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?
Posted 11:59 AM by Brian Tamanaha [link] (38) comments

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.
Posted 8:55 AM by Scott Horton [link] (4) comments

The Metamorphosis

JB

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.

Posted 7:01 AM by JB [link] (2) comments

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.
Posted 5:31 PM by Mark Graber [link] (3) comments

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.)
Posted 2:22 PM by Brian Tamanaha [link] (10) comments

“I don’t think the public would stand for it.”

Ian Ayres

When asked during his vice-presidential confirmation hearings about whether he would grant Nixon a pardon should he need one, Ford replied: "I don't think the public would stand for it."

In some ways, these are the most important nine words of Ford’s career, but they are almost absent from the web.

Unlike other Presidential commitments like George Bush’s “read my lips” or George W’s unequivocal promise not to reinstate the draft, it is not clear whether Ford’s comment was even a promise. It can be read as being literally non-responsive to the question asked and instead opining on the public’s possible future reaction to any such pardon. [In a press conference after the pardon, Ford claimed that he hadn’t promised “I said in answer to that hypothetical question, I did not say I wouldn't. I simply said that under the way the question was phrased, the American people would object.” At the same press conference he seemed to forget the nine words when he said “I must say that the decision has created more antagonism than I anticipated.”]

But Ford’s nine words can also be read as being implicitly responsive. “Would you pardon the man who nominated?” “[Oh no,] I don’t think the public would stand for it.”

It was ill-advised for Ford to utter these nine words. To even intimate a commitment not to pardon at that early date was inappropriate if there was even a possibility that he would later feel compelled to do so.

People have focused on the wrong question when it comes to the Nixon pardon. Too many people just ask whether Nixon should have been pardoned. But to my mind there is a subsidiary question of whether Ford was the right person to pardon him. Even if you believe that Nixon should be pardoned, there are two reasons to think that Ford was not the appropriate person to grant that pardon. First, the nine words. Ford had intimated in his confirmation hearings that he would not. Second, it is unseemly for Ford to pardon the person who nominated him for the job. At a minimum, it creates an appearance of impropriety.

Nixon had actually considered pardoning himself before resigning and Al Haig had indirectly suggested to Ford the idea of a Ford pardon before Nixon resigned. Ford was worried that his silence during these meetings might have “implie[d] assent” and Ford called Haig and read him a statement which he intended to make clear that there was no pardon deal in place. Ford read to Haig: “I want you to understand that I have no intention of recommending what the President should do about resigning or not resigning and that nothing we talked about yesterday afternoon should be given any consideration in whatever decision the President may wish to make.”

This statement of course failed to mention the p-word. The subsequent revelation of these failed pardon negotiations make it ethically even more inappropriate for Ford to be the one to grant the pardon.

But there was another way for Ford to move the country forward. Imagine that Ford, on Sept. 8, 1974 barely a month into office, had not gone on TV and uttered these words:

“Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969, through Au gust 9, 1974."

Imagine instead that Ford had gone on TV and told the American people that he had come to believe that for the good of the country Nixon must be pardoned. But he did not feel he was appropriate person to pardon him. Ford could have announced he intended to resign in three weeks unless both houses of Congress pass a joint resolution supporting a presidential pardon.

Congress would have a choice of keeping Ford as president with a Nixon pardon or they could have Nelson Rockefeller as the country's new president. If both houses of congress passed the resolution, there would be no impropriety in Ford then granting the pardon. If Congress failed to pass the resolution, Ford would resign and then Rockefeller would have had greater ethical freedom to pardon Nixon. Rockefeller did not intimate that he would not pardon. Rockefeller was not nominated by the person seeking a pardon.

If Ford thought that there really was a compelling case for a pardon, he could make his case to Congress and to the American people. If he could not forge a consensus in Congress that it was a time to heal, then he might step aside and let another President make the call.
Posted 8:11 AM by Ian Ayres [link] (17) comments

Should we have executed Jefferson Davis and Robert E. Lee?

Sandy Levinson

The New York Times has just indicated that an Iraqi appeals court has upheld the death sentence for Sadam Hussein "in a decision that clears the way for his execution within 30 days, Iraqi officials said."

So the question is this: Should the victorious Union in 1865 have tried, convicted, and then executed Jefferson Davis and Robert E. Lee for the treason they undoubtedly (as a legal matter) engaged in? Indeed, though the term is obviously anachronistic vis-a-vis 1865, should they have been tried for "crimes against humanity" with regard to their collaboration, to the point of secession, with slavery?

I suspect that most Americans, rightly or wrongly, believe the answer is no, that the wisdom of Lincoln's Second Inaugural was precisely to avoid "malice" toward the defeated South, including its leaders. From a more realpolitik perspective, the answer is surely no, unless one is willing at the same time to support a far, far more rigorous and bloody "reconstruction" (also known as "regime change") against the insurrection that would surely have been multiplied had Davis and Lee swumg from the gallows.

So why should anyone cheer the imminent execution of Saddam Hussein, however much one may believe that if capital punishment is ever justified, then he surely qualifies? Can any sane person believe that his execution will in any manner whatsoever serve to bring any further stability to Iraq? The United States is without the slightest authority, moral or political, to intervene in this "self-inflicted wound" (to quote Charles Evans Hughes's description of some notable Supreme Court fiascoes). Can anyone, or are we doomed, as in a Greek tragedy to the execution of the tyrant followed by ever-increasing retaliation against Shi'ites and so on. Does any sane person believe that a "surge" in US forces, coupled with Saddam's execution, makes the slightest bit of sense, unless we want to declare ourselves unequivocal partisans of the Shi'ites (and, indirectly, of increased Iranian influence?).

And so on to a New Year. And is anyone going to be celebrating the fact that on New Year's Day, thanks to our Constitution, there will be 751 days to look forward to of the Bush-Cheney Administration?
Posted 2:03 PM by Sandy Levinson [link] (36) comments

A Christmas Musical Mystery

JB

Have you noticed that the opening four notes of "Rudolph the Red Nosed Reindeer" are the same as those of "Silent Night?" (Try singing "Rudolph the Red" and then "Silent Night" and see for yourself.)

Coincidence? I think not.

Posted 2:02 PM by JB [link] (1) comments

On Friendship, and a New Year - A Meditation

Scott Horton

"Even while understanding that friendship includes a great number of important advantages, it must be said that it excels all other things in this respect: that it projects a bright ray of hope into the future, and upholds the spirit which otherwise might falter or grow faint. He who looks upon a true friend, looks, as it were, upon a better image of himself. For this is what we mean by friends: even when they are absent, yet they are with us; even when they lack some things, still they have an abundance of others; even when they are weak, in truth they are strong; and hardest of all to say, but also most deeply felt: even when they are dead, in truth they are alive with us, for so great is the esteem of a true friend, the tender recollection and the deep longing that still abide with them."

- Marcus Tullius Cicero, De amicitia, lib. vii (ca. 45 BCE)(my transl.)(in the Loeb edition of the works of Cicero, vol. 20, p. 132).


A season of celebration is here and with it more time than we ordinarily accord ourselves for a communion of friendship. Underneath the crass commercialism of this season and the current demeaning bickering over the correct salutations, this is what I find a reason to rejoice and relish. In the past year and a half, I have added the blogging team that Jack established and that Sandy Levinson, Marty Lederman and so many others have enlivened, to my own friends, and beyond them, a circle of readers - some crotchety, some exasperating, and others who offer essential moral support (and even a keen editorial eye and blue pencil, which must be what every poster hopes for). I am adventurous enough to call them all friends, though for some the ties are deep and for others the ties of friendship are testy. Nevertheless, the blog concept has proven its usefulness, and I think the writings of Jack, Marty and Sandy in particular have made solid contributions to a national debate focused on the question of torture and the use of Executive authority to sustain it. This has been a vital question to our country and to legal scholarship, but a question which the mainstream was also painfully slow to understand. The blog medium, with Balkinization in the lead, bridged the gap and proved itself. I feel accomplishment just in being on the periphery of this effort.

Our bloggers have differing approaches to their writing, but in general their work is marked by sharp insight, spontaneity and an eagerness for dialogue. I ask if this isn't the best use for the blog? It seems to me it is well suited as a stepping stone for more serious research, allowing individual problems to be tossed out and thought through. Blogging is a process after all.

This requires of our readers some indulgence. So I ask them to view me as a friend and to treat whatever I write in that sense – in the sense in which Emerson writes, in his journal, that one of the comforts of friendship is that one can afford at least occasionally to be a bit foolish in a friend's presence. Looking back at the index that Jack just posted I see several things I would not have written today, or would have written differently. But then if we approached the process with too much caution, we would never have managed the 800-plus pages on the torture memoranda that our team collectively mustered. There are mistakes in those pages, but they contributed enormously to our understanding of the subject matter, and they did it in real time. Emerson would say, I believe, that it was worth being a bit foolish to achieve this.

We come to the end of the year, a time when it behooves us all to think not only of our friends who are about us but also those who have passed before us and who may in some way have added to our lives. This is one of the ways that we recognize in humanity not a collection of people now in being, but a continuum of life which reaches deep into the past and projects forward into the future, and with it the fundamental principle of hope which is essential to our continuation and happiness. The greater whole is an enrichment and nourishment for us all. And this is the message of the seventh book of De amicitia which I have retranslated above. A few weeks ago, my friend Andrew Sullivan flagged this for me, and after reading his impressive essay on friendship (the third section of Love Undetectable) – I came back to it at the end of a particularly disquieting week. I took the Loeb translation by Falconer, which has been reworked twice, but is still I think too far from the key meanings. My translation here takes some admitted liberties (so that this translation may in candor be a mixture of the great orator and an obscure New York lawyer), though none beyond what is necessary to fully unfold the meaning, but I am confident of the accuracy of its sentiments.

To all readers of Balkinization I wish warmth not from a furnace or a fireplace, but from friendship, and good cheer as this year ends and the next begins.
Posted 3:38 PM by Scott Horton [link] (2) comments