Should California Be Placed in Political Receivership?

Stephen Griffin

A thought inspired by a story in today's L.A. Times in which the state legislature's chief budget analyst said California would be bankrupt with a $23 billion deficit by summer. California has had periodic budget crises for decades in part caused by the double whammy of a large fraction of the budget being locked up as a consequence of ballot propositions and a two thirds requirement for passing a budget. Both of these problems stem from California's dysfunctional constitutional system.

So how about a federal solution? Here's the part of the article I really liked: "The budget package that Gov. Arnold Schwarzenegger signed into law in February, averting an earlier cash crisis, was intended to keep the state solvent through June of next year. But the deterioration of the economy quickly knocked that spending plan out of balance. The analyst cautioned lawmakers against asking the federal government to help the state secure loans that might provide relief. In such a scenario, the federal government would guarantee lenders that it would repay them if California defaulted. The analyst said such provisions would be likely to have strings attached and could give the federal government too much authority over state affairs."

Too much authority? In such a situation, with the federal government guaranteeing tens of billions of dollars in California debt, why shouldn't the rest of us have a substantial say over how Californians run their government? Not to do so would simply encourage further mismanagement. Here's a simple summary of what we should require of California -- conform to the federal model. Anything in the state constitution relevant to the budget crisis that differs from the US Constitution would have to go. That means goodbye to the initiative (or at least the propositions passed using that flavor of direct democracy) and no two thirds requirement.

I think it would be difficult for Californians to argue that there is something wrong with imposing the federal model. It's done fairly well for the US over the years and, in fact, most state constitutions are based on it. So any interference with the values of federalism would be minimal. We can all appreciate the value of states as laboratories of democracy. But when the mad scientists decide to blow up the laboratory, we are not required to pay to rebuild it without setting conditions to make sure it doesn't happen again.




Posted 10:21 PM by Stephen Griffin [link]

Religious exemptions for antigay discrimination?

Andrew Koppelman

There is a vigorous discussion taking place on the University of Chicago Law School faculty blog between former Dean Geoffrey Stone and guest bloggers Douglas Laycock and Rick Garnett on the question of religious exemptions from laws that protect gay people from discrimination. Laycock and Garnett support such exemptions. Stone writes that “although it is appropriate to create religious-based exemptions to some laws of general application, I think this should be limited primarily to those exemptions that burden the state rather than the rights of other private individuals. . . . When the rights of other individuals are at issue, the presumption should be against religious exemptions.”

The odd thing about this debate is that, on the Chicago blog of all places, no one is using economic analysis. I’m going to offer that kind of analysis here, drawing on Stone’s Chicago colleague, Richard Epstein. Stone evidently regards discrimination as a kind of harm, of the same kind as hitting someone in the face. In other contexts, we don’t let people harm others for religious reasons. Why should we here? But there are important differences between discrimination and other kinds of harm. If these are overlooked, confusion follows.

In order to decide whether religious objectors ought to be excused from compliance with a law protecting gay people from discrimination, we need to consider why there are such laws in the first place.

The general rule, in employment decisions, is that of employment at will. An employer normally has the privilege of refusing to hire, or of firing, employees for any reason or no reason. He need not justify these actions to any official. Antidiscrimination laws, such as the Civil Rights Act of 1964, are exceptions to this general rule. So long as an employer does not engage in the enumerated types of discrimination, she has the privilege of being as arbitrary as she likes in her hiring. I can, for example, absolutely refuse to hire anyone whose eyebrows are not at least three inches long.

It is important to understand the reasons for the rule of employment at will, so that we can understand what we are doing when we depart from that rule. One traditional justification is rights-based: people have a right, it is sometimes said, to do what they like with their private property. The bankruptcy of this justification became clear during the debate over the Civil Rights Act of 1964, which then-presidential candidate Barry Goldwater opposed on libertarian grounds. The Civil Rights Act is not an invasion of our precious liberties. On the contrary, it diminishes the amount of oppression in the world. The idea of private property is not as sacrosanct as it once was, because the uses of that property can have public effects that are legitimate objects of legislative concern. Even Goldwater eventually abandoned the libertarian argument and supported antidiscrimination protection for gay people.

The more persuasive justification for the rule of employment at will is efficiency-based. It would be a terrible burden on the economy for government officials to have to approve every firing, much more every refusal to hire, that takes place in the private sector. Moreover, because most employers have no monopoly on the jobs they offer, there is little reason to think that most types of arbitrary refusal to hire are likely to have much effect on anyone’s opportunities. Although I may refuse to hire anyone whose eyebrows are less than three inches long, other employers will compete for the services of the short-eyebrowed, and so will bid their wages up to pretty much the same level that they would have been if I had been willing to hire them. And the market will also punish me for my foolishly discriminatory hiring practices, since competent short-eyebrowed workers will go to work for my competitors. My tendency to discriminate means that I am turning away better workers and hiring worse ones. The overall tendency is for people like me to be driven out of the market.

Considerations of this sort led Richard Epstein to argue that the Civil Rights Act ought to be repealed, because it interfered with freedom of contract for no good reason. In a free market, he argued, we can expect that blacks’ wages (for instance) will be as high as they can be. Epstein did not persuade many people. The point most commonly made by his critics was that he had left culture out of his model. Some groups are subject to pervasive discrimination. At least when the Civil Rights Act was enacted, his critics argued, racism was sufficiently pervasive to withstand the egalitarian tendencies of a well-functioning free market. Antidiscrimination law can have a powerful effect on economic opportunity. We know that black wages, for instance, went up dramatically after the act was passed. In 1964, the median income of nonwhite males was 57% of median white male income. By 1985, that ratio had risen to 66%. The proportion of black men working as professionals or managers relative to whites rose from 32% to 64%. The most dramatic progress came in the first ten years after the Act.

Epstein does not succeed in showing that antidiscrimination law should not exist, but he does show why the burden is on those who want antidiscrimination law to be extended to new classes, and what it is that they need to show. Anyone who wants to extend antidiscrimination protection to a new class needs to show that the class is subject to discrimination that is so pervasive that markets will not solve the problem.

A plausible claim of this kind can be made for lesbians and gay men. The intensity with which gay people have been despised in American culture is well documented, and good scholarship has now dispelled Antonin Scalia’s ignorant claim that all gays “have high disposable income.” Whatever the merits of the argument, many legislatures have been persuaded that antigay discrimination is pervasive enough, and has a sufficiently severe effect on the economic opportunities of gay people, to warrant protection. As noted earlier, discrimination against gay people is prohibited in twenty-two states, the District of Columbia, and many municipalities. Not all of these have religious exemptions, and the exemptions that exist vary widely in their scope. If these statutes are enforced, then in those jurisdictions, overt discrimination against gays will become like discrimination against the long-eyebrowed: if it happens once in a while, it will not make any economic difference. The preconditions for Epstein’s economic defense of a right to discriminate are not always present—that is why his general argument against antidiscrimination law is wrong—but they will be present here.

There is every reason to think that religious exemptions will not often be sought. Antigay discrimination is now sufficiently stigmatized that a business that openly discriminates is likely to pay an economic price for doing so. When religious exemptions are available, they are an affirmative defense against the enforcement of the law. The defendant charged with discrimination carries the burden of pleading, the burden of producing evidence showing that the exemption is applicable, and the burden of persuasion. An antidiscrimination law with a religious exemption is nothing at all like a regime with no such law. The difficulties should not be exaggerated; conspicuously religious discriminators are so likely to prevail in their defenses that they are unlikely to be sued in the first place. But there are unlikely to be huge numbers of them, at least in most parts of most jurisdictions that protect gay people from discrimination.

The great attraction of regulation-plus-exemptions is that it lowers the stakes and makes possible a legislative compromise that does not threaten the deepest interests on either side. The burden of complying with antidiscrimination rules has become one of the premier concerns of conservative Christians, who tend to understand their opposition to gay rights to be defensive in nature. They have been collecting horror stories which, they argue, show that gay rights are a threat to religious liberty. Reasonable gay rights proponents should take these concerns seriously and seek to accommodate them where this is possible—not just because it is politically sensible (though it is), but because it is the right thing to do.

(For those who would like the citations for the claims made above, I’ve developed these claims in an article, available here.)

Posted 2:56 PM by Andrew Koppelman [link]

Elena Kagan Deserves Better

Heather K. Gerken

The silly season seems to have arrived early this year. It has been just a few days since Justice Souter announced his retirement, and President Obama has yet to pick a successor. Nonetheless, commentators have already begun attacking potential nominees for the seat. For instance, there's a new piece by Michael Goldfarb on the Weekly Standard website titled "Elena Kagan, Radical?" It pulls three paragraphs out of Elena Kagan's senior thesis on the history of socialism during the 1930s in an effort to show that her "sympathies at the time seem quite clear -- and radical."

It's hard to tell if one should even dignify this with a response given how many foolish things college students do and say. But the lawyer in me can't help but point out that the text (even quoted out of context) doesn't support Goldfarb's claim. For instance, one of the paragraphs draws a contrast between Kagan's brother's radical politics and her own, making clear the two are different. The second paragraph simply discusses a well-known historical puzzle -- why socialism took root in other Western democracies but not here even though the U.S. shared many of the ills that socialism's adherents thought it could address. The third paragraph, it seems to me, offers evidence against Goldfarb's thesis. It refers to radicals as a "they," not a "we." It talks about lessons "for those who, more than half a century after socialism's decline, still wish to change America," telling American radicals that "in unity lies their only hope." One might censure Kagan for banality -- suggesting that radical movements (on the right or left) often fail due to infighting is not a new idea. But the text quoted hardly suggests Kagan was ever a "radical."

On a more serious note, Kagan deserves a good deal better than this. As the Dean of Harvard Law School, she reached out to, and strongly supported the appointment of, conservative legal scholars. It cost her political capital to do so, and she spent it willingly. I am not suggesting a quid pro quo -- that conservatives somehow owe Kagan a free pass. I'm simply suggesting that as dean she modeled the approach that we should all be taking as we think about what kind of judge we want to serve on the Court. Harvard's faculty was polarized when Kagan arrived, and she figured out how to listen to both sides and get them to work together. As we now consider how to appoint a new Justice to a polarized Court in a polarized political environment, perhaps we all have something to learn from her example.
Posted 5:57 PM by Heather K. Gerken [link]

The Book I Wish Justice Kennedy Would Read

Heather K. Gerken

There's a book I wish Justice Kennedy would read if, as many expect, he is sitting down now to write a decision striking down Section 5 of the Voting Rights Act. It's called The Triumph of Voting Rights in the South, by Charles Bullock and Keith Gaddie, who were kind enough to send me the page proofs. The book goes directly to the question Justice Kennedy asked (four times, by my count) about Congress's power to require "covered" jurisdictions -- mostly those in the Deep South -- to clear in advance any changes they wish to make in their voting systems with the Attorney General. As I explain here, Section 5 was a powerful statutory regime that allowed the Justice Department to keep up with the creative strategies that recalcitrant state and local governments used to disenfranchise voters.

Bullock and Gaddie's book offers an in-depth analysis of racial politics in both covered (Mississippi, Alabama, etc.) and non-covered states (Arkansas and Tennessee) along a variety of dimensions. Their conclusion? "Progress is uneven, but . . . undeniable and most evident where the Act has been in force the longest." Indeed, they believe there is a case for concluding "not only that the legislation had a tremendous impact, but the earlier a state became subject to Section 5, the greater that impact." They even find that Arkansas and Tennessee, the states that were not included in Section 5's coverage formula, ranked particularly low among Southern states in moving toward racial equality. (Lest one think this is propaganda from the left, note that the research was funded by the American Enterprise Institute and has been widely cited by opponents of Section 5).

Why do I wish Justice Kennedy would read this book? You might think that it's because the book could provide at least a partial answer to Justice Kennedy's question at oral argument. But the real importance of Bullock and Gaddie's book is that it shows that, at least when dealing with a prophylactic protection like Section 5, to ask whether covered and noncovered jurisdictions are different is to ask a question that can't be answered.

If what is bothering Justice Kennedy and his brethren is that a worry that there's really no difference between covered and noncovered jurisdictions, the Arkansas and Tennessee examples, in particular, are very helpful. After all, when Section 5 was first passed, these jurisdictions were ahead of the states that are actually covered (that's why they weren't included in the coverage formula). Now they are behind. Arkansas and Tennessee may give us some sense of what could happen if Section 5 were suspended. Thus, if Justice Kennedy were looking for a comparative study to show that Congress had good reason to keep Section 5 in place, this might be it.

But Bullock and Gaddie also show just how complex and contingent racial politics remain in the Southern states. Causal relationships -- at least of the sort that would satisfy a political scientist -- are hard to establish. That's in part because Section 5 is interacting with a huge variety of other factors in shaping racial conditions in the South. We cannot confidently say whether covered and noncovered jurisdictions are different without a convenient parallel universe where we can run an alternate experiment. Perhaps covered jurisdictions are now no different from the rest of the country. Perhaps they will revert to their old ways as soon as political actors no longer have to bargain in the shadow of Section 5. Either way, definitive proof is hard to come by.

If Congress must respond to the question Justice Kennedy asked at oral argument whenever it renews a prophylactic statute, it will never come up with a wholly satisfactory answer. And it seems to me, to paraphrase John Hart Ely, that the Court ought to worry about a question that begets no answer.

Posted 11:26 AM by Heather K. Gerken [link]

Picking Justices

Eugene R. Fidell

With the impending retirement of Justice David H. Souter, the country is both curious and anxious about what the Court’s direction may be as his seat is filled and, inevitably, as further vacancies arise. Must the next appointment go to a woman? A Hispanic? Are there too many Catholics? Too many Jews? Too many Harvard and Yale graduates or former Supreme Court law clerks? Is prior service as a federal appellate judge essential, or merely desirable, as Chief Justice Roberts has suggested, or is it downright undesirable?

I would like to add another question to that conversation: Do we need more Justices who have served in the military? Few people realize that four sitting Justices—John Paul Stevens, Stephen Breyer, Anthony Kennedy, and Samuel Alito—have served, one, Justice Stevens, on wartime active duty for a lengthy period.

My reason for raising the point comes not only in the interest of ensuring a broad experience base on the Court. More particularly, it comes out of concern that Justices who have not served in uniform may be--or may feel, which can amount to the same thing--at a disadvantage when dealing with this specialized field. A sense of inadequacy can take hold even of judges who seem utterly lacking in fear when tackling areas of law that are equally or more arcane. When they grapple with questions involving the military, these otherwise fearless judges begin to utter phrases like “deference being at its apogee” or “separate society.” This judicial caution risks giving the government an advantage that is so significant, and at times so undeserved, as to erode the adversary process in our highest court. Whether and how military experience will influence any particular veteran elevated to the bench will of course vary. But, counterintuitive though it may seem, judges with that experience are less likely to defer automatically than those who lack it.

Plainly, it would be as improper for a Justice with substantial military experience to assume the mantle of a specialized court as it would be for a trial judge to rely on personal knowledge of surgery when deciding a medical malpractice case. Still, it seems fair to suggest that having veterans on the Court can enrich the discussion and hold out the promise of careful scrutiny of government claims that might otherwise be embraced uncritically. Experience since 9/11 teaches that the Justices are not reluctant to test and, when appropriate, reject government claims sounding in military or national security matters. But the Executive Branch’s litigation advantage in these fields is so profound, and so hard to match despite the impressive mobilization of the civilian bar in the wake of the Guantánamo and other “enemy combatant” detentions, that a cautious approach seems justified. It is not desirable in a democratic society that the government have what amounts to a monopoly on learning or credibility in these areas, and it is therefore a good thing that law schools are increasingly offering courses in military and national security law.

Despite the number of sitting Justices who have served, it is likely that only a handful of the lawyers who currently have the credentials to be plausible candidates for appointment also have military experience. An appointment strategy that places particular emphasis on military service is therefore a tall order. Moreover, acknowledging military service as a qualification would likely mean tilting away from women, since far more men serve in uniform. This would have to be borne in mind by those responsible for evaluating candidates. These considerations will not always present difficulties, however. Increasing numbers of talented young people of both sexes who have served in the first or second Gulf Wars, Afghanistan, or elsewhere, are bound to make their way to law school and enter and ascend the ranks of the profession. Over time, therefore, it should become easier to find highly qualified veterans—both women and men—to serve on the Court. Among them will be jurists who can take their place in history alongside not only Justice Souter, but also the numerous present and past Justices who have worn the Nation’s uniform.

[Adapted from remarks at a March 6, 2009 symposium honoring Justice Stevens at the University of California, Davis, School of Law. The remarks will appear in a forthcoming issue of the UC Davis Law Review.]
Posted 8:42 AM by Eugene R. Fidell [link]

Maybe Logic Can Help

Brian Tamanaha

1. "Waterboarding is torture" (President Obama statement a week ago, world opinion)

2. "We waterboarded three prisoners" (statements by CIA, Cheney, Yoo, etc.)

3. "We did not torture prisoners." (statements by Bush, Rice, etc.)

No one disputes number 2, so number 1 is wrong or number 3 is wrong. You decide.





Posted 12:58 AM by Brian Tamanaha [link]

Recommendation against Criminal Prosecution of Authors of Torture Memos

Brian Tamanaha

The New York Times reports that an internal DoJ investigation recommends against criminal prosecution of the authors of the torture memos.

An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.

We won't know the grounds for this recommendation (assuming the NYT is correct) until the report is made public. Perhaps there was insufficient evidence of criminal conduct by the lawyers, or maybe it would be too hard to prove in court. The communications between the CIA and OLC lawyers surrounding the writing of the memos are crucial to this determination--and should be made public.

These events may well have revealed a template for how high government officials can successfully engage in a conspiracy to violate U.S. law: Run a proposed illegal course of action through the OLC, have the Office lawyers produce a "legal opinion" (no matter how tortured) finding that the actions do not violate the law, and you are all set. The key is to get the OLC lawyers to go along.

After the dirty deeds are done, if the illegal conduct is exposed and serious heat comes, the policy makers (the "deciders") can say they cleared it with the OLC lawyers; those who engaged in the illegal conduct can say they relied upon the authorization of the OLC lawyers; the OLC lawyers can claim they wrote the memos in good faith under pressure, and complain that it is unfair to second guess them after the fact.

Done.




Posted 7:38 PM by Brian Tamanaha [link] (223) comments

Justice Souter and the Voting Rights Act

Heather K. Gerken

Here is an essay cross-posted at the American Prospect.

One of the reasons that the Supreme Court will miss David Souter is that he possesses a gift that we seek but rarely find in a judge -- the ability to step outside the bounds of his experience. Nowhere is this more evident than in Justice Souter's astute take on the fraught relationship between race and politics, a topic that has dominated the Supreme Court's docket for much of his tenure.

Souter is perhaps the least politically connected person on the Court, and his home state of New Hampshire is a racially homogenous state that hasn't had much of a record either way with the Voting Rights Act. Despite his lack of experience, Souter has carved out a position on the Voting Rights Act that is both more nuanced and more pragmatic than his brethren's. If you want to know what makes Souter a great judge, take a look at his voting-rights opinions.

Because Souter's voting-rights jurisprudence is tied up with his legacy on the bench, it is depressing that his last term on the Supreme Court may coincide with the last term of the Voting Rights Act as we know it. Based on Wednesday's oral argument, many now expect the Supreme Court to strike down one of the main provisions of the Voting Rights Act, over what seems likely to be a vigorous Souter dissent.

There is nothing simple about voting-rights litigation. Race gets even more complicated when poured into the crucible of partisan politics. On basic questions of race, such as affirmative action, the Court has long divided into two basic camps, with the conservatives flogging the ideal of colorblindness while liberals idealistically rely on rights and courts as the solution to inequality.

Neither position translates well to the context of voting. It is odd for the conservatives to demand that the state be colorblind when voters are decidedly not. In a world of racial bloc voting, race-blind districting is simply a recipe for disempowering racial minorities. But the dominant story of race told by the liberals on the Court -- one that treats racial minorities as "objects of judicial solicitude, rather than as efficacious political actors in their own right," in the words of Stanford law professor Pamela Karlan -- similarly misses something important. It misses the idea that putting representatives of the minority community into positions of power gives racial minorities the power to protect themselves, so that eventually they no longer need be wards of the Court.

Souter understood both of these things. Consider his take on majority-minority districting, a practice about which the Court has been fighting since before Souter joined the Court. The Court's conservatives generally see majority-minority districts as hand-outs, akin to affirmative action and business set-asides. The Court's liberals generally view majority-minority districts as unfortunate necessities, a race-conscious strategy for integrating legislatures when voters won't.

Souter saw majority-minority districts for what they are -- a necessary part of the dynamic by which outsiders find their way to poltical integration. Majority-minority districts are designed to reduce the salience of race in politics, contrary to the conservative view. But they do so not by producing legislatures that appeal to some aesthetic ideal of diversity, but by pulling racial minorities into the political system and giving them a stake in it. In a case on race and redistricting, Souter argued that majority-minority districts were no different from the Polish and Lithuanian wards that once dominated Chicago or the Irish and Italian wards of Boston. In his words, these districts "allowed ethnically identified voters and their preferred candidates to enter the mainstream of American politics," eventually reducing the salience of ethnic identity as these communities gained political muscle and began to think of themselves as part of the system, not outside of it.

Souter was not naïve. He was well aware that pork and patronage played a role here, that there was an ugly side to political integration of this sort. I think his references to cities dominated by machine politics were clear-eyed and deliberate. Even as a man who had quite self-consciously lived his life outside of politics, he understood its dynamism and had an astute sense of how to harness it. Even as a person whose views presumably lined up well with the moderate Republican politics of New Hampshire, he grasped the gravitational pull that political power can have on outsiders, the material and dignitary reasons why every group wants to elect a champion of its own, the ways in which being able to identify "my guy" in the legislature furthers rather than undermines the long-term project of integration.

Consistent with this dynamic view, Souter never thought of majority-minority districts as a stop-gap measure, something that would guarantee racially integrated legislatures until voters became willing to create them on their own (conditions that election scholars call "normal politics"). Instead, he understood majority-minority districts as the means by which we get to normal politics. Souter always insisted that racial minorities were not immune from the obligation to "pull, haul, and trade" when conditions permitted. And he was an ardent supporter of efforts to foster coalitions between white voters and voters of color -- provided those strategies did not deprive racial minorities of the ability to do what white voters do routinely and unthinkingly: choose a champion. But while Souter recognized that times were changing and was more than happy to adapt to those changes, he was also plainly of the view that we haven't yet reached the other end of the Edmund Pettus Bridge.

If Souter's questions at last Wednesday's oral argument and prior opinions are any guide (and I have no inside knowledge), Souter does not think it is time to retire the Voting Rights Act. Were I not a loyal Souter clerk who thinks he's entitled to retire after devoting his life to public service, I'd be tempted to say the same of him.


Posted 2:17 PM by Heather K. Gerken [link]

John Ashcroft Worries about Torture, er, Financial Crimes

JB

Former Attorney General John Ashcroft's oped in today's New York Times wonders aloud:

I CAN imagine the Treasury secretary’s face turning pale as he is told by the attorney general that one of the financial institutions on government life support has been indicted by a grand jury. Worse, I can imagine the attorney general facing not too subtle pressure from the president’s economic team to go easy on such companies. . . . [N]o one has discussed the inherent conflict of interest that the government created when it infused large sums of money into these companies.

The government now has an extraordinarily high fiduciary duty to safeguard the stability and health of companies that received hundreds of billions of bailout money. At the same time, the Justice Department has the duty to indict a corporation if the evidence dictates such severe action — and an indictment is often a death sentence for a corporation. The quandary is obvious. How, then, does the Justice Department bring charges against a corporation that is now owned by the government?

Indeed. And whatever are we to do if we discover that in the process of protecting our national security, government officials broke laws against warrantless wiretapping and against torture? How does the Justice Department bring charges against officials who work for the government?

Ashcroft argues that in the financial context, criminal prosecutions may not be the best solution, because of collateral effects on the economy. Instead, he advocates heavy fines and careful monitoring and supervision of bad actors:

The government must hold accountable any individuals who acted illegally in this financial meltdown, while preserving the viability of the companies that received bailout funds or stimulus money. Certainly, we should demand justice. But we must all remember that justice is a value, the adherence to which includes seeking the best outcome for the American people. In some cases it will be the punishing of bad actors. In other cases it may involve heavy corporate fines or operating under a carefully tailored agreement.

According to this same logic, the government should demand a full accounting of what Bush Administration officials did and it should institute new methods for monitoring and preventing abuses in the future. It should find ways to hold individuals who broke the law accountable without jeopardizing our existing national security. What the government should not do is what Attorney General Ashcroft argues against in the financial context-- to sweep illegal actions under the rug or to go easy on the individuals who broke the law because they work for the federal government.

Nevertheless, Attorney General Ashcroft's reasoning, applied to torture and warrantless surveillance, takes us in unexpected directions. Among other things, it would be useful to know what Attorney General Ashcroft himself did while he served in the Bush Administration. We know that he opposed continuation of one of the warrantless surveillance programs (although perhaps not others that went forward without protest). We also know that he was present at meetings of White House principals in which so-called enhanced interrogation techniques were discussed and approved. According to these reports, he was troubled by discussions of these techniques, but did not oppose them, instead "argu[ing] that senior White House advisers should not be involved in the grim details of interrogations."

One thing is for certain: Attorney General Ashcroft is right to remind us that the mere fact that government controls certain entities does not mean that the persons who work for them are above the law. This is especially true when the persons who broke the law are themselves public servants sworn to uphold the Constitution and laws of our country.

If only we could take his sage advice.

Posted 1:19 PM by JB [link]

Armed Forces Day, 2009

Eugene R. Fidell

Since 1950, the country has observed the third Saturday in May as Armed Forces Day. The purpose is to honor the personnel of all branches of the military. The only parade in which I marched in uniform was the Armed Forces Day parade in Hampton, Virginia, in 1969. At the time I did not realize that each year’s observance has an official theme; mostly I thought about keeping in step and that it was much too hot to be marching in woolen blues.

According to the Defense Department website, “some of the themes and ideas that have prevailed over past Armed Forces Days” include “Appreciation of a Nation,” “Arsenal of Freedom and Democracy,” and “Representatives of the World’s Mightiest Democracy.” http://www.defenselink.mil/afd/military/history.html. This year, Armed Forces Day falls on May 16, and the theme will be “United in Strength.” We could have done better. For example, we might have chosen “Danger Ahead."

With all the current controversies swirling around our country’s use of torture--Should we investigate with a view to criminal prosecutions? Should there be a commission? Should professional sanctions be imposed on the authors of the OLC memos? Can/should Judge Bybee remain on the bench?--it is important not to lose sight of one sad and, in my view, irreversible result of the torture program that was designed, implemented, and rationalized by the Bush Administration. Whatever we do now, that program has placed our military personnel in grave danger for the foreseeable future. Even if the Bush Administration had not treated our uniformed personnel as part of the “base” that could be counted on for unquestioning political support, and even if President Bush had not used the military as a theatrical prop for political purposes (photo ops with GIs arrayed behind him, or the “Mission Accomplished” moment--presidential flight jacket and all--aboard the USS Abraham Lincoln), the torture program would still be unforgivable for its indelible effects. From the moment word of it leaked out, as was inevitable, the United States lost its ability to protest credibly when others mistreat our personnel. What can we possibly say the next time a soldier or Marine falls into the hands of some hostile force in a distant location? That the torture program--which Congress could have stopped rather than, at least in part, immunized--is ancient history? Hardly. That we have righted the balance by conducting a rigorous examination and meting out punishment to all who designed, validated or implemented the program? We haven’t done so yet and seem not to be headed in that direction. When the digital photos appear, as one day they will, documenting comparable treatment--and worse--of our military personnel and, for that matter, of innocent American civilians who are kidnapped by people intent on harming our country and countrymen, what will we be able to say? That others’ lawless conduct is different from ours because it is in a bad cause and lacks the cover of legal memoranda?

It would be comforting if some creative thinker could devise a way, this Armed Forces Day, to explain to our GIs (and tourists, diplomats, students, journalists) that the new risk they face now and for the future was inevitable and that our institutions of government under the Bush Administration are not to blame when our fellow-citizens are strapped down waterboarding or subjected to other “enhanced interrogation techniques.”

What will recruiters say when the first videos of Americans being tortured surface on YouTube?

As we approach Armed Forces Day, I hope Americans will not forget who is to blame for the added danger now faced by those who go in harm’s way on our behalf. I can think of no greater disservice to the women and men of our armed forces, or a subject more deserving of our leaders’ attention on May 16th.

Posted 9:51 AM by Eugene R. Fidell [link]

Just Retiring

JB

Justice David Souter has many virtues as a jurist: he has been a modest, thoughtful, and lawyerly voice on the U.S. Supreme Court. But one of the most remarkable and praiseworthy features of his tenure has been his manner of leaving it. Justice Souter is retiring voluntarily at the age of 69, after serving "only" 19 years on the Nation's highest court.

From 1789 to 1970, Supreme Court Justices served on the average a little less than 15 years. From 1970 to 2005, when President George W. Bush made the first of his two appointments, the Justices served an average of more than 26 years.

Justices serve longer these days because life expectancy is longer: the oldest Justice, John Paul Stevens, recently turned 89. They also stay because the job has become one of the most enjoyable and powerful positions in the United States. It was not always thus. The first Chief Justice, John Jay, resigned after six years to become Governor of New York; his colleague on the Court, John Rutledge, left to take the (then) more prestigious job of Chief Justice of the Supreme Court of South Carolina. Other Justices departed to take a variety of posts or because of their political ambitions. No longer. With a limited docket of cases to hear, the assistance of four law clerks, and enormous power and influence, a position on the Supreme Court has become more desireable than almost any other in American life. That is what makes David Souter's retirement so extraordinary.

The constitutional tradition of life tenure for federal judges (the constitutional text actually says only "good behavior") serves an important purpose. It limits the amount of political influence on Justices to decide cases to please particular constituencies (while not eliminating it altogether). But regular rotation of Justices in office serves another valuable purpose: it gives Presidents the opportunity to staff the courts with jurists who reflect the constitutional values of a changing political world. The Supreme Court thus reflects-- and should reflect-- a diversity of views from jurists appointed at different points in time. In an earlier era of shorter life expectancies, and a less powerful institution, we had the best of both worlds: Justices enjoyed life tenure and Presidents had fairly regular opportunities to pick new Justices. This has changed dramatically in recent years. For example, during an eleven year period between 1994 and 2005 there were no replacements at all.

How can we regain the benefits of judicial independence and regular rotation in office? A good rule of thumb would be that a President should be able to appoint a new Justice every two years. In that way a President elected for two terms can appoint four Justices-- less than a majority, but still a significant share. Our last two term Presidents-- Bill Clinton and George W. Bush, got only two appointments each. Some one term presidents, like Jimmy Carter-- get no appointments at all.

Do we need a constitutional amendment to cure the problem? Not necessarily. One idea, suggested by a variety of constitutional scholars both liberal and conservative, is to pass a statute authorizing a President to appoint (and the Senate to confirm) a Justice every two years. The quorum for deciding cases will consist of the nine Justices most junior in service. The more senior Justices will retain their commissions and life tenure. But they will hear cases with the full Court only when one of the junior Justices is recused or otherwise unable to perform his or her duties. Senior Justices can still consider petitions for certiorari (discretionary appeals), serve on other federal appellate courts, and handle matters that regularly come before individual Justices. But their caseload will be concentrated in their first eighteen years of service. Interestingly, under the logic of this proposal, Justice Souter leaves active service on the Court at almost exactly at the right time.

This proposal should take effect fifteen years after passage or after all of the current Justices retire, whichever is later, so that no political party will have an unfair advantage. In the alternative, the reforms could begin after fifteen years but the size of the quorum could expand until all of the current Justices have retired. (Note that the Supreme Court's size has varied from six to ten Justices at different points in history.)

President Franklin Roosevelt's court packing plan-- which was widely denounced at the time-- was importantly different: it gave the President immediate authority to appoint new Justices for each one over 70. This would have given Roosevelt six new appointments at once, strongly skewing matters in favor of his party. By making the provision prospective, and by spacing future appointments at regular intervals, we can be fair both to the parties and to the current Justices.

One last reform would help encourage Justices to retire closer to the desired target of eighteen years. The United States Supreme Court currently has almost complete control of its docket. It is required to hear very few cases by law. As a result, it hears relatively few each year, now approximately 70. The opinions have gotten longer and more byzantine, accompanied by multiple concurrences and dissents. That is hardly surprising, because most of the Justices no longer write their own opinions-- they are written by bright young clerks fresh out of law school. Word processing software and the Internet have made it far easier to assemble lengthy and impressive looking essays. Moreover, because individual Justices have ample time to state their own views at length, often there is no majority opinion.

In earlier years, when the Supreme Court was required by law to hear a variety of different cases, the Justices heard two or three times as many appeals; the opinions were shorter and there were fewer that lacked a majority. Ironically, there were also many fewer lower courts and state courts in those days, so that the Supreme Court heard a far larger percentage of cases. And instead of a contingent of four law clerks to draft their opinions, most Justices had none or (later on) perhaps one or two.

We should increase the number of cases the Supreme Court hears. The number of lower court and state court opinions has exploded, while the Court's docket has shrunk. As a result, the Supreme Court's work is increasingly distanced from most of the country's decisional law. Lower federal courts routinely disagree on vitally important questions with no Supreme Court guidance forthcoming. Congress should either restore certain categories of cases to mandatory jurisdiction, or it should require the Court to hear and decide a specified number of cases-- say 200-- of its own choosing.

Either way, the life of a Supreme Court Justice will change. The Justices will have to do more work-- and a larger variety of work-- than they have in recent years. (Lower federal court judges, it should be noted, already must hear and decide far more cases than the relatively pampered Justices do). This will have salutary effects on the number of Supreme Court opinions produced, as well as their length. It will also tend to reduce the number of conflicts in federal law and increase Supreme Court supervision over the lower federal courts.

Equally important, expanding the Court's docket will also require more energetic Justices who can handle a larger caseload. As a result, over time, more Justices will find it attractive to retire early and enjoy a generous pension. In this way, we can create incentives for regular retirements and for the Supreme Court to do its job better without requiring anyone to leave the bench early.

Political pundits often complain about the Supreme Court's work and argue heatedly about who should (or should not) get the next appointment. But they rarely pay attention to the basic structures behind the Court's actions, structures that shape the way the Court does its job. David Souter's early retirement has put those questions before us. For this, and for nineteen years of exemplary service, we owe him our thanks.

Posted 6:58 AM by JB [link]

Justice Souter and Common Law Judging

Heather K. Gerken

As a former Souter clerk, here’s a take on Justice Souter’s legacy. A shorter version of this essay has been posted as part of a series of reflections published by the New York Times website.

Adam Gopnik once observed that "Paris is a struggle between its pompous official culture and its matchless . . . commonplace civilization." The aphorism applies even more clearly to the Supreme Court. Officially, it is an institution cloaked in formality, from the ceremonies of the First Monday to the grand generalities it invokes in its rulings. It is also an institution that takes itself extremely seriously, with its strongest opinions penned when it thinks another institution -- Congress in passing Commerce Clause legislation or the Religious Freedom Restoration Act, the Florida Supreme Court during the Bush v. Gore litigation -- is treading on the Court's privileges. Only the Court's pompous official culture could explain why the Justices in the majority of Bush v. Gore -- where the Court shut down the Florida recount in an opinion widely thought to be an embarrassment -- could have claimed that their intervention was an "unsought responsibility." This is not an institution cursed with self-awareness.

Souter, however, is at the core of the Court's matchless commonplace civilization, something that may explain why he dissented in each of the cases described above. He is a judge's judge, a courtly lawyer who manages to be both a serious intellectual and a pragmatic decisionmaker. He reads everything, he is open to new ideas and new arguments, and yet he is never swayed by the political winds that waft through the Court. He is the sort of judge who renews your faith in judging.

Justice Souter displays none of the pomposity that mars the Court's reputation. In person, he is one of the most charming, congenial people I know, one of the few Justices (or clerks) who knows the name of the guards and the cleaning staff. When Souter writes, his language can sometimes be ponderous, and it is decidedly old-fashioned. But his prose is never vapid or self-aggrandizing. He is the most powerful person I know well, and yet the most decent and humble. To this day, I still cannot fathom how a man of such integrity negotiated the Serbonian bog we call Washington.

Souter is the reason why some of us, familiar with the Court's many shortcomings, still believe in the institution. Our faith in the Court is built upon the common sense and decency of those behind the Court's official culture, on the idea that men and women, deeply steeped in the profession's traditions, can reach decisions worthy of the garb in which they are cloaked.

Souter perfectly understands the relationship between the Court's pompous official culture and its matchless commonplace civilization, the ways in which the grand generalities of the law are necessary to give weight to its common-sense intuitions. That is because, at his core, he is a common law judge. Common law judges toggle between principle and practice, theory and facts, general standards and specific holdings. Souter wrote of that tradition that "the judicial paradox [is] that we have no hope of serving the most exalted without respecting the most concrete." In doing so, he invoked the myth of Antaeus, the giant who drew his strength from contact with the earth and could not be defeated until Hercules had the wit to hold him aloft with his feet flailing uselessly in the sky.

With Souter's retirement, the Court loses its finest common law judge, a plain phrase for the highest of compliments.



Posted 4:54 PM by Heather K. Gerken [link]

Passive Secularism as Active Management of Religion

Andrew Koppelman

The following are remarks I made yesterday at the Buffett Center conference at Northwestern University on "State Management of Islam." The talk includes comments on some other papers that were presented at the conference.


I’m going to offer a hypothesis about state management of Islam, drawn from an analogous case in American law. I’m a lawyer and a political scientist, not an anthropologist or a sociologist, and I know hardly anything about the processes of state management of Islam that this conference focuses on, so this really is a hypothesis, and I’m eager for your reactions.

Here is my hypothesis. Passive secularism, of the kind one finds in the United States, is itself a tool for managing religion, and in many ways a more powerful tool than the instrumentalities of management that are used in the assertive secular states, such as France and Turkey.

The reason why the state may want to manage religion is that religion can sometimes be a threat to the state’s legitimate goals. This is a problem with certain specific forms of religion, not with religion as such. The most prominent illustration in United States history is the abolition of slavery, which originated as a purely religious movement. The opposite case, where religious intervention in politics is oppressive and tyrannical, is at least as well known, with the early days of Khomeini in Iran serving as a kind of paradigm case.

My hypothesis draws upon Ahmet Kuru’s very useful typology of secularisms:

Passive secularism, which requires that the secular state play a “passive” role in avoiding the establishment of any religions, allows for the public visibility of religion. Assertive secularism, by contrast, means that the state excludes religion from the public sphere and plays an “assertive” role as the agent of a social engineering project that confines religion to the private domain.[1]

The United States and India are instances of passive secularism; France, Turkey, and Mexico are instances of assertive secularism. Kuru observes that “[a]ssertive secularism seems to be incompatible with any religion that has public claims.”[2] The consequence has been the familiar, bitter controversies over the role of religion in France and Turkey.

The pathologies of assertive secularism are particularly clear in France. John Bowen’s wonderful book, Why the French Don’t Like Headscarves, nicely shows how the French state has projected fantasies on what Islam must be like onto people with very different agendas, thus exacerbating the alienation and marginality of Muslim citizens.[3]

The obvious advantage of passive secularism is that it is a possible object of overlapping consensus. It does not drive religious persons to the margins of politics. So Kuru is quite right to ask whether passive secularism is a more attractive option for Muslims than the more aggressive form that prevails in France and Turkey.

My hypothesis extrapolates from one historical case. That case, which may or may not have an analogy in contemporary Islam, is that of American Catholics. Passive secularism helped to transform Catholicism into a liberal and democratic religion.

Catholicism was once stubbornly antisecularist and antidemocratic. It reinvented itself largely through pressure from American Catholics, who were forced to reinterpret Catholic teachings, making them compatible with the requirements of American pluralism, in order to show that Catholics could be good American citizens. Eventually, they brought their new ideas back to Rome and transformed Catholicism worldwide, so that the Church itself now espouses religious toleration. If a liberalized Islam is going to flourish, perhaps it will be through the moderating force of passive secularism.

The problem of reconciling authoritarian religion with liberal democratic norms was starkly presented in the United States by the massive immigration of Catholics in the early part of the 19th century. At the time of the Revolution, barely one percent of the population was Catholic, about 30,000 people. That number grew to 600,000 in 1830, 1.5 million by 1850, twice that many ten years later, 12 million by 1900.[4]

The Protestant majority regarded the newcomers, who were mostly poor and Irish, with deep suspicion. They feared “the church’s authoritarian institutional structure, its long-standing association with feudal or monarchical governments, its insistence on close ties between church and state, its endorsement of censorship, and its rejection of individual rights to freedom of conscience and of worship.”[5] Anti-Catholic suspicions were exacerbated by the Vatican’s 1864 publication of the Syllabus of Errors, which denounced the freedom of conscience and disestablishment.

The Protestant majority response was a peculiar kind of “secularism,” one that defined core Protestant practices as secular. Most notably, public school students read from the King James Bible, a translation which the Catholic Church did not recognize. The idea of an unmediated approach to the Bible was, of course, a cornerstone of Protestantism.

The consequence was to drive Catholics into private enclaves. In response to the aggressive Protestantism of the public schools, the Catholics set up a massive system of schools of their own. Their efforts to secure public funding for these schools were universally rejected as “sectarian,” and by 1890, 29 states had amended their constitutions to impose some limitation on private school funding.[6]

At the same time, American liberalism worked in important ways to the advantage of American Catholics. In 1922, Oregon voters approved a referendum, supported by the Ku Klux Klan, that abolished private schools. The Supreme Court struck down the law on the basis of “the liberty of parents and guardians to direct the upbringing and education of children under their control,” and it denied “any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.”[7]

More generally, though there were some nasty episodes of anti-Catholic violence, Catholics for the most part lived and flourished undisturbed in America. By the mid-1940s, they were the nation’s largest denomination, they dominated many major cities, and they advanced socially and economically, to the point where Al Smith, the Catholic four-time governor of New York, was the Democratic presidential candidate in 1928. This was very different from their experience in, say, Ireland. The Catholics’ flourishing in the United States, and their desire to show themselves to be good Americans, led them to adapt their religious views to their new circumstances. They had to confront their status as a religious minority in a context in which liberalism was an indispensable friend. They had no interest in the Church’s intolerant doctrines, which could not possibly be implemented in the U.S. anyway.

From the beginning, there was a tension between American Catholics, who were inclined to accept American institutions and complained of the Protestant biases of public education, and the Vatican, which rejected those institutions. An “Americanist” movement within the Church, which tried to adapt Catholicism to American pluralism, was rebuked by an 1895 encyclical letter from Pope Leo XIII.[8] The Americanists ultimately triumphed in the Second Vatican Council, in which delegates and theologians from the United States overcame considerable opposition to produce the 1965 Declaration on Religious Liberty.[9]

Is a similar transformation possible within worldwide Islam?

A persistent theme in the papers on this panel is the malleability of Islam in the face of local political forces. Michael Peletz emphasizes the “heterogeneity, unevenness, and domain-specific and contingent nature” of processes of desecularization, as Islam gets invoked in Malaysia and Indonesia by very different actors for very different ends, and how it is transformed when it is interpreted by lawyers schooled in British jurisprudence. Karen Barkey shows how Islam was deployed and transformed by the Ottoman Empire for its own purposes. Leonard Binder shows how delusional the idea of “an effortless emergence of a closely knit, morally integrated, authentically Islamic community” is. None of these papers directly address the situation of Muslims living in secularist regimes.

Most pertinent for my purposes is Vit Sisler’s study of fatwa-issuing websites addressing audiences in non-Islamic countries. The fact that shari’a is not an official source of law, Sisler observes, “transforms the observance of Islamic rules into a matter of individual choice.” (4) The consequence is “a new space in which traditionally educated muftis compete with new popular preachers over audiences,” thus displacing interpretive authority “from scholars towards selective personal interpretation.” The displacement is clearest in the phenomenon of “fatwa-shopping,” in which “a person approaches different authorities in order to obtain a fatwa that suits his or her needs.”

The consequence of all this will inevitably be a Protestantized form of Islam, in which religion has authority, but that authority is mediated by the conscience of the individual. That form of Islam will be friendlier to liberal and democratic values to the extent that Muslims in the West are under no pressure to distance themselves from their Muslim identities. It also matters quite a lot, of course, if those people are economically integrated and prosperous. If this kind of Islam grows and prospers in the United States – and this is already happening - it will not stay there. It must have some effect on worldwide Islam. Before the West thinks about imposing a liberal democratic Islam on other countries through military force, it would be wise to grow some at home.

In short, perhaps the promotion of passive secularism in the West can be the most effective thing we can do to promote democratic Islam abroad. Refusing to manage religion is itself a way of managing religion.

[1] Ahmet T. Kuru, Passive and Assertive Secularism: Historical Conditions, Ideological Struggles, and State Policies toward Religion, 59 World Politics 568, 571 (2007).
[2] Id. at 594. There is an ambiguity in Kuru’s typology, because “passive secularism” refers both to the state’s nominal neutrality on religious questions and to its adoption of public religious symbols, such as “In God We Trust” on the currency. Id. at 571. The latter is not secularist at all; it is a vague kind of official religion. Lumping these policies together as “inclusionary toward public visibility of religion” blurs these differences.
[3] See especially pp. 141-49 of John R. Bowen, Why the French Don’t Like Headscarves (2007), showing the strange contortions of French administrators attempting to implement the headscarf ban.
[4] John C. Jeffries and James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 299-300 (2001).
[5] Steven Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy 61 (2000).
[6] Jeffries and Ryan at 305.
[7] Pierce v. Society of Sisters, 268 U.S. 510 (1925).
[8] A. James Reichley, Religion in American Public Life 211 (1985).
[9] Id. at 286-88.


Posted 2:51 PM by Andrew Koppelman [link]

What should Obama look for in a Supreme Court Justice?

Mary L. Dudziak

There is much speculation in the press and the blogosphere about who the replacement for Justice David Souter might be. When I gave a talk to history honors students at SUNY Albany last week, someone asked me who might carry on Thurgood Marshall's legacy. So when the Washington Post asked me what sort of person President Obama should nominate, here's what I told them:

President Obama should nominate someone whose life experience provides a perspective that the current justices lack. Diversity in court appointments is often thought of in terms of the nominee's race or gender. Obama should go beyond simple identity politics. He should choose someone like Justice Thurgood Marshall, who encountered segregation and discrimination and whose law practice was a critical part of the experience he brought to the court. Marshall represented African American defendants in Southern courtrooms and saw firsthand the way the criminal justice system could be stacked against people of color and the poor. He applied that understanding to his work on the bench.

The next justice must understand that legal principles are not simply abstractions but have immediate and long-term consequences in the lives of individuals and communities. Perhaps Obama's nominee will have represented clients in deportation hearings, served low-income families in a legal aid office, or advised gay and lesbian members of the armed services. At this moment in American history, a nominee who has represented detainees at Guantanamo could bring important insights into the court's deliberations and further signal a change in the nation's posture toward human rights.

And for his nominee to be effective on a conservative court, Obama should look for a coalition-builder -- someone able to find common ground not only with Justice Anthony Kennedy, whose vote is often dispositive, but also with more conservative justices.
Posted 10:32 PM by Mary L. Dudziak [link]

The Future of the GOP as a National Party

JB

Arlen Specter's defection to the Democrats has been the occasion for the strange claim that the Republicans are no longer a truly national party, or are only a regional party organized in the South. Obviously, some Republicans may say this to goad their allies into action, and some Democrats may say this in order to generate an aura of invincibility, but the idea doesn't stand up to serious reflection.

The Republican Party, like the Democrats, has had its ups and downs. This is natural part of the political cycle, and we should recognize it for what it is. The Republicans continued to be a national party even when they were being seriously and repeatedly trounced by Franklin Roosevelt during the New Deal, and held had many fewer seats than they do now. If you want to see a party truly in the throes of defeat, look at the electoral maps from 1932 through 1936. And yet the Republicans came back.

Following the 2002 and 2004 elections various people fretted that by failing to compete in the South the Democrats were on the verge of being a spent force and no longer a national party. We see how short sighted these predictions proved to be.

John McCain, the party's nominee, received some 46 percent of the popular vote in the 2008 election. That is the mark of a national party, not a regional one. Minor parties do not get 40 percent of the national vote, a vote which is virtually guaranteed no matter who runs. If Barack Obama is a successful president, the Republicans may do less well in 2012 than McCain did in 2008, because incumbent presidents sometimes win reelection by substantial margins. But so what? Barry Goldwater and George McGovern were trounced by incumbent presidents and their parties did not lose national status. It is worth noting that in 1964 Goldwater not only lost badly, but his party also lost seats in Congress. By 1966, the Republicans regained momentum and in 1968 they began a long period of dominance in American politics.

Matthew Yglesias points out, correctly, I think, that parties tend to rise to dominance to solve particular problems that their opponents created or couldn't satisfactorily deal with. Once these issues are resolved in a more or less satisfactory way, more difficult and intractable problems remain, and other circumstances change; as a result the dominant party tends to lose steam. This happened to the New Deal/Civil Rights coalition of the Democrats and now it has happened to the Reagan coalition that brought the Republicans into power. If Obama is a failure, the opposition party will quickly make a comeback. But even if Obama is a success, and the Democrats secure health care, end the Iraq war, and revive the economy, the Democrats will inevitably create a new political situation with new conditions and challenges in which the Republicans, offering new solutions to new problems, can reemerge.

The only way that the Republicans would not survive the current difficult times is if there is an issue (or a series of issues) that splits their coalition in a way that cannot be repaired, so that a new third party emerges to displace them. But at present it is very hard to see how such a party would emerge and how it would displace the entrenched advantages the GOP enjoys. The structure of Congressional arrangements, voting rules, campaign finance and candidacy regulations are all designed to preserve a duopoly for the two major parties. (Although many Republicans despise campaign finance laws, ironically, these same laws are guarantees of Republican survival, because they help restrain third parties from displacing the two parties we currently have.)

What is far more likely is that the modern Republican coalition begun by Nixon and solidified by Reagan will splinter and reassemble with slightly different proportions and combinations of groups and of membership. It will still be called the Republican Party. And it will still worship Ronald Reagan, because, for all of the political dominance the GOP has enjoyed in recent years, Ronald Reagan was the one truly successful Republican President since 1960. (Dwight Eisenhower, interestingly, was not someone that contemporary Republicans tend to venerate, in part because he did not create a new winning coalition but rather made peace with the New Deal. And although George H.W. Bush is underrated in my view, he is unlikely to be a rallying point for the party).

It's not difficult to guess at what substantial parts of the eventual new Republican coalition will look like. It will still be grounded in the South, but that is an advantage, not a disadvantage. The Democrats were firmly anchored in the South for some 150 years and they did just fine. It will still attract white religious voters (including evangelicals and Catholics), fiscal conservatives, social conservatives, and war hawks. It will (eventually) pick up more independents, Asians, and Hispanics and make inroads with the technical and managerial classes. It will be retooled to recognize urban and suburban problems because these problems will increasingly pervade the areas of Republican strength in the South and West. It will make its peace with a larger and more powerful central government, with national health care, with increased investments in infrastructure and with environmental regulation. Despite its current rhetoric, it will be a party of big government because all parties these days are the party of big government. Even so, it will still be the more conservative of the two parties, although the meaning of "conservatism" will eventually change, as it has before. In short, it will build on the old Reagan coalition but with a slightly different set of groups and different set of issues in a new political and demographic context. It will take the successes of the Democrats-- such as they turn out to be--as a starting point and offer alternatives in the changed political world that the Democrats create.

When will this new coalition reassert itself? Assume for the moment that Obama and the Democrats are mostly successful, so that they dominate American politics for several election cycles. Even so, we can expect a successful Republican Presidential candidate who tempers the dominant political trends of the time without overthrowing them, like Cleveland, Eisenhower, Nixon or Clinton. Such a person could be elected as early as 2016. Eventually, the Republican party will regain strength in Congress and be ready to challenge for a new round of dominance. On the other hand, if Obama and the Democrats fail badly, the Republican resurgence will occur even earlier, perhaps as early as 2010.

All this is speculation of course. I am merely extrapolating from past history. But my larger point is that we should not understand two losses in 2006 and 2008 as spelling anything like the end of the GOP as a national presence. It has lost, and lost badly, to be sure. But losing is sometimes the first step in winning.

Posted 9:05 AM by JB [link]

Two New Books on Constitutional Interpretation

JB

Today the American Constitution Society is releasing two new books on constitutional interpretation. The first is Keeping Faith With Constitution, by Pam Karlan, Goodwin Liu, and Christopher Schroeder. It's a nice synthesis of progressive constitutional thought about constitutional interpretation over the past couple of decades and it's written for a general audience. The second, It Is a Constitution We Are Expounding: Collected Writings on Interpreting Our Founding Document, is an edited collection of writings and speeches about constitutional interpretation edited by Pamela Harris and Karl Thompson. It includes essays by a host of legal thinkers (including yours truly).

These two books are part of a flowering of debate and discussion about the constitution and constitutional interpretation in the past five years that has arisen naturally as liberals have once again found their political voice. This should not be surprising. The rise of movement conservatism also led to a great deal of rethinking about constitutional interpretation. This is all to the good. The Constitution belongs to everyone; as each generation rethinks what the Constitution means in their time, they make it their own.


Posted 8:59 AM by JB [link]