her in a calm, respectful way. I can't remember exactly what words he used, but the sense he conveyed was simple – he fully welcomed her and her right to voice opinions. He would be delighted to engage her in a debate if that is what she wanted. Perhaps she could suggest when that might be scheduled? The would-be provocateur slid back into her seat not quite knowing what to do. She had been fishing for a confrontation. What she got back was respect. She didn't know quite what to make of it.

This was the essence of Sontheimer, a man who not only articulated the values of a liberal democracy, but really, sincerely, believed them. I learned from Sontheimer that even in the crazy world of Germany between the wars there had been determined souls who carried the banner of liberal society – I learned of Max Weber, Theodor Heuss, Hannah Arendt and then always his sentimental favorite, Thomas Mann. Sontheimer's book on the pilgrimage of Thomas Mann from cultural conservatism to liberal and humanitarian values is a classic.

Sontheimer's last work, which in my eye seems still not quiet complete at the time of its publication, on the eve of his death, is an extended essay on Hannah Arendt. It is a warm and intensely human portrait of Arendt but throughout this work, I see an engagement not just with Arendt's times and works but with our own times. Sontheimer is deeply worried about a process of demonization and the erosion of rights. He is adamant that the "right to have rights" belongs to all human beings; he is convinced that this is a fundamental element of the legacy of the Second World War. The attack on this value he views as an imminent threat, capable of unleashing great harm.

Particularly significant is his extended discussion of Arendt's concern for the constitutional crisis of Watergate and the Pentagon Papers – a crisis provoked by the assertion of robust and unrestrained presidential powers. Sontheimer clearly sees that this struggle is being rerun in America today, with consequences potentially far more grave for America and the world. And he sees the impassioned, patriotic engagement of Arendt as critical. "I want to understand" is the Leitmotiv of Arnedt's famous interview with Günter Gaus. But in the end this is an understanding that aims at intervention and engagement, an informed engagement. Our political conduct must be directed to a simple end, namely to make our country and our world something that we can love, something worthy of the humanity that it houses. This describes Arendt, but also Kurt Sontheimer.

In her remembrance of Karl Jaspers, delivered at the University of Basel on March 4, 1969, Hannah Arendt said: "That which may be simultaneously the most fleeting and the greatest about a human being is his spoken word and sudden gesture, which dies with him; but it behooves us that we remember them." The greatness of this man, Kurt Sontheimer, was, I think, in small things. But it was nevertheless a greatness. It enriched my life and I am thankful for it.
Posted 1:25 PM by Scott Horton [link] (3) comments

Religion and politics

Sandy Levinson

I have just finished a truly stunning book, Going Down Jericho Road: The Memphis Strike, King's Last Campaign, by Michael K. Honey. It will be published by Norton in January. Based on remarkable archival work, Honey, a labor historian who has lived in Memphis, tells the story of the 1968 sanitation worker's strike in Memphis. Though long (some 600 pages), the book is illuminating about both the world of the time and, by contrast, the world of our own, when it is, among other things, unthinkable that national attention would be focused on a strike by sanitation workers. Today George W. Bush has the effrontery to take part in the ceremony marking the placement of a statue of King on the Washington Mall without the slightest understanding of what King was actually about, not only with regard to his pacificism but, in this context, to his militant devotion to economic justice and helping those at the bottom of the ladder.

But that's not the primary motivation for this posting. Almost every single chapter of Honey's book makes clear, once more, the absolute centrality of churches to the civil rights (and labor) movement in Memphis. This is most obvious with regard to African-American churches. King was only the most famous "reverend" to play a key role in the Movement. But there are also the white clergy (and rabbi); usually, they were pusillanimous and hesitant to move more than a step or two beyond their conservative members, most of whom supported the egregious Jew-turned-Episcopalian Mayor Henry Loeb, who rivals in obduracy George W. Bush. Still, it was their own turning against the Mayor, plus the consequences of the assassination of King, that ultimately led to the ending of the strike. There is simply no way of writing a history of Southern politics (especially) without paying lots of attention to religion.

Political liberals and secularists, like myself, have to wrestle with the meaning of this aspect of the Civil Rights Movement. Because of the "culture wars" of which Brian writes in his most recent posting, many, perhaps most, political liberal-secularists have been busy denouncing the role played by religion in American politics. But consider that the Catholic Bishops, who have, from my perspective, unfortunately concentrated their energies on the issues of abortion and same-sex marriage, have also engaged in eloquent criticism of American actions in the Iraq War, and the National Conference of Catholic Bishops is among the most important groups that still support the idea of a vigorous welfare state. One could obviously present other examples, including the attempts of Jim Wallis and others to present a more politically progressive version of Evangelical politics.

This is not a question of learning to talk about "values" or professing one's own religiosity. I remain a thoroughly secular Jew, with the operative word, when all is said and done, being the adjective. Rather, it is how "we" who have no religious "faith" manifest our respect for and make alliances with those who do have very deep religious commitments and are, as with King, quite literally willing to put their lives on the line in behalf of the most fundamental values of instantiating "equal concern and respect" even for those who pick up our garbage. (Jesse Jackson, who is too often derided, is surely the most eloquent speaker in the country today in behalf of King's late-60's commitment to what he called the "Poor People's Campaign" (which, of course, utterly failed, and not only because he was assassinated).)

I note, for the record, that the number eight and number fourteen books on this weeks New York Times Book Review non-fiction best seller list are, respectively, Richard Dawkins' The God Delusion and Sam Harris's Letter to a Christian Nation. (Number #23 is Newt Gingrich's Rediscovering God in America.) I suspect that I am in substantial sympathy with the arguments that are made by Dawkins and Harris, neither one of which I've yet read. But I also suspect that their function, at this moment, is simply to reinforce the chasm between secular (almost inevitably) liberals and all persons of religious faith. "Deluded" or not, the people who are described in Honey's great book have a moral stature that is overwhelming. The title of the book, incidentally, comes from the tale of the Good Samaritan, who was walking on the road from Jerusalem to Jericho and stopped to help the stranger. One need not be religious to be a Good Samaritan, and one need not even believe that those who are religious are more likely to be Good Samaritans. But many Good Samaritans are religious, and we need to integrate that fact into any practical political strategy for bringing about a better American future.
Posted 3:59 PM by Sandy Levinson [link] (26) comments

In the Penal Colony

Scott Horton

I am a commercial lawyer; I spend a lot of my time doing work for insurance companies. I can't claim the ability to speak with pathos. Neither do I have the ability to wield great images which may be appropriate to the topic I want to open to you this morning. You will therefore, I hope, permit me to cite another commercial lawyer who spent most of his life working for an insurance company, a man who is much more talented than I. His name is Franz Kafka, and he stood at a cultural crossroads – a cultural German, a Jew, from a Slavic Jewish family – but for me at least, Kafka is above all a lawyer; a man with a strong commitment to justice and an abiding fear of its perversion. I share that commitment. I also share Kafka's fear of the ghost which is afoot in our world today. It is a mortal threat to our world, and by failing to look it in the eye and challenge it we put our civilization at risk. This moral challenge lies, I believe, at the center of Kafka's work.

In 1919, the Great War had ended and the empires of Middle Europe collapsed, and with them a great social order. In its wake came chaos, violence and terror. The Vehme struck; White terror battled Red terror. Political, social and cultural leaders in many cities were rounded up and cruel and arbitrary executions were commonplace. Only a few blocks from where we sit this morning, Rosa Luxemburg and Karl Liebknecht were seized, brutally beaten, tortured, interrogated and murdered by the Freikorps. In the height of the terror of 1919, Franz Kafka published In the Penal Colony. There is a tone of despair and darkness about this work; it is a depressing thing to read or relate.

In the Penal Colony, a visitor – on a voyage of exploration, he says – arrives on a tropical island which serves as a penal colony. Shortly he receives an invitation from the island's military commander to witness an execution. In a drawn-out discussion, the visitor learns from an officer sent to greet him that the prisoner who is to be executed has no idea that he has been accused or charged of anything; nor of the penalty that awaits him. The penalty, in fact, is horrific – before he is executed, the prisoner is to be mutilated by a great machine designed to carve his offense in florid letters into his body. The process is a simple one, says the officer: he handles every stage of it, and there is no need for a defense – after all, says the officer, who is accuser and judge, he always starts from the premise that the accused is guilty. Indeed, are we not all guilty?

This presents a moral dilemma to the visitor. He recognizes the injustice and inhumanity of what is about to transpire. But he is after all just a visitor; moreover, a foreigner. What does all of this mean to him? Isn't it easier for him just to hold his peace and get off this island hell as quickly as he can?

Before reaching its end, the plot takes a number of ever more grotesque turns – the torture machine malfunctions, producing an unexpected and terrible death, and the visitor beats a hasty departure from the island. The images are horrific and the message is grim. This is a world in which justice has been denuded of meaning; public torture is being pursued as a sort of sport. Human beings are reduced to so much livestock.

In the Penal Colony is a nightmare. It reflects Kafka's fear of the corruption of justice in a crucible of terror. It is the nightmare he saw drawing near on the horizon of Central Europe's history. But it has not passed.

Let us not make the mistake of viewing the Penal Colony as a historic or literary relic. The Penal Colony exists today. It has many other names. Guantanamo, Abu Ghraib, Baghram and the Salt Pit, for instance.

As the chair said, the American Supreme Court showed the majesty of the law in ruling that the detainees in this conflict had the protections provided by Common Article 3 of the Geneva Conventions. But unfortunately, the matter has not rested with that determination.

This week, again, the Government of the United States, a land founded on a commitment of justice for all - my country - tells us that detainees in its campaign against terror have "no rights." It buttresses this with the Military Commissions Act recently passed by Congress, which purports to strip the American courts of jurisdiction over claims from these detainees. It also demands that no litigant cite or ask a court to take notice of the Geneva Conventions nor other related international laws – notwithstanding that our Constitution binds the courts to enforce these very laws. The act abolishes the writ of habeas corpus, which Thomas Jefferson called one of the essential pillars of the American Republic. It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."

But beyond this, every day's newspaper brings us more grotesque turns. Only a week ago, the Washington Post reported that the US Department of Justice was seeking to preclude a group of 14 detainees soon to be tried by military commissions from having access to attorneys. And in one case, that of Majid Khan, the Department specifically argued that if he got a lawyer, the lawyer must be forbidden from asking any questions about how Majid Khan was treated in the hands of the CIA. His treatment, it is said, is classified as TOP SECRET//SCI Level. Therefore, his lawyer is not entitled to know anything about it. Moreover, it would be better if he never had a lawyer. I don't know what was done to Majid Khan – but I do know what tactics the CIA has been using, thanks to the work of Newsweek, ABC News and others. In particular, this has included three techniques: waterboarding, long-time standing and the coldcell or hypothermia. Each of these techniques has long been established to be a crime under the law of nations. The suspicion is near that the TOP SECRET label was affixed in this case to obscure criminal conduct. The use of security classifications in such a way is the hallmark of a tyrannical society. What attitude towards justice does this reveal?

Bilal Hussein received the 2004 Pulitzer Prize for photojournalism. He has just completed seven months in detention, first in Abu Ghraib and then in Camp Cropper. He has never been charged with anything. US Forces maintain that he took pictures that show insurgents. They make clear that they do not like his pictures. They also recently told a magazine seeking information about his case, that all their concerns about Bilal Hussein were classified information and could not, therefore, be shared with anyone. To this day, they maintain they have the right to continue to hold Bilal Hussein indefinitely, on the criminal offense of being a journalist. What attitude towards justice does this reveal?

Ladies and gentlemen, I ask you to read your newspaper today very carefully. In it you will find another – now the third – report prepared by faculty and students at Seton Hall Law School examining the Combat Status Review Tribunal, a board composed to confirm the status of detainees in Guantanamo. Based on its determinations, detainees may be held for indefinite periods – potentially forever. Yet, as this study reveals, most proceedings occupy only a few hours, involve no witnesses and generally little meaningful evidence of any sort. The detainees are not confronted with the accusations or evidence against them, given an opportunity to ask questions or conduct a case. Once more, the model that is adhered to is not the rich criminal or military justice system of the United States, but the model of Franz Kafka's Penal Colony. What attitude towards justice does this reveal?

I am not here to argue for release or freedom for those detained in the campaign against terror. I am arguing for justice. That is something quite different. It may well be that Majid Khan is a serious criminal responsible for crimes against humanity. It may well be that he used or promoted the use of terror as a device. If that is so, he should be charged and given a fair chance to defend himself. This trial, fairly run, will vindicate my nation's counterterrorism efforts. It will show those who are held for heinous criminals, if they are heinous criminals. It would promote the view in the world that my nation has and pursues a just cause, and treats those in its power with justice, though the justice be severe.

In the end justice is a glorious thing and the evasion of justice is shameful. But we must remember, as both Robert H. Jackson and Hannah Arendt have taught us, that this process is not simply about justice. It is also about the appearance of justice. Failing that, we run a severe risk. The penal colony may now be an island. But soon it may become the world.

---------

Prepared remarks for the November 17, 2006 meeting of the Club de Madrid, Berlin, Germany.
Posted 2:16 PM by Scott Horton [link] (102) comments

Hints that the "Culture Wars" Might Dampen (But Don't Count On It)

Brian Tamanaha

The popular term "culture wars" is a misnomer. There have always been clashes among cultural views. What characterizes the contemporary situation is that these contesting cultural views have aggressively taken their battles into the legal arena, seeking to use the law as a weapon against opponents.

"Legal wars over culture" is less concise, but better fits the situation. Such legal battles have also occurred in the past, to be sure, but not to the same extent and in the same unrelenting ways that we see today. Abortion, creationism, gay rights, and the availability of contraception, among other issues, are being played out in courts and legislatures and administrative agencies around the country.

Now there are a few signs that the combatants involved are having second thoughts about these activities out of recognition that their efforts may in the end hurt their ideals or their causes.

David Kuo, the conservative evangelical who made a splash before the election by exposing the cynical manipulation of evangelical voters by the Bush Administration, recently wrote an editorial expressing this growing sentiment among evangelicals:

John W. Whitehead of the Rutherford Institute, the conservative Christian organization that gained notoriety during the 1990s when it represented Paula Jones in her sexual harassment suit against Bill Clinton, wrote this after the elections: “Modern Christianity, having lost sight of Christ’s teachings, has been co-opted by legalism, materialism and politics. Simply put, it has lost its spirituality.”

He went on, “Whereas Christianity was once synonymous with charity, compassion and love for one’s neighbor, today it is more often equated with partisan politics, anti-homosexual rhetoric and affluent mega-churches.”

Mr. Whitehead is hardly alone. Just before the elections, Gordon MacDonald, an evangelical leader, wrote that he was concerned that some evangelical personalities had been seduced and used by the White House. He worried that the movement might “fragment because it is more identified by a political agenda that seems to be failing and less identified by a commitment to Jesus and his kingdom.”

Kuo recognizes that the committed activists will not go away:

There are those who find the moral force of issues like abortion and gay marriage equal to that of the abolition of slavery — worth pursuing no matter what the risks of politics are for the soul. But the advocates working these special interests may, I think, be far fewer in coming years than in years past. Gay marriage was a less mobilizing force in 2006 than it was in 2004. In Arizona the ballot measure to outlaw it was defeated. The South Dakota abortion ban failed.

Kuo's sentiments might presage a dampening of the aggressive legal activities of these groups, but there are reasons to think otherwise. Without questioning their genuine commitment to their causes, it also matters that many of these advocates have made a career of pursuing them. These causes are good for fundraising and for legal business. The November issue of the ABA Journal profiles James Bopp, who is earning national fame, and a lot of clients, by bringing legal challenges around the country to judicial ethics rules that restrict judges from expressing their personal views on matters like abortion.

The other reason to to be pessimistic is that a battle cannot end unless all of the combatants are willing to stand down. The same issue of the ABA Journal profiles gay marriage advocates in an article entitled "Same-Sex-Marriage Advocates Vow to Fight on, Despite a Summer of Rulings Against Their Cause." Things have not been going well lately in court. But even significant past court victories (in Hawaii and Massachusetts) had counter-productive consequences, prompting a number of state statutory and constitutional bans of gay marriage. Undaunted by these checkered results, gay marriage advocates are moving foward with a full slate of litigation and legislative proposals.

The Fall issue of the Harvard Law Bulletin has an article entitled "The Coming Wave," which covers the increasing numbers of law students and young lawyers eager to get into this line of work:

There are also growing numbers of 'cause lawyers' supported by well-funded organizations across the political spectrum, and new 'hybrid' firms that do some paid work in order to subsidize their predominantly pro bono caseloads.

All of the lawyers engaged in these activities are sincerely motivated by their causes. Many make personal sacrifices to pursue these causes. Many of these causes are important. Many of these causes I personally support. But as a society and legal culture we must contemplate the adverse consequences for the law of these rampant political battles--battles that include rigorously screening the ideological profiles of judges. Preserving the integrity of our legal system should be a matter of concern for liberals and conservatives alike.

As argued in detail here, if these battles continue, the law will come to look less like a public resource that reflects and represents the common good, and more like tool or weapon for particular interests. We have already traveled a long way down this path.
Posted 11:41 AM by Brian Tamanaha [link] (13) comments

It's a Matter of Life or Death, So Let's Be Honest About Jury Instructions

Brian Tamanaha

Thousands of courtroom scenes have been depicted on television and in movies, yet rarely--and perhaps never?--will you see one of the most critical moments in a trial: the reading of the jury instructions. There is a sound reason for this omission--jury instructions are long, boring, and often incomprehensible. A minute or so of listening to this would be enough to prompt almost every viewer to reach for the remote. Just raising the topic here, in this post, will send many readers clicking away. Please resist the impulse for a few moments while I provide a reality check about law that is literally a matter of life or death, and which played out as death in a US Supreme Court decision on Monday.

If you have ever wondered where or when or how law comes into play in an actual case, the answer is that the jury instructions are the law. In both civil and criminal cases, the jury is charged with deciding whether the evidence satisfies the legal requirements specified in the jury instructions. Lawyers, for this reason, spend hours fighting over which instructions should be read to the jury and over their precise wording. Appeals are often based on arguments that an instruction read to the jury was erroneous.

Now let's talk about the reality, a reality I observed first hand as a trial lawyer and as a clerk to a federal district judge. The only way to understand this reality is to actually get a taste of a jury instruction. Therefore, with an apology offered in advance, read this actual jury instruction from New York (and feel free to skip to the bottom when it becomes unbearable), setting out the liability of a landlord:

A lessor is required to disclose to the tenant any dangerous condition of the premises, existing when the tenant is given permission, of which the lessor knows or has reason to know and which is not discoverable by the tenant on reasonable inspection. If you find that the condition of the premises at the time plaintiff was given posession was dangerous, that defendant knew of the condition or of facts or circumstances from which a person of reasonable intelligence would believe that such dangerous condition existed, that the condition was not known to plaintiff or discoverable by (him, her) in the use of reasonable care, that defendant failed to warn plaintiff of the condition or advise (him, her) with the facts and circumstances of which defendant was aware, and that the condition was a substantial factor in producing plaintiff's injury, you will find for the plaintiff (on this issue). If, however, you find that no dangerous condition existed on the premises when plaintiff was given possession, or that although there was such a condition defendant did not know of it and did not have reason to be aware of it, or that plaintiff knew of the condition or could have discovered it had (he, she) made a reasonable inspection, or that the condition was not a substantial factor in causing plaintiff's injury, you will find for the defendant (on this issue).

Everyone got that, right?

This is typical of jury instructions in form, style and terminology.

Now imagine that, rather than reading it for yourself, these instructions are read to you by a judge, and imagine that this reading session goes on for one or two or more hours. When sitting through these truly painful sessions as a lawyer or clerk--struggling to concentrate on the instructions as a way to stave off boredom--I have seen jurors yawn repeatedly, close their eyes for a spell (to concentrate, I presume), or simply fix an unmoving gaze at a spot on the opposite ceiling.

You are getting the picture, but the situation is even worse. Although juries often have questions about the instructions, judges are extremely reluctant to elaborate or explain for a reason alluded to earlier: appeals are often based on claimed errors about the precise wording of the instructions. Any elaboration or explanation offered by the judge adds more words, words which can arguably improperly change the meaning of the instruction, generating further issues for appeal. To avoid this problem, many judges will simply re-read the instruction (which no one wants), or read another equally complicated pre-written clarification, or simply tell the jury to figure it out the best they can ("Good luck!").

This is the reality of jury instructions. Obviously, it is hazardous to make any assumptions or draw any conclusions about what a jury does or does not understand with respect to the instructions. As someone who believes in the jury system, I'm not bashing juries, nor denigrating their intelligence. No matter how intelligent, educated, and well-motivated, anyone would struggle to pay attention to and fully comprehend jury instructions in the system we have developed.

So here's the life or death case that rides on this reality. By a 5-4 vote, on Monday, the Supreme Court reinstated a death sentence that had twice been overturned by a federal court of appeals. The disputed issue focused on what a jury understood in connection with an instruction, as explained in a report in the New York Times on the case by Linda Greenhouse:

California's death penalty statute lists a number of mitigating factors that a defendant may invoke, concluding with a "catch all" factor that includes "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime."

While subsequent California Supreme Court and United States Supreme Court decisions made clear that this factor was more open ended than it appeared to be, permitting evidence that relates to the defendant's character rather than the crime itself, the question in the case was how Mr. Belmontes's jury understood the factor in its unadorned form.

Here is the basic issue: The defendant had undergone a religious conversion in prison, was a model prisoner, and would likely continue to be so, and wanted the jury to consider this as a mitigating factor against imposing the death sentence under the catch all provision. This was indeed permissible. The problem is that the provision is narrowly worded in a way that appears to refer to mitigating factors relating to the crime (not his life as a prisoner). Greenhouse continues:

In overturning his death sentence through a writ of habeas corpus, the United States Court of Appeals for the Ninth Circuit found there was a "reasonable probability" that the jury did not realize that it could take into account Mr. Belmontes's evidence of his likely behavior as a prisoner.

Justice Kennedy's majority opinion said the Ninth Circuit was mistaken. He said that various comments by the trial judge "made it clear that the jury was to take a broad view of mitigating evidence.

Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr. joined in the opinion along with Justices Scalia and Thomas. [An aside interjected by Tamanaha: For whatever it's worth--and I think very little--this majority is made up exclusively of the so-called "Catholic Five" on an issue of major significance for Catholic teachings, and the Justices apparently went against the official Church position.]

In dissent, Justice Stevens said the record showed "that confusion pervaded every aspect" of the sentencing hearing, including the catch-all factor. All participants in the hearing were "addled," he added.

I haven't read the briefs in the case, but knowing the reality of jury instructions generally (as described above), and considering the narrow and potentially misleading wording of this particular instruction, it seems fair to conclude that there must be some doubt as to whether the jury in fact understood that they could consider Belmontes's subsequent behavior in mitigation. There is, furthermore, a great deal of evidence that juries systematically misunderstand the jury instructions in death penalty cases in California, as demonstrated in sobering detail in Craig Haney's book, Death by Design (2005).

Five Justices, based upon little more than reading the actual instruction and several comments by the trial judge, drew an inference that the jury in fact understood the instruction properly. Legally trained judges might well understand these words and comments in this way, but it is an altogether different matter when talking about the understandings of inexperienced lay people sitting for the first and only time as jurors on a death penalty panel. One would think that the benefit of the doubt should go against death--if for no other reason than basic respect for human life--but the Justices apparently were quite confident.

Now Mr. Belmontes is going to die.
Posted 2:12 PM by Brian Tamanaha [link] (32) comments