Tuesday, January 09, 2007

Retronyms and a Theory of Default Evolution

Ian Ayres

There was an interesting Safire Language column on retronyms, which is:
"a word or phrase created because an existing term that was once used alone
needs to be distinguished from a term referring to a new development."

Examples of retronyms include: real butter, tap water, snail mail. You can find a cool list of examples here. The concept got me to thinking about how defaults evolve over time.
Many of these retronyms start as unmodified nouns (whole milk was just milk) which didn't need a modifier because there was no alternative. When the new alternative comes into existence, we need a linguistic way of distinguishing between the two things. When the market share of the new thing is small, the default meaning of the unmodified thing almost certainly remains the same. When margarine was a new fangled invention, everyone knew that butter still meant real butter. But as the market share of the new thing grows at some point people will want to make sure that the person wants the old and not the new (I want to buy a convection oven).

And interesting empirical question is how high does the market share of the new have to be before people resort to retronyms. [There might even be a function that describes how the marketshare of the retronym vs unmodified designation varies with the marketshare of the new item.]

Most of the examples of retronyms are places where the default meaning of the unmodified word has not flipped to the new. We now have to specify "regular" or "decaf" coffee. As I look through the classic retronym list, we're often caught in a world without a default meaning for the unmodified noun. This is the kind of linguistic inefficiency that the Soviets would despise.

It would also be interesting to see if the market share of the new item because sufficiently large, does the default meaning of the unmodified word change. Will there come a time when "you've got mail" means email -- oops I guess it already does in some contexts.

Retronyms might teach us something descriptive about the evolution of legal defaults. Legal default rules are rules that govern if the parties fail to contract around them. So it strikes me that a retronym is a reiteration of an old default in situations where the speaker/contractual drafter is uncertain whether the default is still valid. As with retronyms, when two different sets of terms have substantial marketshares of use, will we find a failure to embrace either as a default. Will we see flipping of the default at the same tipping point.

Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions

Guest Blogger

Josh Chafetz

Thank you very much to Professor Balkin for lending me some space to plug my new book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, just out from Yale University Press.

In a nutshell, legislative privilege consists of those special rights enjoyed by individual Members or individual Houses of the legislature. In the book, I trace the evolution of five key strands of privilege through their development in British and American law. Those strands are, (1) jurisdictional conflicts between legislative houses and the courts (what the British call the clash between lex parliamenti and lex terrae and part of what the Americans call the political questions doctrine), (2) freedom of speech for legislators, (3) freedom from civil arrest for legislators, (4) the resolution of contested legislative elections, and (5) the disciplinary powers of the houses. I argue that a close focus on privilege provides a crucial window on the development of democratic norms and institutions in Anglo-American history, from the House of Commons' early struggles for influence, to the decisive rise of parliamentary sovereignty in the late-seventeenth century, to the rise of popular sovereignty in America.

While working on this project, I knew that I would learn some fascinating things about British and American legislative history, but I figured most of the relevance would be just that--historical. It had, after all, been a long time since Charles I and his troops stormed into the House of Commons, seeking to arrest five Members (the House refused to turn the Members over and passed a resolution declaring the King's action "a high breach of the Rights and Privileges of Parliament"--the public outcry against the King was so great that he was forced immediately to remove his court from London to Oxford, and thus began the Civil War). I also knew that legislative privilege was an important background issue even in the contemporary workings of Congress and Parliament.

But I never expected that my book would turn out to be timely. Somehow, however, it has. First, we had the Jefferson search, and now we have ethics reform, both of which raise significant questions of congressional privilege. I have argued elsewhere that the Jefferson search was unconstitutional and that the main focus of ethics reform should be on congressional self-discipline, and I won't rehash those arguments here. I will, however, add a word about a less obvious way in which legislative privilege is a timely topic. As Charles I reminded us, legislative privilege has served to guard the independence and power of Anglo-American legislatures for centuries. In a time in which many of us are concerned about executive overreach, legislative privilege takes on increasing importance as a way of protecting and empowering the most representative branch. Thus ends the plug for Democracy's Privileged Few--I hope you'll take a look at it. And thank you, again, to Professor Balkin for lending me his soapbox!

Senator Kennedy's Bill to Prohibit Escalation of U.S. Forces in the Iraq Military Conflict

Marty Lederman

Senator Kennedy is today introducing this legislation, the operative provision of which reads:
Prohibition.--Notwithstanding any other provision of law, no Federal funds may be obligated or expended by the United States government to increase the number of United States forces in Iraq above the number for such forces which existed as of January 9, 2007, without a specific authorization from Congress by law for such an increase.

In (Electoral) Dreams Begin Responsibilities

Marty Lederman

Matt Yglesias and Ann Althouse "vlog" about the irony of the current legislative murk: Although the November elections were a referendum on the Iraq War, and although 45 percent of the electorate believes that "of all the problems facing the country today," the Iraq war is the one Congress should "concentrate on first" -- the economy and jobs collectively is second with seven percent support -- the Democratic majorities actually chosen in that referendum are now unwilling (indeed, some among them who should know better profess to be unable!) to do anything about that war other than to cajole and plead with the President and to hope that the Republican minority convinces the President to change course. (In fairness, there are many Democrats, such as Senator Kennedy (introducing legislation this morning) who are ready to step to the plate. But there's apparently a great deal of hand-wringing in certain parts of the caucus.)

As Yglesias notes, perhaps the best possible political and policy outcome for the Democrats would, indeed, be for Bush to de-escalate the war at the behest of Republicans, so that once the war is ended the Republicans can't thereafter carp, Vietnam-revisionism-like, that "We could have actually won the war if only those Democrats hadn't tied our hands!"

Fair enough.

But even if Yglesias is correct about the best of all possible worlds, and even if some Republicans begin pleading with Bush to reverse course, there's no reason to think this President would be at all inclined to listen, let alone to acknowledge the error of his ways. And if that's so, then, as Matt says, "there's something ghoulish about agreeing to appropriate money to finance a military occupation that you think should be ended and that you think is futile."

No, of course that doesn't mean that Congress should propse a bill cutting off all appropriations for the conflict immediately. The commonly-heard anxiety about Dems being accused of "abandoning our troops in Iraq" is grossly overstated: No one is remotely suggesting any statutory proposals that would strip troops on the ground of whatever is necessary for their safety and protection.

But Congress could simply vote for a law requiring withdrawals or redeployments on a particular timetable. (In 1973, for instance, Congress enacted a law effectively requiring withdrawal from Cambodia and Vietnam by a date certain (August 15, 1973). See Pub. L. No. 93-52, 87 Stat. 134 ("Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.") President Nixon didn't simply "abandon" those troops without authorization or funding -- he complied with the deadline, after having vetoed a bill requiring withdrawal six weeks earlier.)

Or, as at least one member of Congress will propose this morning, Congress could vote for a bill refusing appropriations for increases in troop levels in Iraq.

Will Bush veto such a bill? Perhaps (depending on what else is in it). Will he ignore it if it is enacted? Well, when it comes to respect for statutory law, let's just say that Bush is no Richard Nixon. Could the courts enforce such a law if Bush refuses to enforce it by spending funds that are not appropriated? Yglesias and Althouse seem to assume that the Supreme Court would not intervene. I'm not so sure -- in any event, the Court surely could intervene.

But even if it would be difficult to enforce such a law does not mean it shouldn't be enacted. A situation in which the President must openly violate the law, and spend unappropriated funds, in order send more troops to Iraq, wouldn't be such a bad thing as opposed to the alternative, at least in terms of political accountability. And it certainly is no justification for Congress to abandon its constitutional role.

Indeed, it's important for Congress to step up to the plate here not only because the practical stakes are so high, but also precisely because the President is so dismissive of ordinary checks and balances. It's hard to improve here on Josh Marshall's comments this morning:
The way this is "supposed" to work is that when the president takes a dramatic new direction like this he consults with Congress. That way, some relative range of agreement can be worked out through consultation. National unity is great. Or at least that's the theory.

But here we have a case where the president's party has just been thrown out of power in Congress largely, though not exclusively, because the public is fed up with the president's lies and failures abroad. (Indeed, at this point, what else does the Republican party stand for but corruption at home and failure abroad? Small government? Please.) The public now believes the war was a mistake. Decisive numbers believe we should start the process of leaving Iraq. And the public is overwhelmingly against sending more troops to the country. The country's foreign policy establishment (much derided, yes, but look at the results) is also overwhelmingly against escalation.

And yet, with all this, the president has ignored the Congress, not consulted the 110th Congress in any real way, has ignored the now longstanding views of the majority of the country's citizens and wants to plow ahead with an expansion of his own failed and overwhelmingly repudiated policy. The need for Congress to assert itself in such a case transcends the particulars of Iraq policy. It's important to confirm the democratic character of the state itself. The president is not a king. He is not a Stuart. And one more Hail Mary pass for George W. Bush's legacy just isn't a good enough reason for losing more American lives, treasure and prestige.

Let's Play "Junior Constitutional Lawyer"!

Marty Lederman

From yesterday's White House press briefing, my new favorite euphemism for "We can't be troubled by mere statutes":
Q: Do the Democrats or any of the opponents have the . . . authority to stop anything that the President is going to present? In other words, is he going to need to ask Congress to approve something?

MR. SNOW: Well, ultimately, anything you do has budgetary implications. I think there was a question earlier today, are we seeking resolutions, and that sort of thing -- and I want to wave you off of that. What you do have, though, is basically budget is policy. So Congress is going to be engaged in the appropriations and authorization process and, you know, through those, they're going to be debating a lot of things. And so that's sort of par for the course.

Q: But in terms of anything out of the Pentagon -- the troops, deployment, any of the programs we initiate -- the President, alone, has the authority to --

MR. SNOW: You know what, I don't want to play junior constitutional lawyer on this, so let's wait until we see what happens, if you have specific questions about constitutional authority. But, you know, Congress has the power of the purse. The President has the ability to exercise his own authority if he thinks Congress has voted the wrong way.
Bending over backwards to be fair, I suppose that in referring to "[the President's] own authority," Snow could simply have been referring to the veto power. In the context of the question (whether the President has the "authority" to deploy additional troops without congressional approval), of course, this would be a most generous assumption -- but if he were playing "junior constitutional lawyer," perhaps Snow's studied ambiguity would get him partial credit.

Monday, January 08, 2007

The Constitution, second-class citizenship, and the 2008 election

Sandy Levinson

Loyal readers know of some of my various discontents with the Constitution. I have, for obvious reasons, dwelt on what I think are the most important deficiencies, including our feeling stuck with a manifestly incompetent and dangerous president for another 742 days. But let me change that broken record and point to another problematic feature of the Constitution that may turn out to have significant consequences for the upcoming election: This is the limitation of eligitibility for the presidency to "natural born" citizens. Harvard's Randall Kennedy and Robert Post, now at Yale, each selected this clause as the "stupidest" provision of the Constitution in 1998 (citations on request). Among other things, it stands for the proposition that we differentiate between "first-class" citizens, i.e., those eligible to serve as President, and "second-class" ones. In my book, I discuss other "second-class citizenship" clauses, including age limitations service in the House, Senate, and White House, and, more importantly, practically speaking, durational requirements that one be a citizen for seven and nine years before being eligible to serve in the House or Senate, respectively. This means, obviously, that a newly naturalized citizen is estopped from running for national office for quite a few years.

A truly liberal society ought not tolerate such distinctions except where absolutely necessary, as is the case, e.g., with regard to having some floor with regard to voting (no one advocates that six-year-olds be entitled to vote or serve in public office). Most repugnant is the natural-born citizenship clause. This makes such luminaries as Henry Kissinger, Madeline Albright, Ted Koppel, Jerry Springer, and millions of others ineligible to aspire to the White House. It's simply not true that "every boy and girl in America can dream of growing up to be President" if he or she was born abroad to non-American parents. I would obviously be more supportive of some of these examples than others, but the point is that we should be able to choose ourselves instead of having the choice made by the 1787 Framers. There may (or may not) have been a good reason for the restrictions in 1787; there is no good reason to maintain them today.

That's the abstract, normative argument. Getting down to practicalities, there is Arnold Schwarzenegger. He, too, is not a favorite of mine, but it seems obvious that he would be a serious candidate for the White House were it not for our undemocratic Constitution. By any account, he has proven a competent and provocative governor of our nation's largest state. He is, I gather, about to propose sweeping changes in the funding of medical care in California in the face of the inability by the national government to confront such challenges. I don't know if he could get the Republican nomination--he may be much too liberal, socially--but he is ideally poised to run as an independent candidate appealing to frustrated Repubicans who despair about the capture of their party by the religious right and those Democrats who believe that the Party leaders have drifted too far to the left (a view that I certainly don't share, but that's irrelevant). Utah Sen. Orrin Hatch several years ago proposed a constitutional amendment repealing the constitutional bar, but it didn't go anywhere, not least because brain-dead Democrats didn't pick it up and insist on its passage. Why, besides the simple fact that it would have been the little-d democratic thing to do, should Democrats have rallied around Hatch? Becuase Michigan Gov. Jennifer Granholm, born in Canada before she came to the US at the age of 3, would be an attractive possibility as VP on the Democratic ticket in 2008 (especially if Hillary Clinton is not the candidate). Both, of course, are ruled out, to the detriment of our polity and our claim to treat all citizens equally.

Kinkopf on Congress's War Powers

Marty Lederman

In my earlier posts, I was remiss in neglecting to link to this very fine and helpful analysis written by my friend and former OLC colleague Neil Kinkopf on Congress's power to enact a law to restrict a troop escalation, which Neil posted on Friday but which I only just now discovered. The wish-I-woulda-said-that title of Neil's post: "Congress as Surge Protector."

Redesigning the Presidency


Many people are now worried that George W. Bush is planning a useless surge in Iraq (useless because too little and too late) and that there seems to be very little we can do about it because Bush will never have to face election again. Sandy sees this as an example of our dysfunctional Constitution, while Marty is currently engaged in a very interesting analysis of whether Congress can limit appropriations or the use of troops.

But stepping back for a moment, it seems clear enough that one reason we are in this mess is that America lacks a vote of no confidence to discipline presidents who are in deep denial or are simply incompetent. Either or both of these descriptions may apply to the current occupant of the White House.

Because we lack a vote of no confidence, there are only a few available options. We can limit appropriations or attempt to limit the President's war making operations. But a vote of no confidence, which might seem to be a more drastic remedy, is actually more fine tuned and appropriate in these circumstances. Congress might be much more willing to vote Bush out of office than be seen as limiting money for our troops. Similarly, if Congress decides to limit the President's war making abilities, and this is held constitutional, then it sets a precedent that could hamper future chief executives. On the other hand, a vote of no confidence against George W. Bush-- if the Constitution permitted it-- would have no precedental effect with respect to warmaking powers. It would simply be an exercise of a different Congressional power. It would be a potential threat that Congress could offer to discipline future chief executives who got out of line.

Max Weber famously warned that democratic parliaments had a tendency to move toward a version of Caesarism featuring charismatic leaders who exercise increasingly dictatorial powers. But Weber's warning was premised on the notion that one could not easily get rid of the Caesar once he was put in power by general public acclaim. From this perspective, the real problem in the Weimar Constitution, for example, was not the office of the Chancellor, but the powerful office of the Presidency, occupied by Hindenberg.

Suppose that the United States moved to a dual system, with a ceremonial head of state (call him the President of the Republic) with no powers but the power to call for new elections upon motion of Congress, and a head of government, who exercised all of the executive functions of our current Presidency. Under this plan, we could head off many of the Caesarist impulses that Weber identified.

If Prime Minister Bush proved incompetent or unable to face reality, Congress could stage a vote of no confidence. The President of the Republic would not be able to bestow or delegate any powers to the out-of-control prime minister. Although Prime Ministers could exercise emergency power as U.S. Presidents currently do, would-be Caesars could usually be nipped in the bud by threats from Congress. In this scenario, the 2006 election would have sent a much clearer signal to Bush to clean up his act, because otherwise, under this scenario, the newly elected Democratic Congress might well depose him and call for new elections.

Such a change, it goes without saying, would no doubt require a constitutional amendment. And it raises some very interesting possibilities, which do not entirely commend the proposal. For example, suppose we had such a system in 1863. Would Congress have kicked Abraham Lincoln out of office when things were not going well for the Union Army?

Sunday, January 07, 2007

The US respects Iraq sovereignty

Sandy Levinson

A remarkable article by John Burns and others in the Sunday NYTimes itells the tale of American capituation to a decision by the so-called Iraqi government (I say so-called because there is no evidence whatsoever that the "government" is capable of governing anything or anybody outside the Green Zone, and even the latter is open to question) that US authorities knew to be a recipe for disaster. Relevant parts of the article are as follows:

.... The time as the helicopter took off was 5:05 a.m., and Mr. Hussein had 65 minutes to live. But as he flew over Baghdad’s darkened suburbs, he can have known little of the last-minute battle waged between top Iraqi and American officials — and among the Americans themselves — over whether the execution, fraught with legal ambiguities and Islamic religious sensitivities, should go ahead.

American opposition to executing him in haste centered partly on the fact that the Id al-Adha religious holiday, marking the end of the annual Muslim pilgrimage to Mecca, began for Sunnis at sunrise on Saturday.....

The taunts Mr. Hussein endured from Shiite guards as he stood with the noose around his neck have made headlines around the world, and stirred angry protests among his fellow Iraqi Sunnis. But the story of how American commanders and diplomats fought to halt the execution until midnight on Friday, only six hours before Mr. Hussein was hanged, is only now coming into focus, as Iraqi and American officials, in the glare of international outrage over the hanging, compete with their versions of what happened.

It is a story of the Iraqi prime minister, Nuri Kamal al-Maliki, trying to coerce second-tier American military and diplomatic officials into handing over Mr. Hussein, first on Thursday night, then again on Friday. The American push back was complicated by the absences of Ambassador Zalmay Khalilzad and the top American military commander, Gen. George W. Casey Jr., who were both out of Iraq on leave. The American message throughout was that rushing Mr. Hussein to the gallows could rebound disastrously, as it did....

The hanging spread wide dismay among the Americans. Aides said American commanders were deeply upset by the way they were forced to hand Mr. Hussein over, a sequence commanders saw as motivated less by a concern for justice than for revenge. In the days following the hanging, recriminations flowed between the military command and the United States Embassy, accused by some officers of abandoning American interests at midnight Friday in favor of placating Mr. Maliki and hard-line Shiites....

When the tribunal’s appeals bench announced that it had upheld the death sentences on Dec. 26, three weeks into the appeal, even prosecutors were stunned. Defense lawyers said Mr. Hussein was being railroaded under pressure from Mr. Maliki, who told a BBC interviewer shortly after the Dujail verdict that he expected the ousted ruler to be hanged before year’s end.
The suspicion that the judges had submitted to government pressure was shared by some of Americans working with the tribunal, who had stifled their growing disillusionment with the government’s interference for months. Among a host of other complaints, the Americans’ frustrations focused on the government’s dismissal of two judges seen as too indulgent with Mr. Hussein, and its failure to investigate seriously when three defense lawyers were killed. The appeals court’s apparent eagerness to fast-forward Mr. Hussein to the gallows — and the scenes at the execution itself — was, for some of the Americans, the last straw....

At 10:30 p.m., Ambassador Khalilzad made a last-ditch call to Mr. Maliki asking him not to proceed with the hanging. When the Iraqi leader remained adamant, an American official said, the ambassador made a second call to Washington conveying “the determination of the Iraqi prime minister to go forward,” and his conclusion that there was nothing more, consistent with respect for Iraqi sovereignty, that the United States could do.
Senior Bush administration officials in Washington said that Mr. Khalilzad’s principal contact in Washington was Secretary of State Condoleeza Rice, and that she gave the green light for Mr. Hussein to be turned over, despite the reservations of the military commanders in Baghdad. One official said that Ms. Rice was supported in that view by Stephen J. Hadley, Mr. Bush’s national security adviser.

“It literally came down to the Iraqis interpreting their law, and our looking at their law and interpreting it differently,” the official said. “Finally, it was decided we are not the court of last appeal for Iraqi law here. The president of their country says it meets their procedures. We are not going to be their legal nannies.”

So what does one make of this sordid story? One could tell the story as one involving legal interpretation, so that the key statement is the last quote of an unnamed "official." But is that the right framework? Given the extreme likelihood that executing Hussein under these specific circumstances would produce an adverse reaction by the Sunnis, should the US have acquiesced as a political matter? to be sure, we could have insisted that all legal i's and t's were dotted and crossed, which they most certainly were not in the haste to execute Hussein. The "interpretations" offered by the Iraqi "government" with regard to the specifics of carrying out the execution have little more legal integrity that the "findings" of the Guantanamo commissions as to who is and is not an "illegal noncombatant."

One might be forgiven for failing to predict the presence in the execution chamber of a modern cellphone with the photo option, except by this time one cannot really be surprised, either, that this happened.

Does the supine response of Secretary Rice indicate that we are indeed throwing our power behind the Shi'ite suppression of the Sunnis, whatever the resulting carnage? That is, I think, a disastrous decision, but at least it would represent conscious policy. If, however, it is not such an announcement, then is the submission to Maliki simply further evidence of the rank incompetence at every level of this Administration? And is it not a reason for condemning our Constitution that we apparently have no alternative to accepting their continuation in office for another 743 days?

Note to Senator Biden: The President is Not "The Decider"

Marty Lederman

I have argued in this space that because the Democrats appear now to have come out firmly against an escalation of troops in Iraq, and in favor of a deescalation of the conflict, they ought to pass a bill compelling the President to abide by such decisions.

Unfortunately, on Meet the Press this morning, Senator Biden denied that the Congress has such a constitutional power:
SEN. BIDEN: You can’t do it. . . . You can't go in and, like a tinker toy, and play around and say, "You can’t spend the money on this piece and this piece and . . . [H]e’ll be able to keep those troops there forever constitutionally if he wants to.

MR. RUSSERT: Why not have legislation then that would cap the number of troops in Iraq?

SEN. BIDEN: Because it's very difficult to—it’s constitutionally questionable whether or not you can do that. I think it is unconstitutional to say, "We’re going to tell you you can go, but we’re going to micromanage the war." When we wrote the Constitution, the intention was to give the commander in chief the authority how to use the forces, when you authorize them, to be able to use the forces.
Biden thus concluded that the most he can do is to draft "a resolution of disapproval that is just hortatory."

Even if there were a prohibition in the Constitution against so-called congressional "micromanagement" of a war -- and there's not -- this wouldn't be that. There would be no congressional officials here overseeing the President's discretionary responsibilities; no requirement that the President get approval of one or both Houses before taking certain actions. There would, instead, simply be limitations on a war imposed by statutes passed with the President's signature or by supermajorities of both Houses of Congress over the President's veto.

Just as the McCain Amendment prohibits the President from using cruel, inhuman and degrading treatment against Al Qaeda prisoners; just as numerous other statutes and treaties place limitations on how the President can conduct war or other conflicts (e.g., the torture statute; the War Crimes Act; the War Powers Resolution; FISA; the Habeas Act; the UCMJ (upheld in part in Hamdan, over the President's objections that it would impinge on his ability to defeat the enemy); the Boland Amendments; a bunch of statutes at the tail-end of the Vietnam War prohibiting the use of funds for the use of armed forces in particular nations, such as Cambodia); just as numerous other statutes have authorized hostilities only for certain purposes and on certain conditions, thus imposing implicit limitations (e.g., the statute upheld in Little v. Barreme; the 1993 Defense authorization provision that funds could be obligated in Somalia beyond March of 1994 only "to protect American diplomatic facilities and American citizens, and noncombat personnel to advise the United Nations commander in Somalia"; etc.); -- and odds are that Senator Biden voted for the vast majority of these statutory limitations on the Commander-in-Chief . . .

. . . so, too, the hypothetical statute here would prohibit him from using more than a specified number of troops in Iraq, and/or require that the troops be used only for particular purposes and only for a specified period of time.

The issue is a complex one. Arguments are, indeed, often made for disabling Congress from limiting the Commander-in-Chief's discretion. And one can certainly imagine the President and the Vice President making such arguments. But Democratic critics in Congress? Does it make any sense for them to disclaim some of Congress's most important powers for checking the Executive, when there is a rich history of such statutory limitations and where there is almost no judicial authority questioning Congress's power?

Ask yourself this: Imagine a hypothetical situation in which an armed conflict has gone disasterously awry, resulting in a devastating and spiraling civil war in a major Middle Eastern nation and profound harms to both U.S. troops and our nation's long-term foreign interests. Over 70% of the U.S. public concludes that the President's proposal to escalate the conflict will only make the disaster worse, and is for that reason a terrible mistake. Over two-thirds of each House of Congress -- supermajorities that include numerous members of the President's own party -- are willing to vote to forbid him from taking such a fateful step.

Is it really imaginable that any reasonable constitution-writers -- let alone our own Framers, suspicious as they were of unchecked executive military power -- would disable the legislature from correcting the Executive's mistake under such circumstances? [UPDATE: See also this very fine and helpful analysis written by my friend and former OLC colleague Neil Kinkopf on Congress's power to enact a law to restrict a troop escalation.]

Friday, January 05, 2007

Congressional Democrats Conclude "It is Time to Bring the War to a Close" . . . But Appear Unaware That They Can Do Something to Make It Happen

Marty Lederman

Word is that Majority Leader Reid and Speaker Pelosi are preparing to send this remarkable letter to the President, in which they oppose the anticipated troop "surge":
Surging forces is a strategy that you have already tried and that has already failed. Like many current and former military leaders, we believe that trying again would be a serious mistake. They, like us, believe there is no purely military solution in Iraq. There is only a political solution. Adding more combat troops will only endanger more Americans and stretch our military to the breaking point for no strategic gain. And it would undermine our efforts to get the Iraqis to take responsibility for their own future. We are well past the point of more troops for Iraq.

The Democrats argue in favor of a "phased redeployment of our forces." "In short," they explain, "it is time to begin to move our forces out of Iraq. . . . [I]t is time to bring the war to a close."

This is obviously the strongest statement of policy yet by the Democrats with respect to the Iraq War. All the more remarkable, then, how the letter ends:
"We, therefore, strongly encourage you to reject any plans that call for our getting our troops any deeper into Iraq. . . . We appreciate you taking these views into consideration."

Surely Reid and Pelosi know that they can do much more than simply plead with the President to "take their views into consideration"! If this truly does represent the views of a majority of both Houses (as appears likely -- there's already a great deal of Republican opposition to the "surge" proposal, too), then Congress should pass a law prohibiting the "surge," and requiring the phased redeployment.

The beginning of the letter is absolutely correct: "The start of the new Congress brings us opportunities to work together on the critical issues confronting our country. No issue is more important than finding an end to the war in Iraq." The power is in their hands. If this is the most imporant pending issue -- and the American public overwhelmingly agrees that it is -- then shouldn't this be the very top legislative priority?

Yes, of course Bush might veto such a bill. And perhaps such a veto could not be overriden (although I would not be too sure about that). But even in that case, the lines of responsibility between the President and the Congress will be drawn even more starkly and clearly -- which would, I think, only be worthwhile, both for the Democrats themselves and for the Nation.

[UPDATE: The New York Times writes that "[i]n theory, [Congress] could cut off financing, the only way it could actually interfere with the commander in chief’s plans. But Democrats have said they would not take such a step, largely out of fear of being accused of undercutting the troops. . . . That leaves them with only one option: holding a series of hearings, which start next week, immediately after the president’s speech, that are intended to expose the divisions within the military over the wisdom of increasing troops."

This is simply wrong. Congress does not have to "cut off financing" for troops on the ground. It could instead simply pass an appropriations rider providing that no funds may be used to increase the number of troops in Iraq (or specifying the extent to which such funds could be used for a troop increase, and conditions on such an increase -- examples of such legislation can be found on the final page of this Center for American Progress Report). Or the legislature could forego the appropriations route entirely, and simply pass a law prohibiting more than X troops in Iraq, and requiring whatever sort of "phased redeployment" the Democrats have in mind.]

If Congress does nothing to instantiate its strongly stated views about this most important matter of public policy, but resorts to mere pleading to the President to do the right thing, I fear that the Democratic Leadership letter will be viewed as implying that this is a decision for the President alone to make, and that Congress has no legal say in the matter. Nothing could be further from the truth.

We Torture

Brian Tamanaha

The horror of this widely reported story is almost lost in accounts that contain an overflow of words. A report by NPR (thanks to Michael Perry on Mirror of Justice) puts it concisely:

According to court papers filed by Padilla's lawyers, for the first two years of his confinement, Padilla was held in total isolation. He heard no voice except his interrogator's. His 9-by-7 foot cell had nothing in it: no window even to the corridor, no clock or watch to orient him in time.

Padilla's meals were delivered through a slot in the door. He was either in bright light for days on end or in total darkness. He had no mattress or pillow on his steel pallet; loud noises interrupted his attempts to sleep.

Sometimes it was very cold, sometimes hot. He had nothing to read or to look at. Even a mirror was taken away. When he was transported, he was blindfolded and his ears were covered with headphones to screen out all sound. In short, Padilla experienced total sensory deprivation.

During lengthy interrogations, his lawyers allege, Padilla was forced to sit or stand for long periods in stress positions. They say he was hooded and threatened with death. The isolation was so extreme that, according to court papers, even military personnel at the prison expressed great concern about Padilla's mental status.


Even former Justice Department spokesman Corallo concedes that in hindsight, Padilla [an American citizen] was a bit player.

Padilla is now mentally disturbed. Although the government does not deny the specific claims above, it does deny that he was "mistreated."

Our government--including the great Justice Department--has lost its moral compass, to the disgrace of our country.

Wednesday, January 03, 2007

The Bush Presidency and the Constitution

Stephen Griffin

That is the title of the AALS Section on Constitutional Law program for this year, thought up by yours truly. I will be making some brief remarks to open the panel at the AALS annual conference this Friday. Herewith:

It is worth bearing in mind that whatever our opinions of the war initiated by the September 2001 Authorization to Use Military Force, all three branches of the federal government have repeatedly reaffirmed or at least assumed that the United States is still in a state of war. One of the key questions facing the next Congress and especially the next president, is whether they are going to continue the war, that is, commit themselves to an indefinite war against a largely unknown enemy. The point has been made that the U.S. has fought indefinite wars before, that is, wars such as the Second World War in which the end of the war was unknown. Those familiar with the history of that war know that the Allied leaders had strategies in place to bring the war to an end by at least 1946 or 1947. But that is a minor point. The more important point is that a better analogy for the current war against terror is not any declared war the U.S. has fought but rather the Cold War, the constitutional implications of which were largely negative, as they arguably include Vietnam, the constitutional crisis of Watergate, and dealing with the legacy of extensive domestic political surveillance by all of the chief intelligence agencies.

The next president, no matter his or her identity, will have to confront the legacy of the Bush presidency and that will not be an easy task. Many institutional and I would say constitutional changes have been set in motion that will not be easy to undo simply through a change of personnel. The most basic issue will be whether we are still at war, although I would not expect much help from the Supreme Court. Under Chief Justice Robert’s apparently minimalist approach, there is not much chance of the Court directly confronting the full implications of the unitary executive doctrine for war-fighting or the issue of indefinite war, one of the most important questions created by the September 2001 AUMF. But whether the Court helps or not, the new president will most likely undertake a review of the Bush administration’s constitutional policies that will offer the chance to set a new course. And no matter what the identity of the new president or the views of their advisers, the unvarnished versions of the unitary executive doctrine will always have a certain attractiveness, as presidents are well aware that in the event of the next attack, he or she will be held primarily responsible by the American people.

We might reflect that the Bush presidency has shown how democratic accountability, certainly an important principle in our constitutional system, or perhaps rather the fear of being held accountable for a terrible and tragic event, can produce the very secrecy and desire to centralize power that the principle is supposed to prevent in the first place. While I do not deny the relevance of the desire to exercise policy unchecked by any other branch, perhaps we should consider that fear of being held accountable for the next attack is an underrated motivation for some of the actions of the Bush administration that have received the greatest criticism.

With respect to scholarly commentary, I think there has been too much theorizing in the shadow of the next terrorist attack and not enough “normal science,” despite the Supreme Court’s efforts to restore some sort of balance to the conversation among the branches. Law professors can surely be expected to produce reams of legal argument in reaction to any event with dramatic legal implications. But the absence of sustained reflection on the lessons of the wars of the twentieth century, including Vietnam and the Cold War, has been very surprising.

President Bush can be criticized for any number of errors, but for the purposes of this panel I would like to highlight one serious conceptual error that he shares with his father – the idea that history is only written in the distant future when we are all safely dead. Both Presidents Bush made comments to this effect while they were in office. I have it on good authority from a professional historian (C.S. Griffin, my father, may he rest in peace) that this is not a good way to think about history. Rather, history ended yesterday, and we can today decide to think and rethink its meaning.

Our Secret Law of Interrogation

Marty Lederman

Patrick Leahy, the incoming Chair of the Senate Judiciary Committee, requested that the Department of Justice provide him with two documents: (i) President Bush's directive authorizing certain CIA interrogation methods and detention facilities located outside the United States; and (ii) the August 2002 OLC Memorandum to the CIA General Counsel explaining which interrogation techniques the CIA may and may not legally use. (Leahy also requested any other documents covering the same topics.)

Not surprisingly, the Department of Justice has denied that request. There are two basic grounds for the denial.

The first is that the Administration simply will not publicly reveal which techniques it considers lawful and which are unlawful--because the enemy must remain uncertain about what the legal limits are. The theory is that if Al Qaeda knows what is lawful and what is not, it will better be able to train its operatives to resist those techniques that are lawful.

As I've written previously, there is ususally very good reason for not disclosing information on exactly which tactics and methods the CIA has actually used on which detainees, and which techniques have been successful. Much of what the CIA does around the world is kept secret, at least in the short run. But I remain unconvinced that it is necessary to classify the legal limits on the CIA's interrogation techniques -- i.e., to have a secret law that the public and the Congress cannot know about. Here's what I wrote back in September:
[T]his argument [that we can't let Al Qaeda know what is legal and what's not] is no longer tenable (if it ever was), because we are now obviously very willing to disclose all sorts of limits beyond which we cannot go. The Administration's own bill today lists 27 specific forms of conduct that we ourselves will consider "war crimes" triable by military commission (pages 65-76). The Administration's draft amendment to the War Crimes Act (pages 79-84) contains nine categories of meticulously described conduct that could be punished as war crimes in the civilian criminal justice system. And . . . the Army Field Manual released today goes into great and specific detail about what the military can, and cannot do, to its detainees. After all of these highly specific provisions are in the public record specifying what can and cannot be done within the law, it's no longer very persuasive to assert that the CIA's techniques cannot likewise be codified. It's no secret that the CIA has used waterboarding, hypothermia and threats to detainees' families. Knowing that such techniques are legal would not make it any easier for detainees to resist them.

That is to say: If the public were to learn that the Administration considers waterboarding, or hypothermia, or sleep deprivation, legal, that knowledge would hardly assist Al Qaeda, because presumably they already are doing all they can to prepare their agents to withstand these well-known techniques, to the extent such resistence is possible. (The whole point of the extreme techniques, we had been led to believe, is that they are difficult if not impossible to resist.)

If, on the other hand, OLC has concluded that certain techniques are not lawful -- say, because they constitute "cruel treatment" prohibited by Common Article 3 of the Geneva Conventions -- how would learning that information help Al Qaeda? Yes, it would mean that, as a practical matter, we could no longer terrify Al Qaeda detainees by threatening to use such techniques on them. But such a threat to use unlawful techniques would itself be unlawful, so that's no real loss.

There are many, many techniques and weapons of warfare that are known to be illegal -- that's the whole point of the laws of war and modern treaties, not to mention the Military Commissions Act itself and the new Army Field Manual: They all specify, in great detail, a long list of things that are off-limits, or even criminal, in warfare. There's no reason the CIA techniques cannot or should not be treated likewise. (Again, I might understand an exception for a technique that is both legal and not previously known. But I doubt the CIA is using many such "new" technqiues that have not previously been described in public sources.)

The second reason DOJ gives for not releasing the OLC advice in particular is "the Department's longstanding practice that non-public OLC opinions and memoranda involving involving . . . confidential advice are not disclosed outside the Executive Branch."

In part, this explanation is simply question-begging: The principal dispute here concerns whether it is appropriate for such legal advice to be "non-public" in the first instance. I tend to think that, except in narrow circumstances, OLC advice that certain Executive conduct is lawful ought to be made public--not least because it will help ensure that such advice is well-considered and that possible counter-arguments have been adequately anticipated and addressed. (See Principle No. 6, here.) Others disagree, principally for the reasons stated in the DOJ letter--namely, that if OLC advice will presumptively be public, the substance of that advice will be less candid, and officials will be less likely to seek it in the first place. I think these concerns are greatly overstated, and that when OLC is working as it ought to, its lawyers will be willing to provide very candid and honest legal advice, even knowing -- indeed, because -- such legal analysis will be subject to public scrutiny. But I understand that thoughtful OLC alums sincerely disagree on this point. It's a topic worthy of further debate.

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch's views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are.

(The DOJ letter suggests that the congressional intelligence committees have been briefed, at least in general, about the CIA programs. But it's not clear that the intelligence committees have seen these and related legal documents. Moreover, presumably the intelligence committees may not share the information with their colleagues, without whom a legislative response would be impossible.)

Tuesday, January 02, 2007

Puppets and wind-up toys

Sandy Levinson

I had the privilege of first getting to know Barney Frank when we were graduate students together some forty years ago. Then, as now, he was brilliant, witty, and an incisive analyst of public policy. I've never forgotten a discussion of the Vietnam War, in which I (or someone else) referred to the "puppet" government in South Vietnam. Barney's immediate response was that it was not a "puppet," which can be controlled by a pupetteer, but, rather, a "wind-up toy," which, when placed down on a floor or a table, may have gotten its initial energy from the person doing the winding, but then has an independent capacity to run into walls or fall off the table. I was reminded, not for the first time, of this analogy when reading the remarkable story by John Burns and Marc Santora indicating that "U.S. Questioned Iraq on the Rush to Hang Hussein." This was a predictable disaster with regard to winning the hearts and minds of anyone other than Shi'ites who are establishing an ever-increasing sectarian control of Iraq, yet the US supinely turned over Saddam Hussein, just as many white sheriffs in the past turned over prisioners, at least some of whom were guilty, to the lynch mob.

The Bush Administration has achieved what is perhaps the worst of all worlds in Iraq, having wound up an Iraqi government that it is incapable of influencing on anything so basic as the inadvisability of executing the deposed president on the eve of the most sacred Islamic holiday while being taunted by persons described by John Burns as Shi'ite thugs. (Incidentally, contrary to my earlier suspicions, the US indeed behaved honorably in making sure that Saddam Hussein got a decent burial in Tikrit, against, it seems, the wishes of the Iraqi government.)

Constitutional crises and the eyes of beholders

Sandy Levinson

Today's New York Times has an article indicating that Chief Justice Roberts made "judicial pay the sole topic of his second annual report, issued on Sunday, declaring that the failure by Congress to raise federal judges’ salaries in recent years has become a “constitutional crisis” that puts the future of the federal courts in jeopardy." I note for the record that I was chastised earlier for declaring ourselves to be enroute to a "constitutional crisis" because a patently incompetent and quasi-delusional Commander-in-Chief was quite likely to make decisions in Iraq that would only dig us more deeply in the Iraq quagmire. My critics pointed out that it could not, by definition, be a "constitutional crisis" because Mr. Bush, however incompetent and delusional he may be, nevertheless, thanks to our Constitution, continues to possess all legal powers attached to being Commander-in-Chief, which includes, of course, the power to make disastrous decisions that will result in the further pointless loss of lives both American and Iraqi. Fair enough.

But then what should we say about a Chief Justice who suggests that it is a "constitutional crisis" if Congress takes advantage of its constitutional prerogatives to refuse to raise the salaries of federal judges? As it happens, I agree with him that pay raises are long overdue, but not necessarily for members of the US Supreme Court, frankly, who have cushy jobs and are treated like kings and queens. The judges who deserve the raises are especially the district judges, though I am also sympathetic to the plight of appellate judges who, unlike their "superiors" in Washington, cannot exercise control over their docket and thus reserve ever more time for interesting travel, attendance at conferences (where they will be fawned over, unlike "inferior" judges who tend to be treated like more-or-less human beings).

So, if John Roberts can be cited as authority for the rather freewheeling use of the term "constitutional crisis," then I respectfully submit that the continued habitation of the Whte House for another 750 days by George W. Bush (who would be succeeded, should anything happen to him, by the even more egregious Dick Chaney) is a far better candidate for that term than the fact that the Chief Justice had to take an 80% pay cut to join the Supreme Court.

Happy New Year.

Monday, January 01, 2007

Bill Russell, Constitutional Consciousness and Dred Scott

Mark Graber

The great Boston Celtic center, Bill Russell, observed that his effectiveness on defense was best measured by how few opponents attempted to take shots close to the basket and not by how many shots he blocked. Great shot blockers, he noted, often do not block many shots. Their value lies in how their mere presence forces teams to adjust their offense and shoot from great distances. Baseball fans may similarly note how the outfielders with the weakest arms are often the outfielders who throw out the most runners trying to take an extra base. Few try taking that extra base on the better outfielders. Shot blockers and good outfielders are most effective, in this view, when they do not appear to be doing anything.

Constitutions, I believe, are also most effective when they do not appear to be doing anything. The United States Reports, which contains extensive arguments over what the constitution means, may be the worst place to look when measuring the influence of the Constitution of the United States on American politics. Cases typically get to the Supreme Court only when reasonable persons on both sides dispute what the constitution means. We may better understand the influence of constitutions by considering what is being being litigated or even seriously debated at particular times and in particular polities. Consider, for example, the numerous arguments against the Constitution made in Sandy Levinson's book on the right. We may disagree about their overall merits, but I think almost everyone would agree that a reasonable case can be made against a life tenured judiciary, state equality in the Senate, or a virtually unremovable president. Indeed, these practices seem to exist only when they were constitutionally mandated more than a hundred years ago. We might expect, for example extensive challenges to state equality in the Senate had the Constitution decreed, " All states shall be fairly represented in the Senate." Nevertheless, outside of the legal blogosphere, no debate exists on state equality in the Senate. As is the case with a good shot blocker, the constitution functions by creating a kind of consciousness that prevents issues from even arising in partisan politics. A corollary to this thesis is that issues are likely to arise and prove relatively enduring only when standard constitutional sources do not provide clear answers to the relevant constitutional questions.

The central argument in Part I of the sacred Dred Scott book is that the arguments made by the justices in the majority were, as a matter of legal craft, as constitutionally plausible as the arguments made by the justices in the minority. I do not assert that the arguments in the majority were flawless (all parties had to strain and ignore or distort crucial elements of the American constitutional tradition) and I do not assert that, as a matter of constitutional law, Taney was right and Curtis was wrong. My position is simply that, as a matter of what we might call constitutional sociology, when constitutional debates have long wracked a society, a high probability exists that all parties to the controversy are making claims that are rooted in constitutional history, text, precedent, structure, and aspirations. I believe, with some argument (perhaps bad argument) that this was true of Dred Scott in 1857, Brown in 1954, and Roe in 1973. This is why, by the way, I am inclined to think legal formalism is unlikely to provide the tools necessary to resolve longstanding debates.

If I am correct in my underlying beliefs about constitutional sociology, then the likelihood is very low that presidents will nominate justices, conservative or liberal, that are out of the mainstream, and the possibility of the Supreme Court making a series of decisions that do not fit important strands of the American constitutional tradition is even lower. Thus, our constitutional debates ought to focus more on which elements of our constitutional tradition are more desirable in light of our best understanding of justice and which are likely to preserve the public peace (a central theme of the last section of the Dred Scott book).

I should note in light of a discussion going on in the comments section that, as is the case with a high percentage of academics, I very much hope people buy and read my books because I hope to persuade you of certain ideas. This may not be true for Richard Posner et al, but no one I know has made a living or has even been able to pay good private school tuition on royalties from universit press books.

Sunday, December 31, 2006

Best books of 2006

Sandy Levinson

The Austin American-Statesman asked me, along with many other Austinites, to select the best book we read of those published in 2006. My response follows:

"Dred Scott and the Problem of Constitutional Evil," Mark A. Graber

This is a stunning meditation on the limits of the Constitution and on those who believe that we can escape the problems it poses by adopting one method of interpretation, be it "original intent" or the "fundamental values" of our polity. The title's "constitutional evil" is slavery and the infamous Dred Scott decision is the enduring symbol of the Founding Fathers' decision to prefer Union over Justice. It is comforting to believe that the case represents "judges on a rampage," instead of "constitutional fidelity," an enduring trope in our debates over the Constitution. But Graber shows that a constitutionally "faithful" judge could come to the awful conclusion that blacks had no rights that whites were bound to respect. This book is important for anyone who wishes to understand how our history has been shaped, not always for the best, by a Constitution that we too easily venerate (and recommend to other countries as a model for solving their political problems).

If the American Statesman had let me list two books, my other choice would have been Larry Wright's The Looming Tower, a remarkable history of the formation of Al-Qaeda, based on meticulous research and many trips to such countries as Sudan, Yemen, Saudi Arabia, etc. He also has extremely depressing chapters on the dysfunctional relationship between the FBI and CIA, which almost certainly contributed to our unjustifiable "surprise" on September 11. A member of the 9/11 Commission told me that he considered this the best book yet published on Al Qaeda and said that he wished it had been available to the Commission while it was doing its own analysis.

Hello 2007

Brian Tamanaha

2006 was a difficult year for America. 2007 will be better. People are standing up and pulling together.

Let me close the year by recommending two books that should be of interest to both liberals and conservatives, to be read together. Sandy Levinson's Our Undemocratic Constitution (see sidebar to right) has received much praise. Borrowing a term used after the last election, I would describe the book as a "thumping" of our veneration of the Constitution and of our taken-for-granted belief in the democratic nature of our system. The second book is Bertrand de Jouvenel's On Power (which can be purchased at Liberty Fund). It was written a half century ago by a now forgotten, old-fashioned conservative. The book, to pare it to its core, demonstrates how the modern state utilizes the rhetoric and institutions of "democracy" to consolidate power and to wage wars in which many people are killed in the name of the people. It is a startling argument, given that we are often told that democracies are free and peaceful. Even if you disagree with their respective arguments, in combination, the two books call us all to think critically about the system we have, and about the system we want.

Thank you Jack for allowing me to contribute to Balkinization. Thank you readers for taking the time to read and respond to my posts. Thoughtful responses have many times forced me to rethink my position. I have learned a great deal from all the contributors (those who post and those who comment) to this wonderful blog.

A Happy New Year to all!

Gerald Ford and the Transformation of the American Party System


People today may be surprised to learn that Gerald Ford supported affirmative action and was a moderate on abortion rights. But that's because they have forgotten what the Republican Party was until Ronald Reagan and the New Right effectively remade the Republican coalition in 1980.

The Republican Party post-World War II was primarily the party of business (as it still is today) but it included many people that we would today call social liberals. In foreign policy it was strongly anti-communist. But there were many ways to oppose communism. The Republican Party had its fair share of isolationists, but especially after the Eisenhower years, it had a significant number of internationalists, of whom Gerald Ford and Richard Nixon were examples. These internationalists often agreed on many issues with Democratic Cold Warriors like John Kennedy and Lyndon Johnson.

The Republican Party in Congress, which was mostly in the minority during these years, was nevertheless able to form alliances across the aisle: with conservative Democrats on some policies, and with liberal Democrats on others. The 1964 Civil Rights Act (which both Goldwater and Reagan opposed for libertarian and federalist reasons) would not have been possible without a bi-partisan coalition of Democratic and Republican moderates and liberals. The Republican Party was still the party of Lincoln. Had Nixon been elected in 1960 instead of Kennedy-- and he actually may have won that election-- it is quite possible that Nixon would be remembered today not for Watergate but for having pushed through the key civil rights bills of the 1960's rather than Kennedy or Johnson.

Indeed, had Nixon won the 1960 election, and pushed through the Civil Rights Acts, there probably would have been no Southern Strategy in 1968. Instead, conservative Republicans might have moved into the Democratic Party with its political base still largely in the South; and many liberals might have found themselves drawn into the party of Richard Nixon, Nelson Rockefeller, and Gerald Ford.

The modern Republican Party as we know it arose because Kennedy, and not Nixon, entered the White House in 1960. Nixon, who was a moderate on many social issues, devised his Southern Strategy in part to take advantage of the widening chasm between the two halves of the Democratic coalition, which had been split by the civil rights revolution. He chose a position between the liberal Democrats and George Wallace, supporting Brown v. Board of Education and the Civil Rights Acts but opposing forced busing. He predicted, correctly, that this position would marginalize Wallace and bring Southern Democrats (and a few Northern Democrats upset with busing) into the Republican Party. But Nixon's position on race was moderate. Even as he opposed busing, he promoted affirmative action, in part to discomfit organized labor.

During the period between 1968 and 1980, there was still plenty of room in the Republican Party for fiscal conservatives who were social moderates-to-liberals like Gerald Ford. Indeed, the struggle for the soul of the Republican Party continued throughout the Reagan years, and we have seen the last vestiges of that struggle in the all but complete wipeout of Republican moderates in the 2006 Congressional elections.

Gerald Ford represents the declining power of the fiscal conservative/social moderate to liberal wing of the Republican Party. He is the last member of that wing to become President, and his defeat in 1976, along with Nixon's resignation in 1974, spurred on that decline. Nixon's disgrace and Ford's loss opened a path for Ronald Reagan to embrace the New Right and create a new, successful coalition that combined the traditional business constituencies of the Republican party with religious conservatives.

Consider, for a moment, what would have happened if Ford had won in 1976, an election that he in fact almost did win, coming back from a 30 point deficit. Between 1976 and 1980, Ford would have inherited most if not all of the problems that Jimmy Carter faced, including inflation, unemployment, the gas crisis, and quite possibly the Iranian revolution and the hostage crisis that followed it.

These problems, taken as a whole would have been daunting to anyone, and by 1980, Ford would most likely not have been a very popular president. Reagan might well have won the Republican nomination in 1980, but he would be running in the wake of an unpopular Ford Presidency rather than an unpopular Carter Presidency. He would not have been able to portray himself as an agent of necessary change in the way he did in his race against the Democratic incumbent, Jimmy Carter. And even if Ford had done better in a second term than Carter did, the state of the economy would have made the public anxious for change by 1980. Hence the public might have turned to the Democrats for the first time since 1968, either to a traditional liberal like Walter Mondale or Teddy Kennedy, or perhaps a Scoop Jackson-style moderate.

If Reagan had run and lost in 1980, there probably would have been no Reagan Revolution. By 1984 he probably would have been judged too old to run for a first term. A successful conservative coalition might still have formed, but it would be a shadow of what Reagan actually produced, and it would not have been as successful at displacing the moderate wing of the Republican Party. A Ford victory in 1976 would probably have produced a Republican Party quite different from the one we see today, still the party of business, but far more evenly split on social and cultural issues.

Thus, Gerald Ford was truly a pivotal figure in American politics, not merely for helping the country through the trauma of Watergate, but because he narrowly lost the 1976 election. By losing that election, he helped set in motion the gradual extinction of the moderate wing of the party he represented, and made possible the transition to the party system we know today.

But everything cycles, and it is possible that, just as Ford passed away, the country may be ready for a new version of moderate Republicanism, a combination of fiscal conservativism and social liberalism. Indeed, in one sense, this combination already resurfaced and already succeeded in the 1990s: Bill Clinton, although nominally a Democrat, governed in many respects like a liberal Republican. We don't normally think of Ford and Clinton together-- they were very different personalities-- but the combination of Clinton plus a Republican Congress produced pretty much what moderate Republicans of Ford's stripe stood for: balanced budgets, low inflation, and moderate liberalism on social issues. The last of these Clinton always tried to package as a combination of tolerance, equal opportunity, and just plain common sense; this was, of course, part and parcel of his triangulation strategy. The country liked Clinton well enough when he stuck to that formula, and it liked him far less when he strayed from it. There might be a lesson here for both political parties.

Saturday, December 30, 2006

A Truly Poor Metaphor: "The Constitution is a Contract"

Brian Tamanaha

In response to my post yesterday listing the problems with the "orginal meaning" theory of constitutional interpretation, Bart DePalma, an articulate reader of this blog, argued in response that this theory is the only correct one. His argument rested on this claim: "The Constitution is a contract..." If we don't enforce the terms of the contract as the parties intended, DePalma argued, the contract is "a nullity."

It has often been said that the Constitution as "a contract." The Constitution is not literally a contract, of course, so this is meant in a metaphorical sense. This metaphor delivers a powerful conclusion: "We agreed to it, so we are bound by it." The beauty of this metaphor is that it glosses over many problems. Rather than go on at length about these problems, which are generally known, I will instead recite this passage by Robert Dahl (in his How Democratic is the American Constitution?) about the origins of this "contract."

I want to recall how the Constitutional Convention that met in Philadelphia during the summer of 1787 was made up. Although we tend to assume that all thirteen states sent delegates, in fact Rhode Island refused to attend, and the delegates from New Hampshire didn't arrive until some weeks after the Convention opened. As a result, several crucial votes in June and July were taken with only eleven state delegations in attendance. Moreover, the votes were counted by states, and although most of time most state delegations agreed on a single position, on occasion they were too divided internally to cast a vote.

My question, then, is this: Why should we feel bound today by a document produced more than two centuries ago by a goup of fifty-five mortal men, actually signed by only thirty-nine, a fair number of whom were slaveholders, and adopted in only thirteen states by the votes of fewer than two thousand men, all of whom are long since dead and mainly forgotten?

The usual response to this question is to point to the power to amend the Constitution. Roughly, the argument goes like this: if we don't like the terms of the "contract", we are free to change it. Since we don't change it, we agree to its terms as originally meant. As Sandy points out in his Our Undemocratic Constitution, however, it has become almost impossible to amend the Constitution, and this extreme difficulty was by design. Madison and Hamilton and others did not entirely trust the people (in whose name this contract is being enforced today) and their passions.

There are many serious arguments to be made about the Constitution and how it should be interpreted, but we should stop using the metaphor that it is a contract.

Addendum in response to several comments:

Sorry for not taking seriously the idea that the Constitution is literally a contract.

So let me see if I get it. Just over two hundred years ago, a few thousand people created a "contract" that was binding not only upon the majority of the people at the time who did not consent to the terms of the contract, but upon all future generations as well--many hundreds of millions of people, for hundreds and perhaps thousands of years. In addition, this intrepid group made it extremely difficult (and later nigh impossible) to alter the terms of the contract. And forever after, their shared views about the meaning of the terms of the contract controls all decisions, no matter how much change takes place in society, the economy, the political system, the population, technology, culture, and everything else.

Is that an attractive (or sensible) way to understand the foundational terms of our society and government?

The Laziest Son - A Rumination

Scott Horton

A man on his deathbed left instructions
For dividing up his goods among his three sons.
He had devoted his entire spirit to those sons.
They stood like cypress trees around him,
Quiet and strong.
He told the town judge,
"Whichever of my sons is laziest,
Give him all the inheritance."

Then he died, and the judge turned to the three,
"Each of you must give some account of your laziness,
so I can understand just how you are lazy."

Mystics are experts in laziness. They rely on it,
Because they continuously see God working all around them.
The harvest keeps coming in, yet they
Never even did the plowing!

"Come on. Say something about the ways you are lazy."

Every spoken word is a covering for the inner self.
A little curtain-flick no wider than a slice
Of roast meat can reveal hundreds of exploding suns.
Even if what is being said is trivial and wrong,
The listener hears the source. One breeze comes
From across a garden. Another from across the ash-heap.
Think how different the voices of the fox
And the lion, and what they tell you!

Hearing someone is lifting the lid off the cooking pot.
You learn what's for supper. Though some people
Can know just by the smell, a sweet stew
From a sour soup cooked with vinegar.

A man taps a clay pot before he buys it
To know by the sound if it has a crack.

The eldest of the three brothers told the judge,
"I can know a man by his voice,
and if he won't speak,
I wait three days, and then I know him intuitively."

The second brother, "I know him when he speaks,
And if he won't talk, I strike up a conversation."

"But what if he knows that trick?" asked the judge.

Which reminds me of the mother who tells her child
"When you're walking through the graveyard at night
and you see a boogeyman, run at it,
and it will go away."

"But what," replies the child, "if the boogeyman's
Mother has told it to do the same thing?
Boogeymen have mothers too."

The second brother had no answer.

"I sit in front of him in silence,
And set up a ladder made of patience,
And if in his presence a language from beyond joy
And beyond grief begins to pour from my chest,
I know that his soul is as deep and bright
As the star Canopus rising over Yemen.
And so when I start speaking a powerful right arm
Of words sweeping down, I know him from what I say,
And how I say it, because there's a window open
Between us, mixing the night air of our beings."

The youngest was, obviously,
The laziest. He won.

- - -

Not Christian or Jew or Muslim, not Hindu,
Buddhist, sufi, or zen. Not any religion

Or cultural system. I am not from the East
Or the West, not out of the ocean or up

From the ground, not natural or ethereal, not
Composed of elements at all. I do not exist,

Am not an entity in this world or the next,
Did not descend from Adam and Eve or any

Origin story. My place is placeless, a trace
Of the traceless. Neither body nor soul.

I belong to the beloved, have seen the two
Worlds as one and that one call to and know,

First, last, outer, inner, only that
Breath breathing human being.

There is a way between voice and presence
Where information flows.

In disciplined silence it opens,
With wandering talk it closes.

- Mawlana Jalal ad-Din Muhammad Balkhi (Rumi), Masnavi-ye Manavi (ca. 1265)(Coleman Barks transl.)

If we had to craft a list of the ten greatest poets of human history, then certainly this thirteenth-century Muslim theologian, who began his life in modern day Afghanistan and ended it in what later became Turkey, would have an assured position on the list. And as for universality – what better measure than the fact that in 2004, Rumi ranked in surveys as the best read poet in Turkey, Iran, Afghanistan and, thanks to the brilliant translations of Coleman Barks, the United States. As with any Rumi poem, this one has many layers of meaning to it. But here's my understanding.

Like Boccaccio's ring story in the Decameron (the third from the cycle of the first day) or Lessing's parable from Nathan the Wise (act 3, scene 4)– this choice of virtue among three sons should be immediately understood (and certainly would have been understood by a contemporary of Rumi's) this way: which of the three faiths "of the Book" is the true faith? The father is, of course, the God of the Book, and the sons, "tall like Cypresses," are Islam, Christianity and Judaism. Rumi echoes that in the follow-on ("Not Christian, Jew or Muslim…") And to this question Rumi offers several answers, mostly laden with irony. He tells us that professed belief counts for little, particularly if not sincerely held. "I can know a man by his voice," says the eldest son, who is promptly ejected from the contest. (But compare this with the wiser man – as Rumi reminds us, the clay pot must be tapped to test for a crack; the buyer who relies on the outward appearance alone is a fool). And, like Boccaccio and Lessing, he says that it is our conduct that matters and must ultimately provide the basis for a judgment.

But on this point the irony of a Sufi mystic kicks in. For conduct, Rumi takes "laziness," for which here I see the introspective process of truth-seeking that is Rumi's hallmark, and that of the Mevlevi Brotherhood which he helped define. It involves discipline and rigor ("disciplined silence"), but to the uninitiated it must, of course, seem nothing but "laziness." ("Mystics are experts in laziness.") Can you hear the laughter? Rumi mocks himself, or at least, shows that he has a sense of humor.

Importantly, Rumi warns us against demonization of the outsider, of the nonbeliever (the "boogeyman," who, he reminds us through the voice of a child, "has a mother, too.")

But back to our question. Who is the chosen son? In the end we learn that it is "the youngest son," and the youngest of the three faiths is, of course, Islam. But this is not Rumi's ultimate meaning. The true answer is to point to the false premise of the question. The answer lies in what unites, not in what divides humankind – what ties humans one to another and to the world in which they live. A Sufi faithful would know this as the doctrine of the oneness of God, tauhid. Hence, the right answer: "there's a window open/ Between us, mixing the night air of our beings." Those who are driven by differentiation and false pride for their religious choice – whatever the religious choice - have failed the test in the most miserable way.

And on this point, Rumi, Boccaccio and Lessing – the Muslim, the Catholic, and the Protestant who launched the drive for the emancipation of Europe's Jews - see things very much eye-to-eye. But their message is a vital one for our day. We live in an age in which thoughts of crusaders and caliphates have been resurrected for shameful and blood-drenched purposes. This must be overcome with urgency.

So for the New Year, I wish what Rumi wishes – not a rejection of faith, but a faith more profound, based on tolerance, compassion and respect for the ties that bind humankind. I wish that the land where Rumi once walked – from his native city of Balkh in Afghanistan to his final home in Anatolian Konya - would know his thoughts and hopes again, and the peace that they promise. But I wish the same thing for my fellow citizens at home in the United States, where the poison of religious bigotry seeps ever closer to the groundwater. I hope we all can find that way "between voice and presence" of which Rumi writes. We need it badly. "With disciplined silence it opens/ With wandering talk it closes." So here's a resolve for the New Year: Let us find the tools to keep that window open. There is nothing that humanity requires more urgently than this.

The Metamorphosis


One morning, as Pierre Schlag was waking up from anxious dreams, he discovered that in bed he had been changed into a monstrous footnote, footnote 233 to be exact.

Schlag, a law professor at Colorado, has long been one of the most interesting members of the American legal academy. His entire career has been one long epatez le bourgeois directed at the traditional forms of legal scholarship. His 2004 essay (now up on SSRN), "My Dinner at Langdell's," is an amusing rumination on how law professors become reduced to footnotes: authorities cited by other law professors to stand for certain arguments, positions, and propositions. Indeed, Schlag suggests, if we are successful, that is what we are fated to become, and indeed, all that we become:

But I am an immortal now. I am 233. At night, when the lights go out in the library, it is very cold. A dry cold, like on a clear night with a full moon. The tomes of law reviews all rest silently on the shelves. We are still, but we are perfect.

Schlag aims his barbs, as he so often has, at the aesthetics of American legal scholarship, but what he says could be true of almost any field of scholarly endeavor. And it is by no means clear that most scholars would find the metamorphosis unwelcome. To succeed in the business of scholarship is to be made a footnote, a shorthand, a symbol of a particular idea or set of ideas that can be cited repeatedly, and through this repetition, become alienated from who we thought we were.

Another way of putting it is that every scholar hopes to become a successful meme, which catches on, and which is repeated and repeatedly discussed throughout the generations. That is so even if the meme becomes increasingly ambiguous, increasingly foreshortened, increasingly separate from what we believed our thought and our personality to be about. We all want to be memes, because being a successful meme means surviving, it means being perpetual.

The problem of being a meme, however, is twofold. First, as one is perpetually repeatedly, one will be perpetually misunderstood-- one will be foreshortened, summarized, synthesized, bowlderized, taken out of context, and used for a whole host of purposes and causes that will send shivers down one's spine. Second, as one's ideas are repeated and cited, they lose connection with who one feels one is-- the flesh and blood person who originated those ideas, and who was motivated to state them at a particular time in a particular context and with a particular motivation and purpose. The meme stands for us, but it is not us; it is a false mask that is associated with us, and the likeness is not always flattering. People mistake us for something we said twenty years ago-- that is, if anybody cares what we said twenty years ago.

But that, of course, is the rub. For the alternative to being cited, and miscited, and taken out of context, and reduced to a shorthand, or a phrase, is not to be cited or discussed at all. As Oscar Wilde once said (and thus, in the process is mis-re-presented by my very citation of his words), the only thing worse than being talked about is not being talked about.

Perhaps our concern about preserving our authenticity is misplaced. Perhaps a significant part of us, if not most of us, is what we mean to others, what other people think we signify, what they think we stand for, what they remember of us and about us. If that is so, then perhaps we should embrace ultimately becoming a meme, or a symbol, or a footnote, or a memory.

You might think that Schlag, who began his career as a postmodernist, would embrace this thoroughly postmodern view of the self as a bundle of representations in the eyes of others. But it seems clear from his essay that he resists, and the reason is not difficult to tell. Even if we put aside the belief in a spurious authenticity which is separate from what others think of us, even if we reflect that a part of what we are, and what we will be when we die, is what others think of/say about/remember about/ us, some representations will please us better than others. And, more to Schlag's point-- for his is also an attack on legal thought-- some ways of remembering will actually promote creative thought, while others will tend to arrest it and limit it.

Friday, December 29, 2006

Clueless in Silver Spring

Mark Graber

My name is Mark A. Graber and, apologies to Brian Tamanaha, I do not have a clue as to what it might mean to be a legal formalist as opposed to being a legal realist.

Ronald Dworkin and many others claim that certain constitutional provisions and precedents are best interpreted as requiring constitutional decision makers to apply their best understanding of free speech, cruel and unusual punishment, due process and the like. If Dworkin is right about the original meaning of the First Amendment (or BROWN v. BOARD OF EDUCATION), then legal formalists are in the same boat as legal realists. Of course, Dworkin may be wrong, but that is not an issue of legal formalism versus legal realism, but of the best application of formalist principles. Whether the constitution requires recourse to moral principles and what those principles are is a question of interpretation, not a question whether to interpret.

The sacred Dred Scott book (now available for 14.50 at Amazon!--hey, I've got another kid applying to an expensive college) claims that when constitutional controversies have excited a society for any period of time, constitutional sociology almost guarantees that both sides will be making plausible originalist, aspirational, and institutionalist arguments. If this is correct, then the difference between legal formalists and legal realists is again likely to be quite small in practice. I think, for example, when we combine LOVING V. VIRGINIA (persons have a constitutional right to marry persons of any race) with UNITED STATES V. VIRGINIA (gender classifications should be judged almost as strictly as race classifications), the obvious conclusion is that persons have a constitutional right to marry persons of any gender. This is as close to a logical deduction as you get in precedential reasoning, but lots of people disagree. The broader point is that if formalism cannot determine the constitutional status of gay marriage, it is unlikely to resolve other problems clearly as well.

At the bottom, everyone agrees that original meanings, text, and precedent matter. Disputes exist over the proper mix, but more important, disputes exist over the extent to which recourse to original meanings, text, precedent, structure, and aspirations resolve contemporary problems. Legitimate questions exist as to how much indeterminacy exists in law, but this is not a question between legal formalists and legal realists. A legal formalist might conclude, for example, that 200 years of inconsistent precedents, vague constitutional texts, and unanticipated regime changes have resulted in a great deal of indeterminacy. Another might conclude that, in fact, far more constitutional questions are resolved by simple application of precedent than the law reviews suggest. The important point is that this is as much an argument between formalists as between formalists and some other school of thought.

Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely)

Brian Tamanaha

Anyone who boldly proclaims to be a “legal formalist” today can be dismissed as naïve or deluded, or as an old fogey who slept through the last century of jurisprudence. Right? We are all Legal Realists now, and the Realists buried legal formalism.

Hold on a minute. A notable contemporary legal theorist who cannot be dismissed as naïve or deluded recently declared his allegiance to legal formalism. His coming out announcement bears quoting:

I was having a lunchtime conversation with distinguished colleagues and we were discussing the topic du jour—the Alito hearings. One of my colleagues, whom I consider to be one of the greatest legal philosophers of the post-war period, was discussing Justice Roberts’s analogy between judging and umpiring. You may remember the following testimony:

“Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role…”

My colleague then proceeded to ridicule Roberts’s view. I can’t remember the exact words, but they amounted to something like the following: No one (serious) could possibly think that judges are like umpires. Of course, judges make the law—they have to. Who could (seriously) think otherwise?

I bravely raised my right hand, branding myself as beyond the jurisprudential pale—as someone who takes seriously the idea that judges should apply the law rather than make it. I felt like I should go to a peculiar sort of twelve-step meeting, where I would be required to say, “My name is Lawrence Solum and I am a legal formalist.”

For anyone not familiar with jurisprudence, this passage might seem overwrought. But Solum is right that Roberts’s comments elicited snickering from within the legal academy, especially among jurisprudes. Alito’s comments, below, also prompted a few guffaws:

When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda. A judge can’t have any preferred outcome in any particular case, and a judge certainly doesn’t have a client. The judge’s only obligation, and it’s a solemn obligation, is to the rule of law. And what that means is that in every single case the judge has to do what the law requires.

These respective statements by Roberts and Alito were dismissed by many jurisprudential sophisticates, many legal academics, and many (many!) liberals, as pablum for public consumption, not to be taken seriously by anyone in the know. The Supreme Court deals with complex, open, disputed legal issues, many of which appear impossible to resolve by legal analysis alone. Judge Richard Posner’s recent review of the Supreme Court in the Harvard Law Review was entitled “A Political Court.” He wrote: “The evidence of the influence of policy judgments, and hence of politics, on constitutional adjudication on the Supreme Court is everywhere at hand.”

In the face of this widely held view, Solum’s declaration of allegiance to legal formalism seems foolishly quixotic. But Solum is too smart to be put away so easily. Here is what he means by “legal formalism:” “The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provides rules and that these rules can, do, and should provide a public standard for what is lawful (or not).”

Few people would dispute that as a general proposition. The problem arises owing to legal indeterminacy. Most people in the legal academy accept that there is a measurable degree of indeterminacy in law, particularly in the winnowed cases taken up by the Supreme Court. Given this indeterminacy, it seems that the only realistic path is to embrace the irreducibly political nature of judging, at least for the Supreme Court—hence skepticism about the formalistic statements by Roberts and Alito.

Among liberals, there are additional reasons for such skepticism. As a historical matter, the so-called “legal formalists” were the bad conservative judges who rendered laissez faire decisions, issued labor injunctions, and invalidated social welfare legislation, all in the name of strict fidelity to law. Today, the most noted legal formalists on the Supreme Court, Justices Scalia and Thomas (and now Roberts and Alito) are politically conservative. Liberals suspect that formalistic talk by these conservatives is merely cover for rendering decisions that conform to their political views. Moreover, Scalia’s formalistic original meaning theory of constitutional interpretation has a built in conservative bent, grounding the meaning of constitutional provisions in views that prevailed more than a century ago.

The problem with such objections by liberals (and their insistence that constitutional judging is inevitably political) is that it cedes the high ground to conservatives. Formalistic assertions--that judges are supposed to “apply the law, not make law;” that judges “rule according to the law, not their political views”--resonate because, well, that is what judges are supposed to do! Yes, the Legal Realists taught us that the reality of judging is more complicated than that, but their work did not alter the ideal of judging, nor did it change general expectations about the proper role and orientation of judges. After all, as is taught in civics classes from the fourth grade through high school, in a democracy the legislature makes the law and judges apply it.

Against the weight of this prevailing view, liberals who insist that constitutional judging is politics will lose to an avowed legal formalist every time. Imagine the uproar that would ensue if a liberal appointee for the Supreme Court were to testify before the Senate that her political views will determine her interpretation of the Constitution. Jurisprudes and liberal legal academics might celebrate her candor (while questioning her strategic savvy), but will they offer her a position on their law faculties after she is voted down as unqualified to be a Justice?

After decades of ideological screening of judicial candidates, the bulk of judges on the Supreme Court and on lower federal courts are political conservatives. Liberals have responded to this by proposing ways to limit judicial power (abolish judicial review, establish age or term limits for judges, etc.), by lobbying against far right appointees during the confirmation process, and by hoping for electoral victories and a liberal President who will achieve a liberal makeover of the bench. Good luck!

Liberals should consider a different approach: retake the high road and insist that judges should rule according to the law. Rather than ridicule formalistic statements by conservative judges, let’s applaud them, then hold the judges to their avowed legal formalism, vociferously criticizing decisions that appear to be politically driven (remember Bush v Gore!), condemning violators as hypocrites and offenders of the rule of law. I fervently hope that Justices Scalia, Thomas, Roberts and Alito do not decide cases based upon their political views. Legal formalism stands against this as well.

For these reasons (which are not my reasons, as I will indicate momentarily), liberals should give legal formalism a serious second look. Were it not for the long association of formalism with conservatism, the influence of Legal Realism (ramped up by CLS) (supplemented by social scientific studies of ideology in judging), and the conservative bent of original meaning theory, the benefits of a rapprochement with legal formalism would be obvious to liberals. But few liberals have dedicated sustained efforts to developing a sound understanding of legal formalism, and the subject has not drawn much attention in jurisprudence (with the notable exception of old work by Frederick Schauer).

This brings me back to Solum’s declaration that he is a legal formalist. [I should add that I don’t know what his politics are, which does not seem directly relevant to his theory anyway.] He rejects the view that political judging is inevitable on the Supreme Court (with certain caveats). His article lays out concrete guidelines for a formalistic (rule-based) approach to constitutional analysis. His formalism incorporates but does not center upon Scalia’s “original meaning” theory. Solum instead begins with precedent, plain meaning, and constitutional text and structure (then factors in originalism, and additional considerations).

Solum’s formalism avoids the obvious flaws of original meaning theory (specifically: its dependence upon historical questions that cannot be conclusively resolved by historians (much less judges), problems with applying centuries-old meanings to present situations, and the fact that a great deal of modern legislation and precedent would be hard to square with old understandings), and avoids its built-in conservative bent. Scalia has correctly responded to critics that one cannot win the day with criticism alone, but must present a superior alternative. Solum’s article elaborates an avowedly formalistic alternative to Scalia’s. Solum’s argument is realistic, and fits easily with our current understandings of constitutional law. Whether or not one agrees with all of its details, his proposal merits serious consideration.

A central theme of Solum’s piece is what he labels our predicament of “the antinomy of realism and formalism,” in which our legal culture, in an almost schizophrenic fashion, is both formalistic and instrumental in its understandings of and approaches to law. My recent book, Law as a Means to an End, presents an intellectual history that describes how this uneasy antinomy came about, and elaborates on its corrosive consequences for the rule of law.

If my argument in the book is correct, the development of a plausible (realistic) legal formalism for the contemporary age, through the efforts of Solum and others, will be essential if we are to avoid inflicting damage upon our rule of law tradition.

Finally, I must preempt a misimpression that might be created by the tenor of this post, which has articulated reasons why liberals should take legal formalism seriously. Although I am a liberal, those are not my reasons for doing so. I genuinely believe that the rule of law is essential to our society. Liberals and conservatives disagree about much, but on recognizing the signal importance of the rule of law we should be united. At the core of the rule of law is legal formalism, especially legal formalism by judges. For this reason:

“My name is Brian Tamanaha and I am a legal formalist.”

(Yuck, that was not an easy statement to make—try it and see.)

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