Balkinization: Our Two Constitutions

Comments:

Just wondering, but is this the only topic you're going to blog about from now on, Sandy?

# posted by

dmv : 7:10 PM

You can download this publication at the website along with a companion volume co-written by Pamela Karlan.

For instance, see here

# posted by

Joe : 9:58 PM

You're constitutionally incapable of attributing any of our problems, throughout history, to people's choices, rather than this constitution you've come to hate, aren't you?

# posted by

Brett : 6:21 AM

Gotta agree with Brett here. How about that?

# posted by

mattski : 7:42 AM

After Congress and now the judiciary today folded on the government nationalization of Chryser, I am beginning to wonder whether the Constitution has any meaning at all.

You have been conspicuously silent on this. I would think it would be right up your alley, Sandy.

We have an executive acting without Article II or statutory authority in contravention of the Takings Clause and bankruptcy law.

True, this is not a constitutional dictatorship, but rather the old fashioned unconstitutional kind.

Even so, do you think that your favored constitutional reforms would do a better job stopping what Michael Barone has aptly nicknamed Gangster Government?

# posted by

Bart DePalma : 10:01 AM

Just wondering, but is this the only topic you're going to blog about from now on, Sandy?

You must be new here. It's the only topic he's ever blogged on -- and, yes, it is the only topic he will ever blog on. I sometimes have come to wonder if Jack doesn't have a Sandybot back there that just cranks these out automatically.

Sorry to say, but someone really needs to take the keys away.

# posted by

gcedwards10 : 10:08 AM

Some of us appreciate Prof. Levinson's posts on the Constitution even if we don't always agree on the details.

# posted by

Mark Field : 10:23 AM

Prof. Levinson is a brilliant guy but he sure can be a killjoy!!

That said, I agree the larger issue is the thus-far unanimous abdication by the federal judiciary of its obligation to interpret the Bankruptcy Code according to the dictates of a reactionary drunk-driving lawyer. Who will stop the madness?

# posted by

Steve M : 11:49 AM

I find myself agreeing with Bart on this: Rule of law, RIP. And it wasn't dictated by hardwired features of the Constitution, it was in defiance of several of them.

Even the best of constitutions can't work if it's going to be ignored. And then you use that as an excuse to dump what's left...

# posted by

Brett : 12:11 PM

You must be new here. It's the only topic he's ever blogged on -- and, yes, it is the only topic he will ever blog on.

Click on the link over on the left, "The Anti-Torture Memos." You'll find several posts by Sandy that are more than just: "Teh Constituton is teh suxx0rz."

# posted by

dmv : 12:33 PM

I'm with Mark Field here. Prof. Levinson, please keep lecturing us on the hardwired issues. Too few are willing to do so.

# posted by

Bob Richard : 1:30 PM

At least Levinson is confident enough in his posts to allow comments.

# posted by

Charles : 1:40 PM

# posted by

Charles : 2:14 PM

What level of Constitutional crisis would there be if clear and convincing evidence came to light that Barack Obama is NOT a "natural born" citizen, but he refused to resign and the Dems in Congress refused to impeach?

# posted by Charles : 2:14 PM

If that situation caused your head to explode, it would be the best constitutional crisis ever.

# posted by

Bartbuster : 2:35 PM

Regardless of its personal impact on my brain, I would suggest it would be the WORST Constitutional crisis since the Civil War.

# posted by

Charles : 2:36 PM

That would be the standard "Non-judiciable political matter, and nobody in a position to do anything gives a damn." constitutional crisis. We have them about every five to ten years lately.

# posted by

Brett : 3:19 PM

Regardless of its personal impact on my brain, I would suggest it would be the WORST Constitutional crisis since the Civil War.

# posted by Charles : 2:36 PM

Chucklehead, as someone who excuses torture by saying that the Constitution is not a suicide pact, you're really not in a position to be whining about constitutional crisis.

# posted by

Bartbuster : 4:14 PM

The reason I am sometimes tempted to join others in prohibiting comments is that I regret that almost everything turns into an occasion for certain participants to insult one another. As a matter of fact, I believe that Mr. DePalma and Brett raise important points. I would be more than happy, in an entirely different thread, to discuss what I call Constitution I, which is indeed open to significant malleability, including the kind observed, say, in Blaisdell, which I consider one of the most important cases in the entire canon (and about which I've written fairly extensively). But I'm also, perhaps obsessively, interested in Constitution II, where one simply doesn't see interpretive flexibility. There are literally more than enough people discussing Constitution I, in all of its shame or glory, depending on your point of view. There are extremely few of us--I count myself, Professor Sabato, Dan Lazare, and Robert Dahl among the few--who are interested in Constitution II.

# posted by

Sandy Levinson : 4:29 PM

Constitution II looks like something from the 1950s. Try going with Constitution 2.0

# posted by

Bartbuster : 4:42 PM

I think Prof. Levinson's posts on the Constitution are great: intelligent, articulate, and passionate.

I never understand why some commenters think their interests ought to dictate what a blogger posts on.

# posted by

CTS : 4:45 PM

It would never occur to me to demand that Sandy post on a different topic. I just think he has far too much of a tendency to blame the consequences of our broken political culture on our routinely violated Constitution.

He also has a deplorable tendency to describe features he simply doesn't approve of as bugs.

I will say that, IMO, the Constituion has several serious design flaws, though some of them were the result of sincere, but ill thought out efforts to improve it. (Such as the 17th amendment.)

The worst of these I'd identify as the fact that federal judges, charged with deciding when the government is obeying the Constitution, are selected by the very people whose actions they will be ruling on the constitutionality of. If no man should be the judge in his own case, neither should he select that judge.

I think federal judges should be selected by state governments. At the circuit level, state governments outside their circuits.

Hell will freeze over before this suggestion is implemented, though.

# posted by

Brett : 5:02 PM

Sandy:

I apologize for going a bit off subject, but I thought that you might find this interesting.

After a fact finding trip to Afghanistan, House Intelligence Committee member, Rep. Mike Rogers, reports that the Obama Justice Department has ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan.

In short, our government is now telling al Qaeda officers that they have a constitutional right to silence and an attorney!

To considerable ridicule, I recall commenting that this would be the logical conclusion of extending US constitutional rights to foreign enemy combatants held overseas. I must admit, though, that I never expected a sane government to actually adopt such an insane policy. I am still shaking my head in incredulity.

Why do I have the strong feeling that Marty Lederman was part of this decision.

# posted by

Bart DePalma : 5:13 PM

"almost everything turns into an occasion for certain participants to insult one another"

Such are the perils of free inquiry.

"Constitution II, where one simply doesn't see interpretive flexibility"

I find your posts on this subject somewhat aggravating in part because many of the things you discuss on this subject doesn't seem to show this to be true. Surely not on the long term.

For instance, the use of the filibuster appears to fit into this category, but its use by the Democrats and Republicans underline the flexibility (the latter abusing the privilege, Democrats having over 40 votes, but not filibustering anywhere as much 2003-6).

Consider also the appointment power. Under Bush I, Sotomayor was selected as district judge as part of a power sharing agreement. This became a "c"onstitutional rule during his term. Inflexible?

Executive power also has been flexible, it at a lower point in the 1970s, even if high as a whole after WWII. Certain recent events also checked it somewhat too.

Your complaints at times often point to partisan choices. Again, these are not inflexible, or compelled by the Constitution. For instance, splitting states into gerrymandered House districts is not compelled by the Constitution.

I see lots of flexibility available, if not the will, so putting aside pragmatic realities, your constitutional convention idea seems dubious.

As to discussion, I have seen some, though to the lengths you want to take it not so much. Some of us think perhaps because it has been unrealistic and at times myopic. See, e.g., Brett/mattski.

# posted by

Joe : 5:15 PM

Brett ...

"I think federal judges should be selected by state governments."

Aren't they going to judge them too? At the very least, the Supreme Court will.

"At the circuit level, state governments outside their circuits."

Why not district judges too? And, does this mean state judges shouldn't be appointed by state officials? Judicial elections are clearly a no go, since the voters will at some point be in the litigant pool somehow.

Putting aside the weather in the nether regions, I don't see how this would work.

# posted by

Joe : 5:18 PM

"And, does this mean state judges shouldn't be appointed by state officials? Judicial elections are clearly a no go, since the voters will at some point be in the litigant pool somehow."

To the first, yes. We could complete the circle, I suppose, by having the feds appoint state judges. But I don't think judicial elections are a no-go, because if judges are going to show partiality in SOME direction, in favor of the citizen over the government is probably the best direction.

# posted by

Brett : 7:43 PM

Brett put forth a rule that being "selected by the very people whose actions they will be ruling on the constitutionality" is a problem.

His follow-up suggests this might not apply if the "people" are regular voters. But, he has in the past favored certain checks against the popular majority, so I'm unclear where this takes us.

The idea feds could pick state judges, a sort of "trade papers" selection process is creative. It appears to conflict with his concern for federalism in other contexts though.

Will we need to ensure the feds here are not members of the state's congressional delegation? Traditionally, that is the body that had a major say during nomination of lower federal court judges. Again, federalism was a major reason for this.

After awhile, his suggestion seems a bit convoluted in practice.

# posted by

Joe : 7:53 PM

Sorry to feed the OT troll, folks...

Bart:

In short, our government is now telling al Qaeda officers that they have a constitutional right to silence and an attorney!

Bart, this is a prophylactic. It makes it possible to prosecute these people in U.S. courts, if appropriate and desired, for the crimes they have allegedly committed.

Why this bothers you is beyond me.

Why someone following the rule of law bothers you is also beyond me.

Cheers,

# posted by

Arne Langsetmo : 8:42 PM

Brett:

But I don't think judicial elections are a no-go, because if judges are going to show partiality in SOME direction, in favor of the citizen over the government is probably the best direction.

Having judicial elections (W/O any restraints on campaigning or fund-raising) simple gets you "the best judges that money can buy...." See, e.g., Caperton v. Massey.

Cheers,

# posted by

Arne Langsetmo : 8:49 PM

Brett:

Can you offer support for the suggestion that federal. judges be appointed by the states?

Here in PA, we have more than sufficient evidence that letting the state legislature have much of anything to do with the courts produces dreadful results.

Personally, I think of the federal system as our only protection from the parochialism, corruption, and ugly politics so common at the state level,

# posted by

CTS : 9:00 PM

Item:* Has the Obama Justice Department ordered FBI agents to adopt a new policy of reading Miranda rights to high value detainees held at facilities in Afghanistan? The Weekly Standard reports that this is what’s happening, and Drudge is going nuts.

But Justice spokesperson Dean Boyd emails our reporter, Amanda Erickson, that while some of this has been going on, there’s been no overall policy change. He says:

“There has been no policy change and nor blanket instruction issued for FBI agents to Mirandize detainees overseas. While there have been specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees.”

# posted by

Joe : 9:17 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 10:16 PM

Arne:

If you cannot see the problem with telling a prisoner of war that he has a protected legal right not speak to military intelligence interrogators, there is no hope for an imminent return of your common sense.

Rep. Rogers was on TV tonight reporting how the military intelligence officers he spoke with were furious that the FBI was telling their prisoners not to cooperate.

Even the idiots over in the Obama Justice Department who initiated the order are smart enough to know how this would appear to the folks back at home and denied that there was any "change in policy" after admitting that FBI was in fact mirandizing the enemy. Given that no prior Administration in the history of the Republic has ever told prisoner of war that he had a legal right not to answer the questions of a military interrogator, the claim that this does not represent a "change of policy" is laughable on its face.

# posted by

Bart DePalma : 10:20 PM

Does our resident LLB* demonstrate with this perhaps a lack of historical perspective, as well as a sick sense of humor:

" Given that no prior Administration in the history of the Republic has ever told prisoner of war that he had a legal right not to answer the questions of a military interrogator, the claim that this does not represent a 'change of policy' is laughable on its face."

Perhaps our resident LLB* instead of going back to the beginnings of the Republic should start with when and how Miranda came about. Yes, it was the Warren Court, but Miranda has worked, including making police more efficient and accountable while the presumption of innocense is still recognized. I'm not suggesting Miranda be extended to prisoners of war or detainees. But there should be a recognition that they may have rights, which should not be violated willy-nilly. Any attorney worth his salt who has practiced criminal law before and after Miranda knows the value of Miranda in providing a defendant a proper legal defense and a fair trial. CJ Warren as a prosecutor knew that pre-Miranda there were many abuses in the criminal system regarding the rights of a defendant to an attorney under the Constitution. Perhaps our resident LLB* would like to see Miranda stripped away. OOPS! The Roberts - aka Federalist Society - Court has already started, 5-4 to chip away at post-Miranda legal rights of defendants. I don't think this has been addressed at Balkinization as yet but I would have thought real trial attorneys would have voiced their concerns with this new direction. But I digress.

Fairness, due process, is still important in dealing with prisoners of war and other detainees, and remaining a civilized nation governed by the rule of law. Keep in mind that a significant portion of "these people" were released pre-Obama/Biden because they may have been innocent.

*Little Lisa's bro

# posted by

Shag from Brookline : 6:00 AM

The reason I am sometimes tempted to join others in prohibiting comments is that I regret that almost everything turns into an occasion for certain participants to insult one another."

And there it is on display, directly above. Will you stuff a sock in it, Shaq, before Sandy decides to pull the plug on comments? Surely you must have some way to make your points without resorting to name calling.

# posted by

Brett : 6:29 AM

Brett has apparently joined our resident LLB* at the hip, lip and perhaps otherwise. A dyslexic might call it the "Brat and Bert" tagteam stalking Sandy at just about every turn. And name calling? Is it the term "resident LLB*" that is name calling? Why that's a term of endearment in comparison to calling a spade a spade (non-racially and non-ethnically). Or was it the "aka Federalist Society" reference to the Roberts Court? Or a combination? Name calling? My, my, our dear Brett (aka Bert of Brat and Bert) is all of a sudden so sensitive. Will he deny that he stalks Sandy's every post on this Blog? I'm here at the invitation of Sandy and other posters who permit comments. They can formally disinvite me individually if they choose. But as for making my point, I did make a point in my comment. Perhaps Brett (aka Bert of Brat and Bert) didn't get or chose to ignore the point, which he might put in his sock and put it ....

*Little Lisa's bro

# posted by

Shag from Brookline : 8:34 AM

or perhaps he thought you could make your point without chosing to annoy our host.

# posted by

Brett : 9:27 AM

Shag:

Fairness, due process, is still important in dealing with prisoners of war and other detainees.

Two questions:

For what possible reason would we want to give the enemy a "fair" chance to avoid providing intelligence to our military?

When in the past three millennium or so of organized military history was it ever considered "important" to give the enemy a "fair" chance to avoid providing intelligence to one's military?

All is fair in love and war.

# posted by

Bart DePalma : 9:46 AM

I guess Brett likes to speak in the third person:

"or perhaps he thought you could make your point without chosing to annoy our host."

Rather than rely upon Sandy's stalker, I'd prefer to find out from Sandy whether I am annoying him. But I suspect Sandy has a sense of humor.

As to our resident LLB*, he tells us:

"All is fair in love and war." Now how is this handled in Constitution I? Constitution II? Perhaps some female visitors to this site might have some gender thoughts as to what "is fair in love" going back to the Founding Fathers who just happened to be all white males. Was this corollary to "Keep 'em barefoot and pregnant"?

*Little Lisa's bro

# posted by

Shag from Brookline : 10:04 AM

This comment has been removed by the author.

# posted by

Joe : 10:18 AM

As to Sandy's sense of humor, I'm unclear after saying "I regret that almost everything turns into an occasion for certain participants to insult one another" that he welcomes references to cartoon cartoons that to an objective observer appear insulting.

OTOH, some here might deem the standard too vague.

# posted by

Joe : 10:21 AM

If we look at the results of the extra-legal detention program (AKA the gitmo gulag) of the previous regime, we do not see a track record of success.

We see, instead, that they've created terrorists by their methods, either released or trained terrorists in their detention facilities, failed to obtain convictions, and, in the final analysis, failed utterly in reducing the power of AQ and the Taliban in Afghanistan and Pakistan.

Given that, perhaps adhering to the rules that, up until the rampages of 2002 and 2003, gave us pretty good results, would be sound.

I always read Professor Levinson's comments pointing out flaws in our Constitution with appreciation.

Frankly, I think the limits under which the original constitutional design were anything near optimal were surpassed in about 1860, and we've been carrying on via baling wire and twine patches ever since.

Thankfully, the invention of duct tape bought us more time -- but there are cracks showing that even duct tape cannot mend.

Mourad is going to laugh (probably in a deeply sardonic manner), but when a written constitution reaches the point where it contains so many internal contradictions and inconsistencies that it can be used to allow or prohibit anything desired, it's not really better than no constitution at all.

# posted by

C2H50H : 10:24 AM

how Miranda came about. Yes, it was the Warren Court

Police in England have given similar warnings since at least the late 1800s.

# posted by

Mark Field : 10:27 AM

Bart:

If you cannot see the problem with telling a prisoner of war that he has a protected legal right not speak to military intelligence interrogators, there is no hope for an imminent return of your common sense.

You're right, Bart. Beating them to death works so much better. And that even solves the problem about what evidence can be used at trial. Why didn't I see this?

Rep. Rogers was on TV tonight reporting how the military intelligence officers he spoke with were furious that the FBI was telling their prisoners not to cooperate.

Considering that many reports on interrogation results show that it is the carrot (or sugar-free coockies) and not the stick that gets useful information, this is hogwash. Not to mention a "straw man". No one is telling them that they should not cooperate. The same tactics are available as in any domestic interrogation (and this works well enough).

What's being prevented here is losing the use if any information extracted in a court of law should such turn out to be warranted.

I'll turn the question around at you, Bart: Why don't you want these Eyyvullll Terra-ists to be prosecuted and punished for their crimes?

Cheers,

# posted by

Arne Langsetmo : 10:55 AM

Bart:

All is fair in love and war.

Yeah, I saw that bumper sticker too:

"No Rulz!"

We can't afford to let the law get in the way of military expediency ... and if we choose to fight a war on a noun (or tactic), we can keep that "military expediency" going indefinitely.

I guess the same should apply to the Nash'null War on Drugs, where our very society is being ripped apart and even our existence threatened by the ravages of the loco weed. Which means that we need to start punching all the necessary holes in our laws and constitution protections to fight this -- seemingly everlasting -- war. Oh. Waiddaminnit.....

And for Bart's edification, I should point out that alcohol is one of the chief scourges amongst the dangerous drugs we need to battle. If there's no need for consent for POWs in the other wars, I'd think that "implied consent" is no overreach for DUI cases ... hell, one might even suggest that Tasering someone to get them to give up a blood sample should be SOP.... Bart will understand.

Cheers,

# posted by

Arne Langsetmo : 11:06 AM

Item: This started in the Bush Administration.

# posted by

Joe : 10:53 PM

# posted by

Unknown : 12:24 PM