Balkinization  

Wednesday, April 02, 2008

The Legality of Evil: The Torture Memos and the Living Constitution

JB

Orin Kerr notes that John Yoo's torture memo sounds very lawyerly in its arguments. This observation points to an important fact about legal discourse: Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization. (Oh, and they also decided a Presidential election using the flimsiest of legal reasoning. But I digress.).

Orin wants to know whether John's theories are consistent with my views of the living constitution. If he wants to know as a substantive matter whether John's theories of Presidential dictatorship are consistent with the Constitution's text and underlying principles, they are not. If he wants to know whether the procedures in our constitutional system could produce a decision adopting John's theories-- and whether if it did, that decision would ultimately be corrected-- that is a longer story, for as noted above, courts have made many bad and unwise decisions in our nation's history. Nobody should underestimate what lawyers in high places can do armed with legal language. But the question is whether the constitutional system as a whole can correct the excesses of such lawyers.

It is possible, but very unlikely, that five Justices of the Supreme Court would adopt reasoning like John Yoo's in one of its decisions. Unlikely, because it would require overturning a lot of precedent and disregarding basic principles of the Constitutional system. Possible, because you never know what those crazy kids are likely to do when they are unsupervised. However, it would not be the most legally dubious opinion the Supreme Court ever wrote, or, for that matter, its most morally bankrupt opinion, even if you exclude Dred Scott. If you think it would be, you don't know much about the history of American constitutional law. And yet, despite that, the republic has survived. Well, as Madison warned us, enlightened people will not always be at the helm.

But the fact that courts make bad decisions, and even evil decisions, does not mean that the constitutional system as a whole thereby becomes illegitimate. It just means that a particular decision is very wrong. The more important question is whether our constitutional system offers opportunities to correct bad decisionmaking by courts, through sustained criticism and protest, through changing people's minds about what our Constitution requires, through political responses and political workarounds, and through the judicial appointments process. These features of political practice are part of the checks and balances of our constitutional system, which we recognize easily when the President and Congress are in conflict, but perhaps less easily when the courts are involved (because we think incorrectly that they have the last word on the meaning of the Constitution). Finally, these same features of our political system offer means by which we can prevent such bad decisions from occurring in the first place. Today nobody can be appointed to the Supreme Court who thinks that Jim Crow policies are constitutional. But that was not true through most of our country's history. It only became true because of years of political and legal struggle.

If the Supreme Court adopted John Yoo's theory of Presidential dictatorship, it might send us spiraling down toward the end of our two centuries' old constitutional experiment with democracy, a possibility that the framers imagined but tried to forestall through the creation of doctrines like the separation of powers and checks and balances. Or it might not. The next Administration might come along, take very different positions, and appoint new Justices who distinguished the bad decision away. But, in any case, it would not simply be a question of us waiting passively for the Court to decide our fates. There are things we might and should do to promote the restoration of proper constitutional government. The fact that the Constitution is in all of our hands, and not simply the hands of the Justices, is the reason why we have a living Constitution.


Comments:

The entire concept legally was at fault. It was based on a lurid and insidious proposition often refered to as the ticking bomb scenario.

I have expressed this opine since 2003 but here goes:

Law of the Sea deals with vessels in distress, where cannibalism is an accepted act in a 'lurid and insidious' proposition.

Uruguayan Air Force Flight 571 or Andes flight disaster, was an airline flight carrying 45 people that crashed in the Andes on October 13, 1972. The event was concluded by December 23, 1972 when the last of 16 survivors were rescued. All were Catholic and resorted to cannibalism, the Church gave absolution, 'Shortly after our rescue, officials of the Catholic Church announced that according to church doctrine we had committed no sin by eating the flesh of the dead. As Roberto had argued on the mountain, they told the world that the sin would have been to allow ourselves to die.'

Both of these arguments are lurid and insidious examples where essentially "JURY NULLIFICATION" is at work.

Neither Sailors or the Catholic Church have signed legal memos stating the "cookbook of cannibalism" or codifying that act.

The distinction is with the "JURY NULLIFICATION."

Now to the circumstance in actual battlefield combat, or a lurid and insidious circumstance, then our wonderful system of laws allows for "Jury Nullification" where we maintain our civility as a society, our norms, and reject taboos that history has proven harmful to society, and allow for lurid and insidious circumstances.

Where Woo went wrong and remains wrong is that after the crisis is over, "or to use the examples above" rescue was performed, we do not continue cannibalism.

In a similar line of thought, as actionable intelligence experiences time-decay the torture produces less and less value.

As an example, an airman who departs an aircraft carrier has less and less information about where that craft was last located, and torturing that airman years after the fact of capture, as to the location of the air craft carrier produces nothing.

Woo for failing this fundamental grasp of reasoning should be disbarred.

The argument that you work for the execiutive office is not sufficiently applicable to all acts.

As an example you work for the executive office and are directed to illegally wiretap, then burglary, then torture, then rape, then cannibalism, and finally necrophilia. The directive to perform these acts is not divorced from the context within which the acts occured.

Any 101 philosophy student knows the above to be true through reasoning, why is Yoo still teaching?

Why has Yoo not been disbarred?

The best argument Yoo can offer in his own defense is that he lacked the reasonong or was mentally deficient under stress in his opine, that leaves little in the manner of confidence in his positions of public trust.
 

Jack writes: "The more important question is whether our constitutional system offers opportunities to correct bad decisionmaking by courts, through sustained criticism and protest, through changing people's minds about what our Constitution requires, through political responses and political workarounds, and through the judicial appointments process."

I think tht captures the nub of the question here, but I respectfully submit that Jack has seriously underestimated the extent to which a Yoo doctrine -- if made into law by the courts -- would be a one-way ratchet that undoes, structurally, the very idea of a constitutional system.

Briefly summarized, the Yoo world-view is that, in a time of war, Article II trumps all Article I powers. And for Yoo, it does so even in instances where the Constitution's text itself vouchsafes a power to Congress, (as in the case of legislation concerning captured enemies), or forbids actions of a certain kind by the executive branch (i.e., the search-and-seizure restrictions of the Fourth Amendment).

Were these ideas given the impramatur of the Supreme Court -- which, god help us, appears to be the only branch that is able and/or willing to push back against the executive -- I can't see how the whole constitutional order doesn't come crashing down, like the Weimar Republic did. At this point, we've moved beyond mere indeterminacy or "open texture" and into a land of make-believe (or more accurately make-up-what-you-belive) in which no restriction in the Constitution has any meaning at all. Nothing is true; everything is permitted.

This would be no mere "evil decision" excusing one or another appalling government practice -- as jack correctly notes, the U.S. reports are riven with them. This, rather, is a complete deconstruction of the idea that the executive is subject to any constrraints coming from the other branches. It would be the end of separate powers held by co-ordinate branches, an end to any dynamic tension within the government, and given what the army can do domestically against enemies under the Yoo doctrine, then end of the ability of the people to manifest their objections (at least without risking life, limb, or severe mental and physical pain). Keep in mind that the Yoo doctrine is no cabined, situational doctrine. given the context, which is key to Yoo's analysis -- a war with a battlefield covering the planet, which will not end, apparently, until and unless people no longer experience the emotional state of "terror"), this would be the new order.
 

question:

why have we allowed the continuing use of the idea we are "at war" ?

while it is true we have troops in the field operating under an AUMF.. there has been no declaration of war by congress.

i understand fully the draconian powers inherent in the executive when called up to preserve the nation.. but those powers.. to my understanding would only be tripped by a foreign invasion or a domestic insurrection of such a nature to threaten the life and safety of the republic.

how has that been overlooked by all the lawers for the government since the inception of this truly silly and assinine set of protocols?
 

"At this point, we've moved beyond mere indeterminacy or "open texture""

Please. We moved beyond "indeterminacy" a long, long time ago. Anybody who thinks the commerce clause was "indeterminant" enough to admit Filburn is living in constitutional cloud koo koo land.
 

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Having now read Kerr's response -- which he used more as an opportunity for him to needle Jack and Emily Bazelon than an opportunity to offer the reader any helpful perspective -- and I'm mightily annoyed. Jack is a real gentleman for endeavoring a reasoned response rather than a raised middle finger. But since I am no diplomatic academic, but rather, a bare-knuckled litigator, I'll say what Jack might want to but won't.

1. Kerr responds to Emily's first take -- read: appalled by the "glib certainty" with which it dals with highly difficult issues and doubtful conclusions -- with the not-at-all-responsive rejoinder, au contraire, Emily, it is a highly "lawyerly" document brimful with citations to authroity. This is an awfully shallow response. As an initial matter, emily's point is not that it doesn't look like a lawyer wrote it; her point is that the memo's reasoning is shitty to nonexistent. Sadly, many lawyers do indeed generate documents full of citations with reasoning that is shitty to nonexistent. But that doesn't make them "lawerly"; it makes them exemplars of shitty lawyering.

2. That said, the document is not really very "lawerly" in any event, at least on any definition that involves more than the presence of citations to aurthority in Blue Book form. Much less does it, in Kerr's words, "generally read[] like a careful lawyer's work." The memo -- and I believe that this is part of what Bazelon is driving at -- really has the air of a WSJ-editorial-driven frathouse bull session about it. As Kerr concedes the reasoning is very poor. I suppose the standard for malpractice is pretty lax (particularly for government lawyers), but I think Kerr knockks it down a notch by equating "careful lawyer's work" with poor reasoning. That Kerr thinks the memo would not look out of place next to the decisions of the U.S. Supreme Court is merely a testament to how low the state of that art has plummeted since the days of Cardozo and Brandeis.

Otherwise, I think the passive aggressive effort to tar "living constitutionalism" with Yoo's brush is entirely off base. If Kerr thought about Jack's description in a sustained way (or even read his works), I think he would understand that there is a big difference between constitutional understandings that evolve when the pressure of social forces become sufficiently intense, on the one hand, and the idea that president hell-bent on exercising unrestricted and unreviewable powers can by "lawyerly" fiat singelhandedly undo currently existing and settled constitutional understandings on the other.

But then, this is coming from the guy who thinks that a memo that deploys "poor" reasoning is at the same time a paradigm of a "careful lawyer's work." It is not. It is hackery bent toward the worst of ends.

3. In that connection, one final note is in order on what is "lawerly" v. "non-lawerly." Lon Fuller persuasively argued that some official acts, while bearing many of the outward trappings of "law," are not sufficiently law-like to be considered "law" by any reasonable definition. His examples were the Nazi Party's administrative and legislative acts, which involved, among other things, the secret promulgation of standards that varied according to the administrators' then-current interpretation (shifting interpretations that the courts were bound to accept), as well as all manner of retroactive exoneration of past crimes. (If this doesn't sound familiar, it should.) Such "legal" devices, Fuller argued, made such a mockery of the very concept of law that they cannot be considered to be "laws." By logical extension, it is perfectly reasonable to conclude that a purported legal memorandum advancing such non-legal devices (itself an instance of such "non-legal" administration) is not really "lawerly" at all for this reason as well: it quite simply does not treat with the stuff of which "law" is made.
 

Agreed with Ginger Man -- I have no clue what Prof. Kerr meant by "very lawyerly," but it's absurd if taken seriously.

Perhaps (as I just speculated over at the VC) he meant what LizardBreath said at Unfogged:

It doesn't read like serious legal work, it reads like someone trying to convince non-lawyers that legal work has been done.
 

I think the Republic is rather closer to destruction than it's been since the Summer of 1862.

(Note, making a distinction between the end of the Republic, and annihilation of its cities/people.)
 

Ginger Man, I'm more of a Hart fan than a Fullerian, but I don't think that you can just leap "by logical extension" from ex post facto laws, secret laws, laws only applying to certain individuals, and the other sorts of laws I forget at the moment that Fuller said weren't really laws, to really bad legal reasoning and say that that isn't really 'law' either. It's just really atrocious statutory construction and constitutional interpretation, but I think it would have to be much worse before we, or Fuller, could say that it's not legal reasoning at all. Is it lawyerly? Yes and no. It's terrible legal counsel, it's not careful at all, but on the other hand, it is very legalistic (and not just because it cites a lot of cases), and I think that's what Kerr meant.
 

Brett: I don't think the comparison between the "Yoo doctrine" and Wickard v. Filburn to be apt. To be sure, Wickard ushered in a new constitutiona understanding, to wit, that Congress has a lot more legislative authority than we previously thought. That was a big change. But Wickard did not go on to hold that Congress's power is pre-eminent as against the other branches of the government (by, say, declaring that the judiciary has no power to review legislation to determine whether it falls within this expanded sphere of authority. Thus, while it singaled a pretty momentous change in constitutional udnerstanding, Wickard still is part of a constitutional system involving three co-ordinate branches of government, without one or more being completely frozen out. The latter is precisely what Yoo proposes -- and not because social forces had put immense pressure on the government, as was the case when, say, Plessy was overruled, but simply because one greedy administration was determined to arrogate to itself dicatorial powers.
 

More fundamentally, the problem with Brett's point is that the fact that bad or questionable decisions have been made in the past (by a tribunal that, unlike OLC, actually has the power to make legally binding decisions on these matters) is not a justification for throwing out the rule of law entirely or making the law whatever any government lawyer says it is no matter how unpersuasive.

Indeed, I would hope that conservatives' response to something like Wickard v. Filburn would be to take steps to prevent additional Wickards from coming down in the future, rather than using perceived liberal activism as an excuse for conservative activism.
 

"In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization."

Indeed, just to reiterate the point about the use of legal arguments for nefarious political or unethical or even genocidal ends, consider the following Sidney Harring's Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century1994): "Law was used to perpetrate murder and land fraud of all sorts and the legal rights of Indians were ignored by state and federal courts. The product of the great concern with the 'legality' of nineteenth century federal Indian policy was genocide: more than 90 percent of all Native Americans died, amd most native land was alienated, the balance occupied by Indians but 'owned' by the United States. Indian people were under the control of Indian agents, political hacks sent out from Washington to manage the lives of native peoples backed by the army." Of course this legal imperialism went hand-in-hand with the systematic denial of Indian law, customs and social norms that had "evolved through generations of living together, to solve the ordinary problems of social conflict."
 

Tray: I certainly don't begrudge you your affection for Hart. I started as rather a J.L. Austin man myself. (Looked at one way, Yoo is like Austin on steroids, much dumber but much stronger.)

It is a testament to the awfulness of this administration that it facilitated my shift to Fuller's way of thinking -- at least as a theory, if not mythology, that the legal system deploys to define its self-image. As far as unsentimental outside analysis goes, I'm still a bit of a positivist.

What I mean is that the legal system needs an animating mythology to help preserve its legitimacy. As E.P. Thompson pointed out, the fact that such liberal legal theories are in part a ruse designed to help perpetuate current power and class relationships does not detract from the fact that by at least pretending to hew to certain norms and ideals, the system does on occasion generate just outcomes, else its value as leigitmizing ideology is nil.

mn: thanks to the pointer to LizardBreath. Good Stuff. I wish I had his/her gift for pith with depth. Witness this, the best one-line summation of the Yoo memo out there:

"No civilian laws bar us from torturing prisoners because this is a war; the law of war doesn't apply to bar us from torturing prisoners because this isn't the kind of war where the law of war applies."
 

for the non-lawyers amongst us, let's simplify:

orin kerr believes citations to authority are ipso facto proof of seriousness of intent.

therefore, when ann coulter uses footnotes in her books, her arguments are more serious and must be treated as such (the same relates to jonah goldberg's arguments re fascism). one need not in fact drill down to the cites themselves--were one to do so, one might find that, for instance, coulter's points are in fact undercut by her cites, when they aren't themselves simply falsehoods.

orin kerr is a very smart and serious person, a law professor. so does he really believe what he is saying? in this, as in so many other of the debates that have been going on for the past 8 years, i think strongly that the answer is no: orin is simply dissembling because he has a team, and the team is more important to him than the truth, or our republic. that is why the right wing post-modern post-fact style of argument is both antithetical to reasoned discourse but also anti-american in every possible meaning of the term. i appreciate jack's politesse, and his sound use of reason and judgment. it's just too bad that his interlocutors use these characteristics against him, and he does nothing to call them out on their terms.

the other way to put this is we are fighting using marquis de queensbury rules, and they are fighting using the law of the jungle. and they will win every time. as long as those who are rational and use fact-based sound argumentation continue to ignore or "rise above" such tactics, then we are not serious about actually making our country a better place.

to quote john adams--"we are a nation of laws, not men."
 

You might not be able to get appointed if you (publicly) espoused the old "Jim Crow" system, but you certainly can get appointed while believing in its modern equivalent -- systematic disenfranchisement of minorities through, for example, super-restrictive ID rules (while refusing to subsidize programs that would allow economically and linguistically disadvantaged people to acquire such ID without great expense of cash and/or time, which is the same thing when you're trying to work two jobs to scrape by), and felon-disenfranchisement with either no recourse or a recourse that's impossible to exercise as a practical matter.
 

Dilan, I'm a bit puzzled at how you jump from my noting that we left the genuinely ambiguous cases behind a long while back, to the notion that I don't find Yon's excuses for usurpation of power by the executive objectionable. It's just that, in finding them objectionable, I don't care to pretend that they're uniquely so.

Gingerman, you downplay the seriousness of the offense Wickard v Filburn represented. Perhaps it's because you have forgotten that in a federal system, we don't just have power horizontally allocated among a legislature, executive, and judicary, but also vertically allocated between federal government, state government, and the people. Wickard represented, not one federal branch usurping power from another, but the federal government as a whole usurping power from the states and the people.

The President's offenses, to the extent that he's claiming power Congress could legitimately grant if it chose to, might represent a transfer of power from one branch to another, but are zero sum as far as the people are concerned. The New Deal's usurpations of power no branch had any claim to, to begin with, are quite another matter.
 

Orin Kerr occupies the world of swivel chairs and starched shirts, he does NOT have any conceptualization of what the real world is like, and since his ilk will never be pulled out of his car by the side of the road and frisked and searched, nor have his phone calls tapped, these civil rights issues are just words on a paper to him, not real rights.

Orin Kerr also bans you from his blog if you argue with one of his points. Seriously.
 

At the consdierable risk of being peggef a troll-feeder, I will essay one more effort at getting Brett to understand the difference between a reallocation of power and a total seizure of exclusive power. No, I did not forget that the power allocated to Congress in Wickard came largely at the expense of the states' power (the powers allocated to the people are, for practical purposes, so negligible as not to be worth analyzing). But the New Deal did not by a long shot put the states out of business -- in the economic sphere or otherwise. The states retain significant powers over matters economic, including, for example, areas such as wages and working conditions, where the federal government has enacted regulations and the states are limited only by conflict preemption. And the massive, ill-defined power known as the police power also remains largely intact. The larger point here is that after the New deal, the system of government is still recognizable as a federal, constitutional republic -- albeit with relative powers reallocated. It does not resemble an incompetently administered version of Mussolini's Italy.

One further point: Wickard was not only a response to mounting social pressure to rejigger the relative power of the federal government to regulate economic relationships, it was also a response to the actual changing empirical reality of economic life in America. With the advent of the national rail network and, after that, other surface and air transportation technologies, economic life became far more interdependent. National product and labor markets emerged, replacing the highly localized markets to which people were technologically limited hitherto. Given those changes, the power to regulate interstate commerce should, as a matter fo pure logic, grow, because much more economic activity is interstate in nature and effect.

Granted, Wickard is an easily lampooned exercise in taking a concept to its logical extremes, but it does have a basis in actual empirical reality. One does not have to believe in an extreme version of the butterfly effect to recognize that a good deal of seemingly local activity can have huge consequences nationally.

This is a long way around repeating the main point that the New Deal for sure was made possible through a change in constitutional understanding. But it did not alter relations to such an extent taht the result was no longer recognizable as a federal, constitutional republic. That is the major difference between Wickard and Yoo.
 

Brett:

Well, as bad as I think Wickard is (and I do think Wickard, as well as Reich, which follows and reaffirms it, is bad), I don't think it's comparable to the structural issues that are raised by Yoo's memo.

The reason is because when the federal government has exercised its commerce power, it has done quite a lot of good as well as some ill. Katzenbach v. McClung is a nice example of this-- Ollie's Barbecue had quite possibly placed itself outside the stream of commerce, but I nonetheless really don't shed any tears about the fact that they were required to integrate.

Whereas, with these sorts of claims of executive power, I just don't see how anything good can come out of it. The truth is that the President, even when checks and balances are working perfectly, has plenty of power in wartime. If Bush had gone before the public after 9/11 and said "this is the authority I need and this is why I need it", he would have gotten that authority. Indeed, he probably could have gotten a lot of authority he didn't need and shouldn't have had-- the USA Patriot Act may contain some such provisions.

So the only reason to confer absolute power on the President in wartime and to eliminate such few checks on his or her power as we have would be to allow him to do things that are so extreme and so outrageous that not even a public energized by the fevers of war would confer such power on the President. (I suppose one could argue for a more absolutist Presidential power for the time in an emergency when Congress is not in session or it is not possible to call it into session, but that would be a very narrow time window, nothing like the claims made by the Bush Administration.)

So, the expanded commerce power is something that can be used for good or for ill. It does impinge on matters that should be matters of local control, no doubt, but it doesn't seem to me to be in the same category as the sort of argument that Yoo is making.
 

Could John Yoo be disbarred on the basis of the Torture Memos currently known? In California, does an attorney have to be convicted of a crime to be disbarred, or would clear evidence of incompetence, or moral turpitude -- which we seem to have here, in spaces -- turn the trick?
 

The Legal profession is the triumph of the sophists.
 

In California, does an attorney have to be convicted of a crime to be disbarred, or would clear evidence of incompetence, or moral turpitude -- which we seem to have here, in spaces -- turn the trick?

Yoo is not licensed by the CA Bar; I've checked. At Brad DeLong's blog, someone said his license was from PA. I have no idea if that's true or what the relevant standards are.

At the consdierable risk of being peggef a troll-feeder

Brett's not a troll. I don't agree with many of his positions, but he makes his arguments legitimately.

National product and labor markets emerged, replacing the highly localized markets to which people were technologically limited hitherto. Given those changes, the power to regulate interstate commerce should, as a matter fo pure logic, grow, because much more economic activity is interstate in nature and effect.

To add to your argument, it's important to remember that the Virginia Plan -- which provided an outline of what the Constitution intended to accomplish -- stated that the national legislature should be empowered "to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation."

Now, the Virginia Plan wasn't always followed, but this does seem to identify the basic problem the Founders wanted to solve with the commerce clause (among other provisions). It certainly makes sense to interpret the commerce clause so as to achieve this result, other things being equal.
 

"but it doesn't seem to me to be in the same category as the sort of argument that Yoo is making."

So far as I'm concerned, the relevant catagory is, "Grossly wrong arguments", not, "Arguments with bad consequences". Congress could claim, and effectively exercise, the power to create Heaven on Earth, and it would still be an unconstitutional usurpation if the Constitution didn't actually grant Congress that power.
 

Mark: Point re Brett taken.
Brett: Apologies for my suggestion of trollness. Your arguments are clearly good-faith efforts to advance the discussion.
I blame Bart fatigue.
 

Brett:

I don't think you can leave the consequences out of this analysis. For instance, I co-authored and published a law review article arguing that the California courts get a certain type of assumption of risk doctrine wrong and have perverted the law. Now, I think that is outrageous and I said so. But, despite the fact that some plaintiffs with meritorious claims do not get compensation for their injuries as a result of that, I would never argue that getting this wrong is as important an issue as conferring unchecked war powers to the President is.

As I said, you will never catch me in a million years defending Wickard v. Filburn. But I just don't think that Wickard does nearly the amount of harm that the Yoo memorandum did. People were tortured because of the Yoo memorandum. Detainees died in our custody. Innocent detainees who were no threat to America were held for years. And who knows what happened that is still classified and not known to the public.
 

To hell with disbarring Yoo. (As Scooter Libby proves, operatives of this sort can live quite comfrotably without a license), the guy need to be frog-marched into the Hague or, failing that, the ICJ or even a Spanish court.

I claim dibs on serving the bastard with process.
 

A Spanish court would be appropriate ... one presided over by Judge Torquemada, perhaps?
 

Ginger Man - what sort of animating mythology? If you mean that lawyers should adhere to principles of intellectual honesty and avoid twisting statutes to mean things they plainly don't, then of course. But if you mean that lawyers shouldn't advance legal arguments for justifying torture, even if good arguments could be made, then I'd have to say that lawyers may argue for anything they like as long as they do so in an intellectually sound way, and that there's nothing about the rule of law as such that precludes torture, genocide, or whatever atrocity you can think of. One can easily imagine a legal system that not only allows torture but requires it, and I don't think it would be any less of a legal system for it. My problem with Yoo's memo is that ours isn't such a legal system, that would-be torturers are restricted by law in a variety of ways, and that Yoo interprets that fact away in pretty ludicrous fashion.
 

"But I just don't think that Wickard does nearly the amount of harm that the Yoo memorandum did. People were tortured because of the Yoo memorandum."

Just out of curiosity, how many people are rotting in prison due to federal drug laws? I think the balance of harm is less one sided than you would have us believe. In fact, I'd guess that more people have suffered as a result of Raich than Yoo.

But this assumes, dubiously, that if the Supreme court were unwilling to read into the Constitution every new power Congress felt like asserting, Congress could not have successfully persued amendments giving them a legitimate claim to such powers. And left us in a situation where Congress had the power, AND we had a Constitution being honestly interpreted.

Perhaps Congress would have failed to persuade the states to ratify such amendments. I don't find, "We had to usurp the power because the amendment giving it to us would never have been ratified!" an argument in favor of usurpation. The states are entitled to turn down amendments.
 

I blame Bart fatigue

Yes, this *has* been a pleasant day, hasn't it? No sight of Bart here, tho he did pop up at the VC to sniff that Prof. Lederman probably hasn't even read the Yoo memo. Lovely guy.
 

Mark wrote:
"[I]t's important to remember that the Virginia Plan ... stated that the national legislature should be empowered 'to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.' ... [That plan] wasn't always followed, but this does seem to identify the basic problem the Founders wanted to solve with the commerce clause (among other provisions). It certainly makes sense to interpret the commerce clause so as to achieve this result, other things being equal."

To the contrary, I've always thought that if we're going to dumpster-dive in the notes of the convention (a dubious exercise for those who eschew legislative history in statutory interpretation), the fact that the Convention considered and rejected such a sweeping conception of national power militates for interpreting the commerce clause to avoid giving Congress de facto power "to legislate in all cases to which the separate States are incompetent." I can't agree with your characterization of the Virginia plan as reflective of what "the Founders" were looking to do; at most, it "identif[ied]" the views of the more nationalist of those present at the Convention, and to generalize from their preferences, to assert that their vision -- a vision of the Constitution which did not prevail in the Convention -- should control construction of the commerce power, seems quite odd to me.

I don't look at legislative history, but my question for those who do is whether you ordinarily would urge a construction of a statute that gives effect to the language of an amendment offered and rejected during consideration by Congress?
 

Ah, Tray, we seem to be playing out a classic philosophy-oflaw debate. I've come to the position that a system for sorting out who gets to live and die, who gets and doesn't get resources, who gets to walk around free and who doesn't, etc., that relies on torture is not in fact a legal system at all, but something else. Your mileage of course may vary. But I think that the observance of some very basic procedural precautions against pre-judgment, false positives, etc. is a necessary prerequisite for the status of a "legal system" as opposed to something that is simply a means to sort out privilege and punishment without regard to logic and accuracy (e.g., trial by ducking pond, ordeal, or combat).

A non-erxhaustive list of the legitimizing myths of a civilized legal system, then, would include:

*Reasonable procedures designed to minimize error, with the precautions increased as the stakes increse.

*Legal standards made through a transparent process and publicly available.

*Restraints on the discretion of decisionmakers.

*Restraints against retroactivity, status-based legal treatment, and attainder-type sanctions.

Without these I don't think you really have a legal system per se, but something else (like H.L.A. Hart's justly famous "game of scorer's discretion," which is categorically different from tennis). But to some extent this is a very sterile debate -- at least in the current context -- because I take it that you believe that a system that relies on torture or other fact-finding methods of dubious validity, unbounded discretion by decisionmakers, and the like is still a legal system, but just a crappy one.

The thoroughgoing positivist would say, with Austin, that the law is simply what a sovereign authority with the means to compel obedience says it is. While I''m sympathetic to that view, a good deal depends on what we mean by "sovereign" -- that is, whether it entails some form of legitimacy. Bush has pretty clearly attempted to identify his (or rather Cheney's) will, by itself, as the locus of the country's sovereignty. I think that entirely illegitimate, and thus any edicts coming from that theory are, in my view, non-law.
 

Professor Balkin:

Orin wants to know whether John's theories are consistent with my views of the living constitution. If he wants to know as a substantive matter whether John's theories of Presidential dictatorship are consistent with the Constitution's text and underlying principles, they are not...

It is possible, but very unlikely, that five Justices of the Supreme Court would adopt reasoning like John Yoo's in one of its decisions. Unlikely, because it would require overturning a lot of precedent and disregarding basic principles of the Constitutional system.


I am presuming you did not actually read the memo prior to making these comments.

Yoo's opening conclusion that the 5th and 8th Amendments are restricted to civilian judicial matters and not to the prosecution of wars and certainly not to foreign enemy combatants detained overseas in a foreign war appear to be well supported by Supreme Court precedent. If anything, Yoo could have beefed up his Indeed, I am unaware of any precedent in the past 600 years of Anglo American law which extended the rights of citizens protected by our 5th and 8th Amendments to foreign enemy combatants during wartime.

Yoo's applications of various canons of statutory construction are more of a mixed bag.

Article I expressly grants Congress the power to set rules for captures and thus regulate military treatment of captured enemy combatants. Yoo's citation to court commentary about the President's pre-eminent role as CiC in directing military operations to imply that the President has plenary power over the treatment of captures is willfully inapposite.

Further, it is amusing that Yoo argues that specific military law such as the UCMJ trumps the general civilian criminal code when DOJ argued (properly IMHO) that the UCMJ does not apply to foreign unlawful combatants.

However, Yoo is on much firmer ground arguing that Courts have been reluctant to hold that Congress intends to use civilian laws of general applicability to regulate military matters unless the statute expressly states this is Congress' intent.

Yoo is also completely correct to note that application of a civilian criminal code to warfare would be absurd because nearly all military actions would be rendered criminal.

Further, I thank Yoo for providing citations to multiple treatises which note that the protections of the law of war traditionally do not extend to enemy combatants who act outside the law of war. I based my prior observations of that rule of law on my readings in military history and it is nice to have the legal authority to buttress my argument.

It is also interesting to note that Yoo did not invent his definition of severe pain as physical damage the equivalent of death, organ failure or permanent impairment of a significant bodily function. Rather, Yoo was attempting the impossible task of objectively defining "severe pain" by noting other definitions of that term in the US Code as it applies to health benefits. Yoo admitted that referral to these definitions is imperfect, but then again Congress (intentionally I think) gives no workable objective definition of "severe pain" for a President or a lawyer advising a President to use.

One may or may not philosophically agree with Yoo's analysis of what does and does not constitute "torture," but his legal analysis of what is required by the hopelessly vague torture statute and whether international law is applicable outside US enabling statutes is comprehensive and thorough.

When Yoo tells the Washington Post that most of his analysis is boiler plate, it appears that he is referring to the raft of prior DOJ opinions dating back to the Civil War to which he adopts in his memorandum.

It would be interesting to see actual legal counter arguments rather than the superficial dismissals which have been offered in this blog and others.

Precisely with which of Yoo's arguments do posters disagree and what is their legal counter authority fo the counter argument?

We are not talking about philosophical discussions of what the law ought to read, but rather what the law actually states.
 

Trial by ordeal probably isn't law, I agree. But if the confessions obtained by torture aren't used as trials, but rather, only for intelligence purposes, I don't see what's so non-legal about that. Are we actually trying the people we torture on the basis of their post-torture confessions? I have no idea.
 

Just out of curiosity, how many people are rotting in prison due to federal drug laws? I think the balance of harm is less one sided than you would have us believe. In fact, I'd guess that more people have suffered as a result of Raich than Yoo.

Yeah, but how many people who are in prison for drug law violations could actually assert a commerce clause defense under a rational construction of the provision? Remember, if you sell drugs in interstate commerce, or cross state lines to sell drugs, or bring drugs across state lines to sell, that's clearly within Congress' power to regulate. Further, and somewhat more controversially, Congress can probably regulate downstream transactions involving drugs that have shipped in interstate or foreign commerce.

The thing that should have made Raich an open and shut case is that the marijuana was being grown, not purchased in interstate or foreign commerce. But, having not extensively researched this, I assume a lot of people in jail for federal drug offenses probably would meet a sensible interstate commerce requirement.
 

Trial by ordeal probably isn't law, I agree. But if the confessions obtained by torture aren't used as trials, but rather, only for intelligence purposes, I don't see what's so non-legal about that. Are we actually trying the people we torture on the basis of their post-torture confessions? I have no idea.

The simple answer is because the Senate ratified a treaty which prohibits torture whether or not the information is used for intelligence purposes, criminal prosecution, or any other purpose, and Congress passed a statute implementing that treaty and containing an equally categorical ban on torture.
 

Congress passed a statute implementing that treaty and containing an equally categorical ban on torture

Don't mistake me for a troll, but doesn't the Torture Act apply only to torture *outside* the U.S.?

On the arguments that Gitmo falls within U.S. jurisdiction, it seems tough to me to argue at the same time that it's not a "possession" of the U.S. for purposes of the Torture Act.
 

To the contrary, I've always thought that if we're going to dumpster-dive in the notes of the convention (a dubious exercise for those who eschew legislative history in statutory interpretation), the fact that the Convention considered and rejected such a sweeping conception of national power militates for interpreting the commerce clause to avoid giving Congress de facto power "to legislate in all cases to which the separate States are incompetent." I can't agree with your characterization of the Virginia plan as reflective of what "the Founders" were looking to do; at most, it "identif[ied]" the views of the more nationalist of those present at the Convention, and to generalize from their preferences, to assert that their vision -- a vision of the Constitution which did not prevail in the Convention -- should control construction of the commerce power, seems quite odd to me.

I don't look at legislative history, but my question for those who do is whether you ordinarily would urge a construction of a statute that gives effect to the language of an amendment offered and rejected during consideration by Congress?


I don't think of it as "dumpster diving". My point is simpler: a standard canon of statutory construction is that the court will look to the "reason" of the law, that is, to the problem the law was trying to solve. I'm suggesting that one way (not the only way, to be sure) to interpret the commerce clause is to consider what problem the Founders were trying to solve.

It's pretty uncontroversial to note that commercial regulations in the various states caused a serious problem in the Confederation period. After all, the Convention had its origins in the Annapolis Convention, which was called specifically to deal with that problem. There can't be much doubt that the Founders wanted to eliminate state interference with commerce, particularly state regulation which harmed other states.

So far, so good. Now let's talk about how the powers in Art. I came about. They all originated from the clause I quoted earlier. Here's the dialogue from July 16:

"The 6th. Resol: in the Report from the Come. of the whole House, which had been postponed in order to consider the 7 & 8th. Resolns.: was now resumed. see the Resoln.

***

The next, "And moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation," being read for a question

Mr. BUTLER calls for some explanation of the extent of this power: particularly of the word incompetent. The vagueness of the terms rendered it impossible for any precise judgment to be formed.

Mr. GHORUM. The vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended hereafter into details which will be precise & explicit.

Mr. RUTLIDGE, urged the objection started by Mr. Butler and moved that the clause should be committed to the end that a specification of the powers comprised in the general terms, might be reported."

No vote was taken on this; the Convention adjourned until the next day (for other, but related, reasons).

The next day, July 17, this resolution passed (in slightly stronger form) 8-2. On July 26, the Committee of Detail was instructed to prepare the specifics of the Constitution, i.e., to put into express language the resolutions, including this one, to which the Convention had agreed. That committee then produced, among other things, Art. I, Sec. 8.

What happened, therefore, is just what Gorham suggested in the quote above: the generality of the clause was superseded by a list of all those things the Convention could think of to which the states were individually incompetent to legislate.

Thus, in deciding what the term "commerce" means, we should consider that the purpose of the clause was for Congress to regulate "commerce" which the states were, individually, incompetent to regulate or which might be harmful to the Union. "Commerce" which might fall into that category today need not have fallen into it in 1788. The whole point is to interpret the clause to solve the fundamental problem that states in a federal system might adopt inconsistent commercial regulations, to the detriment of the whole.

I should add that I don't consider this the only argument to make or the definitive argument. It's simply an additional point to consider.
 

Don't mistake me for a troll, but doesn't the Torture Act apply only to torture *outside* the U.S.? On the arguments that Gitmo falls within U.S. jurisdiction, it seems tough to me to argue at the same time that it's not a "possession" of the U.S. for purposes of the Torture Act.

Anderson:

While that may be true after the Supreme Court's holding in Rasul, there's two salient points here:

1. The statute prohibiting war crimes applies to any detainee protected by the Geneva Conventions, within or without the United States, and also criminalizes torture-- under the Supreme Court's holding in Hamdan, this would mean that the war crimes statute applies to torture at Guantanamo because the detainees were protected by Common Article III;

2. Remember, a lot of the torture didn't happen in Guantanamo. A lot of it happened in black sites in Afghanistan and elsewhere-- the torture statute clearly applies to this; and

3. The US' ratification of the Torture Convention was premised on the fact that torture was already prohibited under US law; within the United States, presumably that meant that the Constitution prohibited it.
 

"Yeah, but how many people who are in prison for drug law violations could actually assert a commerce clause defense under a rational construction of the provision?"

An awful lot, since we've got an unholy number of people in prison under federal drug laws, and most of them were NOT dealers. Nor am I willing to admit that "once interstate, always interstate" is a reasonable construction of the commerce clause. If a state doesn't want an act to be illegal within it's borders, the fact that something involved in that act was once in a different state does not reasonably license the federal government to over-ride federalism.

Anyway, my larger point is that the Constitution lays out a procedure by which it can be changed. That the states are able to say no to changes is not incidental to that procedure. "Living constitutionalism" isn't necessary for the Constitution to change, it's necessary for the Constitution to change in ways the states would not consent to.

It's not democratically legitimate, it's a way of circumventing the democratically legitimate process, because the people entitled to a say might say "NO!".
 

Two salient points, and a bonus! Thanks, Dilan!
 

An awful lot, since we've got an unholy number of people in prison under federal drug laws, and most of them were NOT dealers. Nor am I willing to admit that "once interstate, always interstate" is a reasonable construction of the commerce clause. If a state doesn't want an act to be illegal within it's borders, the fact that something involved in that act was once in a different state does not reasonably license the federal government to over-ride federalism.

I conceded that was a more difficult question in my comment. The problem, however, is that in order to reach the result you want you'd have to overturn the Child Labor Cases, which (1) are a lot more entrenched than Wickard, because so many federal laws are premised on them, and (2) are a lot more defensible than Wickard, because of the links between commerce and downstream activities.

Further, I am not really sure you can get a workable test, at this point, if you do overturn the Child Labor Cases. Not all regulation is prohibition; consider, for instance, labeling requirements for pharmaceuticals. Clearly the government can require a label when it crosses state lines. But now federal agents discover unlabeled drugs being sold at a California swap meet which were manufactured at a Utah drug factory. They can't prove with certainty that the drugs were unlabeled when they crossed state lines.

Now, it seems to me that if you apply a strict "no downstream activity" test to that, you defeat the purpose of the regulation. All of the caselaw from the Child Labor Cases forward are attempts to deal with that problem. Now, they clearly went too far in Wickard, but it seems to me that if you go to far in the other direction, you defeat the federal government's ability to do proper interstate commerce regulation.
 

Kerr's comments suggest he is one of those "reasonable" sorts that the likes of Glenn Greenwald and Atrios rightly sneer at. The sorts that enable this sort of b.s. Dilan rightly sneered at Yoo. We can't limit it to Yoo. He had LOTS of help.

I note as well Kerr's fellow blogger Eugene Volokh noting once he couldn't really take too much time really to examine the issue of torture. Needs to spend more time on the 2A and the slippery slope aspects of age of consent laws, perhaps.

Not to be sarcastic or anything, but these guys should be called out. I applaud Ginger's comments on that issue.

Anyway, I don't want to dispute Brett's overall pt as to the C. as a whole being interpreted in a fast and loose way (the commerce issue is a tangent, at least as it has been covered so far), but why target Filburn? Pre-New Deal, the 14A was pathetically enforced by the federal courts in any number of ways.

This is important since I do wonder if there ever was some age when he thinks the federal courts acted correctly. His focus on the 17A and the New Deal simply seems selective. It surely robs from his wider points on correct application of the Constitution.

But, such selective argument actually affects theory too, so I find it troubling overall.
 

Here's a shocking thought, Dilan: If you can make a good case for drug labeling, maybe you can persuade California to enact drug labeling laws.

Oh, wait, California DOES have drug labeling laws, doesn't it? So, in your scenario, there'd still be someone enforcing a law against unlabeled drugs.

I've noted this before: People who think there'd be a disaster if the federal government couldn't regulate intra-state commerce don't really seem to believe in states, they reason as though they don't exist, and don't have laws of their own, which they're perfectly as capable of enforcing as the federal government.
 

"This is important since I do wonder if there ever was some age when he thinks the federal courts acted correctly."

Not in a long while, but the appropriate thing to do was to start interpreting the 14th amendment correctly, NOT to proceed to interpreting the rest of the Constitution wrong, too.
 

joe said...

Kerr's comments suggest he is one of those "reasonable" sorts that the likes of Glenn Greenwald and Atrios rightly sneer at. The sorts that enable this sort of b.s. Dilan rightly sneered at Yoo. We can't limit it to Yoo. He had LOTS of help.

Unfortunately, the fact that most critics are limiting themselves to sneering rather than offering actual legal critiques of Yoo's actual legal arguments is very telling.

Yoo is instead being criticized as an "enabler for torture" largely for pointing out that the law does not prohibit much of what you think it does - in other words noting that the proverbial emperor has no clothing.

This is a kill the messenger argument, not a legitimate substantive critique of Yoo's actual legal positions.

For example, since this thread in nominally about constitutional requirements, can anyone offer legal rebuttals with supporting authority that Yoo errs in his following constitutional arguments?

1) The 5th and 8th Amendments are restricted to civilian judicial matters and not to the prosecution of wars and certainly not to foreign enemy combatants detained overseas in a foreign war.

2) The President has the power to detain and interrogate enemy combatants pursuant to his or her CiC powers.

Where I disagree with Yoo is in his argument that the President enjoys plenary CiC power over the interrogation of captured enemy combatants the same way he does over deploying troops against enemy combatants. While you can make a very strong argument that the President has plenary power over deploying troops during a war because Article I does not grant Congress a concurrent power, Yoo cannot make that same argument concerning the treatment of captures because Article I expressly grants Congress the power to set rules for captures.

However, I cannot fault him for his other constitutional arguments above. If you think you can, a great deal less sneering and a great deal more legal argument is in order.
 

Brett: I have to say that your point about Raich and the staggering number of convicts incarcerated on fedeeral drug charges gave me considerable pause. But ultimately your point there is about outcomes only has salience if it's a given that state control is inherently more likely to generate better outcomes than federal regulation. And I don't think that point is close to proven. Indeed, being tough on crime -- and drug crime in particular -- has been a ticket to victory in statehouse elections every bit as much as federal elections. That is, leaving aside the exception of "medical marijuana" regimes in California and other Ecotopia states (which is not only a sport but a very narrow inroad on the prohibition regime at that), there is no reason to suppose that if the feds weren't putting folks away for drug offenses, the states wouldn't pick up any slack. Indeed, most states have mandatory minima, gram-by-gram sentence enhancements, etc. So, even if I accept (a) that there is a straight line running from Wickard to Raich; and (b) the federal government has used that authority to bad ends, I'm still not with you that the Wickard regime is so inherently lawless as to exceed the bounds of reasonable disagreement over the meaning of the Commerce Clause -- and thus amount to a perversion of the constitutional order on a par with Yoo's.

Much as I respect dilan's incisive commentary here, to some extent he led the discussion astray by focusing exclusively on particular policy outcomes rather than on Yoo's (Yoo being a shorthand for the whole lawless Cheney/Addington shadow government) violation of basic structure and process norms. True, the rather extravagantly evil policy outcome is hard to ignore -- and should not be ignored -- but my point is that what Yoo has done -- for reprehensible ends -- is subvert all the norms of how a civilized legal system is supposed to generate policy. Moreover -- and this is key -- he did so precisely in order to reach an evil result that could not have been achieved had the system operated properly (i.e., with transparency, accountability, a minimum of logic and respect for the more settled areas of constitutional meaning, etc.). It's not just that the outcome is bad. the bad outcome was reached through a perversion of the legal process. Kooky as Wickard's reasoning is, it did not fundamentally pervert the process.

This all goes, I hope, a considerable way toward responding to Tray's last point, which is that all of my jabbering about legal process norms is beside the point if all the government is doing is torturing people for "intelligence purposes" and not for the purpose of generating evidence o be used at trial. This view partakes of two related errors (1) by assuming an overly narrow ide of the legal process as "the things that courst do" (I blame U.S. law schools and their sanctification of appellate opinions as the Source of Law); and (2) the very Bushian notion that "intelligence work" undertaken by the U.S. government, pursuant to statutory authorizations and legislative appropriations is somehow outside the purview of legal standards and constrraints. I reject both premises outright. The Constitution (or in roughly Jack's terms, our currently settled constitutional understandings) sets hedges, limits, and channels on what the government is authorized to do and how such authorizations can change. Those hedges, limits, and channels become particularly significant when the government is not regulating peanut content in peanut butter but actually restraining people's liberty, subjecting them to involuntary interrogation, and inflicting harm on them. There are legal strictures and process norms governing how the government is supposed to use its considerable coercive power. And creating processes that circumvent those strictures and norms is a deep perversion of the legal process (and that holds true whether I think the outcomes generated are "good" or "bad"; but one rarely sees such gross perversions of norms governing transparency when the government is doing good things).
 

Not in a long while, but the appropriate thing to do was to start interpreting the 14th amendment correctly, NOT to proceed to interpreting the rest of the Constitution wrong, too.

This sorta misses my point. I purposively was agnostic on the commerce clause point.

Anyway, a "long while" suggests there WAS some time. But, I'm sorry, your comments at times imply it was pre-New Deal or so, but that is simply dubious.

Given the problems with the post-Slaughterhouse Era, what does that leave us? Marshall? Taney? Never? Perhaps, it is an imperfect system overall. Maybe selecting Wickard is as arbitrary as only focusing on executive power. If so, there's a lesson there too.
 

Oh, wait, California DOES have drug labeling laws, doesn't it? So, in your scenario, there'd still be someone enforcing a law against unlabeled drugs. I've noted this before: People who think there'd be a disaster if the federal government couldn't regulate intra-state commerce don't really seem to believe in states, they reason as though they don't exist, and don't have laws of their own, which they're perfectly as capable of enforcing as the federal government.

At this point, though, Brett, you are just trying to get your own libertarian ideology implemented. You see, the Commerce Clause PERMITS the federal government to impose a drug labeling regulation on drugs that cross state lines. You may think that is improper, but there's no serious argument that it is unconstitutional.

So the question is whether that authority implies some downstream authority as well. Simply saying the states COULD do it misses the point (and also is ahistorical-- one reason we have some of these regulations is that the states don't always do it, either because of a "race to the bottom" phenomenon like we have in the corporations codes or because of issues like race discrimination in the South). The point is, the Constitution permits the federal government to do things that libertarians don't like. It doesn't seem to me to be a plausible TEXTUAL interpretation to say "yeah, but it doesn't permit the federal government to do it effectively". That's just libertarian ideology talking, not constitutional interpretation.
 

1) The 5th and 8th Amendments are restricted to civilian judicial matters and not to the prosecution of wars and certainly not to foreign enemy combatants detained overseas in a foreign war.

This brings up an interesting point (and one I've alluded to previously):

Is it a fair construction of our constitutional rights to say that the Fifth Amendment applies only in the actual context of a criminal prosecution, and that the Eighth Amendment applies only to punishments post-conviction?

That, unless we happen to be actual convicted criminals, or unless we're actuall alleged criminals already arrested and charged in the dock, the needs of the gummint must take precedence and these protections (compelled witness against oneself, cruel and unusual punishments) do not apply?

What kind of bizarre system protects only the guilty?

In the case of First Amendment law, the typical cases concern speech at the outliers of civilised discourse. Few people assert the right to unobjectionable or mainstream speech in court, because there's few cases where such is infringed. But that is not to say that the First Amendment bans only restrictions on objectionable speech.

Similarly for the Eighth Amendment. If it is true that we can't torture convicted criminals in prison, is it rational to assume that the gummint can do the very same acts to innocent people pulled off the street?

And similarly with the Fifth. I know there's a fair amount of history to the limitation of the right against "compelled testimony against oneself" to criminal prosecution venues (or at least to any such potential prosecution), and that the right is mooted when immunity is granted ... all in the interest of gummunit function and efficiency. Is this really right? Can/should people be compelled to testify involuntarily at all? Isn't the strongest case to be made for using gummint force and coercion against someone the situation where that person has committed a crime and the gummint seeks to prosecute? ... and isn't it this one where we have ruled such out? Why is the gummint permitted to force testimony in other cases? (For that matter, doesn't forced testimony suffer from many of the same problems that coerced testimony suffers from that have led to a repudiation of torture as a reliable method?)

Then there's the Fourth Amendment. The punishment for violations of the amendment have (perhaps wrongly) focused on excluding the fruits of such searches, in part because the police have strongly objected to their being personally liable and punishable for their actions. But how does the Exclusionary Rule benefit the innocents who are wrongly searched? Surely they have as much (if not more) right to be free from searches than do criminals. The trend towards calling gummint snooping "not a search [at least, not in the "criminal prosecution" sense])" would seem to erode the very rights that we think important. If I have nothing to hide, but want my phone conversations to be between me and my preferred conversants only, then why should the gummint, consistent with the Fourth Amendment, be able to snoop on my calls all in the name of "nash'nul securitah"? "It's my right, and I'll do what I want with it...", as the song goes.

Cheers,
 

But how does the Exclusionary Rule benefit the innocents who are wrongly searched?

The question that Justice Harlan asked, and answered, in his concurrence in Bivens.
 

"At this point, though, Brett, you are just trying to get your own libertarian ideology implemented. You see, the Commerce Clause PERMITS the federal government to impose a drug labeling regulation on drugs that cross state lines. You may think that is improper, but there's no serious argument that it is unconstitutional."

And, indeed, I have not argued that if John buys drugs in Utah, and sells them in California, that this is not interstate commerce, and that in the name of regulating interstate commerce Congress could demand that the drugs be labeled. (Though I would insist that the 1st amendment imposes a very real limit on federal regulation of labeling. Which is, after all, speech.)

Where I'd part company from you is when John sells the drugs to Jane, and then Jane sells the drugs to another person, still in California. Buying and selling the same object within the boundaries of a single state is, by definition, not "commerce among the several states".

Is this inconvenient for the federal government? Sure. So what? The Constitution can't inconvenience the federal government?
 

Mark, we read that history completely differently. To my mind, the Convention considered the idea of a general, omnicompetent Congress, and the idea evaporated in the committee on detail; it did not emerge on the other side. That said, I don't have to rest as much weight on my interpretation of Madison's notes as you do, since I'd argue that the private deliberations of the convention lack authority. The Framers didn't ratify the Constitution all by themselves, and it's hard to see how materials that the general public weren't privy to, such as earlier drafts circulated in the convention, could contribute to how a reasonable person contemporaneous with the ratification of the Constitution would have understood the text. You'd have to go to some kind of "intent of the framers" standard for Madison's notes to be authoritative, even if we agreed on how to read the substitution of enumerated powers for a general grant.
 

Brett, I agree with you about Jane selling the drugs to another person in California.

But that's the point-- you have a lot of intermediate, intrastate steps and at some point it isn't reasonable to say that there is a connection to interstate commerce.

The reason why commerce clause jurisprudence is so tricky, however, is what about downstream activity that flows directly from interstate activity. That's why the Child Labor Cases seem to be rightly decided to me-- if Congress can ban the products of child labor from crossing state lines, which it surely can, than it can ban them from being sold by the people who took them across state lines, or their subsidiaries or distributors or affiliates. Otherwise, Congress can't pass an effective ban on the interstate transportation of goods produced by child labor.

So the line's got to be that at some point, the chain gets too attenuated and we are too far downstream and there has been too much in-state activity. But it is a real problem. Recognizing the absurdity of the holding in Wickard v. Filburn is only the first step in developing a sensible commerce clause jurisprudence.
 

"restricted to civilian judicial matters"

That is, the 5th and 8th amendments. The 5A in part guards against deprivation of life, liberty or property w/o due process of law.

Apropos here, "law" in this respect is not just statutory law, but certain constitutional principles ala Justice Chase in Calder v. Bull. To paraphrase his opinion, some of what is being promoting here is not something I would dignify with the term "law."

Anyway, I'm unclear on how the Due Process Clause is somehow limited to judicial matters. In fact, under current doctrine, the 14A version is used to incorporate various non-judicial themed securities such as free speech.

Suffice to say, the clause is not limited to "judicial" matters. In fact, the BOR at its core often is concerned with executive power, including "unusual" punishment and treatment by the executive that is not authorized by law or common practice.

But, Brett's discussions of "interstate commerce" suggests some dispute over regularly accepted terms. Still, this is a bridge too far. As is Yoo, since apparently even BART is uncomfortable with the breadth of his arguments.

Red flag.
 

To my mind, the Convention considered the idea of a general, omnicompetent Congress, and the idea evaporated in the committee on detail; it did not emerge on the other side.

I think this is also a plausible way to read the events. I prefer my view because it makes sense to me that the Committee of Detail did exactly what Gorham said they intended to do. In contrast, there's no evidence that the Committee did the opposite. However, you might be right; the evidence we have doesn't allow us to decide with certainty which happened.

I don't have to rest as much weight on my interpretation of Madison's notes as you do, since I'd argue that the private deliberations of the convention lack authority.

I generally agree with this principle. In the case of the Commerce Clause, however, there was very little comment by either side during the ratification debates. Pretty much everybody, including the anti-federalists, agreed that regulation of interstate commerce was a power Congress should have. For example, Luther Martin, who opposed ratification, agreed that “because the States individually are incompetent to the purpose, that the United-States should also regulate the Commerce of the United-States foreign & internal, is I believe a matter of general Consent…”

This "general Consent" reduces us to teasing out the meaning by other means.
 

"and at some point it isn't reasonable to say that there is a connection to interstate commerce."

True. Of course, the commerce clause gives Congress authority to regulate interstate commerce, not things with a connection to interstate commerce, so the point is moot.

"But, Brett's discussions of "interstate commerce" suggests some dispute over regularly accepted terms."

When mistakes hang around long enough, and enough people have an interest in accpeting them, they become regularly accepted terms. They don't, by virtue of that, cease being mistakes.

I recognize there's essentially zero chance of correcting the big mistaken rulings of constitutional history. My interest in intellectually discrediting them is due to the fact that, in due course, when the current constitution stinks so badly nobody can continue to pretend it's still in force, we'll probably have a new one.

It would be nice if that new one continued in force for a while, instead of instantly falling prey to the tactics which have rendered the old one largely a dead letter. To that end, those tactics have to be discredited.
 

From Kurt Vonnegut's A Man Without a Country:

"I myself feel that our country, for whose Constitution I fought in a just war, might as well have been invaded by Martians and body snatchers. Sometimes I wish it had been. What has happened, though, is that it has been taken over by means of the sleaziest, low-comedy, Keystone Cops-style coup d’etat imaginable. And those now in charge of the federal government are upper-crust C-students who know no history or geography, plus not-so-closeted white supremacists, aka "Christians,” and plus, most frighteningly, psychopathic personalities, or “PPs.”

To say somebody is a PP is to make a perfectly respectable medical diagnosis, like saying he or she has appendicitis or athlete’s foot. The classic medical text on PPs is
The Mask of Sanity by Dr. Hervey Cleckley. Read it! PPs are presentable, they know full well the suffering their actions may cause others, but they do not care. They cannot care because they are nuts. They have a screw loose!

And what syndrome better describes so many executives at Enron and WorldCom and on and on, who have enriched themselves while ruining their employees and investors and country, and who still feel as pure as the driven snow, no matter what anybody may say to or about them? And so many of these heartless PPs now hold big jobs in our federal government, as though they were leaders instead of sick.

What has allowed so many PPs to rise so high in corporations, and now in government, is that they are so decisive. Unlike normal people, they are never filled with doubts, for the simple reason that they cannot care what happens next. Simply can’t. Do this! Do that! Mobilize the reserves! Privatize the public schools! Attack Iraq! Cut health care! Tap everybody’s telephone! Cut taxes on the rich! Build a trillion-dollar missile shield! Fuck habeas corpus and the Sierra Club and
In These Times, and kiss my ass! (pp. 98-101)"

The lawyers are simply A students with PP.
 

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