Fake Centrism/Bipartisanship

Mark Graber

One would think from the recent excitement over the possibility of a bipartisan political movement that Hillary Clinton was running on a platform calling for confiscation of corporate property, reestablishment of the moderately progressive tax structure of the 1970s, the return of all American troops from abroad, the abolition of capital punishment, and (heaven forbid), gay marriage. With the exception of a stray remark by John Edwards, Democrats polling more than 10% continue to run to the right of Richard Nixon. Indeed, judging by their legislative activity this year, the Democrats as a whole have almost no ambition to push any program that is substantially to the left of center. The real issue ought to be why some journalists are so excited about the possibility of a third party that might take a middle position between the party clearly to right of the electorate and the party that on its best day sometimes lurches very slightly to the left.

The best answer that I can think of stems from the correct description of the actual political alternatives before the United States this year. John Danforth and other Republicans prefer a polity as conservative as politically possible (or more fairly, a polity only slightly less conservative than at present). They express no concern with polarization (and no concern with the constitutional practices that sometimes foster polarization) when polarization enables conservatives to govern without significant opposition or prevents moderates from governing. The Republican problem with polarization is that the Republican party has moved so far to the right that the likelihood is high that Democrats after the 2008 election will control all three elected branches [as commentary below indicates, I should have said "institutions"--MAG] of the national government and that such control may prove durable. Similarly, Sam Nunn and David Boren were not exactly up in arms in 2004, when faced with the prospect of governance by a truly polarizing Republican coalition. Their problem with polarization is again entirely with the Republican party. The Republican party has gotten so extreme, turning off so many moderate conservative voters that political power might be placed in the hands of the sixty percent of the population who have more liberal views on terrorism and on political economy than the leading business-loving, torture-tolerant conservative Democrats. Judging by polling on the issues, we have a centrist party at present. They are called the Democrats. Abortion aside, the leading candidates for the presidency are not proposing any policy strongly opposed by clear popular majorities. The bipartisan movement is about how power may be maintained to the right of the center, but perhaps not as far to the right of center as is presently the case.

One of the central problems with the American polity concerns why conservative Democrats abandon the party so quickly, while more moderate Republicans make little effort to stem the rightward tide of their party until the Republican ship is clearly sinking. If I thought the problem was rooted in some constitutional provision or set of practices, I would join Sandy in a minute. My suspicion (and merely a suspicion) is that the problems lie elsewhere in the political culture, that a constitutional reform movement spearheaded by persons who find Hillary Clinton’s policies intolerably liberal is likely to produce a constitution so structured that in practice Joe Lieberman will be the most liberal alternative to the next scion of the Bush family.
Posted 11:17 AM by Mark Graber [link] (16) comments

Will They Ever Connect the Dots?

Sandy Levinson

After the criticism leveled at him last week, it is a pleasure to commend David Broder for his extremely interesting article in today's Washington Post on a forthcoming conference at the University of Oklahoma, called by former Sen. and current UO president David Boren, to explore the possibility of a "non-partisan" candidacy for the presidency by New York Mayor Michael Bloomberg. The NYTimes catches up with the story in tomorrow's issue with an article titled "Bloomberg Moves Closer to Running for President." Broder's article is of greater intellectual interest, inasmuch as he discusses at greater length the ideological views of the various participants at the conference, who will apparently include former Senators John Danforth, Charles Robb, Gary Hart, and Sam Nunn, as well as Chuck Hagel, discussed in the Times story as a potential running mate for Bloomberg. According to Broder, "A letter from Nunn and Boren sent to those attending the Jan. 7 session said that 'our political system is, at the least, badly bent and many are concluding that it is broken at a time where America must lead boldly at home and abroad. Partisan polarization is preventing us from uniting to meet the challenges that we must face if we are to prevent further erosion in America's power of leadership and example.'" Their answer to this is a "national unity" ticket.

I know that I sound like a broken record, but I continue to find it both amazing and perplexing that such serious and dedicated men and women (such as former NJ Gov. and EPA Administrator Christine Todd Whitman) are willing to contemplate turning the 2008 presidential election topsy-turvy but not to make what to me, at least, is the stunningly obvious connection between the system, in all its "broken" or "badly bent" quality, and the Constitution that establishes the system.

Our system is so frustrating to so many people in part because of the phenomenon of divided government and, of course, the ability of the presidential veto to countermand majoritarian decisions of the House and Senate. (At a gathering this week in Baltimore, Marty Lederman pointed out to me the extremely interesting fact that the current use of the filibuster by Republicans in the Senate is, in some ways, irrelevant, because Bush could simply veto the objectionable legislation. So the interesting question, politically, is why Senate Republicans think it is in their interest to become "obstructionists" rather than acquiesce in the taking of votes for legislation that will then be vetoed (and upheld). The situation is structurally different from the past several years of Republican control, when Democratic filibusters were truly necessary to prevent passage (and then signing) of conservative legislation.)

I won't go through the whole litany of arguments that I (and University of Virginia political scientist Larry Sabato) have made about the desirability of thinking of substantial constitutional reform to take account of the "lessons of experience." Obviously, there are many readers of this blog who think that nothing in particular is wrong with the status quo. But Boren et al. are obviously not among this group. So I think it is fair to ask why, at the end of the day, their vision is limited to an almost certainly doomed effort by a "national-unity ticket."

It's not that one can't imagine Michael Bloomberg and Chuck Hagel getting some electoral votes, especially given our first-past-the-past system. But it seems absolutely unthinkable to me that there is a plausible scenario that gives such a ticket 271 such votes . (For the record, I note that I would be less skeptical of an independent candidacy led by Arnold Schwartenegger.) And, as we all know (or should know), a failure of any candidate to receive a majority of the electoral vote sends the election to the House of Representatives on a one-state/one-vote basis. I think it's fair to say that it's even more inconceivable that the members of the House, almost every single one of whom is a member of the Democratic or Republican parties, would have any sympathy at all for placing in office a wild-card president and vice-president who ran on a systematically anti-party ticket.

According to tomorrow's Times' article,

One concern among Mr. Bloomberg’s inner circle is whether a loss would label him a spoiler — “a rich Ralph Nader"— who cost a more viable candidate the presidency in a watershed political year. One person close to the mayor, who requested anonymity so as not to be seen discussing internal strategy, stressed that Mr. Bloomberg would run only if he believed he could win.

“He’s not going to do it to influence the debate,” the person said.

[UPDATE: Today's Boston Globe includes an op-ed, "Changing Our Direction," by former Senators William Cohen and Sam Nunn, that sets out the basic creed of the Oklahoma gathering. After setting out a litany of problems in contemporary America, they go on to say

While these and other challenges demand serious attention, our political process seems determined to engage in games of trivial pursuits....

Election campaigns are inevitably rough and tumble, but they must also be a time for vigorous national debate and discussion. They best serve the nation when the public and the candidates are exposed to new ideas and approaches. The national discussions of 2008 must better prepare our nation and our leadership than have the national discussions of this past year.

As citizens, each of us has a role to play in serving our country. Over the course of the next year, the two of us plan to help stimulate a national conversation on the direction our country must take in this turbulent age filled with both promise and peril. We intend to launch a series of public discussions, inviting leaders from throughout the country and from many walks of life to bring their experience, expertise, innovation, and energy to these dialogues.

We need to focus on seminal issues that those who seek to be our leaders must address: How do we restore our government's credibility and competence? How do we rebuild our physical and human capital so that we can face a dynamic world of change with confidence in our ability to compete? How do we promote energy security and reduce our vulnerabilities to the most unstable regions of the world? How do we operate in a complicated world where other nations will not always be "with or against us"? How do we restore America's international leadership role and renew the values for which we have been so long admired? How do we engage and use "smart power" that combines economic, diplomatic, and military strength to achieve national security and foreign policy goals? How do we encourage citizens of every age, race, and creed to act on the premise that we have not just inherited our wonderful country from our parents, but we have borrowed it from our children?

If as a nation we begin to ask, debate, and answer these questions and these challenges, we can renew our commitment to community, enable those we elect, and restore an exhilarating sense that, once again, we are all in this together.

Every issue they raise is worth discussing. But just imagine this were 1907 or, even more to the point, the decade of the teens, instead of 2007 (soon to be 2008). Woodrow Wilson and Teddy Roosevelt were equally concerned about confronting the issues of the day, but one of those issues, for both, was the adequacy of our constitutional structures. Why, oh why, can these obviously dedicated, concerned, and experienced national leaders bring themselves even to suggest that they might find a single day in the next year to discuss whether the Constitution itself makes it more difficult to confront, let alone to resolve, the issues that they identify?

If I had even the slightest belief that they had actually thought, for even a moment, of whether the Constitution serves us well and had come to a thoughtful conclusion that the answer is yes, then I would disagree, but I would not be so discouraged. Put to one side the books recently published by myself or Prof. Sabato, or the books published earlier by Daniel Lazare or Robert Dahl. It would be a good start if one could be confident that they read the books published in the 1980s, at the time of the otherwise shamefully mindless bicentennial celebrations, by Washington Establishmentarian Lloyd Cutler and others that did raise extremely serious questions about the need for constitutional reform. Some of the proposals I agree with, others I don't. But the sad point is that even a consummate Washington insider like Cutler, joined by such distinguished academics as James Sundquist and Gerhard Casper, among others, got exactly nowhere in stimulating the conversation they desired.

So consider the following possibility: The only way to "restore our government's credibility and competence" is to engage in some fundamental constitutional reform. One can have credibility, for example, only if there is significant, real-time oversight of the Executive by an engaged Congress, and the one and only way to get that, so long as we continue to have a party system, is to put key committees (and subpoena power) in the hands of the opposition party--yes, this means that I would support putting the relevant committees in the hands of Republicans should we get the Democratic presidency I so yearn for next year. And perhaps we would get more competence if we switched from a presidential system to a parliamentary one, where it is usually (though not always) the case that prime ministers have had to demonstrate their competence as chancellors of the exchequer, defense ministers, or foreign ministers. But "competence" might also require giving legislators longer terms, one of the proposals favored by the Cutler group: they would have members of the House of Representatives elected for four-year terms; one version of such a proposal would have half running every two years, somewhat similar to the way we work the Senate. I don't know where I would come out on such a proposal--that's one of the reasons I want a convention--but it is surely relevant if one believes that a major force against "competence" is the necessity of every member of the House to begin planning for the next election, which will take place 22 months after taking the oath of office for the current term of Congress.

There are a number of things that are terrible about the Electoral College, but one of them surely is the incentive it generates for otherwise serious candidates to focus on "battleground" states and make shameless (and sometimes shameful) promises to key groups in such states, regardless of what the "national interest" might require. (I believe that our idiotic policy toward Cuba, the result of the the strategic importance of Cuban-Americans in Miami, is explicable only because of this reality. ) And so on......

It is clear that candidates actually running for office, including John Edwards, who constantly refers to our system as "broken," are unwilling to question our sacred Constitution. But the Oklahoma group is made up of elder statesmen/women who might be able to jumpstart the necessary conversation.]

[ONE MORE ADDENDUM: In my comment about trying to assure "competence" in governance, I forgot to mention my own hobbyhorse of actually holding presidents accountable (especially in their second term) by the threat of a vote of "no-confidence" that would result in his/her eviction from the Oval Office. This is not a "radical" suggestion; James Sundquist included it in his 1980s book. Why won't these worthies address the threat to America posed by an incompetent president, particularly in the realms of military and foreign policy?]

Posted 9:50 PM by Sandy Levinson [link] (14) comments

The End of the International Slave Trade and the Commerce Power

JB

This op-ed by the distinguished historian Eric Foner reminds us that January 1st we celebrate the 200th anniversary of a law banning importation of slaves into the United States. President Jefferson signed the law on March 2, 1807, to take effect January 1, 1808. Trade in slaves within the United States continued until slavery was abolished by the Thirteenth Amendment.

Foner points out that the abolition of the international slave trade reduced the supply of slaves in the United States, increasing the price of slaves and preventing widespread democratization of slave ownership. If more and more Southerners could have afforded to own slaves, Foner points out, that might have greatly increased Southern representation in the House (and the Electoral College) because of the three-fifths rule. This, in turn, might have perpetuated the institution far longer, and promoted the American conquest of the Caribbean.

Why did Congress wait until 1808 to ban the international slave trade? Because Article I section 9 stated that Congress could not prohibit "[t]he migration or importation of such persons as any of the states now existing shall think proper to admit . . . prior to the year 1808." And just to make sure that Congress didn't try to amend the Constitution to make possible an earlier ban on the international slave trade, Article V states that "no amendment which may be made prior to the year 1808, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

What gave Congress the power to ban the slave trade after 1808? (Remember this was during the second Jefferson Administration, a time when the dominant party, the Republicans, were arguing for strict construction. So no arguments based on the logic of 1936 decision in Curtiss-Wright!). The most likely source of the power to ban the interstate slave trade in the early days of the Republic was the Commerce Clause, which gives Congress the power "[t]o regulate commerce with foreign nations, and among the several states,and with the Indian tribes."

The Commerce Clause theory, however, would suggest that the movement of slaves within the United States was also commerce "among the several states" and thus subject to regulation under the Commerce Power. This would have given the federal government power to regulate slavery within the United States, a position that was anathema to many Southerners. (Indeed, fear that the Commerce Power would allow Congress to ban the international slave trade was one reason for the provision in Article I, section 9). During the period before the Civil War, many people argued that regulation of the movement of persons (including slaves) both between states and from outside the United States was governed by the Commerce Clause, and that the Commerce Clause was the source of the federal government's power to regulate immigration. (Remember that Article I section 8 of the Constitution specifically gives Congress the power to regulate naturalization, not immigration).

The Supreme Court avoided the question of Congress's power to regulate slavery under the Commerce Clause in 1841 in Groves v. Slaughter, although several Justices discussed it. In the 20th century, the Court has tended to treat the power to regulate immigration as part of the federal government's plenary authority in foreign affairs (itself a product of the Chinese Exclusion Cases), and the debate over the commerce clause has largely (although not completely) been forgotten.
Posted 10:51 AM by JB [link] (13) comments

Are The Parties Dividing over Executive Power?

JB

This article by Charlie Savage of the Boston Globe, which Marty discussed last week, describes the positions of many of the major presidential candidates. For convenience, here are answers by Democrats Joseph Biden, Hillary Clinton, Chris Dodd, John Edwards, Barack Obama, and Bill Richardson, and Republicans Rudy Giuliani, Mike Huckabee, John McCain, Ron Paul, Mitt Romney, and Fred Thompson.

It is worth noting that while the Democrats answered almost all of the questions posed to them, Giuliani, Huckabee and Thompson, three of the front runners, essentially avoided answering any of them (Giuliani gave a general response to the first question and would not go into specifics). Mitt Romney essentially gave answers out of Dick Cheney's playbook. My guess is that Giuliani (almost certainly, given his previous public statements) and likely also Huckabee and Thompson would probably support a strong executive. McCain's answers seem more moderate in some respects (e.g., torture) but not in others. Ron Paul, a libertarian, wants a far less powerful executive.

What can we infer from these responses? First, the Democrats think that attacking Bush's assertions of executive power is good politics; conversely, Republicans like Giuliani and Romney probably think that pushing for strong executive powers is appealing to parts of the Republican base.

Thus, it might seem that the two parties are beginning to divide over issues of executive power, just as they once began to divide over issues like abortion. Before the 1980 election, neither party was strongly identified as pro-choice or pro-life (recall that Jimmy Carter was the more pro-life candidate in 1976). After the 1980 election, the parties became identified with different sides of the abortion question as they key symbolic issue in the culture wars.

Nevertheless, matters are rarely so simple, and especially when the division is over a structural question like executive power rather than a substantive policy question like abortion or gay rights. I tend to think that in many respects the divide we are seeing over executive power between the two parties is symbolic more than substantive, and it may not survive a Democratic Administration.

First, many of the issues on which the parties divide are not really about executive power per se: they are about immigration, the war on terror, privacy and civil liberties. If the next President uses his powers to promote the rights of immigrants and aliens, or protect civil liberties, many liberal Democrats will probably argue that the President is well within his constitutional authority in making such decisions. Right now the Democratic candidates are opposed to signing statements, but it is worth pondering what they will do when the first big appropriations bill comes their way.

Second, much will depend on the result of the 2008 elections. Right now Republican presidential candidates are arguing for a strong executive because they expect (or at least hope for) a Republican to be President in 2009. But if the Republicans lose the Presidency, they will be unlikely to continue to press for strong Presidential powers (they did not when Clinton was in office, for example); they are even less likely to do so if the Democrats control the Presidency and both Houses of Congress.

It is true that many Republicans (with the exception of Ron Paul) are hoping that the War on Terror will be a signature issue that binds their coalition together; they would like to establish themselves as the party that is more devoted to wiping out the threat of terrorism. That may lead them to support a strong executive when Republicans are in power, but it may not produce consistent support for presidential prerogatives when Democrats occupy the White House, especially if Democratic Presidents do not exercise these prerogatives in a way conservatives like. Republicans will probably continue to support domestic surveillance measures and laws that strengthen the Executive Branch's ability to detain and deport aliens. But they will not be particularly interested in protecting executive secrecy per se; indeed, as during the Clinton years, they may want to prevent a Democratic President from using claims of Presidential privilege to avoid embarrassing disclosures.

Conversely if the next President is a Democrat, he or she may make symbolic gestures toward a greater balance between the President and Congress, and will probably clean house at the Justice Department, but it is unlikely that the next President will actually cede most of the new powers that the Bush Administration grabbed for itself. Rather, the next Administration will likely offer a less pugnacious and bellicose tone while continuing many of the same policies, often through different legal methods.

In particular, if the Democrats control the Presidency and both Houses of Congress, the President may try to work with Congress to achieve many of the same things that the Bush Administration tried to do unilaterally. (Indeed, when Congress goes along, the President's power as commander-in-chief is enhanced under the Youngstown analysis, not diminished.). Assuming that the next President will have publicly ditched the Cheney/Addington/Yoo theory of the President as dictator, this will mean a less powerful Executive in theory but not necessarily in practice.

Indeed, one lesson of the Bush Administration may be that future Presidents learn that they can increase their practical authority by working with Congress with far less political resistance. ( The irony of the Cheney/Addington/Yoo theory was always that it created unnecessary pushback and thus actually undermined the quiet expansion of Executive authority.) Sandy Levinson and I have argued that we are gradually moving from a national security state to a national surveillance state, with greatly increased delegations of power to the executive to collect, collate, and analyze information for purposes of everyday governance. We also predict that all of the branches will participate in the creation of such a state; the real issue will be how the state will be constructed, whether there will be sufficient checks and institutional structures to protect civil liberties, and so on. An Executive who works with Congress to build up the national surveillance state is still a much more powerful Executive, even if from a theoretical perspective the President has given up the Cheney/Addington/Yoo theory of Article II.

Third, we must distinguish the party system, its politicians, and its political operatives from particular liberal or conservative intellectuals and legal theorists associated with the two major political parties. Party operatives, pundits, and politicians are used to changing their arguments about structural matters (Presidential power, federalism, judicial restraint) on a dime, with few worries about consistency over time. So it is possible that a Republican Congressman in 1999 could attack Bill Clinton for bombing Kosovo, flip to become an ardent defender of George Bush's powers in 2004 and then flip back to becoming a critic of Presidential power in 2009 under a Hillary Clinton Presidency. By contrast, legal theorists and intellectuals will have much greater difficulty doing this sort of flip because their professional reputations tend to be based on their intellectual consistency over time, although one expects there will be a fair number who will make the attempt.

A Clinton or Obama or Edwards Presidency will probably produce a number of liberal intellectuals who were quite happy making arguments for a strong executive during the Clinton years and would be happy doing so again. It is also worth remembering that Bill Clinton was no great friend of civil liberties during his two terms in office-- although George W. Bush has made him look good by comparison on that score-- and that Clinton engaged in one of the most significant acts of Presidential unilateralism in recent memory-- engaging in airstrikes on Kosovo in a war against Yugoslavia without Congressional authorization. All of these decisions were supported by lawyers in the Clinton Justice Department, which suggests that there are plenty of liberal Democrats willing and able to argue for fairly robust Presidential power if the occasion calls for it.

Readers of this blog presumably are aware that, all other things being equal, I would rather have a Democrat in the White House in 2009; I think the last seven years have been dreadful for the country and it is time to clean house. But precisely for that reason, I think it important to keep a new Democratic Administration honest when it comes to excesses of power and violations of civil liberties, because, for the reasons described above, it has every incentive to make only symbolic reforms.

Perhaps I am being too pessimistic: It is possible that the last seven years have really taught the Democrats something about the dangers of Executive authority. But it is also possible that once in office, they will forget many of those lessons.
Posted 11:02 AM by JB [link] (30) comments

Thinking like a pundit

Sandy Levinson

Thomas Reed Powell, the great professor of law at Harvard in the early 20th century, once memorably said, If you think you can think about a thing that is hitched to other things without thinking about the things that it is hitched to, then you have [learned to think like a lawyer]. I am afraid that the same can now be said of all too many of our punditry. See, for example, David Broder's column in today's Washington Post, which takes Nancy Pelosi to task for the relative paucity of accomplishment by the Democratic Congress. It ends with a call for "the Democrats to get real about their own record on Capitol Hill. It needs improvement."

I have no doubt that the record of accomplishment is weak. But, as I actually said prior to the 2006 elections, anyone who believes that a Democratic victory would in fact lead to any significant changes was ignoring the barriers that the Constitution places in the way of such achievements. Broder himself notes that "[O]n 46 of the measures passed by the House, more than one-third of the total, the notation is added [by Pelosi], "The president has threatened to veto," or has already vetoed, the bill." Rather astonishingly, he goes on to say that "One would think that this high level of institutional warfare would be of concern to the Democrats. But there is no suggestion in this recital that any adjustment to the nation's priorities may be required. If Pelosi is to be believed, the Democrats will keep challenging the Bush veto strategy for the remaining 12 months of his term -- and leave it up to him to make any compromises. "

Broder, of course, doesn't suggest what further compromises Democrats should make in order to pass insipid legislation that the White House would be willing to sign. Nor, more to the point, does it seem to occur to him that it might be worthy of some discussion whether we're well served by a system that not only promotes such incessant "institutional warfare," but, more to the point, gives the President such a clear advantage in that war by being able to stop Congress dead in its tracks so long as he enjoys as 1/3+1 level of support in one House of Congress. Recall that presidents are successful 95% of the time when exercising the veto. Even if one likes the presidential veto, might one not agree that a success rate this high suggests that it is too severe a check on two Houses of Congress? (Nor, of course, does Broder mention the way that the filibuster has brought the Senate basically to a halt with regard to any half-way controversial legislation.)

I'd love to see an "improved" Democratic performance in the coming year. But Broder, as is typical of the modern punditry, focuses on the particular leadership styles of Pelosi (and, in earlier columns, Harry Reid) without its ever occuring to him that the Constitution to an amazing degree does in deed "constitute" our defective political system. Like John Edwards, he is willing to say that "our system is broken" without ever recognizing that relationship between our system and our Constitution. He would make a fine lawyer (and that is no compliment in this context).

[ADDENDUM: I should have been clearer in my original post that the "institutional warfare" is a function of what Rick Pildes and Darryl Levinson have called the "separation of parties" more than the "separation of powers" per se. Although Democrats were able to stymie some Republican legislation by the use of the filibuster, Republicans were able to score some victories, particularly with regard to judicial appointments, because of their control of both presidency and Congress. The present gridlock is a function of institutional divisions by party. A principal task facing any constitutional convention is figuring out what, if any, part of the modern party system should be "constitutionalized" and what should be left to the vagaries of the political marketplace. As to the former, for example, we would be well advised to emulate the Germans by putting certain congressional oversight committees relating to national security in the hands of the political opposition, since it is patently obvious that one cannot look to Congress to perform the oversight function vigorously if it is in the hands of the President's own party.]-
Posted 5:41 PM by Sandy Levinson [link] (9) comments

Boilerplate

Marty Lederman

Well, Attorney General Mukasey testified that he would try to be less adversarial toward Congress -- less inclined to articulate constitutional objections where to do so would only inflame relations.

Yesterday's signing statement therefore may well be the state of things to come. My colleagues and I have complained that, in earlier signing statements, the President was insufficiently transparent about the nature of his constitutional objections, and unclear about whether and when he would disregard statutory commands on constitutional grounds. The new formulation, however, might well make one yearn for those good ol' days of relative candor in signing statement constitutional objections. Here's how it reads:

[T]his legislation contains certain provisions similar to those found in prior appropriations bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities. To avoid such potential infirmities, the executive branch will interpret and construe such provisions in the same manner as I have previously stated in regard to similar provisions.

With this, David Addington can say he has preserved all possible constitutional objections -- no waiver! -- and there is no list of objectionable provisions for the likes of Charlie Savage, Phillip Cooper, Neil Kinkopf and Christopher Kelley to enumerate.

Best of both worlds, from the Bush White House point of view.

I suppose, then, it's worth repeating what we wrote back in July 2006:

The [practice of issuing] signing statement[s with constitutional objections] is a good thing: a manifestation of the Executive’s intentions that helps us to understand the heart of the problem. If the President has decided to decline to enforce a statute because it’s unconstitutional, then it is much better that he tell the Congress and the public of his intentions, rather than keep it secret, because in that case the checks and balances of the constitutional system can be set to work.

[T]he whole point of such signing statements—the reason that making them is actually a valuable practice—is that they make transparent the President’s intent to decline to enforce statutes in the manner contemplated by Congress. But President Bush’s statements for the most part do not serve this function. Many of the objections are written in such general and opaque terms, and with resort to vague assertions about an intent to “construe” the provisions in conformity with the Commander-in-Chief Clause, the “unitary executive,” etc., that it is impossible to know just what they mean in terms of how the Administration is implementing the statutes in question. According to Prof. Cooper, in President Bush's first term alone he offered 505 constitutional objections to various statutory provisions, and many of those objections applied to multiple provisions within a particular bill. This might mean that the Executive is refusing to implement hundreds of statutes enacted since 2001 (and many enacted prior to that date, too), or construing them in an implausible and unexpected way—or, then again, it might not. Congress and the public are offered no clear understanding of the legal theory of unconstitutionality, or of precisely which statutory provisions will not be enforced, under what circumstances, and why. The statements are, instead, mere placeholders, with respect to a vast number of statutory provisions, signaling that the Administration reserves the right not to enforce numerous unspecified provisions.

Moreover, the President is not telling Congress when he does refuse to enforce (or when he construes the statute in a manner that the legislature could not possibly have contemplated). A President may seek to enforce his own conception of the Constitution, even if it is a sharp break with the past. But when he does so, he is constitutionally obliged to do so in broad daylight, with adequate opportunity for the other branches and the public to understand the legal theory and the practice and to respond accordingly. Checks and balances can't possibly work if the revolution is occurring in secret, or if the Administration publicly insists that all is business as usual, that all statutes and treaties are being implemented as they always have been, while simultaneously "implementing" such statutes in a manner that comes as a great surprise to Congress and the public.

P.S. to the law nerds out there (i.e., present and future OLC lawyers): You'll be glad to note that this may presage the end of that time-consuming, often tedious part of the job, the bill comment practice. For every bill that's introduced, or that is on its way to the President's desk, OLC/OLA can now simply write this boilerplate to Congress:

FYI: This bill contains certain provisions that might be construed to be inconsistent with the President's constitutional responsibilities or otherwise unconstitutional, at least in the view of some lawyers who have occupied the West Wing and DOJ. To avoid such potential infirmities, the executive branch will construe and fail to implement such provisions -- whatever they may be -- in the same manner that it has secretly interpreted and failed to implement previous such laws.

Posted 6:51 AM by Marty Lederman [link] (14) comments

Compromise and utopianism

Sandy Levinson

I'm going to crosspost this at http://www.utexas.edu/law/faculty/slevinson/undemocratic/blog/, which is devoted entirely to discussion of the ideas in Our Undemocratic Constitution (and which, since the Moyers interview, is getting some participation). I invite anyone on this list to join the discussion there.

The heart of Mark's post is as follows:

For the past year, my friend and co-blogger Sandy Levinson has called for a political movement for constitutional reform. He is correct to note that many features of the contemporary constitution are undemocratic and that others suffer from different flaws. The call for a political movement, however, entails more than the observation that the constitution is defective. Rather, participants in the political movement must believe the defects of the constitution are significantly worse than the other ills of American politics so that, in the political conflicts between political conflicts, constitutional revision ought to take precedence over questions of war and peace, economic reform, environmental degradation, etc. At the very least, political resources allocated to those political struggles ought to be diverted. This, of course, raises two questions. On what issues should diversion take place? Who should be diverted? Perhaps a political movement for constitutional reform can be done without diversion, but the Roosevelt experience in 1937 suggests that liberals who engage in constitutional reform pay liberal costs for diverting the electorate. At the very least, those who attend Sandy's call for suggestions to how to form this political movement ought to take seriously the costs to other desired political movements and either explain why the benefits will outweigh the costs or why, in fact, this movement for constitutional reform will, unlike any other, have no substantial costs for liberal goals.

It is, of course, hard to disagree with Mark's general point. All politics involves compromise and tradeoffs, and I have long believed that the enemy of achieving some real goods is a utopian commitment to achieving the best. So one response to Mark is to pick and choose among specific problems with the Constitution and concentrate on those that worry us the most. As regular readers know, my greatest concern these days is the costs of being stuck with an incompetent president/commander-in-chief, which strikes me as an issue of transcendent importance given the ability of same to make truly important decisions of war/peace, life/death. I don't like the presidential veto, obviously, but I'd put alleviating that off if there were any prospect of adopting a vote of no confidence. And, for all of my dislike of life tenure for Supreme Court justices, I'd put it at the bottom of the list, since it really doesn't threaten us in the way that an incompetent president can. BUT, and here is where things get truly tricky, if one is also concerned about the way that the present constitutional system makes it difficult to achieve a whole bunch of programs--I am interested primarily in "progressive programs," but I have suggested that political conservatives shouldn't be much happier with regard to achieving their own legislative goals inasmuch as they have them--then it is indeed necessary to start pulling at the thread of our constitutional system even at the risk of unravelling significant aspects of the status quo.

The peculiarity of FDR's situation is that he perceived himself, at least as of 1936-37, as having a compliant Congress that would pretty much follow his lead. He viewed the only impediment to achieving his program as the Supreme Court. Thus the Court-packing plan. We know now that he was living in something of a fool's paradise, that Congress was ready to break free of his reins and would do so after his disastrous attempt to "purge" recalcitrant Southerners in 1938, after which the New Deal was basically over. The next time the stars were aligned for significant change was 1964-66, a period that lasted even a shorter time than 1933-39.

So there may be a time when what appears to be "utopian" may actually be "realistic." Consider Mark's own list of "questions of war and peace, economic reform, [and] environmental degradation." Isn't it more and more clear that our coming to grips with any of these may require fundamental constitutional reform? Or, perhaps things aren't so dire as Mark suggests with regard to our really having to choose. After all, our present reality is that there are no mainstream politicians--and no real popular political movement--willing to ask the kinds of questions about constitutional fundamentals that one found throughout the Progressive period. And it might be that the fear of opening up what some view as the Pandora's box of constitutional reform would lead to the making of certain compromises that are not on the table today. After all, the 17th Amendment finally got through the Senate in part because of a fear that enough states would call for a constitutional convention on the issue of popular election.

Can the American political system really not run and chew gum at the same time?

Posted 5:25 PM by Sandy Levinson [link] (13) comments

Tragic Choices and Constitutional Reform

Mark Graber

Professor David Adamany in an essay written many years ago maintained that one consequence of the FDR's Court-packing plan of 1937 was that Roosevelt lost vital political capital that could have been spent on other liberal reforms. Most scholars agree that after the failed Court-packing plan and the failed purge of southern conservatives in 1938, the momentum for the Second New Deal was largely over, not to be revived until the 1960s.

Roosevelt’s experience may teach two related lessons about politics. The first is that politics cannot be about everything at once. Political movements must choose their issues. Abraham Lincoln urged his former Whig followers not to raise tariff issues in order to maintain a united front against the expansion of slavery. Ronald Reagan during his first term downplayed opposition to abortion in order to maintain a united front in favor budget cuts. Roosevelt, by choosing to emphasize judicial reform, diverted vital resources from previous fights for economic equality. The second is that politics makes strange bedfellows. To paraphrase Churchill on his alliance with Stalin, he would make a pact with the Devil to fight Hitler (I’ve forgotten the exact quote). Roosevelt’s coalition of racist southern populists and northern workers (who, as Paul Frymer points out, were not exactly racial egalitarians) accomplished much good. Roosevelt’s effort to forge a purer coalition stalled his program completely.

For the past year, my friend and co-blogger Sandy Levinson has called for a political movement for constitutional reform. He is correct to note that many features of the contemporary constitution are undemocratic and that others suffer from different flaws. The call for a political movement, however, entails more than the observation that the constitution is defective. Rather, participants in the political movement must believe the defects of the constitution are significantly worse than the other ills of American politics so that, in the political conflicts between political conflicts, constitutional revision ought to take precedence over questions of war and peace, economic reform, environmental degradation, etc. At the very least, political resources allocated to those political struggles ought to be diverted. This, of course, raises two questions. On what issues should diversion take place? Who should be diverted? Perhaps a political movement for constitutional reform can be done without diversion, but the Roosevelt experience in 1937 suggests that liberals who engage in constitutional reform pay liberal costs for diverting the electorate. At the very least, those who attend Sandy's call for suggestions to how to form this political movement ought to take seriously the costs to other desired political movements and either explain why the benefits will outweigh the costs or why, in fact, this movement for constitutional reform will, unlike any other, have no substantial costs for liberal goals.
Posted 4:20 PM by Mark Graber [link] (17) comments

The Candidates on War Powers, Executive Privilege, Signing Statements, Etc.

Marty Lederman

I don't want to distract our readers from the very important story about the Administration's stonewalling of the 9/11 Commission -- read about the New York Times's essential story and the Zelikow Report here -- but this is very much worth your attention, too:

Continuing his invaluable work, Charlie Savage of the Boston Globe today publishes responses of nine presidential candidates to a series of questions he posed about the topics that have dominated this blog since 2004.

Some highlights:

On the Democratic side, Senators Clinton and Obama both disclaim any presidential authority to disregard statutes and treaties such as the torture act, FISA, statutes imposing troop limits, and the Geneva Conventions. Senators Biden and Dodd, and Governor Richardson, agree, except that Governor Richardson adds that the President can disregard statutory limits "in some limited circumstances, such as where it is necessary to protect the troops on the ground or to repel an attack not contemplated by the congressional directive." Senator Edwards strongly believes that President Bush should not have disregarded (or threatened to disregard) such laws; but he does not quite clearly answer the questions about constitutional power.

Senators Clinton and Obama both state that the President does not have the inherent constitutional power to unilaterally take military action against Iran, including strategic bombing, in the absence of an imminent threat of attack on the U.S. or its citizens. Senator Biden and Governor Richardson agree. Senator Dodd does, too, but adds that the President can act unilaterally if there is an imminent threat to the "national security" of the U.S. or its allies. Senator Edwards does not answer the question directly, but opposes the use of force in Iran.

Interestingly, both Senator Clinton and Senator Obama -- as well as Senators Biden and Dodd, and Governor Richardson -- answer "no" to the question whether the Constitution permits a President to detain U.S. citizens without charges as unlawful enemy combatants. Senator Obama qualifies that the President has no such "plenary" power. To the extent any of the candidates is here suggesting that such detention would be unconstitutional even where Congress has authorized it, such a view would amount to a dissent from the Supreme Court's holding in Hamdi -- perhaps on the Suspension Clause grounds expressed by Justice Scalia, or perhaps because of the Treason or Due Process Clauses (or some combination thereof). But the Q's and A's on this point are not precise enough to nail this down.

Senators Biden and Dodd, and Governor Richardson, like John McCain (see below), state that they would never issue signing statements with constitutional objections to statutory provisions. I think this is a mistake, and that the views of Senators Clinton and Obama are closer to the proper mark.

As for the Republicans:

Senator McCain denies that the President has the constitutional power to violate the torture act, or FISA, or treaties, but in response to the question about a statute limiting troop deployment, he states that "it's beyond Congress's authority to micromanage wars." (On the other hand, he states categorically (and mistakenly) that "I don't think the president has the right to disobey any law," so his views on this question remain a bit uncertain.) McCain also denies that the President has the constitutional power to unilaterally bomb Iran, absent an imminent threat. Surprisingly (and in my view unfortunately), McCain states that he would not issue any signing statements.

Ron Paul, true to his convictions, is libertarian across the board, which in this case means skeptical of executive power.

Romney? Let's put it this way: If you've liked Dick Cheney and David Addington, you're gonna love Mitt Romney.

Candidates Giuliani, Huckabee and Thompson refused to respond to the questionaire. On behalf of Guiliani, Ted Olson issued this statement:

The President must be free to defend the nation. While the Congress has an essential constitutional role in our national defense, the Supreme Court has also recognized that the president has certain core constitutional responsibilities to ensure that our nation can defend itself and our fundamental liberties in times of emergency. Controversies on this question are as old as our Constitution, and have been faced by many of our most respected presidents, and they will not disappear even after we have succeeded in the war that terrorists have declared on our citizens and homeland. Our aim must be to strike a balance between order and liberty that addresses the challenges we face within the bounds of the Constitution.

Posted 8:50 AM by Marty Lederman [link] (25) comments

So Now They Close the Barn Door . . .

Marty Lederman

General Michael Hayden, Director of the CIA, has now issued an order to all CIA personnel to preserve and maintain all documents, information and evidence relating to any detainee held by the CIA or at GTMO. See page 23 of the pdf of this motion filed in court today. That was easy. And yet in the several years of internal discussions about the fate of the CIA videotapes of interrogations of high-level detainees, none of the relevant actors in the White House, the CIA, or the Department of Justice ever thought to issue such an order. In open, public hearings, each of those officials should be asked a simple question: Why not?
Posted 10:39 PM by Marty Lederman [link] (5) comments

Impeccable Timing

Marty Lederman

If the CIA had destroyed its interrogation tapes during the pendency of the 9/11 Commission investigation, that almost surely would have constituted felony violations of 18 U.S.C. 1512(c)(1). So they retained the tapes during that investigation. However, as the New York Times reports tomorrow, the CIA very carefully avoided informing the 9/11 Commission of the existence of the interrogation tapes -- which would have been extremely valuable information for the Commission to use. "A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes" . . . but the Commission never said the magic words!: The Commission repeatedly sought "documents," "reports" and "information" related to the interrogations from the CIA -- but "staff members never specifically asked for interrogation videos."

At one meeting, Lee Hamilton told George Tenet that "the C.I.A. should provide all relevant documents 'even if the commission had not specifically asked for them.'" How infelicitous of Representative Hamilton -- you see, a videotape isn't a "document"!

I urge you to read the entire report from Phil Zelikow, and ask yourself whether the concerted effort by countless government officials, up to and including Alberto Gonzales, Donald Rumsfeld and Steve Cambone, to assiduously avoid mentioning the videotapes to the 9/11 Commission -- in countless meetings and in response to numerous requests -- when obviously those videos would have been the motherlode of the evidence that the Commission was seeking, can possibly be justified. Zelikow wonders whether this didn't violate 18 U.S.C. 1001(a)(1) (prohibiting the knowing and willful concealment of "material facts" in an investigation by any "trick, scheme, or device"). Even if it did not, is there any scenario in which such stonewalling would not have constituted utter contempt for the Commission -- bad faith at a very high and sustained level?

Here's the really amazing bit, however: "Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active," said a CIA spokesperson. In other words, they knew the tapes were relevant -- indeed, the most relevant evidence possible -- and that they would be required to produce them if only the Commission and its lawyers somewhere down the line used the word "tapes," or "recordings," or "evidence." But they failed to mention the tapes. And then . . .

. . . as soon as the Commission issued its report and closed up shop, the CIA quickly destroyed the evidence, precisely because there was no longer any proceeding pending (and arguably no foreseeable proceeding that would trigger 1512(c)(1) culpability, although that is far from certain).

That is to say, the CIA waited for a window in which there (arguably) were no pending investigations in which the evidence would be relevant, and then pounced on the opportunity -- the potential gap in criminal law coverage -- to eliminate the evidence. Convenient, isn't it, that there were no extant orders from the CIA leadership, the White House, or the Justice Department, requiring retention of that evidence? Such an order finally came yesterday -- far too little, too late.

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Posted 10:27 PM by Marty Lederman [link] (26) comments

Minor property in China - living outside the law

Lauren Hilgers

After more than ten years of political wrangling and seven readings in the National People’s Congress, a new property law took effect this October. The law was considered revolutionary by many in China. Scholars and legislators have protested it throughout its development, arguing that the new law overturns the basic tenants of socialism to which China, despite its booming cities and rampant exports, still cleaves.

The property rights law has been heralded for giving Chinese property owners greater security. While land-use rights are still separate from actual ownership of land, which technically belongs to the government, the new property law ensures that, for residential buildings, land-use rights are automatically renewed without charge. A registration system for establishing and transferring real property rights was also created to help enable the buying and selling of land-use rights, a practice legalized in 1988.

In some ways, however, the law remains tentative. It provides that rural land contracting and operation rights—i.e. the right to use rural land for agricultural purposes—and urban land rights can be used for profit, including the transfer or sale of land-use rights. It does not, however, do the same for rural residential property. Rural homeowners, on the other hand, have the right only to possess and use their land. The law also stipulates that the transfer of land designated for agriculture purposes to land designated for commercial purposes be limited (Arable land is collectively owned and rented to farmers on a 30-year basis, unless legally transferred—a possible but difficult process). In many areas on the outskirts of China's cities, still designated as rural, this state of affairs has given rise to a growing practice in China’s property market that continues operating in legal vacuum—minor property rights.

The term "minor property rights" describes the legal entitlements of those who purchase housing rights on land that is not legally transferable, either because it is designated for agricultural uses alone, or is classified as rural residential property. As housing prices skyrocketed in big cities like Beijing, localities on the rural outskirts discovered they could make more money selling their home sites or, as is more often the case, space on their collective land, to developers and prospective homebuyers. Unregulated by the law, developers of minor property avoid the taxes levied on other residential developments and are sold at relatively low price. For Beijing residents or migrants driven out of the center of the city by rising prices, so-called "minor property" is generally much cheaper, although it comes with no official registration or proof of ownership.

In China, property developments are typically built on land that is first taken by the government and then sold to a developer. I have friends on the outskirts of Shanghai whose old houses have been marked for eventual destruction by the government. They either get relocated or compensated for the property, and theoretically the land-use rights to the area their houses are sitting now will be sold to a property developer and rebuilt. This practice, however, is a frequent cause of protest when residents feel they are not properly compensated for their property – the most visually striking example being the Chongqing “Nail House.”

Minor property, on the other hand, has never been legally transferred from farmland or rural residential property to land available to be commercially bought and sold for housing. While the schemes are sometimes executed by individual peasants, they are more often to the benefit of the local cadres or officials who manage collective land. The China Daily recently profiled one minor property development outside of Beijing. Construction at a village on the outskirts of the city was originally approved as a renovation project for local villagers. The committee in charge of the collective land, however, changed the plans to include additional residential units, available for sale as minor property.

Some well-known Chinese scholars argue that minor property should be legalized, giving individual peasants widened opportunity to benefit from their land rights. Legalizing the process, however, could simply leave rural residents more open to exploitation from local officials who have control of collective land.

The government has issued advisories against the purchase of such housing, warning that “these types of housing have no security of title; [buyers] do not have rights such as ownership, transfer, disposition, or profits. Moreover, it is impossible to undertake procedures for transfer of the title to the housing.” Reports, however, estimate that up to 20% of Beijing’s housing market consists of these types of minor property developments. Ever hopeful, many "owners" of minor property argue the government will be unable to challenge claims now that the market for minor property has grown so large. However, if the government cracks down on the practice many will find themselves in homes they have no legal claim over. They will be unable to sell their property and unable to claim compensation if the government decides to take their land for another use.
Posted 12:11 AM by Lauren Hilgers [link] (3) comments

Why Theology Matters

Sandy Levinson

A story in tomorrow's (Dec. 21) New York Times aptly entitled "Huckabee, Back in Iowa, Brings Christmas Message," includes the following:

[W]hile appealing openly to his core audience as someone who says he is driven “by convictions, not just positions,” Mr. Huckabee has been careful to delimit the role he sees for faith in public life. An elected official’s faith “is not something like a sweater that you put on and take off as a convenience,” he told the same audiences. “But should I be able to force it on somebody else? Of course not.”

Before one leaps to the conclusion that this is entirely reassuring and that there are not "theocratic" overtones in Mr. Huckabee's campaign, his remark about not "forcing" his convictions upon others must be placed within the tradition of (most) Protestant reformers, who indeed shared the conviction that belief in God and, even more to the point, acceptance of Jesus, in Mitt Romney's words, as "the Son of God and Savior of Mankind," must be voluntary or, at least, the gift of grace. Most Protestants had little patience for forced conversion a la Spanish Catholicism in the late 15th century and the Inquisition. I grew up in Hendersonville, North Carolina. I have written of my continued indebtedness to Christian friends, including Southern Baptists, Huckabee's own denomination, in helping to forge my own intellectual independence. What these friends, especially the Southern Baptists, expressed was the wish that I would accept Jesus and therefore be eligible for salvation, but my refusal to do so never affected our friendship and they never would have thought of "forcing" that belief on me.

BUT, with regard to Mr. Huckabee, it is an entirely different matter when we are talking not about "religious convictions"--i.e., is Jesus really the "Savior of Mankind"?--but, rather, viewpoints that are ostensibly connected with those convictions regarding regulation not of belief, but, rather, of behavior. Mr. Huckabee, for all of his amiability and seeming concern, in his own way, for the poor among us (which is no small matter in a plutocratic political party), is more than willing to foist his "behavioral convictions" upon the rest of us, most dramatically with regard to sexuality and reproductive choice (which are not the same thing) and, it appears, with regard to establishing that America is a "Christian nation," even if, as a good Baptist, he certainly won't force those of us who aren't Christian actually to assert our own belief in Christian propositions.

Now it's possible that I'm utterly wrong in the above analyses, for I certainly don't view myself as an expert on Christian theology, and I am even less of an expert on Mike Huckabee, who is certainly not my candidate and, I think, is unlikely to emerge as the candidate of the Republican Party unless they have a true death wish in the upcoming election. But if Mitt Romney is expected to start discussing the details of Mormon theology, beginning with the relationship between Jesus and Lucifer, then it is certainly fair that Mr. Huckabee be asked precisely what can be "forced" on non-believers and what cannot. Unfortunately, I suspect that most reporters covering the campaign are illiterate in basic theology and are inequipped to have a serious exchange with Mr. Huckabee or anyone else. So it would really be wonderful if the Times would send Peter Steinfels, who most certainly is knowledgeable, to interview Mr. Huckabee and ask him to spell out the implications of his statement that, like Bill Clinton, another Southern Baptist who said much the same thing, his "religious convictions" are central to the way he sees his vocation as a politician. Zev Chafets might have certain reportial skills, but I don't think he is quite the person one would choose to elaborate sophisticated theological understandings (nor, it turns out, a truly sufficient understanding of the remarkable events surrounding the resignation of Jim Guy Tucker and the accession of Mr. Huckabee to the governorship of Arkansas).

Any politician who dares to say (something like) "I always ask what would Jesus do" should be asked how, exactly, he/she ascertains what the historical figure Jesus of Nazareth, born, at least by convention, approximately 2011 years ago this week, would do with regard to 21st century realities. Does Mike Huckabee agree with Jimmy Carter, another Southern Baptist, that "lust in one's heart" is the equivalent of adultery, and, if adulery is criminally punishable (should it be?), should sufficient evidence of such lust (which, of course, might usually be heard to obtain, though in the days of the internet it might be far easier than before) be enough to support a conviction? After all, Jesus did say that lust could be equivalent to adultery. Was he wrong? (Bill Clinton thought that he could escape being branded an adulterer by taking refuge in oral sex; would Jesus have recognized such a distinction?)

It is, of course, another question entirely whether we should care what Jesus would do. I trust that no politician interested in election would raise this question, alas.
Posted 10:46 PM by Sandy Levinson [link] (13) comments

Shameless self-promotion

Sandy Levinson

I spent yesterday in New York, in part to be interviewed by Bill Moyers for the edition of the Bill Moyers Journal that is being nationally broadcast on Friday, December 21 (I think at 9PM in most places on Eastern Standard Time, 8:00 in Texas and other places on Central Time), with repeated airings thereafter. I'm hoping that some of the viewers will feel like responding to my "dedicated blog," http://www.utexas.edu/law/faculty/slevinson/undemocratic/blog/ and, of course, I would welcome anyone from Balkinization who would feel like responding.

Also, David Kairys and I had a discussion/debate this morning on Philadelphia public radio station WHYY, available on podcast at http://www.whyy.org/91FM/radiotimes.html, on the forthcoming Heller case on the Second Amendment that will be decided by the Supreme Court next year. David, whom I respect greatly, is fearful that a decision upholding the DC Circuit will lead to a spate of decisions striking down what gun control legislation (other than DC-like absolute prohibitions) exists. My position is that it's almost wholly unlikely to have such consequences and that it would merely promote a lot of litigation, most of which would end up upholding regulation on "reasonbleness" grounds. As Adam Winkler has shown in a very illuminating article, state court judges in states that protect guns in their state constitutions usually uphold such regulation as exists. My fear, as a Democrat more than a lawyer, is that the decision may play a highly mischievious role in the presidential election without having much real importance on the underlying issue of guns in American culture. Anyone who wants an illuminating analysis of why the decision is almost totally unlikely to still debate on the issue, however it comes out, should read Mark Tushnet's new book Out of Range, a remarkably fair-minded overview of both the legal and public-policy debates in less than 150 pages.
Posted 5:03 PM by Sandy Levinson [link] (10) comments

Eternity is a Long Time to Pay for a Mistake (Religion in the Public Sphere)

Brian Tamanaha

The leading candidates from both parties in this presidential election make a point of emphasizing their religious convictions, which naturally raises questions about what role their beliefs will have in their decisions as President. A president who believes that Armageddon is just around the corner may see herself as a heroic instrument of God’s plan, and act accordingly (if you scoff at this, you are not paying attention). This prospect is unsettling to non-believers, as well as to adherents of minority religions.

In that regard, consider comments by Father Robert Araujo on the Mirror of Justice, a blog by law professors on issues of Catholic Legal Theory. In the context of addressing the possible relevance of eschatological beliefs to issues of global warming, Father Araujo writes:

So, I come to Rob’s “bigger question”: how does the theist base his or her political position that will be accessible to the secularist? On what grounds does the disciple rely?

Let me offer a humble and modest suggestion by posing a question for the secularist who has at least an equal share in the direction of public policy as does the theist: have you thought about the future? The secularist may dismiss the direction in which my inquiry is going, i.e., in an eschatological path. All I can do then is to propose that the secularist reflect on something that he or she may have never considered. And how might I do this?

Let me offer the following illustration:

I could say, “You may be right, Secularist, that it is all over when we die. But I ask you to consider the following: we both will die (however that happens), and this event is inevitable. You may look at me and say, ‘see I (the Secularist) was right. You have wasted a lifetime.’ But, my suggestion to you is this: But if I (the theist) am right, I will not have wasted a lifetime, but you will have wasted an eternity.”

I wonder what the Secularist’s response will be to this exchange? It could well be an indifferent shrug of the shoulders. But in the meantime, it is my responsibility to demonstrate to this person, through proposition rather than imposition, why the secularist approach is lacking and mine is not.

I’ll offer an answer to Father Araujo’s question about how a Secularist might respond, and then address what role this way of thinking should play in political decision-making.

The non-believing Secularist (of the “there is no God” stripe) would say that Father Araujo gets his imagined post-death exchange badly wrong if the Secularist is correct: there would be nothingness, so no exchange would ensue. Consequently, the Secularist cannot mock the believer for having “wasted a lifetime.” (although it would not occur to me to ridicule a believer for holding an erroneous belief in God; frankly, I hope to discover after I die that believers are correct, although preferably not the part about non-believers burning in hell forever).

On the other hand, if the theist is right, then she will indeed be vindicated and know that the Secularist will have “wasted an eternity.” The believer is the lucky one because she will never know it if she is wrong (no consciousness of error in nothingness), unlike the non-believer, who will have endless time to regret the mistake (and to wonder about the justness of a God who would exact such a price for it).

But the key is that there is no way to be dead certain in the here and now which of us will turn out to be correct, and being threatened with eternal damnation doesn’t change this one whit (although it does make me wonder if there is some way to hedge my bet).

More important for the broader issue of the relevance of religious views in political decisions, there is a notable asymmetry in the consequences that follow from these two positions. If non-believers make political decisions by the lights of their best moral judgments, the fact that they wrongly do not believe in the Christian story does not prevent Christians from enjoying eternal salvation. No harm done to them, at least with respect to the hereafter.

However, if Christians make political decisions by the lights of Christian doctrine, and it turns out that there is no God or that Christianity is wrong about the nature of things (two distinct possibilities), then Christians will have inflicted their false religious beliefs on others, with immediate consequences.

Now, it is correct that religious views in many ways shade into and cannot be sharply distinguished from moral and political views, so if a Secularist can make decisions based on moral and political views then certainly a believer can as well, without regard to whether those views might have religious influences (arguably all moral and political views, when traced back far enough, have religious influences).

But we must, at least, draw the line against political decisions based upon Christian eschatological doctrines as unacceptable.

[For a very thoughtful exploration of these issues, read Ken Anderson's superb column.]
Posted 2:30 PM by Brian Tamanaha [link] (20) comments

Free John Rawls!

Andrew Koppelman

John Rawls’s book, A Theory of Justice, is by common consensus the most important work of political philosophy written in the twentieth century. It was originally published in 1971. Rawls made a number of modifications and revisions to the book in the years immediately following its publication, and a revised edition was published in 1999, after illness made it impossible for him to revise it further. (He died in 2002.) Because the 1971 edition was so influential, philosophers now must consult both editions whenever they consider one of Rawls’s arguments. And teachers who cover Rawls must agonize about which edition to assign to their students. (I’ve just decided to go with the 1971 version.)

It would seem obvious that what’s needed is a variorum edition in which a reader can quickly and easily see what’s the same and what’s different in the two versions. Given the power of modern word processing technology, such an edition could be prepared easily and cheaply, and it would sell a lot of copies very quickly. It would also be a boon to scholarship. Leaving readers to figure out the differences themselves, without any scholarly help, makes as much sense as separately publishing the two editions of Kant’s Critique of Pure Reason.

I have suggested to Harvard University Press that it publish a variorum edition, and others have made the same suggestion. It doesn’t seem to be getting through.

So if you’d like to see a final, definitive version of Rawls’s most important book, you’ll have to ask for it. I am reliably informed that the pertinent officer at Harvard University Press is Lindsay Waters. His email address is Lindsay_Waters@harvard.edu. Drop him a line.

I’ve been warned by one prominent scholar that my suggestion will lead some to complain that there are already too many Rawls books out there. The complaint is valid, but one can hardly object to a Rawls book written by Rawls himself. Particularly this book. In fact, this step would probably help reduce people's bulging Rawls collections, by letting them replace two volumes with one.

Posted 11:35 PM by Andrew Koppelman [link] (9) comments

What the Jamie Leigh Jones Case Tells Us

Scott Horton

I testified today at the Judiciary Committee's hearings on the KBR rape case. The Department of Justice declined to send a representative to the hearing--"an absolute disgrace," in the words of Chairman John Conyers, a comment which several Republican members hastened to join in. Here are some highlights from the testimony:



And here are my prepared remarks:


Is America establishing a culture of impunity among its contractors operating in areas of armed conflict? This is the question which a proliferation of reports out of Iraq invites. When I addressed this committee on June 25, I noted that there was a troubling potential that certain categories of contractors would escape accountability altogether because of some issues that exist with the Military Extraterritorial Jurisdiction Act. I also noted concern that the Department of Justice might not be giving sufficient resources and priority to its enforcement responsibilities over contractors in Iraq and Afghanistan. Unfortunately all those concerns have been borne out.

America’s objectives in Iraq and Afghanistan, as articulated by the President, the Secretary of Defense and the Secretary of State, include helping to create a new democratic society which values the rule of law. But the contractor community that America has fielded to pursue this objective operates in an environment that looks increasingly like Texas West of the Pecos in 1890—without even a Judge Roy Bean to keep things in order. This atmosphere of immunity was created by decisions made by the United States Government, starting with the issuance of Coalition Provisional Authority Order No. 17, which shields non-Iraqi contractors from the nation’s law-enforcement system. That step was arguably appropriate under the circumstances—particularly because the Iraqi criminal justice system was a shambles—but it also conferred on the United States the responsibility to provide an effective substitute. The failure to do this undermines the mission’s credibility. But it also creates an environment which is dangerous to all involved—contractors, the military and other U.S. Government personnel, and the host community in which they operate.

Since June, we have witnessed a parade of further headlines which demonstrate precisely the shortcomings that were identified and addressed in Congressman Price’s legislation, H.R. 2740. And while that legislation overwhelmingly cleared the House—in a 389 to 30 vote—the Senate has not yet acted on a parallel measure. This legislation is urgently needed and should be enacted and signed into law in the near future.

This committee should focus on two questions. First, is there a question relating to appropriations or to legislation which has contributed to the problem which the public now so clearly sees? Second, has the executive branch done what it can and should do to enforce the law?

The horrible rape incident involving Ms. Jennifer Leigh Jones is sickening to hear recounted. It also provides an opportunity to consider exactly how the Government has responded to crimes committed by and among contractors. We have a community of 180,000 contractors in Iraq. Crimes do occur, and this is and must be considered a politically neutral fact. It does not suggest that the reliance upon contractors is mistaken. The decision to rely much more heavily on contractors was not a partisan decision. This community consists entirely neither of angels or devils, but of ordinary human beings, most of whom undoubtedly try to act honorably in fulfilling their duties. You won’t find a community of this size in the United States, or anywhere else in the world, that doesn’t experience serious violent crimes—hundreds of times in the course of a year. Add to that the fact that high pressure circumstances—such as life in a war zone in which shootings and bombings are common—frequently lead to higher than normal rates of violent crime.

Human experience also teaches—since the first formation of human communities—that when the state fails to enforce order, to identify crimes as crimes and to punish them swiftly and certainly, crimes proliferate. The Government has a duty to the citizens of the United States, and also to the employees of the contractor community, to vigorously uphold the law. Indeed, this is one of the most fundamental duties of any Government. If the executive branch felt it needed new tools to do the job, or more money, it had a duty to come to Congress and regulate these questions. I have a lot of difficulty seeing how the executive branch has met this responsibility in the context of the United States presence in Iraq.

I have not independently investigated the facts of the Jones case, though I personally find her account painful and compelling. But if I consider the facts that Ms. Jones has described, taking only those which have not been disputed by Kellogg Brown & Root, then I see no impediment to the exercise of the criminal law jurisdiction of the United States by the Department of Justice. As alleged the crimes occurred among employees of contractors involved in a contingency operation, on installations or facilities maintained by the United States abroad, and involve U.S. citizens as perpetrators and victims. These facts would provide multiple bases for the Department of Justice to exercise its jurisdiction. The crimes which have been alleged—rape, assault and false imprisonment among them—would come under at least two different grants of jurisdiction to U.S. federal courts, namely the Military Extraterritorial Jurisdiction Act, as amended in 2004, and the special maritime and territorial jurisdiction, as expanded by the USA PATRIOT Act. Of course, depending on the identity of the perpetrators, and potentially also the contracts which brought the personnel to Iraq, there might be some legal issues. This would have to be developed by investigation.

The astonishing failure in this case is the failure of an appropriate law enforcement authority to conduct a prompt and timely investigation of the allegations while Ms. Jones was still in theater. It does appear that the matter was reported to the Justice Department early on, and Ms. Jones recalls meeting with a special agent of the FBI from the Baghdad Embassy. But the investigation was conducted by the State Department, and it does not appear to have been an investigation designed to support a decision to take criminal action, including potential prosecution. In a case of this sort, having a timely, professional investigation conducted that secures forensic evidence in a form which is admissible in subsequent criminal proceedings is critical. This does not appear to have occurred. This will make prosecution by the Department of Justice incalculably more difficult. It may lead a prosecutor to conclude that even though a serious crime likely occurred, it will be too difficult to develop the evidence necessary to prosecute it.

In fact the way the medical examination and resulting evidence was handled was truly shocking.

These factual allegations from the Jones case strike me as significant and revealing of structural flaws in the way contractor-related crimes are being handled in Iraq and Afghanistan:

(1) The Justice Department is effectively not present on the scene, does not have personnel deployed charged with conducting investigations, collecting evidence and making preliminary decisions as to whether incidents are suitable for prosecution. This would require a team of FBI agents with appropriate training, including access to forensic labs and personnel.

(2) The case when first alleged seems to have been treated as an issue related to administration of a contract, rather than a criminal justice matter, triggering only a State Department investigation. But the State Department does not have authority to conduct criminal inquiries or to bring charges.

(3) The Department of Defense was called upon to provide medical expertise, which was a reasonable step. But no guidelines appear to have been available as to how this was done. The alleged surrender of the rape kit by military medical personnel to Kellogg Brown & Root was grossly improper, producing a serious lapse in the chain of custody—and in this case, loss of evidence which cannot be reproduced. It reflects an attitude which I hear constantly when interviewing State Department and Defense Department personnel—namely, that the problem is the contractor’s. Of course, the contractor has an interest in performing its contract and maintaining a good relationship with the contracting agency. The contractor does not have any interest per se in law enforcement. It might well decide to terminate employees it believes are involved in a crime, but beyond that the contractor will, very appropriately, believe that the responsibility for law enforcement lies with law enforcement agencies.

On December 5, the Department of State and the Department of Defense, represented through Deputy Secretaries Negroponte and Gordon, entered into a Memorandum of Agreement which sets out guidelines for cooperation in some investigations. When I first received and examined this document, I was convinced I must have been missing several pages. The most extraordinary thing about it is in fact what it does not cover. Remember, this process started in the wake of the Nisoor Square incident on September 16, in which private security contractors working for Blackwater Worldwide opened fire in the Nisoor Square neighborhood of Baghdad, leaving 17 civilians dead and severely wounding 24 more. The confusion, defensiveness, multiplicity of uncoordinated, ad hoc investigations, and inter-agency finger-pointing that characterized the U.S. government response to the shootings highlight the fact that the U.S. Government at this late date still had no plan or procedure for investigating allegations of serious violent crime involving private contractors fielded by the U.S. government in Iraq.

The Defense Department and the State Department got into a bit of a squabble over these investigations, a turf battle if you will. The Memorandum of Agreement was supposed to work out procedures for reconciling their differences. It actually contains a number of important advances. But there is one agency with clear primary responsibility for the investigation of criminal conduct and action thereon, and that agency—the Department of Justice—is nowhere to be found. It’s not a party to the Agreement. In fact, while there is a fairly vague reference to “appropriate” law enforcement agencies, the Justice Department isn’t even mentioned.

With respect to the Nisoor Square incident itself, the first Justice Department investigators appeared two weeks after it was first reported, published above the fold in newspapers around the United States. It made its appearance only after a public spotlight was focused on it, and demands were made by editorial boards and members of Congress for it to account for its inaction.

I wish this had been a unique course of events. But it seemed to me completely typical. We should also look back to the first reports out of Abu Ghraib. Remember that the Report authored by Generals Kern, Jones and Fay identified six contractors, and General Taguba linked two of them to the most serious abuses that occurred at Abu Ghraib. These matters were referred to the Department of Justice, and on to the Eastern District of Virginia in 2004. At the point of referral they had been fully investigated by the Army’s Criminal Investigations Department, with a full dossier supporting prosecution. That same set of investigations fueled more than a dozen courts-martial and even more nonjudicial punishments. On the military side, the process may be subject to some criticisms, but at least there was a process that moved forward and resulted in criminal prosecutions and serious sanctions.

And what about the Abu Ghraib cases involving contractors that were passed to the Department of Justice? Though there is a single newspaper report of a grand jury meeting at which questions were asked about these cases, there is no sign of any meaningful prosecutorial action—not even of efforts to interview victims and key witnesses. The Eastern District of Virginia has a reputation for acting quickly and skillfully. It has in the past years handled some of the highest profile cases in the country. The contrast between those cases and its handling of the cases from Abu Ghraib is nothing short of stunning. And the explanations that have been offered simply do not hold water.

There has not been a single completed prosecution of a crime involving a contractor implicated in violent crime coming out of Iraq, although the reported incidents which would have merited investigation are legion. Again, it is simply impossible to believe that in a community with a peak population of 180,000 people – with many more people than that actually cycling in and out of these jobs, tens of thousands of them Americans – over a period of approaching five years there has been no violent crime. The facts point to something else: an attitude of official indifference within the Department of Justice, or at least a decision to accord these crimes a very low priority and no or very little resources.

Looking back quickly to the two questions I started with:

The developments at Nisoor Square and the tragedy experienced by Ms. Jones show that the legislation that Congressman Price proposed is badly needed. Congressman Price’s bill, as enacted by the House, requires the Justice Department to allocate the personnel and resources needed to address criminal allegations involving contractors. These cases reveal that as an urgent necessity. The Price bill also strengthens the Justice Department’s jurisdictional basis for action which would help avoid unproductive litigation over the scope of the Congressional grant of jurisdiction.

The Jones case, and the Nisoor Square case point to a failure by the Justice Department to provide appropriate resources to address law enforcement within the contractor community in Iraq. There is an urgent need to have investigators, prosecutors and trained support personnel on the ground in Iraq. Back in Washington there should be a staff of experienced trial attorneys with depth in relevant criminal law and the law of armed conflict who can support prosecutions. The Criminal Division needs to be given an explicit mandate to cover this area, and dedicated funding, resources and personnel to do so. The fact that such resources are missing has clearly contributed to the failure to act in a timely and appropriate manner in the Nisoor Square event, in the case that Ms. Jones has described, and in many other incidents as well. It has damaged our nation’s reputation for doing justice.

I look forward to your questions.
Posted 3:42 PM by Scott Horton [link] (3) comments

Missing the Forest for a Single, Immaterial Tree

Marty Lederman

This is actually quite humorous. The White House has been extremely reluctant to say anything at all about the CIA tapes scandal -- except that the President knew nothing about the tapes -- for a couple of weeks now. But today's New York Times story prompted an immediate, impassioned official response, which you can read here.

The Times story, as you'll recall, explained that there was plenty of discussion about the tapes' possible destruction at the White House, and that the highest ranking attorneys in the White House either insinuated to the CIA that the tapes should be destroyed or gave tepid and equivocal advice that the tapes be retained, without actually ordering that they be preserved, and without doing anything once they learned that the CIA had destroyed the tapes. Either way, it's not a pretty picture.

So what's the White House so exercised about today? That the Times story got it wrong? That in fact no one in the White House had such discussions? That it never reached the level of Gonzales and Addington? That no one in the White House indicated that the tapes should be destroyed? That White House lawyers did, in fact, order the CIA to preserve the tapes? That upon learning of the tapes' destruction, that the White House took appropriate action to investigate and punish the wrongdoers?

None of the above.

The White House's vigorous defense this morning is that, in fact, it has never denied the facts in the Times story:

The sub-headline of the story inaccurately says that the "White House Role Was Wider Than It Said", and the story states that "...the involvement of White House officials in the discussions before the destruction of the tapes...was more extensive than Bush administration officials have acknowledged."

Under direction from the White House General Counsel while the Department of Justice and the CIA Inspector General conduct a preliminary inquiry, we have not publicly commented on facts relating to this issue, except to note President Bush's immediate reaction upon being briefed on the matter. Furthermore, we have not described - neither to highlight, nor to minimize -- the role or deliberations of White House officials in this matter.

Now, there's nothing actually inaccurate about the Times story: "the involvement of White House officials in the discussions before the destruction of the tapes" was, in fact, "more extensive than Bush administration officials have acknowledged" -- precisely because they have not acknowledged any involvement at all beyond Harriet Miers.

The Times did not write that the White House has lied about WH officials' involvement -- merely that they haven't yet come clean with the full story, which is true. There was some information coming from the White House about its involvement -- they tried to insinuate that the responsibility should be pinned on Harriet Miers alone, a story that was basically inaccurate. (Note the careful wording of the Press Statement: "Under direction from the White House General Counsel while the Department of Justice and the CIA Inspector General conduct a preliminary inquiry, we have not publicly commented on facts relating to this issue." One point of the Times piece is that the carefully orchestrated nonpublic leaks from the White House have been importantly incomplete and possibly misleading.)

But all this is beside the point, which is not whether the White House has been misleading in its "public" comments over the past two weeks, but whether the White House has been complicit in crimes and other wrongdoing over the past several years. And on that question, what's most notable about today's Press Statement is that it does not deny the substance of the Times story.
Posted 10:24 AM by Marty Lederman [link] (22) comments