Balkinization

Corporations and the Thirteenth Amendment

2012-01-28T10:27:00.003-05:00

Yesterday Columbia Law Review held a symposium on the Thirteenth Amendment, at which Sandy Levinson and I presented a paper we are currently working on (I hope to post a draft soon).

As we explain in the paper, while the Fourteenth Amendment has been the font of a huge caselaw, and has been construed in ways that far outstrip its original purposes and understandings, the Thirteenth Amendment has been treated very differently. There is only a modest amount of case law construing it, and courts have generally construed it very narrowly, limiting it to situations that closely approximate chattel slavery of African-Americans. This is so despite the view of many Congressional Republicans in the 1860s that the end of slavery meant equal civil freedom for all, and the far broader conception of slavery that existed at the country's founding (more about that in another post). [Update: Marty Lederman correctly points out that section 2 has been read to give Congress broad powers to remedy private racial and national origin discrimination, but the point is that section 2 would bestow even broader powers if section 1 had been read in the way that we normally read section 1 of the Fourteenth Amendment--or many other portions of the Bill of Rights. Courts do not, for example, assume that section 2 gives Congress the power to regulate all oppressive labor conditions or secure equality of civil rights generally, unrelated to questions of race or national origin.].

There are several reasons why the Fourteenth Amendment blossomed and the Thirteenth Amendment did not. One of them is that the Fourteenth Amendment proved much more easily adaptable to the interests of business than the Thirteenth Amendment. (This is a point about the comparative opportunities available to repeat players with resources for litigation, which fairly well describes the business and corporate bar in the nineteenth century.)

Attorneys representing business interests had incentives to bring Fourteenth Amendment claims repeatedly to try to protect the interests of their clients, and federal judges, who were often drawn from the same group of lawyers, were increasingly receptive to these claims as the nineteenth century drew to a close. In this way, the Fourteenth Amendment was gradually co-opted by business interests during the nineteenth century; it was transformed from a vehicle for promoting racial equality and basic civil liberties for all into a vehicle for protecting the interests of businesses, industry, and corporations.

The Thirteenth Amendment was much less adaptable to this purpose, for a number of reasons. It says that "[n]either slavery nor involuntary servitude" shall exist in the United States. Suppose we read this language broadly, as we do for the Fourteenth Amendment. Then the ban on "slavery" might be useful to groups that sought to end various forms of unjustified domination and enforced dependence in civil society. In fact, it was so used by women seeking to reform marriage laws, and by early labor activists seeking to attack sweatshop conditions in factories. The same language, however, would be somewhat less useful to market-based enterprises, especially large and powerful ones.

Make no mistake-- the language of the Thirteenth Amendment could be adapted to protect powerful economic interests-- one should never underestimate the cleverness of lawyers with well-paying clients-- but it would just be more difficult to carry off. We are talking here about comparative opportunities available to lawyers seeking to promote their clients' interests. If there had never been a Fourteenth Amendment, I expect that the corporate bar in the nineteenth century might have tried to see if they could get judges to read the Thirteenth Amendment with a pro-business and anti-regulatory spin, for example, by arguing that government regulations of the economy or various forms of taxation were so onerous as to be a form of "involuntary servitude," or perhaps even slavery. Modern Tea Party conservatives, echoing protests against the British Empire, have tried to suggest that contemporary Americans are now slaves to an overweening federal government, and that the individual mandate is a form of unjustified coercion. So it's possible to make pro-corporate and pro-business arguments using the Thirteenth Amendment. It's just that it takes a lot of rhetorical work, and even then the arguments may not be particularly convincing.

On the other hand, the ideas of due process and equal protection in the Fourteenth Amendment could be more easily adapted-- and in fact were adapted-- to protect the interests of businesses. After the Supreme Court rebuffed initial attempts to use the Fourteenth Amendment to protect white butchers in the Slaughterhouse Cases, theories about how to use the concept of due process to protect business interests percolated in the state courts until they were recognized by the Supreme Court near the end of the nineteenth century. Businesses did not attempt to use the Thirteenth Amendment this way, although, as noted above, early women's rights activists and labor activists tried.

Moreover, in 1886, in the Santa Clara case, the Supreme Court held that corporations were persons protected by the Fourteenth Amendment. But lawyers representing business and industry could not make similar use of the Thirteenth Amendment. For-profit corporations could not be persons protected by the Thirteenth Amendment for a simple reason: You can own for- profit corporations (or shares of corporations) and buy and sell them. You can auction off corporations in markets (sometimes called stock exchanges). Finally, the owners of corporations can force corporations to work for them and take all the profits of their labor. Put differently, for-profit corporations are by nature designed to be "slaves." That is what distinguishes them from natural persons.

Bad Ads in Mass.

2012-01-25T04:39:00.000-05:00

Following up on Mark’s post, a further problem with the Brown-Warren agreement is that not all ads “for” or “against” a candidate make their case effectively. Some are wholly ineffectual and others are actually counterproductive, indirectly reminding voters of why they disagree with the ad’s message.

This creates opportunities for mischief. If I were a really savvy Brown operative (by which I mean, of course, not a current campaign staffer, but perhaps an ex-staffer, college roommate, childhood best friend, or someone else officially “independent”), I’d run the worst, shoddiest, most-likely-to-backfire anti-Brown ad I could, and then watch as (a) the ad does nothing to hurt Brown, and may even help him, (b) Brown claims credit for sticking up for himself amid a barrage of attack advertising that Warren’s side is reprehensibly launching despite their agreement, and (c) oh, and by the way, for every two dollars I spend, the Warren campaign has to give one to charity. Not bad.

Now probably this is one of those “loopholes” to which the Brown-Warren agreement refers briefly at the end—a “sham ad.” But if so, all that does is move the goalposts. Now the game is to come up with an ad that, while pointless and ineffectual, is nonetheless just serious enough not to be considered a “sham.” In theory, even if an ad helps Warren, if it helps her less than 50% as effectively per dollar as the ad she would otherwise have run—for example because it muddies her message or unhelpfully changes the subject—then it actually helps Brown. (Don’t assume it will be easy to distinguish deliberate self-sabotage from earnest boneheadedness. If an agreement like this one had been in place, and if an ad like this one had been an independent expenditure, would you have believed it was for real?) On the flip side, there’s always a danger that a message intended to be ineffectual will instead be wildly popular…

Shams aside, the paradoxical nature of the Brown-Warren agreement is that in an effort to take greater control of—and responsibility for—the arguments and messages of their side, Brown and Warren might instead be laying the groundwork for a total loss of control (and responsibility) for those messages. From a fundraising perspective this could result in the worst possible outcome: the candidates will have to spend at least as much time and effort raising funds as ever, but now those efforts will be under a cloud: they may be soliciting funds but not using them to campaign, and instead donating them to a charity (and one chosen by their opponent, at that). Will all donors agree to give under such conditions?

Brown and Warren must not think this will be the outcome—it’s too disastrous for both campaigns. So we can infer that they believe there is a good chance that at least some outside groups will abide by their agreement. I think they may be right. Many of the major players may stay out of the Massachusetts senate race this cycle precisely because those major players are sufficiently savvy, plugged in, and national in their orientation that they can understand their dollars will now go further (and perhaps cause less blowback) in other, equally important races. The agreement may function kind of like a yard sign for a home security system: the point is to get a burglar to go after your neighbor’s house instead of yours. When we think of “independent expenditures” we often think of ads by small, local, issue-oriented groups. But the big spenders are more likely to be groups run by big-time, national party insiders—people like Bill Burton and Karl Rove. Those people aren’t stupid, and they have plenty of priorities other than the Massachusetts senate race. Thus, although this plan seems on its face to create perverse incentives and generally to make little sense, there is a significant chance that it will have the effect the campaigns say they want it to have. If elected, either Brown or Warren will then be able to take credit for changing the nature of Senate campaigning—in a way that is entirely impossible to reproduce across the country, because it only works by shifting ad dollars from Massachusetts to other states.

What Am I Missing?

2012-01-23T20:32:00.005-05:00

According to reports, Elizabeth Warren and Scott Brown have reached an agreement -- the near-final version of which is, with grammatical warts and all, available here -- expressing their opposition to "outside" spending in connection with their campaigns for the Senate. As summarized, the agreement is this: "Brown said his campaign would have to donate 50 percent of the value of any spending on his behalf to a charity of Warren’s choice, and she would have to do the same to a charity of his choosing if he was targeted with an outside ad benefitting her." On its face, this agreement seems to turn control over campaign advertising to outside groups: Say Brown and Warren each have $10 million to spend on their own advertising. All that outside groups have to do to gain complete control over campaign messaging is to spend $20 million (each, for Brown and Warren).

I have to be missing something, but what? The agreement says that the candidates will work to close loopholes, but what I've described doesn't seem to me fairly characterized as a loophole. As the saying goes, it appears to me to be a feature not a bug. But, as I say, I have to be missing something.

Favorite Son/Daughter Candidates

2012-01-23T12:09:00.002-05:00

Normally I wouldn't post on something that has nothing to do with law, but in this case I can't resist. If Newt Gingrich wins the Florida primary and turns the campaign for the GOP nomination into a long fight, I wonder whether we might see an old-style tactic reemerge; namely, local politicians running in their home state to win delegates and thereby prevent anyone from getting a first-ballot majority. For example, Mitch Daniels could run in the IN primary in May, Mike Huckabee could run in the AR primary in May, Mitch McConnell could run in the KY primary in May, etc.

People could have many motives for doing this. Maybe it's because they don't want any of the current candidates to be the nominee. Maybe it's because they think that they could the nominee of a brokered convention. Maybe they just want bargaining power at the convention. ("That first Supreme Court vacancy would look nice in exchange for my support.") Or maybe they want to serve as a stalking horse for somebody else. Granted, many of the filing deadlines for these later states are coming up quickly or have already passed, but that doesn't prevent an organized write-in campaign from taking delegates.

Is this far-fetched? Sure. Would it be entertaining as all get-out? Absolutely.

Three Cheers

2012-01-20T18:18:00.003-05:00

Given how often the Supreme Court gets bashed for being political or hopelessly fractured, it is worth noting that the Court was unanimous (in result) on two recent cases on hot-button issues--the ministerial exception and redistricting in Texas. Maybe that's a fluke, but some credit should be given to the Chief Justice and his colleagues for finding common ground when they can.

"The Workers are Animals. Let's Replace Them with Robots."

2012-01-20T09:01:00.006-05:00

Among the billionaires at the vanguard of global capital, Terry Gou of Hon Hai (also known as Foxconn) deserves special recognition for his honesty. "Hon Hai has a workforce of over one million worldwide and as human beings are also animals, to manage one million animals gives me a headache," said the chairman. His company has also begun building "an empire of robots" to replace a whining workforce.

To get a better sense of why the "animals" may be complaining, be sure to listen to Mike Daisey's extraordinary report on his trip to Shenzhen, home of a massive Foxconn factory. Here's one excerpt:

N-hexane is an iPhone screen cleaner. It's great because it evaporates a little bit faster than alcohol does, which means you can run the production line even faster and try to keep up with the quotas. The problem is that n-hexane is a potent neurotoxin, and all these people have been exposed. Their hands shake uncontrollably. Most of them can't even pick up a glass.

I talk to people whose joints in their hands have disintegrated from working on the line, doing the same motion hundreds and hundreds of thousands of times. It's like carpal tunnel on a scale we can scarcely imagine. And you need to know that this is eminently avoidable. If these people were rotated monthly on their jobs, this would not happen.

But that would require someone to care. That would require someone at Foxconn and the other suppliers to care. That would require someone at Apple and Dell and the other customers to care. Currently no one in the ecosystem cares enough to even enforce that. And so when you start working at 15 or 16, by the time you are 26, 27, your hands are ruined. And when they are truly ruined, once they will not do anything further, you know what we do with a defective part in a machine that makes machine. We throw it away.

When workers are already treated as machines, perhaps their replacement by robots should be a cause for celebration. But the question then becomes: what do the displaced do for a living? Is there an alternative to exploitation?

Writers in the more rarefied precincts of technology studies tend to praise the fading boundaries between man, machine, and beast. However, it's by no means a foregone conclusion that animals' interests will be vindicated by the legal order, or robots treated with the simulacrum of respect that their simulacrum of humanity merits. To the extent the bulk of humanity is being recognized as "dependent rational animals," those in authority tend to agree with Gou's approach more than Alasdair MacIntyre's.

Expect more speed-up in the developed world, as thought leaders decree that Americans must become "ten times more productive" if they dare demand wages ten times higher than those prevailing among the bullied and battered workers at the bottom of the supply chain. That's our future, unless we can continue to rally around a sense of social minimums due to each person qua person. That motivates my interest in positive rights, and the fantastic discussion that followed this post on the topic. Richard Posner once said that "Most of us would think it downright offensive to give greater rights to . . . computers than to retarded people, upon a showing that . . . [they have] a greater cognitive capacity than a profoundly retarded human being.” Similarly, global priorities are troublingly scrambled if the construction of a "robot empire" is more pressing than the establishment of humane and secure living conditions for those whose work created the wealth that makes the "empire" possible.

Sharing the Gains from Automation

Of course, we all know the Davos elite's response to such dark premonitions: get educated and hustle. The bard of flatworld, Tom Friedman, helpfully applauds "race to the bottom" online auctions for talent as one more "opportunity." He ignores the vast literature on these systems' potential to eviscerate the last vestiges of legal protections for employees. Friedman's too busy jet-setting to worry about anyone's slavery footprint. Thinking about how to get health care or housing to the newly "liberated" global workforce is beneath him.

While Friedman's Panglossian outlook is au courant, this plain talk from FDR appears ever more a relic of the 20th century:

To those who say that our expenditures for Public Works and other means for recovery are a waste that we cannot afford, I answer that no country, however rich, can afford the waste of its human resources. Demoralization caused by vast unemployment is our greatest extravagance. Morally, it is the greatest menace to our social order. Some people try to tell me that we must make up our minds that for the future we shall permanently have millions of unemployed just as other countries have had them for over a decade.

What may be necessary for those countries is not my responsibility to determine. But as for this country, I stand or fall by my refusal to accept as a necessary condition of our future a permanent army of unemployed. On the contrary, we must make it a national principle that we will not tolerate a large army of unemployed and that we will arrange our national economy to end our present unemployment as soon as we can and then to take wise measures against its return. I do not want to think that it is the destiny of any American to remain permanently on relief rolls.

We can count on Friedman and other sophisticates to claim that times have changed. Globalization and automation have made many US jobs obsolete, they say. FDR may have had an answer to the first Great Depression, but not the second.

Is the answer really to put everyone on a hamster wheel of digital labor auctions and scrambles for gigs? I don't think that's correct. The question for a future economics (and morals) is how to set a baseline "social minimum" for workers in an utterly precarious and unpredictable work environment.

We have the resources to do this. There have been enormous gains in productivity over the past few decades. But the gains are going disproportionately to those at the very top. In the last economic expansion, the top 1 percent of U.S. households captured two-thirds of income gains. Yes, that's 67% going to the top 1%. During the expansion, "the inflation-adjusted income of the top 1 percent of households grew more than ten times faster than the income of the bottom 90 percent of households." The thought that the gains from automation will be shared equally among social classes is about as quaint as this personal robot envisioned in 1961.

Now I'm sure that, among that top 1%, there were some incredibly hard-working geniuses. Maybe some produced productivity gains that were actually worth 200 times more than what the average member of the bottom 99% contributed.* But power drives economic outcomes at least as often as productivity. Being able to slash all your workers' pay (or work them to exhaustion in an 110-degree warehouse) simply because there is high unemployment is not exactly a valuable skill. Any fool could improve the bottom line at "a highly profitable company" by "demanding large-scale concessions" from its employees.

As a whole host of commentators have suggested, automation and technological change is threatening to wipe out whole industries, and to create far fewer jobs than they destroy. If software and hardware are making jobs in fields ranging from medicine to retail to science to law obsolete, it doesn't make sense to continue giving the lion's share of gains to the top 1%. A longshoremen's union provided one model here:

In modern times, far more than other unions, the longshoreman have used technological change to their advantage. In 1960, the West Coast longshoremen agreed to far-reaching automation that replaced inefficient break-bulk cargo, which relied on hooks to move the cargo, with containerized cargo, which relies on cranes. In accepting automation, the union recognized that productivity would soar and the number of longshoremen needed would plunge; there are now 10,500 West Coast longshoremen, down from 100,000 in the 1950′s.

In exchange, the union received an unusual promise: port operators pledged to share the fruits of the new automation. Management promised all longshoremen a guaranteed level of pay, even if there was not work for everyone. Management also promised to share the wealth.

I found this example via Peter Frase, who offers the following gloss:

Basically, I think this is the deal we need to strike throughout the economy: automation (and relatedly, free trade) in exchange for compensating the displaced. However, the longshoremen were only able to achieve this victory because they occupy an unusual strategic choke-point in the economy. Shutting down the ports can cripple wide swaths of business, and this gives dockworkers a kind of negotiating leverage that isn’t available to, say, supermarket checkers. Which is why I think that the demand to compensate workers for technological change now has to be fought out politically and electorally, at the level of the state, rather than in the individual workplace. That’s the essence of my argument for the Basic Income: just like the dockworkers’ agreement, it ensures a level of pay whether or not there is work for everyone, only it generalizes the principle to encompass the whole economy.

You can dismiss that as utopianism if you like. Certainly the call for work reduction and the decoupling of income from employment has been made many times through the generations, from Paul LaFargue to André Gorz to Stanley Aronowitz. But the left does itself no favors by remaining in a defensive crouch, clinging to nostalgia for a political order that was rooted in a very different political economy–and which wasn’t even all that great to begin with. . . . The modern right provided an offensive strategy and a grand vision of what was wrong with the society that existed and what had to be done to turn it into something better: one market under god.

Pace economists like Goldin & Katz, we can't guarantee livelihoods by promoting employment by educating everyone more. When robots are in line to replace some of the most highly educated people in society, that's a recipe for disappointment. The real question is how to divide the spoils from societal advancement and automation fairly. Alperovitz and Daly have demonstrated that "up to 90 percent (and perhaps more) of current economic output derives not from individual ingenuity, effort, or investment but from our collective inheritance of scientific and technological knowledge: an inheritance we all receive as a “free lunch."" The real motivation for calling workers "animals" or "machines" is to deny them their share in the the "universal destination of goods," which "remains primordial, even if the promotion of the common good requires respect for the right to private property and its exercise."

*My back of the envelope calculation: If there were 100 units of gain in this time period to be distributed to 100 people, that means that the top person would get 67 units. The 99 persons remaining would share the remaining 33. That average would be one third of a unit for each of the 99. That's 200 times less than 67.

Simulposted: Concurring Opinions.

Debating (and Teaching) the Freedom of Expression

2012-01-19T12:49:00.008-05:00

Oxford’s Timothy Garton Ash has launched a global forum for the discussion of the basic principles of the freedom of expression. Amongst other things, the site sets out draft principles for debate, and – of special value – posts an array of well-chosen “case studies” of free expression controversies from around the world. The site is designed to allow for conversation in an array of languages. Ash (together with LSE Political Scientist Fawaz Gerges and pianist Jonathan Biss) recently participated in an informative discussion of the freedom of expression on the BBC’s Forum program “A World of Ideas.”

In the United States, we’ve had a robust dialogue on the nature and scope of the freedom of expression since at least 1919. Many of the questions raised by Ash will thus be familiar to us -- especially to First Amendment experts. But Ash’s site, and his BBC interview, set things out clearly, in a way that will be useful to many, particularly in our role as teachers. The case studies are well-chosen, timely, and accessible. They may be especially welcome to those interested in stimulating discussion of live, hard-fought free speech controversies 1) from around the world, that 2) have not (yet?) been reduced to judicial opinions.

Golan/SOPA

2012-01-18T17:44:00.004-05:00

Justice Ginsburg, who has never seen a copyright law she doesn't like, writes for the Court today in Golan v. Holder, upholding Congress's power to remove un-copyrighted works from the public domain. Perhaps the only thing right about the Golan opinion is its timing: it arrives on the same day as the web-wide protests against the astonishing threat to freedom of speech that is SOPA.

SOPA and the Fight for Control of Online Content

2012-01-18T14:11:00.008-05:00

I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other commentary, here's Marvin Ammori, Danielle Citron, Gerard Magliocca, and Derek Bambauer.

Simulposted: Concurring Opinions.

If you can't do without Wikipedia . . .

2012-01-18T08:25:00.001-05:00

Cross-posted at Concurring Opinions

As I'm sure you know, Wikipedia is dark today to protest the bills pending in Congress that would give content providers new tools to stop copyright infringement. The legislation is awful (when it comes to IP, that's par for the course) and I endorse this protest wholeheartedly. Alleged copyright infringers should have an opportunity to defend themselves--the notion that they can be punished through an ex part proceeding or by simply telling a host that you think somebody is engaged in illegal activity is contrary to due process and to the First Amendment. Moreover, a policy that allows a site to be, in effect, disconnected from the Web is more suited to Beijing than Washington DC. When I lived in China, it would be fun to figure out what websites you could or could not access. (Legal blogs from the US were always blocked back then.) What Congress is contemplating is not as bad, but the underlying principle is the same. The state should not get to decide what websites we can visit--period.

Though I have class this morning, I'll be available after that to answer all questions that you would normally take to Wikipedia. Consider it a game of "Stump Gerard." I accept the challenge!

Martin Luther King Day Links

2012-01-16T13:12:00.002-05:00

To mark the day, a few reflections:

1) Nicholas K. Peart, Why is the NYPD After Me?

Less than two years later, in the spring of 2008, N.Y.P.D. officers stopped and frisked me, again. And for no apparent reason. This time I was leaving my grandmother’s home in Flatbush, Brooklyn; a squad car passed me as I walked down East 49th Street to the bus stop. The car backed up. Three officers jumped out. Not again. The officers ordered me to stand, hands against a garage door, fished my wallet out of my pocket and looked at my ID. Then they let me go. I was stopped again in September of 2010. This time I was just walking home from the gym. It was the same routine: I was stopped, frisked, searched, ID’d and let go. . . .

[L]ast year, the N.Y.P.D. recorded more than 600,000 stops; 84 percent of those stopped were blacks or Latinos. Police are far more likely to use force when stopping blacks or Latinos than whites. In half the stops police cite the vague “furtive movements” as the reason for the stop. Maybe black and brown people just look more furtive, whatever that means. These stops are part of a larger, more widespread problem — a racially discriminatory system of stop-and-frisk in the N.Y.P.D.

2) MLK’s Legacy: The Charleston Hospital Workers’ Strike of 1969:

During the year after her husband’s assassination, Coretta Scott King made several visits to Charleston, S.C., where hospital aides at what was then the Medical College of South Carolina were involved in a protracted fight for decent wages. After a 113-day strike, the union won an agreement that led to wage increases and new grievance procedures.

The campaign was led by Mary Moultrie, a South Carolina native . . . In Moultrie’s telling, the gains that the union won lasted only for a few years. Because South Carolina is a right-to-work state, the union couldn’t manage to maintain much strength. But Moultrie didn’t give up: She was still organizing as recently as 2008.

3) Adam Kotsko, On the commemoration of Martin Luther King

Above all, they say: we gave you formal equality and canonized the man who forced us to do so — now can we please not talk about this any more? Yet things are not quite so fargone as that. Despite their formidable power, despite all the efforts of domestication and neutralization they’ve devoted to it, they can’t fully control the meaning of such a powerful symbol. We should be glad that this date is on the calendar, not so that we can passively honor that symbol but so that we can continue to struggle over its meaning.

4) Glenn Loury, Ghettos, Prisons, and Racial Stigma (Tanner Lectures, 2007)

[O]ne can see from the table[s] that the experience of incarceration for poorly educated black men is estimated to be four times more prevalent in the later than in the earlier cohort – 58.9% as compared to 17.1%. The massive scale of this policy shift is stunning. To repeat: there is a nearly three-fifths chance that a black male with less than HS diploma born between 1965-69 will have gone to prison or jail at least once prior to reaching age 35.

5) John Paul Stevens review of William Stuntz, The Collapse of American Criminal Justice

While only 10 percent of the adult black population uses illegal drugs, as does a roughly equal percentage—9 percent—of the adult white population, blacks are nine times more likely than whites to serve prison sentences for drug crimes. “And the same system that discriminates against black drug defendants also discriminates against black victims of criminal violence.” As “suburban voters, for whom crime is usually a minor issue,” have come to “exercise more power over urban criminal justice than in the past,” police protection against violent felonies has disproportionately extended to suburban neighborhoods rather than the urban centers where more black individuals reside.

The “bottom line,” Stuntz explains, has been that “poor black neighborhoods see too little of the kinds of policing and criminal punishment that do the most good, and too much of the kinds that do the most harm.” In this sense and others, Stuntz concludes, our criminal justice system has “run off the rails.”

6) Ten OTHER things Martin Luther King said.

7) If you missed it last year; some commentary on Michelle Alexander's The New Jim Crow.

Paul Krugman notes today that MLK would be "disappointed" in what the US has become since his death. I think the feeling of alienation and indignation would be much stronger than that.

Mitt Romney and the 2012 Campaign

2012-01-15T16:13:00.002-05:00

Stephen Skowronek's research on the presidency is a major influence on my work. My conclusion, which I've stated in prior posts, is that the 2008 election was a realignment and that Barack Obama is a "reconstructive" president in Skowronek's model, by which I mean that we are at the beginning of a new party system that will be dominated by Democrats.

Suppose, though, that I'm wrong. (Indeed, Skowronek himself does not think that Obama is a reconstructive president, or at least is unsure about that.) In that case, we are still in the Reagan/conservative era. With that assumption, Mitt Romney looks an awful lot what Skowronek calls a "disjunctive" or end-of-regime presidential candidate.

The traits of a disjunctive president are that he presents himself as a technocrat and comes from outside the typical political base for his party. Examples include (1) John Quincy Adams, an ex-Federalist who got elected as a Jeffersonian Democrat based on his problem-solving skills; (2) Franklin Pierce, an obscure candidate from New Hampshire who ran as a pragmatist in 1852; (3) Herbert Hoover, an engineer who wasn't a Republican until 1920; and (4) Jimmy Carter, an engineer who had never served in Washington. They were also all terrible failures.

Mitt Romney, of course, has never served in Washington and is running based on his business know-how. He also hails from Massachusetts, which is not where modern Republican leaders come from. Indeed, for the last few decades Massachusetts has been the symbol of liberalism run amok (Ted Kennedy, Michael Dukakis, John Kerry). If Romney wins (and that's a big if), he could be following the dismal pattern of disjunctive presidents.

Justice Accused (circa 2012): Antislavery Constitutionalism … on the Republican Right

2012-01-14T10:40:00.009-05:00

Just in time for the MLK holiday, I have an article out in the Maryland Law Review on antislavery constitutionalism on the contemporary right:

"Beyond Originalism: Conservative Declarationism and Constitutional Redemption," 71 Md. L. Rev. 229 (2011).

The first two paragraphs, setting out the main argument, are here:

“Almost 150 years after the ratification of the Thirteenth Amendment, the redemption of the nation from chattel slavery has become important--and for many conservatives, central--to the understanding of American politics. Slavery itself may be a thing of the past, but the purported political and constitutional lessons of its initial acceptance and subsequent eradication--once a preoccupation primarily of the liberal/left--are very much on the mind of the modern American right. In a marked departure from the old, more familiar conservative narrative, many of the modern movement's most influential constitutional theorists recount the nation's experience with slavery through a constitutional vision I will call (as have others) "Declarationism." As that term is used in this Article, Declarationism is the view that the Constitution can only be understood and interpreted in light of the principles enunciated in the opening words of the Declaration of Independence, which are held to be the Constitution's beating heart and unshakable foundation.

This Article, argues that contemporary conservative Declarationism offers a dramatic and morally compelling story about the long trajectory of American constitutional development, and serves: (1) as an ideological means of morally rehabilitating and redeeming southern conservatism in the wake of its longtime, but now morally discredited, defense of legal segregation; and (2) as an ideological means of unifying the diverse strands of the contemporary Religious Right. Both, of course, are crucial to the mission of the modern Republican Party.”

The "Absolute" Ministerial Exception

2012-01-13T08:59:00.006-05:00

In the Hosanna-Tabor case, the Supreme Court for the first time recognized a ministerial exception under the First Amendment, insulating church officials from lawsuits by (some of) their former employees. Different versions of the ministerial exception have existed in the circuit courts for many years, but now the Supreme Court has weighed in, in what seemed, at least at first glance, to be a rather uncompromising version of the doctrine.

One of the curious features of the Supreme Court's version of the ministerial exception is that the rule is stated in absolute terms that eschew all attempts at balancing. Once an employee is characterized as a minister, then the religious body has an absolute right to fire them for any reason. Inquiries into pretext are dismissed. As the Court explains, "The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter `strictly ecclesiastical,'—is the church’s alone."

Note that in choosing this rule, the Court does not merely reject a balancing approach; it even rejects the strict scrutiny rule that applies when government restricts free speech or association, or that applied in its own free exercise cases before the Smith decision.

Such an absolute rule inevitably puts pressure on other aspects of the doctrine. The most obvious will be who counts as a "minister" for purposes of the ministerial exception. The more categorical the rule that exempts employment decisions from legal scrutiny, the narrower the class of "ministers" will have to be to avoid manifest injustices.

To be sure, the Court might eventually create a series of limited exceptions for cases in which the church attempts to use the power to fire to blackmail or silence an employee from disclosing misconduct by the church or its officials or other ministers. Whether or not this can be done in a predictable or principled way, it suggests another pressure point in the doctrine as announced.

That pressure point is the distinction between internal church decisions and outward action. To create a ministerial exception, which exempts churches from liability, the Court must distinguish Employment Division v. Smith, which held that there is no free exercise violation when states apply a rule of general applicability to religiously motivated conduct. Under Smith, one might think that there should be no ministerial exception at all.

The Court responds that "It is true that the ADA’s prohibition on retaliat[ory firing], like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns
government interference with an internal church decision that affects the faith and mission of the church itself."

A categorical rule like the one announced in Hosanna-Tabor thus puts pressure on the distinction between purely internal church decisions, on the one hand, and what the Court calls "outward physical acts" that affect the world beyond the church. In the later case, the rule of Smith apparently still applies.

If a church fires an employee for whistleblowing, or threatens to fire them unless they engage in fraud, criminal conspiracy, or obstruction of justice, should we consider this an "outward physical act" that has external effects on the world, like smoking peyote? Or would imposing liability in these cases be tantamount to a doctrine of "pretext," a solution which the Court explicitly rejected in Hosanna-Tabor?

One way of resolving this problem is to say that criminal prosecutions against church officials may still proceed in such cases; but that employees may not sue for reinstatement, back pay, or damages. Nevertheless, if we grant that church officials can be held criminally culpable for blackmailing employees or for coercing their employees to obstruct justice or otherwise violate the law, there's a fairly strong argument that the ministerial exception should not apply, especially if what former employees are seeking is not reinstatement, but simply damages. After all, if the state may bring criminal charges, it is pretty clearly already interfering in church affairs.

The Court is not oblivious to these problems. Nevertheless, it dodges these questions in the current case, pointing out that there will be plenty of time to decide them in the future. And it will have years of prior experience in the circuit courts to work with in order to come up with manageable rules.

When it does so, however, the seemingly absolute rule of Hosanna-Tabor may prove less absolute that it currently appears, and the unanimity presented in this decision will likely give way as well.

Just released: War Time: An Idea, Its History, Its Consequences

2012-01-11T23:21:00.002-05:00

I hope you will indulge this little announcement: My new book, War Time: An Idea, Its History, Its Consequences, has just been released by Oxford University Press. You have had a preview, of course, since I've occasionally talked about it here. In the acknowledgments is a thank you to everyone who sent an email and posted a blog comment (a group thank you, since of course I couldn't list everyone). I could not address all the great suggestions I received, but I greatly benefited from your engagement.

Here's the press book description:

When is wartime? On the surface, it is a period of time in which a society is at war. But we now live in what President Obama has called "an age without surrender ceremonies," as the Administration announced an "end to conflict in Iraq," even though conflict on the ground is ongoing. It is no longer easy to distinguish between wartime and peacetime. In this inventive meditation on war, time, and the law, Mary Dudziak argues that wartime is not as discrete a time period as we like to think. Instead, America has been engaged in some form of ongoing overseas armed conflict for over a century. Meanwhile policy makers and the American public continue to view wars as exceptional events that eventually give way to normal peace times. This has two consequences. First, because war is thought to be exceptional, "wartime" remains a shorthand argument justifying extreme actions like torture and detention without trial. Second, ongoing warfare is enabled by the inattention of the American people. More disconnected than ever from the wars their nation is fighting, public disengagement leaves us without political restraints on the exercise of American war powers.

There are endorsements from a couple of your favorite con law scholars and others. The table of contents and introduction are on SSRN. Other details are here and here. Book news, information about public events, and discussion of related works, can be found here. And you can read the whole book right now on Kindle and Nook.

Cross-posted from the Legal History Blog.

War Powers (Pt. 4)

2012-01-07T15:44:00.004-05:00

Why worry about war powers? If we accept that there is a constitutional basis for presidential predominance in foreign policy (a view I advanced in Pt. 1), it is hard to see why we should devote most of our attention to minor military operations carried out in furtherance of that policy. If we have a problem with the operation, we should argue with the foreign policy that underlies it, not the Constitution. The chief reason to worry about war powers is because of the dubious constitutional origins and consequences of “real” wars – military conflicts such as Korea, Vietnam, the 1991 Gulf War and the recent wars in Afghanistan and Iraq. These “limited” wars fought since 1945 have posed grave challenges for our constitutional system and imposed massive costs on the country.

Speaking very broadly, since 1945 the US has enjoyed many discrete military successes. To be sure, post-1945 history is not usually described this way. That is because those limited successes were wrapped in an almost unbroken series of much greater political failures. By “political” I mean to include failures of policy, diplomacy, public justification, and party-political disruption. Certainly presidents have had a much easier time starting wars than justifying them.

It is surely true that the war powers debate was generated by these failures. But in assessing them, the debate has tended to concentrate on the question of authority narrowly construed. For example, did George H. W. Bush have authority to launch a war against the Iraqi army in Kuwait? Most scholars say yes, because Bush went to Congress in January 1991 and obtained a resolution of authorization, one of a number of “AUMFs” sought by presidents since Eisenhower. But this limited approach does not answer every important constitutional question we could ask. In fact, Bush never accepted Congress’s legitimate constitutional role and was willing, like most post-1945 presidents,to launch a major war on his own authority. Crucially, this meant that he never had to formulate a robust rationale for the war in light of the risk that, if Congress rejected his request for war authority, he would have had to cancel the operation and suffer the attendant policy consequences.

My review of the wars fought since 1945 shows that every single one has featured serious problems of executive branch deliberation that are directly connected to an infirm constitutional process. The problem is not so much that presidents have usurped authority but rather that the unilateral presidential decisionmaking that was imagined as a necessary element of the Cold War constitutional order was inherently defective.

What sort of defects are we talking about? It may seem startling, but history discloses no record of anything close to an adequate decisionmaking process for any war post-1945. In terms of a terrible or even nonexistent decisionmaking process, the 2003 Iraq War was unfortunately all too typical. Basic policy alternatives are rarely identified. The executive branch seems incapable of deliberating in a systematic way. This has had consequences for policy. The Iraq War was launched without a careful review of the available evidence concerning WMD. Truman ordered US troops to unite Korea without considering Chinese reaction. But the problems go further than bad policy choices. There were several instances,including the 1991 Gulf War and the war in Afghanistan, in which the executive branch was unable to decide on war aims, to identify the basic purpose of the war. This has not only hurt policy, but the ability of the president to justify the war to the public in a democratic way. Moreover, there is considerable evidence that each president who has fought a major war becomes personally involved in an unhealthy psychological sense, overwhelmed and eventually paralyzed not only in reacting to the changing circumstances of the war but with respect to foreign policy generally. Occasionally, these troubles have become serious enough to cause serious disturbances in the American governmental system, even constitutional crises. The ultimate lesson is that wars cannot be fought by the president alone.

These defects constitute a kind of “reverse proof” that the Constitution requires robust interbranch deliberation before the decision for war is made. The original constitutional order – the fundamental arrangement of powers as implemented by institutions – conflicts with the Cold War constitutional order. The Constitution did permit the president to become the leader in foreign policy. Those who created the Cold War constitutional order thus had some basis for thinking that a unilateral approach to foreign policy was justified. Unfortunately war, “real” war, is special. It is marked as such by the Constitution and confirmed by our concrete historical experience. Wars thus could not be conducted unilaterally without placing the entire constitutional system at risk. That is why we need to focus on how these major military conflicts came about and how an inadequate decisionmaking process might be avoided in the future.

Because this is the end of one cycle of posts, I’ve allowed comments. In the next cycle, I’ll describe some of the ways this project changed my view of post-1945 American history.

Was the New York Times Used by Duncan Law School (or were readers duped by the Times)?

2012-01-05T15:30:00.022-05:00

The theme of the final installment of the New York Times series on law schools, "For Law Schools, A Price to Play the A.B.A.'s Way," was that ABA accreditation is to blame for high tuition. The story revolved around the effort of Duncan School of Law to obtain provisional A.B.A. accreditation. In the article, Duncan administrators and the main benefactor complained that accreditation regulations were "massive, just massive." Without these requirements, they claimed, "Duncan could have cut its tuition in half, maybe by two-thirds."

The article gave the clear impression that Duncan was awaiting a final decision on whether it would receive accreditation without any foreknowledge of its likely fate. The concluding passages:

ON Dec. 2, Mr. Beckman and six colleagues from Duncan traveled to a hotel in San Juan, P.R., where the A.B.A. held its latest council meeting. The school had 15 minutes at a hearing to offer its arguments for provisional accreditation.

“This is just a pet peeve,” Mr. Beckman said last week, “but there is all this talk about the cost of legal education, and they make us fly to Puerto Rico and meet at the Ritz-Carlton?”

After his presentation, Mr. Beckman and others answered a number of questions, including a few about the job market for lawyers in east Tennessee. This bothered Mr. Beckman because, for antitrust reasons, employment prospects are not part of the A.B.A.’s standards. He pointed that out to the council.

“They didn’t really respond,” he says.

Nor did they hint at whether they would give Duncan a thumbs-up. In the past, law schools have learned a few days after their hearings. But since Dec. 2, there has been nothing. “The last thing we heard — and they didn’t mean this to be rude or anything — was at the end of the meeting in Puerto Rico,” Mr. Beckman says. “They said, ‘You can let yourselves out.’ “

Just three days after the Times story, on December 20th, the ABA notified Duncan that it had been denied accreditation. The timing and perfunctory nature of the notification suggested to some observers that the ABA had retaliated against Duncan for its critical comments.

As it turns out, however, the story left out crucial information.

Duncan had been notified by the ABA on October 12, 2011, in a 23-page Recommendation with fact findings, that the Accreditation Committee "concluded that Duncan had not established substantial compliance with four separate Standards." Under ABA rules, although the Council makes the final decision, there is a presumption that "the Council shall adopt the Committee's findings of fact unless the Council determines that they are not supported by substantial evidence in the record." The ABA Consultant on Legal Education, Hulett Askew, had a follow-up meeting with the Dean of Duncan on October 27, 2011, advising the school of its options in light of the negative recommendation. (This information is taken from the sworn statement of Askew, available here.)

None of this is mentioned in the story. The Times does not say that Duncan had already received a negative recommendation from the Accreditation Committee. It is not quite true that Duncan had no "hint" of its likely fate, since a presumption attaches to the Committee finding and the exchange at the Dec. 2nd meeting had a critical tenor. And Duncan administrators were well aware of the reasons behind the negative recommendation, reasons which were not mentioned in the story. In light of this, it appears likely that Duncan officials already anticipated that they would be denied accreditation when they spoke with the Times reporter.

The Times account would have read very differently had readers been advised of the preliminary findings against the school.

I will elaborate on those findings in a moment, but first one must wonder why this crucial information was omitted from the story. One possibility is that Duncan administrators did not tell the reporter, David Segal, about the Committee's negative finding. That would be shocking if true. It would suggest that Duncan law school used the Times to help it mount a preemptive public campaign against the ABA before the negative finding came to light. Another possibility is also shocking: that Segal knew about the negative conclusions but deliberately failed to mention them because to do so would disrupt his story line.

Perhaps there is some other more innocent explanation for this omission, but whatever happened, it does not reflect well on the credibility and reliability of the Times.

What were the reasons for the negative recommendation? I will highlight several (all detailed in Askew's declaration linked above).

First, like many law schools recently, Duncan had suffered significant declines in the number of applicants and in student qualifications. As a result, Duncan fell far short of expected enrollment and student quality targets. This was not Duncan's fault--just a case of bad timing--as the school was set up during the mid-2000's boom days for law schools, just before the crash.

The median LSAT of the the last two entering classes was 147, with median GPAs of 2.97 and 2.99, respectively. A 147 LSAT is at the 33.1% mark for all test takers; the bottom quarter of Duncan's entering class was at or below 23.1% of all test takers (144 LSAT). These are exceedingly low numbers--so low that admitted students have a real risk of not completing law school and not passing the bar.

The Accreditation Committee was worried not just about the low student qualifications, but also about the apparent lack of an adequate academic support program. Students with LSATs and GPAs that low will need significant assistance to make it through the challenge of law school. Although Duncan correctly points out in its defense that half a dozen accredited law schools have similarly low student profiles, the fact remains that these are worrisome numbers.

A second concern raised by the Committee was the soundness of Duncan's academic standards. To remain in good standing at Duncan, a student must have a cumulative GPA of at least 2.0, although students may continue to enroll as long as their GPA remains above 1.25 (D+). Below that, a student is automatically dismissed. A dismissed student can be readmitted only under "extraordinary circumstances." Yet "Duncan had readmitted 6 of 18 previously dismissed students." A student with a GPA in that range, the Committee noted, would have to get A's and B's to qualify for graduation. Readmitted students thus were spending a great deal of money to continue their studies with significant odds against making it to graduation.

A third concern had to do with the basic economics from the standpoint of students. To attend Duncan, tuition ($28,600) and living expenses come to almost $50,000 annually, with projected debt upon graduation between $80,000 and $100,000. Despite the high cost for its degree (which it blames on the ABA), Duncan identifies its core mission as serving unmet legal needs of the poor in the Appalachian Mountain region. The Committee (and the Council) wondered how graduates with this level of debt could afford to work in the low end legal market, especially since legal services positions were being cut.

This question highlights a glaring contradiction in the Duncan law school model (which the Times piece failed to recognize). Regardless of who or what is to blame for Duncan's high tuition, the bottom line is that students who pay that much and take on that level of debt to obtain a law degree will be under severe financial pressure as attorneys--and it is sheer fantasy to assert that they will go on to serve the poor after graduation.

Again, none of this was mentioned in the Times piece. Duncan comes off as a victim in the story, trying to do the right thing for the community but forced to spend all kinds of money by the ABA for unnecessary reasons. The story would have been a lot messier (and less convincing) if readers were informed about the serious problems at Duncan because that information would have shown that some good, at least, comes from what ABA accreditation does.

The Duncan position boils down to the assertion that the ABA cannot limit competition and, anyway, the ABA has already accredited a bunch of law schools that charge a lot of money from students who have low qualifications and dismal job prospects upon graduation, so it cannot deny Duncan on these grounds. Duncan is correct that other law schools with an equally questionable economic model have earned accreditation in the past, although whether this entitles Duncan to the same is another matter.

What's especially odd about this Duncan affair is the full circle traveled by the Times in its series. Earlier articles, Is Law School a Losing Game? and "Law School Economics: Ka Ching!", raised hard hitting questions about the economic model of law schools, especially lower ranked expensive private schools that load debt on students for a questionable economic return. The final Times article, inexplicably, promotes (champions?) a law school that embodies these same problematic features.

I should make clear that, although I am critical of the latest Times story because it points in the wrong direction, that does not make me a fan of the ABA, which I have criticized here, and more extensively in my forthcoming book, Failing Law Schools (Chicago 2012).

Having presented a limited defense of the ABA, let me end by pointing out, once again, why the ABA still is more a part of the problem than a part of the solution.

In a recent interview, the current president of the ABA, William Robinson, appeared to blame disgruntled law students and recent graduates for their plight:

"It's inconceivable to me that someone with a college
education, or a graduate level education, would not know before
deciding to go to law school that the economy has declined over
the last several years and that the job market out there is not
as opportune as it might have been five, six, seven, eight
years ago," he said.

That might be true today, with all the public criticism of law schools out there, but we must remember that prior to 2011 there was relatively little information about this other than in the scamblogs. The legal establishment did its best to ignore or discredit the scamblogs (my initial post on misleading job numbers and poor employment prospects came in June 2010). Hence it is not correct to assert that current 2nd and 3rd year law students, who entered law school in 2009 and 2010 (not to mention prior classes), should have known about the dismal job prospects--law schools, facilitated by lax ABA employment reporting requirements, did their utmost to conceal this reality.

Robinson is also badly off when he dismisses misleading employment statistics as a limited problem, saying that the number of schools in question is "no more than four" out of 200 with ABA accreditation. Misleading job reporting is widespread and remains at many law schools today (with some improvements of late). There are many examples, but I will offer just one, a well-regarded but not elite law school which claims a 99% employment rate for the class of 2010, with a median salary in private practice of $130,000. These are unbelievable numbers, given the dire state of the legal job market, and the school does not provide enough information to get the full employment picture.

This presumably is not one of the four misbehaving law schools Robinson had in mind. That leaves us with two dubious propositions coming from the president of the ABA: that it is okay for law schools to publish numbers like this, and the fault lies with students for foolishly taking law schools at their word.

Christopher Hitchens and the Law

2012-01-03T18:41:00.004-05:00

Although it happened before the holidays, I want to take a moment to note the passing of Christopher Hitchens, who was an intellectual hero of mine. Not only was he was a brilliant writer who covered a broad range of topics, but he had an independent streak a mile wide. His point that "sometimes the wrong people have the right line" is a principle that everyone involved in politics should think about, as group-think is all too common these days.

In Letters to a Young Contrarian, Hitchens quoted F.M Cornford, a Cambridge don who wrote that "[t]here is only one argument for doing something; the rest are arguments for doing nothing." He then catalogued three of the leading arguments for doing nothing:

1. The Wedge

You should not act justly now for fear of raising expectations that you may act still more justly in the future--expectations that you are afraid you will not have the courage to satisfy. A little reflection will make it evident that the wedge argument implies the admission that the persons who use it cannot prove that the action is not just. If they could, that would be the sole and sufficient reason for not doing it, and this argument would be superfluous.

2. The Dangerous Precedent

You should not do any admittedly right action for fear you, or your equally timid successors, should not have the courage to do right in some future case, which is essentially different, but superficially resembles the present one. Every public action that is not customary either is wrong, or, if it is right, is a dangerous precedent. It follows that nothing should ever be done for the first time.

3. The Time is Not Ripe

People should not do at the present moment what they think right at that moment, because the moment at which they think it right has not yet arrived.

You Must Remember This….

2012-01-03T14:03:00.010-05:00

A coda to my earlier post on the regulation of hate speech in Europe and the U.S…. The following day, the New York Times had another interesting article on the subject. The paper reported a major diplomatic rupture between France and Turkey following the approval by the lower house of the French parliament of a bill that would make it a crime for anyone to deny that the Turks committed genocide against the Armenians in the early twentieth century. Especially notable was the fact that Turkey has its own law that is the mirror image of the proposed French legislation – a law, that is, that makes it a crime in Turkey for anyone to affirm that the Turks committed genocide against the Armenians.

Let’s look at this from the perspective of the (purported) aspirations of these two nations to “unite” under a common polity – the European Union (which was created in significant part to prevent the Nazi genocide (post hoc, of course…)). If, for a moment, we treat these nations as true compatriots, the law of the European umbrella polity now makes it a criminal offense to either deny or affirm the Armenian genocide.

Is this what they call a “teachable moment”?

I would ask some analytic and developmental questions.

Rather than being crudely either “for” or “against” laws criminalizing hate speech, might it be useful for social scientists, legal scholars, and our students, to start making some more refined analytic distinctions between different types of hate crimes regulations, and the different contexts occasioning them? The Turkey-France contretemps is a case of an effort to regulate a particular type of speech – the articulation of a historical interpretation of events. Is this on all-fours with the criminalization of European Holocaust denial? Is David Irving’s denial of the Nazi genocide a denial of (all but) indisputable facts, whereas the Turkish denial is a matter of the interpretation/characterization of the facts? When is a fact so “factual” as to be indisputable? At a deeper level, is it possible to form a common polity out of nations with utterly divergent historical memories? What happens to law when it is not underwritten by memory? Obviously, both parties here believe that a shared historical memory is enormously important to a successful, sustainable polity (or else they wouldn’t have tried to impose it under penalty of law). Once the EU unites (if the fantastical economic utopianism underwriting the monetary union doesn’t destroy it first….), will the seat of the Ottoman Empire and Paris join in a shared historical memory in all areas where it matters? What about the world? How much is the success of any human rights regime dependent upon these convergences? What are the consequences of seeking to legally coerce convergence?

The criminalization of historical interpretation is only one form of hate speech regulation. There is also regulation applying to remarks (casual/off-the-cuff, or with the specific intention to intimidate --with diverse likelihoods of success), to the systematic propagation of ideologies (or religions), to the legal recognition (or permitting) of political parties (does it matter whether the political prospects for such parties are high or hopeless?), to the legality of dismissals from private or public employment, and so forth. These may all be about regulating “hate,” but they are not the same thing.

And what about context? How much would it matter if we are in an immediate post-genocide situation (e.g. places in Africa), or well down the road to a new day (Nazi western Europe)? Should these laws be sunset-able (as Justice O’Connor famously suggested about racial preferences in the U.S.) – implying that they are about managing pluralism in a polity in which the underlying conditions are changing and developing – or are they there to enforce and make a symbolic statement of timeless principles? What about purportedly pre-genocide situations? Or are hate speech regulations aimed more at less dire matters of “nudging” us toward social and political equality under more functional conditions? How bad do things have to be to justify them? Or, from a different perspective, how good? Might these laws, in some cases, serve to undermine the basis of that functionality?

To return to case of prosecution for articulating the wrong memory, of course this is not solely a European matter. A large part of the constitutional politics roiling the contemporary United States involves aggressive efforts to sell divergent memories of the nation’s past: about the Founding, Reconstruction, the New Deal, the 1960s, the 1980s, etc. When are clashes of historical and constitutional memory the necessary -- and perhaps even desirable -- features of a vital constitutional polity, and when are they toxic? If toxic, when is the time to step in with the criminal law… if ever?

In the throes of its currency debacle, Europe may be moving toward fundamentally rethinking its theories of political/constitutional unity. Might this be necessary outside the economic realm as well?

The NDAA and Military Detention

2012-01-03T09:49:00.000-05:00

Much has been written about the detention provisions of the National Defense Authorization Act (NDAA), which the President signed into law on December 31. Marty Lederman and Steve Vladeck provide a comprehensive analysis at Opinio Juris (Part I is here and Part II here). (For other perspectives, see Raha Wala here, David Cole here, Bobby Chesney and Ben Wittes here, and Joanne Mariner here). There remains, however, considerable debate over the NDAA's meaning, and the extent to which it alters the status quo. I will not repeat the various arguments made on both sides nor will I attempt to cover the waterfront of issues the legislation raises. Rather, I offer a few broader points about the NDAA and what it signifies about U.S. counter-terrorism detention policy, more than a decade after 9/11.

The Militarization of Counter-Terrorism Detention. The military detention of suspected terrorists has been a cornerstone of U.S. counter-terrorism policy since 9/11. Both the Bush and Obama administrations have construed the 2001 Authorization for Use of Military Force (AUMF) to authorize the indefinite military detention of individuals who were part of or supported al Qaeda, the Taliban, or associated forces. (The Obama administration has required that the support be "substantial"). The Supreme Court in Hamdi v. Rumsfeld and lower courts in the post-Boumediene habeas litigation have upheld indefinite detention under the AUMF, although important questions remain over the scope of that detention authority. Under the AUMF, military detention is an option, as the executive remains free to choose between military detention or Article III prosecution (with prosecution in a military commission as a third option).

In 2009, however, Congress started to limit that discretion, largely in response to Obama's plan to close Guantanamo. Those limitations initially took the form of restrictions on the president's authority to release Guantanamo detainees into the United States. Before long, Congress had prohibited the president from using military funds to transfer a Guantanamo detainee to the United States for any purpose, including for federal prosecution. The ban on Article III prosecutions was sparked by the administration's decision to try Khalid Sheikh Mohammed and his 9/11 co-conspirators in federal court (a decision the administration abandoned in the face of mounting political and public opposition). The Article III-transfer-ban effectively mandated that Guantanamo detainees who remained in U.S. custody would remain in military custody. At the same time, Congress placed significant constraints on the president's ability to transfer Guantanamo detainees to their home countries or to third countries by imposing burdensome certification requirements that were difficult to satisfy.

The NDAA expands mandatory military detention beyond Guantanamo by requiring military jurisdiction over all "covered" terrorist suspects, as defined in the statute (except for U.S. citizens, whom the NDAA exempts from mandatory military detention). Prior versions of the bill threatened to go further. The Senate version, for example, would have required that the president seek a waiver from the Secretary of Defense to prosecute a covered terrorism suspect in federal court, while the House version restricted the use of funds for terrorism prosecutions. In the face of a veto threat, Congress diluted the mandatory detention provision. Under the NDAA, the President can waive the requirement of military detention. Additionally, the NDAA states that the requirement "shall not be construed to affect the existing criminal law enforcement and national security authorities of the FBI or any other domestic law enforcement agency." These changes, however, only slow the continued creep of militarization. The NDAA not only continues the ban on prosecuting Guantanamo detainees in federal court but creates a new--and wholly unprecedented--presumption of military custody. While the current administration will seek to preserve its options, the legislation tilts the balance further towards military detention and away from Article III courts. It could also provide political cover to this--or to a future--administration that chooses to place a terrorism suspect in military custody.

Codification and Institutionalization. The NDAA, for the first time, codifies an indefinite military detention standard. Tracking the Department of Justice's position in the Guantanamo detainee litigation, it authorizes the military detention of, inter alia, individuals who were "part of" or "substantially supported" al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the U.S. or its coalition partners. The AUMF, by contrast, was silent on detention, and spoke only of the President's authority to use military force against those nations, organizations, or persons responsible for the 9/11 attacks and those who harbored them. Courts, as noted above, have nevertheless interpreted the AUMF to authorize some quantum of military detention. While the Supreme Court has thus far upheld more limited detention authority under the AUMF, the NDAA's detention standard roughly mirrors the broader standard applied by the D.C. Circuit in the Guantanamo habeas litigation, a standard that contains no geographical limitation or requirement of direct participation in hostilities.

As a practical matter, the NDAA will have limited effect on the Guantanamo habeas cases. The D.C. Circuit has accepted that individuals who are "part of" al Qaeda, the Taliban, or associated forces are detainable under the AUMF. The NDAA ratifies this construction. The NDAA provides more clarity on the "support" prong than the D.C. Circuit has. (See Marty and Steve's post for a detailed discussion of this issue as well as Kevin Jon Heller's insights here http://opiniojuris.org/2011/12/31/detention-under-the-ndaa-and-the-limits-of-analogy/ on the tensions created by the effort to apply international armed conflict principles to a non-international armed conflict with a transnational terrorist organization). Yet, none of the Guantanamo habeas cases thus far have turned on the "support" prong, and it would be a rare situation in which a person provided the requisite support to al Qaeda or an associated force without also being "part of" those groups, as these terms have been interpreted. The NDAA aside, the main controversy in the Guantanamo litigation today centers on procedural and evidentiary issues, which the NDAA does not purport to address. By supplying a detention standard, the NDAA will shift the focus even further from defining the category of individuals who may be detained and towards the question of what evidence the government must provide in a habeas proceeding (and how) to demonstrate that a person falls within that category.

Yet, the codification of the detention standard is not without consequence. It makes indefinite detention at once more durable and permanent. It also signifies the degree to which indefinite detention has gained acceptance among all three branches of government. The NDAA could, moreover have an impact on this or a future administration's decision to employ military detention against individuals arrested in the United States. Because of a late amendment from Senator Feinstein, the NDAA states that it does not affect existing law relating to the military detention of individuals arrested in the United States. Domestic military seizure and detention has proven highly controversial: it has been utilized only in two instances (the cases of Jose Padilla and Ali al-Marri), and not since 2003. Yet, the Supreme Court has not ruled definitively on the issue and the Obama administration has never conceded that it lacks authority under the AUMF to detain militarily a terrorism suspect arrested in the United States. The NDAA--with its presumption of military detention for covered non-citizens--could embolden a future president to place a suspected terrorist arrested in the United States in military custody. Indeed, in his signing statement, President Obama pledged only that he would not place U.S. citizens in military detention; he remained silent with respect to using the AUMF domestically against non-citizens (whereas before, administration officials had said the President would not subject anyone arrested in the United States to military detention). If there is any silver lining from a litigation perspective, it is that the NDAA potentially strengthens arguments that a clear statement is required to authorize domestic military detention given the new crop of constitutional problems such detention would raise (e.g., by triggering mandatory military detention inside the United States).

Executive Power, Tool Maximization, and Civil Liberties. The NDAA prompted far more vigorous opposition from the Obama administration than any of Congress' prior restrictions on the his authority over detainee affairs--including its previous transfer restrictions that have rendered the President's promise to close Guantanamo a dead letter. The reason is that the NDAA's mandatory detention provision presented the most serious threat to the President's ability to use all available tools--criminal prosecution, law-of-war-detention, and military commissions--as he deems appropriate. Thus, the administration's veto statement emphasized the threat the legislation posed to the executive's ability to incapacitate terrorism suspects and not the civil liberties ramifications of denying individuals federal trials. While this is hardly surprising, the opposition to the NDAA highlights the extent to which concerns for individual rights remain marginalized in debates over counter-terrorism policy. Indeed, defenses of federal courts--including those from many human rights and civil liberties groups--buy into this framework, emphasizing federal courts' conviction rates in terrorism cases rather than their due process guarantees. To the extent civil liberties concerns are raised, the emphasis is on preserving the rights of U.S. citizens, not all individuals in U.S. custody.

The Obama administration has demonstrated its willingness to resist measures that would limit its use of all available tools to incapacitate terrorism suspects. It has proven far less willing to expend political capital on closing Guantanamo, once a centerpiece of its efforts to restore the rule of law. The NDAA provides a small window of opportunity to breath a modicum of life into closure. It permits the Defense Secretary to waive certification requirements for transferring Guantanamo detainees to other countries--requirements that, along with the Obama administration's own suspension of repatriations to Yemen, have brought detainee transfers to a standstill. Under the NDAA, the Defense Secretary can waive the requirement of certifying that there have not been any cases of recidivism in the receiving country if he certifies that "alternative actions will be taken" that will "substantially mitigate" the risk that the individual will engage in future terrorist activities. Whether this waiver provision is invoked to transfer detainees the administration has cleared for release will prove instructive. For one thing, it will shed on light on whether maintaining the executive's flexibility is a one-way street, intended only to maximize the state's power to incapacitate, without concern for protecting those deprived of their freedom.

The Detainee Provisions of the National Defense Authorization Act

2011-12-31T20:15:00.002-05:00

As you may have read, the President today signed the NDAA, which contains several controversial provisions concerning detainees, GTMO, etc. The President's signing statement can be found here.

There's been a great deal of debate, confusion and simple misrepresentation concerning what, exactly, the detainee provisions say and what effect they'll have. With Steve Vladeck, I've posted some of my own observations about the new legislation, in two parts, at Opinio Juris. The first part generally describes the most problematic parts of the legislation, but also cautions that much of the worst of what you've heard isn't very accurate. Perhaps the most important impact of the NDAA, however, may be with respect to a question that has received comparatively little attention–namely, the effect of the laws of war on the Executive’s military detention authority. As we explain in our companion post, although the NDAA by its terms does not “limit or expand” the President’s detention authority, it is best read to clarify Congress’s understanding of how the existing AUMF authority should be construed—namely, as limited and informed by the laws of war, as the governing opinion in Hamdi instructs and as the Executive branch has been arguing since 2009.

Wishing all Balkinization readers a good and peaceful new year . . .

How to Think About War Powers, Pt. 3

2011-12-26T16:57:00.003-05:00

The last post ended with the promise that I would discuss the special dangers posed by “real” wars. Well, we’re almost there. I need to pursue a sub-topic
first, whether it makes sense to distinguish big or “real” wars from military
operations short of war. Some people believe we don’t need to do this. They
think there are crucial constitutional issues at stake every single time the
president orders a military operation. Thus, they seek a doctrine or set of rules that would tell us under what circumstances the president can act. This is not my project and I doubt that we could ever come up with such a doctrine, at least in the absence of the judiciary lending a consistent common law helping hand across a range of cases. Rather, I suggest we focus our attention on those operations that pose the gravest policy risks and the deepest constitutional and moral issues. Doing this, however, involves clearing out some rather mythical conceptual underbrush concerning how the US gets itself into major military operations, the ones we call “wars.”

The least constructive myth, propounded by some critics of the Vietnam War, is that big wars can start small. I’ll take this on in a moment. For now, let’s appreciate
how wars, “real” wars are fought. In 1941, FDR received some valuable advice from the Army’s War Plans Division: “Only land armies can finally win wars.” Despite some novel theories propounded by the Air Force especially and American conservatives in the years since, so it has remained. Ground forces are required to defeat enemy ground forces, control territory, conduct counterinsurgency and even to direct and assess the consequences of drone strikes. As of 2010, there had been over 410,000 casualties suffered by the US armed forces since 1945. The overwhelming majority were tallied in the ranks of the Army and Marines, the “boots on the ground.”

You may have noticed that Americans keep fighting in Asia and the Middle East
rather than Europe which is relatively close by. Substantial military operations in these regions require at least tens of thousands of troops deployed over weeks and
months. So however much it may seem that post-1945 wars have been launched in the midst of emergencies, the practical reality of fighting wars by means of ground troops means that there has always been time to think twice and deliberate before sending them into action. This was no less true in Vietnam, than in Korea, the Gulf War, Afghanistan and Iraq. In 1990, President George H. W. Bush made the decision to launch Operation Desert Shield (defending Saudi Arabia) in a matter of days without consulting Congress. But it took seventeen weeks for a purely defensive force to be assembled in the desert opposite Kuwait. Plenty of time for congressional deliberation, yet Bush did nothing. He did ask for a congressional resolution months later in January 1991, but by then it was too late for Congress to stop the operation.

The fact that our wars are still fought by ground forces means there is always time
to deliberate if the president and Congress wish. But they usually have not so wished. Recent historical scholarship has established that most leading senators with expertise in foreign affairs were deeply skeptical of launching a war in Vietnam during the crucial 1964-65 period in which President Johnson made his decisions. Yet they were also unwilling to force a public debate, a tremendous
tragedy for American public policy. After reviewing decision making on all of the major wars fought since 1945, I see no evidence that a lack of interbranch deliberation improved policymaking. As constitutionalists might expect, the opposite seems to have been the case. In my larger project, I build a systematic case that deliberation inside the executive branch cannot substitute for the
constitutionally mandated process of interbranch deliberation. This has implications for how we assess recent arguments by executive enthusiasts like John Yoo and the joint work of Eric Posner and Adrian Vermeule. It also constitutes a kind of “reverse proof” that the original constitutional order, one in which the branches deliberated together, was best suited to promoting sound public policy.

But what of the idea that big wars creep up on us? If this is true, it would mean there would not necessarily be a sharp line of demarcation between “real” wars and other sorts of military operations. Small operations could somehow morph into big wars. What we should understand is that the enormous lead time required for the buildup of the ground forces necessary to fight and win wars makes this implausible. The more common pattern has been for a crucial period during which the decision to prevail at whatever level of force is required is made – but only inside the executive branch. This was true in Korea, the 1991 Gulf War and Iraq. Afghanistan was planned by both branches as an operation in which the use of any force necessary was authorized in advance. It was of course too bad that the armed forces had no preexisting war plan for Afghanistan, but that doesn’t change the fact that what resulted was authorized.

Vietnam is the example everyone cites in this context, but it actually demonstrates the opposite. Careful scholarship by many historians has established that there was a narrow window of time in which LBJ made the decision to prevail, no matter what the level of force required. The buildup of forces along with a bombing campaign began immediately after these decisions, starting in early 1965. The escalation that resulted might have appeared to be gradual, but to conclude that a big war started small would confuse logistical details with fundamental policy decisions. It was because the eventuality of a “big war” was anticipated from the beginning that it took the Pentagon about two years, from 1965-67, to put in place the infrastructure in South Vietnam necessary to support an effort that in time involved over 500,000 troops. Big wars start with big presidential decisions. That means we can usefully focus on those decisions and the process by which they were taken in the effort to understand how the US went to war after 1945.

PS: I welcome Mary Dudziak’s post on the insulation of the American people from an era of continuous war by the buildup of many wars I would consider “small.” While I hope to take up her insights later in this series, I wonder for now whether she would make a distinction between how the American people experienced war before and after the all-volunteer force. The end of the draft in the 1970s is surely relevant to how the American people experienced war, both politically and culturally.

The Poor Get One Strike; Banks Get Thousands

2011-12-26T12:27:00.002-05:00

Most readers of this blog are already familiar with draconian treatment of the poor by various law enforcers and state bureaucracies. Here's yet another example:

[A] one-strike clause . . . allows the public housing authority to evict [the tenant] if any member of her household or any guest engages in certain kinds of criminal activity. . . . Stories abound about the one-strike policy being wielded in seemingly egregious ways to evict "innocent tenants," such as a disabled elderly man in California whose caretaker was caught with crack. . . .The Chicago Reporter wrote in September that 86 percent of Chicago's one-strike evictions last year did not arise from criminal activity by the person named on the lease.

"These policies, the effect of them on children, families, women, families of color, were not thought through. And I think now a national conversation is beginning to rethink that," said Ariela Migdal, a senior staff attorney with the Women's Rights Project of the American Civil Liberties Union. Migdal pointed to a June 2011 letter from HUD Secretary Shaun Donovan to public housing directors, encouraging the directors to use their "broad discretion" to create a flexible set of standards for who will be admitted to and allowed to stay in public housing.

Certainly the Obama administration has ample experience deploying "discretion" and "mercy" in other areas. For example, consider Barry Ritholtz's summary of a shocking Reuters report by Scott Paltrow on foreclosure fraud:

There have been . . . “tens of thousands of fraudulent documents filed in tens of thousands of cases.” Sworn affidavits have been filed containing false information. This is easily prosecuted perjury. . . . The size and scope of the fraud on the U.S. court system is unprecedented in U.S. history.

NY State court judge Arthur Schack, ruled in 2010 that pleadings by the Baum Law Firm— who handle 40% of NY foreclosures — were “so incredible, outrageous, ludicrous and disingenuous that they should have been authorized by the late Rod Serling, creator of the famous science-fiction television series, The Twilight Zone." There has been no fraud prosecution to date. . . . [and banks] have routinely filed falsified mortgage promissory notes — in some cases, six different documents have been filed, all claimed to be the original. At the least 5 must be forgeries — an easy felony to prosecute.

The administration slapped BofA/Countrywide on the wrist for massively discriminatory action. Its OCC has initiated a program where "servicers agree[] to submit foreclosure fraud for review by 'independent' third-party companies" that is not credible. Matt Stoller describes the dynamics that are now wrecking lives and neighborhoods around the country:

The attitude during the go-go days of the housing bubble was “here today, gone tomorrow,” as Joe Nocera and Bethany McLean make clear in their book “All the Devils Are Here.” This was a refinement of the financial deal makers’ code, “IBG-YBG,” meaning “I’ll be gone, you’ll be gone,” described by Jonathan Knee in “The Accidental Investment Banker.” In this environment, why bother getting your paperwork in order when the goal is to put someone into a predatory loan, reap fees and disappear tomorrow?

Now that these homes are in foreclosure, however, the lack of paperwork is a serious problem. And, since no one has yet been held accountable for the fraud perpetrated during the housing bubble, the business model of financial institutions is often still predatory. This fraud is now coming back to haunt our courts — for example, in the falsified foreclosure paperwork required to cover up the corner-cutting of the subprime lenders and the banks that funded them. . . .The [Obama] administration is now attempting to quash state-level officials by fiercely lobbying for a 50-state settlement to paper over the foreclosure fraud scandal. Obama may talk about his fealty to the “99 percent,” but his administration is engaged in an aggressive coverup of bank crimes.

But wait, as they say in the infomercials, there's more. It would be bad enough if the wholesale campaign of primitive accumulation via predatory loans and sloppy foreclosures merely contributed to destitution and inequality. But, as CBS's 60 Minutes documents, the same banks evicting families are not exactly putting the empty houses to their "highest and best" use in many cities:

Cuyahoga County ripped down 1,000 homes this year. And they have 20,000 more to go. That'll cost about $150 million dollars. . . . In theory there shouldn't be this many abandoned houses. When homeowners walk away, the bank is supposed to take responsibility. But one little known feature of the great recession is, that many banks are walking away too, unwilling to maintain a house whose value has crashed. "Very often a bank will take a property to the point of foreclosure, but won't go to the sheriff's sale, 'cause they don't want that property. They don't want the responsibility of the $8-$10,000 bill that comes with tearing this house down" [says Jim Rokakis, a former county treasurer].

There is no concern for communities, none for struggling families, none for the public treasury. There is simply a Kafkaesque interlinkage of contracts and incentives that keep the foreclosure machine humming (along with Potemkin programs like HAMP), putting families on streets with dubious documentation for the paper gains of banks and servicers. The law enforcement apparatus will hammer a disabled man for inadequately monitoring his caretaker, but moves slowly and ineffectively (if at all) against a wholesale abandonment of legality. Glenn Greenwald's and Bernard Harcourt's books on such discrepancies, already damning, appear to have understated the extent of our 2-tier justice system.

Banks' Economic Impact

This is not simply a problem for lawyers, but for anyone concerned about the overall health of the US economy. The foreclosure disaster is only one particularly pure example of a financial system prone to overcentalization, bubble-blowing, opacity, and disregard for long-term productivity. Henry Mintzberg has warned that the economy will never be "fixed" as long as problematic alliances between business and government consume such a disproportionate share of resources:

When economists boast about America’s great productivity, what they have in mind is exploration – finding ways to do things better, especially through superior processes. But much of this “productivity” has in fact been destructively exploitative. Think of all the corporations that have fired great numbers of people at the drop of a share price, leaving behind underpaid, overworked employees and burned-out managers, while the CEOs escape with their bonuses. To see where this leads, imagine a company that fires all of its workers and then ships its orders from stock. Economic statistics would record this as highly productive – until, of course, the company runs out of stock. American enterprise is running out of stock.

There have been a number of recent studies on the productivity of the financial sector (see, e.g., here, here, here, and here). Many have asked whether it increases GDP, but perhaps the more telling question is how it raises GDP. Mike Konczal recently evocatively compared the foreclosure crisis to an earthquake or storm affecting millions:

Imagine a natural disaster that hit the United States and internally displaced over 5 million families. We’d understand that would require a major policy response. But for the 5 million estimated foreclosures, and the millions more that are going to happen, there’s no response from the administration to match this challenge.

US GDP probably got some kind of "bump" in 2006 as some homes of Katrina victims were rebuilt. But I've heard few people try to describe hurricanes as a form of "creative destruction," or "information creators." Maybe the hurricane lobby just needs to donate to the right think thanks.

A New Way Forward?

Is there any solution to these problems? The Clinton administration diverted law enforcement resources from financial to health care fraud, and later Bush did the same thing in response to terror fears. Health care fraud detection and deterrence has become extraordinarily sophisticated. For instance, as Wheeler, Fuller, and Broussard have noted (in 4 J. Health & Life Sci. L. 1, 2011):

Recently, the number of Medicare- and Medicaid-affiliated government contractors charged with detecting fraudulent and abusive practices by enrolled providers has expanded dramatically. The contractors' role has been to monitor and investigate providers rather than simply to administer these programs. [T]he healthcare government contractor landscape continues its transformation with an increased number of contractors actively pursuing the recovery of erroneous payments and the identification of potential patterns of fraud and abuse.

There is a veritable alphabet soup of entities devoted to this goal, including Program Safeguard Contractors (PSCs) and Zone Program Integrity Contractors (ZPICs). They perform "auditing, data mining, and improper billing and fraud investigation."

In my next post on financial institutions, I will outline some potential lessons for financial fraud prevention from the realm of health care fraud. The critical conceptual issue here is to begin to see the banks as a sector as permanently embedded in a web of state subsidy and support as health care, defense, and energy. Mintzberg convincingly complains about "the energy companies with their cozy tax deals, the defense contractors that live off government budgets, and the pharmaceutical companies that buy their innovations and price what the market will bear, thanks to patents that governments grant, but without policing their holders." I also worry about all these sectors. But it may well be the finance sector that is the most menacing to economic growth, and the least accountable. We cannot simply accept lawlessness in the sector as the status quo. Creative and forceful responses are possible, and have precedents both historically, in other nations, and in other sectors in our own economy.

Simulposted: Concurring Opinions.

A Holiday Puzzle for Supreme Court Trivia Fans

2011-12-25T14:25:00.003-05:00

There's (at least) one Supreme Court case in which nine justices participated, and the Court announced that it was equally divided. Name the case and explain the outcome. (The case involved multiple issues, but the puzzle doesn't arise, at least directly, from one of the standard paradoxes of aggregation of votes on multiple issues.)

I don't know how to enable comments, but I'll post the first correct answer I receive.

Another way to think about War Powers: Why the Small Wars Matter

2011-12-23T23:09:00.002-05:00

Stephen Griffin has been laying out his ideas about war's impact on the constitutional order in a series of posts. Important to his analysis is the distinction between different kinds of conflicts. For example, Griffin writes: "Wars, 'real' wars, pose unique risks for American constitutionalism. Small-scale presidentially-ordered military strikes in support of rebels do not." While I look forward to the rest of the argument, many historians of war look not to the distinctions between different kinds of conflicts, but instead to the cumulative effect of decision-making in conflicts, large and small, on the politics and culture of contemporary decisions about the use of force.

In a discussion of whether the U.S. war in Iraq has been worth the cost, Andrew Bacevich writes:

The disastrous legacy of the Iraq War extends beyond treasure squandered and lives lost or shattered. Central to that legacy has been Washington's decisive and seemingly irrevocable abandonment of any semblance of self-restraint regarding the use of violence as an instrument of statecraft. With all remaining prudential, normative, and constitutional barriers to the use of force having now been set aside, war has become a normal condition, something that the great majority of Americans accept without complaint. War is U.S.

While Bacevich takes up a war that is "real" for Griffin, historian Marilyn Young argues that the small wars have played an important role in this normalization of the use of force, and especially the insulation of the American people from American war politics. In the many American military interventions of the Cold War, she argues, post–World War II administrations “had to create a public
tolerance for war as normal rather than aberrational, so normal that after a while only those who were actively engaged in fighting it—and their families—noticed it was being fought at all.”

This consciously facilitated insulation of the American people from American wars, I argue, has helped to atrophy political restraints on the war powers. And so the "real" wars that have impacted the workings of our constitutional order include the small wars and the "forgotten wars" that lead us to Bacevich's critique, that "war has become a normal condition, something that the great majority of Americans accept without complaint."

Hate Speech Prosecutions: Europe and the U.S.

2011-12-22T10:11:00.016-05:00

The news that John Terry, the (white) captain of the English national soccer team (and of his club team, Chelsea), will be criminally prosecuted under Britain’s Crime and Disorder Act of 1998 for racist comments Terry allegedly made on the pitch to Queens Park Rangers defender Anton Ferdinand (who is black) spotlights the very different ways that European and American law strike the balance between – as the subtitle of an excellent new book on the subject puts it -- “preserv[ing] freedom and combat[ing] racism.”

The book is Erik Bleich’s The Freedom to Be Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism (Oxford, 2011). Bleich is not a law professor, but a political scientist with an expertise in the racial and ethnic politics of western Europe. In late November, I was part of an interdisciplinary panel of sociologists, anthropologists, criminologists, and political scientists at the Annual Meeting of the Social Science History Association who discussed the book with Bleich.

The topic of hate speech regulation was big when I was in law school, but most of that discussion was rooted in political/legal theory: Catharine MacKinnon, Andrea Dworkin, Feminist Theory, Critical Race Theory. Bleich’s approach, while outlining the basics of the theory, is different. For one thing, since he is not a constitutional law professor, he doesn’t feel a professional obligation to advance a theory of the single “best” way to approach the issue that gets the balance between liberty and dignity/equality just right, in the process refuting the proposed “best” theories advanced by others. Bleich starts by assuming that the core tensions between the values involved in the question are real -- and theoretically unresolvable.

Of course, practically, as a matter of public policy, those tensions must be resolved by governments, and are. The book is largely empirical. It sets out to describe the different ways that hate speech is regulated in several key European countries (England, France, Germany), as well as transnationally. It describes the different forms that such regulation takes there, involving not simply prosecution for racist remarks – as with the current prosecution of the footballer Terry in England, and the famous serial prosecutions of film icon, and animal rights advocate, Bridget Bardot in France (for anti-Muslim remarks) – but also the banning of racist political parties, and restrictions on the freedom of the press (the Danish cartoons), and intellectual freedom (historian David Irving’s Holocaust denial), and other topics. Bleich places a heavy emphasis on situating each form of regulation in the institutional and political histories and cultures of the various countries, suggesting, in the process, that any understanding of the “best” approach to the issue must effectively take into account such developmental pedigrees and lineages – it is not, that is, something that can be resolved by abstract theory alone (although the theory, as refracted through the medium of party and social movement politics, is certainly part of the process). Comparing “the law in action” from “the law in books,” Bleich argues, somewhat provocatively, that that the U.S. is less exceptional in its regulation of hate speech than is commonly supposed (think of all the restrictions on speech in the workplace here, for example: see David Bernstein, You Can’t Say That! (Cato Institute, 2003)). Bleich's empirical overview raises many questions that might not be first and foremost when one approaches the subject as a matter of legal theory.

The diverse panel offered varied observations, and raised a number of questions. I argued that, if one approached the issue empirically, the test of these laws had to ultimately be not how many prosecutions there were under the laws, but rather one of how well the regulatory system helped manage the society’s pluralism – something that would be difficult to measure (Bleich doesn’t attempt that). I wondered whether such laws would have any effect in most serious cases (Weimar Germany; Rwanda). I also raised questions about some institutional differences between the U.S. and European democracies that might justify different rules – chiefly the relative autonomy of prosecutor’s offices there (anchored as they are in the highly professionalized civil service), and the relatively political nature of the office here (where prosecutors are political appointees, if not elected). Others testified to the symbolic importance of such laws and prosecutions (or their absence), provided evidence of the depth of the problem, and its consequences, here and abroad, and raised questions about the limits of Bleich’s case selection (studies of hate speech in Africa and post-communist Eastern Europe were suggested).

All in all, it was a stimulating discussion. The book is relatively short, and clearly written, which would make it useful for classroom teaching. It would be a nice addition to courses addressing the issue that currently focus solely on the U.S. case, or to courses that approach the question as a purely a matter of political/legal theory. Not the least of the book’s virtues is to suggest – as one of the leading Republican Party candidates for President is warning that Muslims are moving to establish Shariah Law in the United States -- that there is actually a lot more to know and learn about (unfortunately) timely topic.

The Roberts Court’s Bad Romance

2011-12-21T23:02:00.007-05:00

Recently a coalition of Missouri payday lenders implied "that standing up for high-interest-rate lenders is somehow analagous to the acts of the 'poor people who followed Dr. King and walked with him hundreds of miles because they believed in civil rights that much.'" Because we all know that liberty means little if you're not free to take a loan out at 444% APR.

In The Irony of Free Speech, Owen Fiss warned that the language of the First Amendment would lose its emancipatory potential as courts used it to gut progressive legislation. In a recent essay in Democracy Journal, Jedediah Purdy confirms those fears. His thoughts on last term's Sorrell v. IMS Health are particularly incisive on the topic of commercial speech, which the Court appears ready to radically rethink:

[Evan as t]he Court has tenuously maintained the formula that commercial speech receives lower protection than “core” political speech, it has struck down limits on advertising for legal services, liquor stores, and tobacco products (in the last instance, invalidating a law that forbade tobacco advertising near schools). A certain amount of the everything-for-sale quality of our public spaces owes directly to the Court’s protection of commercial speech. The justices have never said, though, that advertising deserves the same very strict protection as political debate. Sorrell v. IMS, the Vermont case, comes as close as any to dissolving all distinction between advertising and argument.

The stranger and more innovative aspect of Sorrell is that the case extended First Amendment protection beyond anything recognizable as speech. . . . [M]ost of what the Vermont decision protects is not verbal expression or even political spending but simply the sale of data. Sorrell moves toward constitutionalizing an open market in information, at least where the data will inform marketing decisions and the regulation has different effects on different market actors. As the right to speak implied the right to spend and the right to argue implied a right to advertise, now spending and advertising imply a right to buy and sell the information that will go into marketing (which is itself robustly protected as speech). So there is now a constitutionally protected interest in exchanging information on the same terms as everyone else in the market. Any limit on information markets, Kennedy reasoned, would tilt the playing field in favor of those who had more access to data—--in Vermont’s case, generic drug companies and public-health agencies. . . . . [The Court] put[s] new intellectual premises to work in constitutional law, premises that themselves form no part of the Constitution.

Ronald Dworkin's 2007 jeremiad may have been premature, but recent terms have confirmed the neo-Lochnerism of the Court's majority. It's an institution that will barely lift a finger for brutalized protesters or citizens routinely humiliated and detained due to security theater. But if Sorrell is any guide, it will soon be scrutinizing consumer and investor protections embedded by law into "guidelines for . . . communications by energy and financial companies, restrictions on the uses pharmaceutical companies may recommend for their drugs, and various controls on disclosure of patient information by doctors and hospitals." Who cares about pervasively racialized law enforcement? There are FDA regs to review.

In my last post, I noted the widening divide between courts' and agencies' respectful treatment of trade secrets, a form of corporate privacy, and their increasing disdain for personal privacy. In Sorrell, the Court used the First Amendment to accelerate the trend, claiming that free speech rights trumped any privacy rights that Vermont's legislature tried to protect. Purdy explains the historical antecedents of today's laissez-faire judicial juggernaut:

The First Amendment has helped the Supreme Court do for the consumer capitalism of the Information Age what freedom of contract did for the Industrial Age: constitutionally protect certain transactions that lie at the core of the economy. This makes unequal economic power much harder for democratic lawmaking to reach, because there are only a few ways to reduce the effects of economic inequality: redistribute wealth, guarantee certain goods (such as education or health care) regardless of wealth, and limit what the wealthy can do with their money. Constitutional protection of marketing and spending takes the last option off the table at a time when the other two are politically embattled. Whether in elections or in marketing and the vast data economy behind it, the market itself, with all its inequality, is ever more thoroughly constitutionalized as a realm of freedom.

My only problem with Purdy's argument is the reification of "the market" in the last sentence here. In Sorrell, one of the main reasons there was data in the first place was that the state of Vermont required records to be kept of pharmaceutical transactions. Legislation like the Hatch-Waxman Act prescribes a regime of protections and obligations for drug manufacturers that is extraordinarily complex, and continually contested. The FDA is involved in every step of a drug’s approval, and significantly constrains its marketing. Medicare Part D legislation also significantly increased the U.S. government’s involvement in the pharmaceutical sector, providing an enormous amount of funding for spending on drugs for the elderly. International treaties like TRIPS also play a very important role in the pharmaceutical sector.

In short, if there is one sector where state action is not simply a side constraint on “the market,” but rather serves to constitute it, that sector is the pharmaceutical industry. Judicial interventions like Sorrell can't bring us closer to a "free market" that never existed in the first place. They just make a long-standing private-public partnership less responsive to the public interest.

Free Markets: Ideal or Illusion?

I only bring up this quibble with what is in the main a remarkably insightful article because there is a major divide between progressives on the nature of "free markets." Dean Baker insists that there are genuine economic principles that govern "free markets," and that progressives should embrace them. Barry Lynn's efforts to revive antitrust law resonate with Baker's views, as do most interventions from center-left think tanks in DC. Ideals of competitive markets also deeply informed the Affordable Care Act, as leading Democrats abandoned a public option in the hope that insurance exchanges could finally make competition work in health care.

Against this orthodoxy, James K. Galbraith has argued that Republicans long ago abandoned any pretense of supporting "free markets," and liberals should now do the same. I'd also place in the Galbraith camp Bernard Harcourt (author of The Illusion of Free Markets) and Michael Lind (a big advocate of industrial policy). To steal a formulation of Stanley Fish, they believe that there's no such thing as a free market, and it's a good thing, too. The question for these thinkers is not shifting the boundary between state and market, but instead assuring that the inevitable combination of the two meets human needs as efficiently and well as possible.

In any event, I particularly liked this closing reflection from Purdy's article:

Taken to their limit, [cases like Sorrell and Citizens United] would set aside the intellectual and political gains of decades of struggle in the twentieth century: the New Deal recognition that the country must take responsibility for shaping its own economy, and the decision to remove the old American romance with economic libertarianism from constitutional judging. It is the revival of that bad romance that makes the memory of Lochner relevant now.

There is another dimension to the "bad romance" here; the crony capitalist marriage of big business and big government that suffuses the exchanges blessed in Citizens United and Sorrell. This is not the jurisprudence of the "free market," but rather of a corrupted hybrid economy devoted to little more than maximizing the wealth of CEOs and Wall Street grandees. The Bob Roberts Court may well be repeating Lochner-era mistakes, but the real conservatives are the people who expose its radicalism.

Simulposted: Concurring Opinions.

How to Think About War Powers, Pt. 2

2011-12-19T16:53:00.007-05:00

If we wish to understand how and why presidents have used their war powers in contemporary times, we should inquire into how presidents see their own situation. In my first post, I posited that presidents believe they are advancing the foreign policy and defending the national security of the US. (I will bracket for now the role of domestic party-political considerations). So presidents tend to think about using armed force in the context of foreign policy and national security, not “war.” Mind you, the US has fought a number of major wars since 1945 and no one thinks otherwise. But presidents see war as a means to an end. Perhaps this is unremarkable, but experience shows that it is easy for them to focus so much on foreign policy ends that they lose sight of the terrible nature of the means. This of course suggests one of the purposes of deliberating about war in advance.

For now, let’s lay aide whether interbranch deliberation is obligatory and stay
with the path of understanding war powers in the context of US foreign
policy. One advantage of this perspective is that it provides the most relevant evidence concerning what presidents have actually been claiming about the nature of their constitutional powers. Explicit presidential statements on this score are few and scattered in the post-World War II period. But presidents generally do not spend much time ruminating about their constitutional powers. Presidents must at least implicitly claim the powers they need to execute US foreign policy strategy. So to understand their conception of their powers we need to understand the strategy they are executing. In the early Cold War, that strategy was conceptualized as containment of both Soviet power and communism (setting aside the fact that these were two different things). There are disputes over how containment was initially defined and evolved, but what is important for our purposes is that the concept was implemented by creating the capacity to project military power on a global basis. When combined with circumstances suggesting a constant threat and emergency, this triggered the necessity of claiming that presidents had the constitutional power to intervene anywhere in the world, including starting a war, on a unilateral basis. Because presidents have never been relieved of their Cold War-acquired responsibility in foreign policy and because this military capacity has never been dismantled, presidents have never relinquished this fundamental claim.

It may appear I am building to a standard conclusion about the dangers of the imperial presidency. But this would miss the fact that fundamental aspects of foreign policy usually make it, however indirectly, to the ballot box. So although important qualifications must be made about the actions of particular presidents, in general the war record of presidents since 1945 has also been our record, the record of the American people. It is one thing to say that Korea and Vietnam were unpopular wars. It is quite another to claim that containment of communism was unpopular. It remains the case that military operations ordered by presidents are judged politically in terms of the larger policies they serve rather than on narrow legalistic conceptions of what truly constitutes a “war.” Broadly speaking, this shows the dominance of the presidentialist perspective in foreign policy.

Consider President Obama’s air strikes against the Gaddafi regime. Libya was no Vietnam. But under the influence of the standard war powers debate, sometimes it seems every post-Vietnam military action has been treated as if it could morph into a full-scale war. The debate has been built around the premise that all military operations pose the same constitutional and policy risks. But there is something wrong with a view that equates Libya with Vietnam or Libya with Iraq. Vietnam cost well over $700 billion in 2010 dollars. The Iraq War was approaching $1 trillion as we left. There were over 36,000 casualties in Iraq, over 210,000 in Vietnam. Libya might have cost the US around $1 billion, with no known casualties. That appears to be a fair-size difference, on any dimension of analysis, but especially in policy and moral terms.

At one level, everyone understands that Vietnam and Iraq were “real wars,” while Libya was not. Yet the terms of the war powers debate keep pulling us back into making false equations between far different types of military operations. Those terms need to be questioned. Wars, “real” wars, pose unique risks for American constitutionalism. Small-scale presidentially-ordered military strikes in support of rebels do not. Why is this the case? That’s for the next post.

Gamifying Control of the Scored Self

2011-12-19T15:21:00.006-05:00

Social sorting is big business. Bosses and bankers crave "predictive analytics:" ways of deciding who will be the best worker, borrower, or customer. Our economy is less likely to reward someone who "builds a better mousetrap" than it is to fund a startup which will identify those most likely to buy a mousetrap. The critical resource here is data, the fossil fuel of the digital economy. Privacy advocates are digital environmentalists, worried that rapid exploitation of data either violates moral principles or sets in motion destructive processes we only vaguely understand now.*

Start-up fever fuels these concerns as new services debut and others grow in importance. For example, a leader at Lenddo, “the first credit scoring service that uses your online social network to assess credit," has called for "thousands of engineers [to work] to assess creditworthiness." We all know how well the "quants" have run Wall Street---but maybe this time will be different. His company aims to mine data derived from digital monitoring of relationships. ITWorld headlined the development: "How Facebook Can Hurt Your Credit Rating"--"It's time to ditch those deadbeat friends." It also brought up the disturbing prospect of redlined portions of the "social graph."

There's a lot of value in such "news you can use" reporting. However, I think it misses some problematic aspects of a pervasively evaluated and scored digital world. Big data's fans will always counter that, for every person hurt by surveillance, there's someone else who is helped by it. Let's leave aside, for the moment, whether the game of reputation-building is truly zero-sum, and the far more important question of whether these judgments are fair. The data-meisters' analytics deserve scrutiny on other grounds.

Privacy and Power

First, there's the power issue. Note that companies like Lenddo and Klout want access to a complete list of your friends, and their financial profiles, but brag that their own algorithms are "proprietary and secret." If they really believed in the Silicon Valley hype about "transparency" and "openness," why not reveal them? Or, if they fear someone will game the algorithms, why not release them after one, two, or five years? And if even that is too trying, how about establishing third party entities to audit the process? James B. Rule highlights the unfairness:

This country’s consumer credit reporting industry ascribes to the great majority of adult Americans a three-digit score epitomizing their potential profitability as charge-account customers, credit card users, or mortgage applicants. As in virtually all systems of mass surveillance, credit tracking and scoring enables institutions to make ever-finer distinctions in their treatment of the people they deal with.

But note that American consumers have no remotely comparable monitoring system to help them choose among retailers, products, and services. This is hardly for lack of need. A consumer-friendly tracking system could furnish the same comprehensive, instantaneously available data to buyers that credit reporting provides to lenders and retailers.

All of this would cost money, though consumer savings would likely make up for the public costs. What’s more problematic is that such a system would require manufacturers and sellers to provide crucial data. They will, of course, insist that such information is proprietary—that is, they own it, and they’re not giving it up. The reasons for such resistance are obvious: Better information for consumers spells potential disadvantage for sellers. . . .

The dramatic discrepancies between these two surveillance potentials—one an ultra-sophisticated reality, the other grossly underdeveloped—are by no means imposed by technology. They reflect sponsorship. This country’s lending and retail industries are simply better organized and more resourceful interests than consumers.

When Big Data's cheerleaders rhapsodize about understanding our social world better than ever, remember that they are often talking about enhanced methods of monitoring and manipulating those too politically weak to demand privacy (or recompense for its invasion).

Nathan Newman has anticipated the problem will confound even notable enforcement actions:

[H]ere's the big problem with [current FTC] privacy audits. When they were first being discussed, consumer groups like the Electronic Privacy Information Center (EPIC) asked that any audits be made public. The response from the Federal Trade Commission was not encouraging. They told the groups the audits would not be published but "the public may have access to the submissions required pursuant to the order" using tools like the Freedom Of Information Act (FOIA).

[FOIA exempts trade secrets in many cases.] So the company may be using innovative strategies to violate consumer privacy and will demand that the FTC hide those methods from the public by deeming them "trade secrets." The joke here is that these companies are systematically violating consumer privacy but are demanding secrecy for the regulatory review of those violations.

As I noted in another context: there is one rule of privacy law for the powerful, and quite another for the powerless. For US courts, trade secrecy remains sacred, even as privacy is eroded at every turn.

Hopeful Monsters: Survival of Cyberspace's Fittest

Reporters tend to worry that people will change their behavior once the full negative impact of "deadbeat" friends becomes clear. I don't share that worry presently, mainly because monitoring now is so pervasive that it would be a herculean mental feat simply to keep track of all the ways one could misbehave in the eyes of some digital sensor (or censor). Rating tools may also be so opaque that gaming them seems to be a Sisyphean task. But I do worry that we won't adequately appreciate the ways in which these services make the world more congenial for certain personality types and less so for others. For example, a person who automatically cuts off contact with "friends in need" may get cheaper credit and more opportunities if Lenddo becomes very successful. Quantified selves who tend to quickly conform to such a gamified social life will also "score." I've already heard stories of Twitterati churning through followers to maximize "Klout." Both reinforce troubling trends in the US economy's reward structure.

Of course, we all have such tendencies in us; it's not as if there's a certain calculative ideal-type out there ready to take advantage of the new social gamescape of reputation enhancement. Sadly, even that complexity may ultimately be flattened by a world of constant monitoring. Mark Zuckerberg memorably said that:

You have one identity…The days of you having a different image for your work friends or co-workers and for the other people you know are probably coming to an end pretty quickly… Having two identities for yourself is an example of a lack of integrity.

In response, Aaron Bady has drawn on the thought of W.E.B. Dubois to defend "the multitudes of identities we each contain:"

Why is it that people want to control their privacy? It isn’t so much that people want to “hav[e] a different image for your work friends or co-workers,” as [Zuck] sort of innocuously puts it; it’s not an issue of choice for people who need to have a different image for their boss than the one they have in real life. The less the people who sign your paycheck know about you, after all, the less they know that you’re not simply a simple worker-drone toiling away in their sugar fields, and that can be an urgent thing in a time where everyone who works for someone else could be replaced at any time.

But even the less dire firewalls we try to build in our lives are fundamentally about asserting our ability to choose; we hide things from our friends and family to the extent we fear they’ll disapprove and make that disapproval meaningful by intervening. We compartmentalize not because we’re split between different notions of ourself, but because the multitudes of identities we each contain bump up against people’s expectations that we each be a particular way.

When individuals resist the pervasive monitoring of services like Klout or Lenddo (or more traditional data brokers and credit bureaus), it's not necessarily because they have something to hide. Rather, it's because they already feel amply manipulated and controlled by existing constellations of knowledge and power. To paraphrase Tarleton Gillespie, "We don’t have a clear sense of how to talk about the politics of th[e] algorithm[s]" now vying to credit or discredit our digital selves as powerfully and profitably as entities like credit bureaus and DHS evaluate our physical selves. Until norms of reciprocal transparency render them as legible as they'd like to make us, it is wise to keep a cautious distance.

*To push the metaphor one more step: Scott Peppet has identified unraveling dynamics that are probably the digital equivalent to sudden methane release from permafrost.

Image Credit: Seanrnicholson.

Simulposted: Concurring Opinions.

What are the people behind Americans Elect thinking?

2011-12-16T15:18:00.008-05:00

The NYTimes reports that Americans Elect is very likely to have a place on all 50 state ballots for the 2012 election and that the organization continues to plan to nominate, via an internet "primary," a "unity ticket" consisting of a presidential candidate and a v.p. candidate not from the same political party. Consider the following paragraph from the Times article:

Those who have lent their names to the effort include Will Marshall, the president of the Progressive Policy Institute, the centrist Democratic research group; Christine Todd Whitman, the former governor of New Jersey and one of a dwindling band of moderate Republicans; Mark McKinnon, the strategist who guided Mr. Bush’s message in 2000 and 2004 but backed Mr. Obama in 2008 and now says his interest is “anything that disrupts the current system,” and Doug Schoen, a pollster who worked for Bill Clinton in the 1990s but is now frequently critica of Democrats.

“This is an effort to empower people,” said Ms. Whitman. “This ticket could win, but at the least it could drive both parties toward the center.”

Two observations: As should be obvious from many of my posts, I resonate in many ways to Mr. Schoen's rather flamboyant statement. But is it really true that anything disruptive of the current system" would be a good thing? Consider, for starters, systematic attempts at assassination of political leaders. So presumably we should interpret Mr. Schoen to be saying that "anything that disrupts the current two-party duopoly over presidential elections would be a good thing." I think that a lot of us can support that view. But again one must ask about the meaning of "anything" in this context. What if the Americans Elect effort should lead to the election of Newt Gingrich, who will certainly get only a minority of the popular vote and would limp through to an electoral vote victory only because he gets, say, 40% of the vote in several large states that split 35-25% between Obama and the Americans Elect "unifier"? What continues to be missing in the Americans Elect analysis is even the slightest recognition that we elect our presidents under the lunatic electoral college system, placed in the Constitution in 1787 in large part to benefit slave-holding states (who would get the benefit of the three-fifths clause in computing their electoral votes) and without any redeeming value since then.

Ms. Whitman's comment is even more mysterious. She ignores the presence of the electoral college and the possibility that the Republican Party, especially, would, in their efforts to gain 270 electoral votes, emphasize ever more a combination of high-turnout of their zealous base and suppression, through voter-ID and other even more nefarious tactics that Republicans are good at. (I recognize that the Democrats might also be tempted by a similar base-mobilization strategy, but there would be no parallel effort to suppress the vote of their opposition.) But she also doesn't confront the point that orthodox political science (which may deservedly be under attack) would predict that in a two-party race for a winner-take-all office like the presidency, the "rational" electoral strategy is to aim for the fabled "median voter," which means a move toward the center. The amazing thing about the current Republican Party is that it demonstrates no real desire to do this, though that is clearly the basis of the Romney campaign, if only he can survive the circus of the Republican nominating process. Obama seems to be thinking much more of the median voter, though he has to worry about losing some of his base that might, unwisely, just choose to tune out of the election.

Frankly, the only sensible defense of America Elects is the belief, which might be quite rational, that if Gingrich does indeed knock Romney out or otherwise simply makes Romney ever more unelectable by exposing him as the ultimate in core-less pandering, then it is thinkable that a centrist ticket would actually win by cobbling together 40%+ of the vote in the largest states. So, as suggested by an extremely politically savvy friend, might we see the re-emergence of Chris Christie after all as the America Elect candidate, coupled with, say, Evan Bayh as VP? Or consider the Times's lead sentences: "To those who bemoan the lack of better choices in presidential elections, third-party fantasies come easily at this stage in a campaign. End hyper-partisanship and Washington dysfunction: Vote Bloomberg-Petraeus in 2012!" I doubt that the Jewish, hyper-rich, anti-gun, and secretive mayor of NYC is actually the best path to an electoral victory, but I have thought for some time that Petraeus may be in our future, though once Obama brilliantly neutralized him by sending him first to Afghanistan and now to the CIA, I assumed that the year for Petraeus's Caesarist candidacy would be 2016. Perhaps we should start thinking of the strange bedfellows (Jerry) Brown-(Scott) Brown! Or maybe Tom Brokaw (presumably an independent)-(Susan) Collins or (Olympia) Snowe, since the two Maine senators do nothing useful in the Senate other than to provide key votes, when needed, to maintain Mike McConnell's hammerlock on getting anything done. But, no doubt, they are perceived as "moderate" because they don't often take demonstrably crazy positions.

And, of course, there is always the possiblity that Ron Paul, the only candidate with any intellectual integrity in the Republican race--even if, as Paul Krugman demonstrates, many of his ideas are aptly described as "monetary madness," albeit sincerely believed--will decide to accept the entreaties of the Libertarian Party to run as its candidate and get probably 10% of the national vote, with whatever particular effects on Obama and the Republican candidate. We are living in "interesting times."

Sex Equality and Original Meaning: A Response to Jack Balkin

2011-12-15T20:07:00.002-05:00

Steven G. Calabresi and Julia Rickert

Jack Balkin has recently posted a response to a law review article on “Originalism and Sex Discrimination” which we have posted online and which is forthcoming in the Texas Law Review. In that article, we argue that there was at least a serious question whether the Fourteenth Amendment’s ban on caste and class legislation applied to legislation limiting women’s civil rights in 1868, but this question was conclusively resolved in 1920 when the Nineteenth Amendment giving women the right to vote was adopted. We argue that political rights like the right to vote were regarded by the framers of the Fourteenth Amendment as being at the apex of the pyramid of rights for which civil rights were the base. We conclude that once women acquired the right to vote for president, senate, and governor this conclusively tipped the scales in favor of understanding limitations on their civil rights to own property, enter into contracts, or be employed in certain professions as caste legislation prohibited by the Fourteenth Amendment.

Balkin argues that the idea that the Fourteenth Amendment’s ban on caste or class legislation is only an original expected application of the Fourteenth Amendment and is not part of its core semantic meaning. Since Balkin does not believe that original expected applications are law—a claim we agree with—Balkin also does not think the Fourteenth Amendment’s ban on caste or class legislation is constitutionalized. This is a surprising criticism from Balkin, who wrote in his article Abortion and Original Meaning that “laws criminalizing abortion violate the Fourteenth Amendment’s principle of equal citizenship and its prohibition against class legislation” and “[f]idelity to the Constitution as law means fidelity to the words of the text, understood in terms of their original meaning, and to the principles that underlie the text.” But we will respond to his more recent claim that our anti-caste/anti-class legislation reading of the Fourteenth Amendment is merely a construction that can be altered by future generations engaged in constitutional politics. Balkin thus believes that the States could constitutionally go back to the era of Jim Crow segregation or of widespread violation of the civil rights of women without violating the semantic meaning of the Fourteenth Amendment. This is a chilling and breath-taking claim. All that stands between us and Jim Crow or widespread sex discrimination is the opinion of contemporary political elites.

We disagree with Balkin and think the semantic meaning of the Fourteenth Amendment included a ban on systems of caste and of class legislation. Otherwise, it would be necessary to concede that the Fourteenth Amendment did not permanently ban the Black Codes for all time even though every interpreter of the Amendment from Raoul Berger on has conceded that that is what the Fourteenth Amendment did. In fact, it is unclear what Balkin thinks the original semantic meaning of the Fourteenth Amendment is if it is not a ban on caste or class legislation. Does Balkin agree with Judge Robert H. Bork that the Privileges or Immunities Clause is only an ink blot on which current constructions must be built? Is it even appropriate to build constructions on an ink blot? Balkin never says.

So let’s turn to the semantic meaning of the text of the two clauses in Section 1 of the Fourteenth Amendment that ban discrimination: the Privileges or Immunities Clause and the Equal Protection Clause. What would an informed reader in 1868 have thought those two clause meant semantically? The Privileges or Immunities Clause says that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In our opinion, the references to “privileges or immunities” together with the verb “abridge” invoke what Balkin calls a term of art. Balkin concedes that original semantic meaning encompasses not only dictionary definitions but also legal terms of art.

The Privileges or Immunities Clause of the Fourteenth Amendment would have been understood semantically in 1868 as growing out of the Privileges and Immunities Clause of Article IV which said that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The Article IV Clause in turn descended from a Privileges and Immunities Clause in the Articles of Confederation. It was very widely understood in 1868 that the Article IV Privileges and Immunities Clause forbade States from discriminating against out of State citizens. Indeed, the whole reason Chief Justice Taney was so eager to conclude in Dred Scott that free African-Americans in the North were not citizens was because he did not want them to have an Article IV right to relocate to a slave State where they could own guns and speak freely about the evils of slavery. It was widely understood in 1868 understood that the language of privileges or immunities was the language of a ban on discrimination. In Article IV the discrimination that was banned was discrimination against out of staters and in the Fourteenth Amendment it was discrimination based on systems of caste or class but in both cases it was discrimination that was being banned.

This point is made clearer semantically by the Fourteenth Amendment’s use of the verb “abridge.” Abridge means to shorten or abbreviate and in banning abridgments of privileges or immunities the Fourteenth Amendment banned the Black Codes which shortened or lessened the civil rights of African Americans as compared to white citizens. The verb “abridge” is used as a synonym for discrimination in exactly this way in the Fifteenth Amendment which says “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

The Fourteenth Amendment goes on to say that “no State shall deny to any person within its jurisdiction the equal protection of the laws” – a phrase that we know encompassed aliens and children who had no right to vote. The use of the words “any person” in the Equal Protection Clause make it clear that the Clause does not merely benefit freed African Americans but that it also, for example, applies to protect Northern white citizens resident in the South. What we have then based on the semantic meaning of the Privileges or Immunities Clause and the Equal Protection Clause is what today we would call a generalized ban on all forms of “discrimination” as to civil but not political rights. The Fourteenth Amendment tells us not to discriminate at all as to civil rights and not merely to avoid discriminating as to civil rights on the basis of race. The semantic meaning of the Fourteenth Amendment is not confined, as is the semantic meaning of the Fifteenth Amendment, only to discrimination “on account of race, color, or previous condition of servitude.”

Balkin says since there is no “on account of” language in the Fourteenth Amendment our view that the Amendment bans systems of caste and of class based law is merely a construction and is not part of the Amendment’s semantic meaning. Not so. It is our modern day reading of the Fourteenth Amendment as a generalized ban on discrimination that is a construction because in 1868 this language would have been very widely understood to be a ban on caste or systems of class legislation. America in the post-Jacksonian era was completely enamored with the idea that special monopolies or class legislation were an evil that we needed protection from. Melissa Saunders has clearly shown this in an article in the Michigan Law Review entitled “Equal Protection, Class Legislation, and Colorblindness.” For example in 1868, thirteen States had clauses in their State constitutions that said in effect “No law shall be passed granting to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens. Thirty-four percent of all Americans living in 1868 lived in States with such clauses in their State constitutions. Moreover, many States had equal protection language, anti-feudalism language, or in a few cases language barring the granting of titles of nobility or of monopolies in their State constitutions in 1868. I discuss this in more detail in an article with Sarah Agudo at 87 Texas Law Review 7, 94-100 (2008). The Privileges or Immunities language used in the Fourteenth Amendment in 1868 was code for a Jacksonian opposition to caste or class legislation. Indeed, Jackson himself opposed the Bank of the United States because its federal charter gave it a legal privileged, monopoly status vis a vis all other banks. One evil Republicans saw in the Black Codes in 1865 and 1866 was the Slave Power reasserting monopoly rights over the labor of African-Americans.

In sum, Balkin is wrong about the original semantic meaning of Section 1 of the Fourteenth Amendment because: 1) he fails to recognize that the words “privileges or immunities” and “abridge” are legal terms of art; 2) he fails to take account of the Jacksonian rejection of caste, class, and monopoly which is reflected in the fabric of State constitutional law in 1868; and 3) because he offers no better argument about original semantic meaning than we do and seems to agree with Judge Bork that the Fourteenth Amendment is merely an ink blot onto which we project our own views. He dismisses the core original meaning of Section 1 of the Fourteenth Amendment as if it were merely an original expected application. He might as well argue that the President today needs to be mature and therefore at least fifty years old because the words “thirty-five” in the Presidential Qualification Clause are merely an original expected application. The core meaning of the constitutional text cannot be dismissed as being merely an original expected application.

But this does not end our disagreement with Balkin because he never comes to terms with our core claim that it was the synthesis of the Nineteenth Amendment with the Fourteenth that led to the ban on sex discrimination: the Nineteenth Amendment tips the balance in favor of viewing many restrictions on women’s civil rights as caste legislation. We agree with Balkin that between 1868 and the adoption of the Nineteenth Amendment in 1868 there was a real doubt as to whether women’s civil rights were constitutionally unprotected. For that reason, the legislative history of the Fourteenth Amendment that suggests it did not protect women poses no problem for us. We agree that sadly and unfortunately sex was not a suspect classification from 1868 to 1920.We disagree with Balkin, however, that the Nineteenth Amendment did not change this state of affairs. It did. Once the political right to vote was granted to women, it became clear that legislation limiting women’s civil rights was suspect under the Fourteenth Amendment followed as well. Balkin does not acknowledge: 1) that the Nineteenth Amendment seriously undercut any legitimacy to claims that women were very different from men; or 2) that the Framers of the Fourteenth Amendment would have thought that any group that had the political right to vote necessarily also had equal civil rights. Once the Nineteenth Amendment was added to the constitutional text its words and history had to be synthesized with the history of the Fourteenth Amendment from 1868. Courts needed to read the two Amendments together, to reconcile them, and perhaps to harmonize them as well. Synthesis of conflicting legal texts is “emphatically the province and duty of the judiciary” which has the power to “say what the law is.” We would love to hear how Balkin synthesizes the Nineteenth Amendment with the Fourteenth and comes out with the conclusion women could vote but not own property, enter into contracts, or be employed.

We note in our article that the Pre-New Deal Supreme Court in the 1923 Adkins case concluded that Lochnerian freedom of contract gave women as well as men the right to work for less than a minimum wage. Justice Sutherland, in reaching this conclusion, said explicitly that the Nineteenth Amendment altered the way in which the Supreme Court ought to read the Fourteenth. Balkin notes that Adkins was overruled on other grounds but he does not mention that it was the New Deal Supreme Court in a 1948 opinion by Justice Frankfurter in Goesaert v. Cleary that first held that sex discrimination should be evaluated under the rational basis test. Justices Rutledge, Douglas, and Murphy all dissented. By 1971, the Supreme Court in Reed v. Reed began to once again give some Fourteenth Amendment protection to women. Thus, the rational basis test for sex discrimination has only been a part of Supreme Court doctrine for 23 years out of the 91 years since the Nineteenth Amendment was adopted. This reflects the fact that Goesaert offered a very unconvincing synthesis of the Nineteenth and Fourteenth Amendments when it upheld Michigan’s ban on women becoming bar tenders. We think Goesaert was wrong on the day it was decided. Balkin thinks it did not become wrong until the 1970s.

Balkin also criticizes our claim that the framers relied on mistaken facts about women when they concluded that the broadly worded Section 1 would not prohibit laws limiting women’s autonomy. The basis of our claim is that many of the framers understood women to be mentally more like children than like men, and this factual misunderstanding prevented them from seeing that women had been relegated by law to second-class citizenship of the sort the Fourteenth Amendment was to stamp out. But according to Balkin, the framers were not relying on mistaken facts, because no clear line can be drawn between facts and values. We agree with him that the line between facts and values is debatable, and he is right that some of the framers believed women weren’t “meant” to work outside the home. But such “value” judgments were undergirded by now-discredited facts about women’s abilities and/or by “God’s will,” neither of which provide a proper basis for denying women rights under the Constitution. And notably, none of those who debated the Fourteenth Amendment claimed that Section 1 excluded women by its terms; they simply argued that laws limiting women’s rights were no more arbitrary than laws limiting children’s rights. (They constitutionalized that view in Section 2, but the Nineteenth Amendment corrected this.) We do not believe it is necessary to resolve philosophical conundrums like the fact-value distinction to make our case.

Finally, Balkin asks about abortion, overlooking our explicit statements in the article that our analysis does not affect at all ones’ views on the correctness or evil of Roe v. Wade. There are countries with constitutions that proscribe sex discrimination, like Germany, which recognize a fetal right to life, and there are countries with constitutions that prescribe sex discrimination like Canada which do not protect fetal right to life. The question of when life begins and when the State can protect it is not answered simply because a constitution bans sex discrimination.

Steven G. Calabresi is Professor of Law at Northwestern University. You can reach him by e-mail at s-calabresi at law.northwestern.edu

Julia T. Rickert is currently a Staff Law Clerk to the Seventh Circuit Court of Appeals. You can reach her by e-mail at j-rickert2010 at nlaw.northwestern.edu

Legal Language Explorer

2011-12-15T13:42:00.002-05:00

Just launched: the Legal Language Explorer website. The site allows users to search all U.S. Supreme Court cases from 1791-2005 for words or phrases and to generate a frequency plot for the results (as well as a download-able list of cases). The site's developers promise coverage of more courts and other tools in the near future. Having played with the site this morning, I can report it is quite addictive.

The Stop Online Piracy Act's Anticircumvention Provisions

2011-12-15T11:15:00.003-05:00

Wendy Seltzer

The House's Stop Online Piracy Act is in Judiciary Committee Markup today. As numerous protests, open letters,and advocacy campaignsacross the Web, this is a seriously flawed bill. Sen. Ron Wyden and Rep. Darell Issa's proposed OPEN Act points out, by contrast, some of the procedural problems.Here, I analyze just one of the problematic provisions of SOPA: a new"anticircumvention" provision (different from the still-problematic anti-circumvention of section1201). SOPA's anticircumvention authorizes injunctions against the provision of tools to bypass the court-ordered blocking of domains. Although it is apparently aimed at MAFIAAfire, the Firefox add-on that offered redirection for seized domains in the wake of ICE seizures,[1] the provision as drafted sweeps much more broadly. Ordinary security and connectivity tools could fall within its scope. If enacted, it would weaken Internet security and reduce the robustness and resilience of Internet connections.

The anticircumvention section, which is not present in the Senate's companion PROTECT-IP measure, provides for injunctions, on the action of the Attorney General:

(ii)against any entity that knowingly and willfully provides or offers to provide a product or service designed or marketed by such entity or by another in concert with such entity for the circumvention or bypassing of measures described in paragraph (2) [blocking DNS responses, search query results, payments, or ads] and taken in response to a court order issued under this subsection, to enjoin such entity from interfering with the order by continuing to provide or offer to provide such product or service. Â§ 102(c)(3)(A)(ii)

As an initial problem, the section is unclear. Could it cover someone who designs a tool for"the circumvention or bypassing of" DNS blockages in general -- even if such a person did not specifically intend or market the tool to be used to frustrate court orders issued under SOPA? Resilience in the face of technological failure is a fundamental software design goal. As DNS experts Steve Crocker, et al. say in their Dec. 9 letter to the House and Senate Judiciary Chairs, "a secure application expecting a secure DNS answer will not give up after a timeout. It might retry the lookup, it might try a backup DNS server, it might even restart the lookup through a proxy service." Would the providers of software that looked to a proxy for answers --products "designed" to be resilient to transient DNS lookup failures --be subject to injunction? Where the answer is unclear, developers might choose not to offer such lawful features rather than risking legal attack. Indeed, the statute as drafted might chill the development of anti-censorship tools funded by our State Department.

Some such tools are explicitly designed to circumvent censorship in repressive regimes whose authorities engage in DNS manipulation to prevent citizens from accessing sites with dissident messages, alternate sources of news, or human rights reporting. (See Rebecca MacKinnon's NYT Op-Ed, Stop the Great Firewall of America. Censorship-circumvention tools include Psiphon, which describes itself as an "Open source web proxy designed to help Internet users affected by Internet censorship securely bypass content-filtering systems," and The Tor Project.) These tools cannot distinguish between Chinese censorship of Tiananmen Square mentions and U.S. copyright protection where their impacts -- blocking access to Web content -- and their methods -- local blocking of domain resolution -- are the same.

Finally, the paragraph may encompass mere knowledge-transfer. Does telling someone about alternate DNS resolvers, or noting that a blocked domain can still be found at its IP address -- a matter of historical record and necessary to third-party evaluation of the claims against that site -- constitute willfully "providing a service designed ... [for] bypassing" DNS-blocking? Archives of historic DNS information are often important information to legal or technical network investigations, but might become scarce if providers had to ascertain the reasons their information was being sought.

For these reasons among many others (such as those identified by my ISP colleague Nick, SOPA should be stopped.

Wendy Seltzer is a Senior Fellow at the Information Society Project at Yale Law School. You can reach her by e-mail at wendy.seltzer@yale.edu

The Stop Online Piracy Act

2011-12-15T07:24:00.002-05:00

Nick Bramble

The apparent purpose of section 105 of the Stop Online Piracy Act (SOPA) is to delink access and funding blockage decisions from the presence of a court order, and instead to condition these actions upon the existence of “credible evidence” of infringement and the good faith belief of the provider taking the action. But section 105 suffers from ambiguous references to sections 102 and 103 of SOPA, yields little clarity as to the basic question of when providers may restrict information and financial flows in the absence of a court order and still receive broad legal immunity, and may encourage actions that have little to do with the purpose of the underlying bill. The confusing structure of section 105 is particularly problematic given the possibility for abuse by service providers and others with an interest in labeling competitors as “foreign infringing sites” or “sites dedicated to theft of U.S. property” without judicial oversight.

I.The Text of SOPA § 105

The December 12 amendment to SOPA contains the following provision:

SEC. 105. No cause of action shall lie . . . and no liability for damages to any person shall be granted against, a service provider, payment network provider, Internet advertising service, advertiser, Internet search engine, domain name registry, domain name registrar, entity described in section 101(20)(B), or Internet Protocol Allocation entity . . . for taking the actions described in section 102(c)(2) or section 103(c)(2) with respect to an Internet site, acting in good faith and based on credible evidence, that—

(1) the Internet site is a foreign infringing site, is an Internet site dedicated to theft of U.S. property, or is an Internet site that endangers the public health; and

(2) the action is narrowly tailored and consistent with the entity’s terms of service or other contractual rights, and with the purposes of this title.

Section 105 refers to two different sets of actions. The “actions” in section 102(c)(2) are reasonable measures taken pursuant to a court order by service providers, Internet search engines, payment network providers, and Internet advertising services to block access to and funding of foreign infringing sites.

The “actions” in section 103(c)(2), on the other hand, are reasonable measures taken pursuant to a court order by payment network providers and Internet advertising services to block access to and funding of sites dedicated to the theft of United States property. In a previous draft, section 103 of SOPA made no reference to any requirement for a court order, but the new draft does.

Unlike the sections to which it refers, however, section 105 lacks any requirement for a court order. Instead, the purpose of section 105 is to carve out a wide berth of legal immunity for providers who take the above-listed “actions” in the absence of a court order. Yet the brevity of section 105, especially in comparison to the detailed provisions in sections 102 and 103, results in a section that lends itself to confusion as well as potential mischief.

II. Points of Confusion

As a first point of confusion, the range of providers listed in section 105 is wider than the range of providers identified in sections 102(c)(2) and 103(c)(2). Whereas sections 102 and 103 of SOPA proceed on a provider-by-provider basis and seek to circumscribe the kinds of actions each provider must take to restrict financial and information flows to targeted sites, section 105 simply groups all these providers and actions together, adding several providers that are not even listed in those earlier sections. This raises a series of questions:

· Does SOPA grant every entity listed in section 105—service providers, payment network providers, Internet advertising services, advertisers, search engines, domain name registries, domain name registrars, depository institutions, and Internet Protocol Allocation entities—full immunity to use any of the access-blocking powers listed in sections 102 and 103?

· Alternatively, does section 105 refrain from granting immunity to those providers listed in section 102 but not in section 103—service providers and search engines—when they voluntarily take actions described in section 103 in the absence of a court order?

· Furthermore, when may a domain name registrar such as Go Daddy, which is listed in neither section 102(c)(2) nor section 103(c)(2), take actions against foreign infringing sites or sites dedicated to theft of U.S. property and acquire immunity under section 105?

The first interpretation—allowing all entities to gain immunity for exercising any section 102 or 103 power, even in the absence of a court order—seems to be the clearest interpretation of section 105, as all other interpretations would render the inclusion of domain name registries, registrars, and depository institutions in section 105 nonsensical.

But if the purpose of section 105 is to grant immunity to all listed providers for engaging in any of the actions described in sections 102 and 103, then why does SOPA list these different providers separately in earlier sections? There is a clear principle underlying the decision to include certain providers in section 102 but not in section 103. Section 103, after all, is potentially broader in scope: it requires certain providers to cut off access not just to primary foreign infringers but also to secondary inducers of such infringement and those who have taken steps to foster infringement. As a result, section 103 has been cabined to include only payment network providers and Internet advertising services. This limitation of section 103 to a narrower range of payment and advertising providers is consistent with the “follow the money” approach towards which SOPA has been evolving.

Yet if section 105 immunizes non-financial providers—ISPs such as Comcast, search engines such as Yahoo, registrars such as Go Daddy, and others—from liability for blocking websites that may (or may not, given the loose evidentiary standard) be secondarily or tertiarily responsible for infringement, then section 105 effectively disregards the “follow the money” approach in favor of a kitchen-sink approach where numerous entities are encouraged to act as uncoordinated private enforcement officers.

III. Broader Concerns

Under the “every entity can exercise every power” interpretation of section 105 that is likely to prevail, SOPA transforms the broad power to go after those who induce or foster infringement from a requirement in sections 102 and 103 to an immunized option in section 105. Furthermore, section 105 strips that power of the judicial and procedural safeguards associated with sections 102 and 103, and opens up the private enforcement power to a wide range of providers with competitive and ecosystem-wide interests extending far beyond those of payment and advertising providers.

Granting domain name server operators—which include almost all ISPs—immunity for blocking access to websites that they suspect are secondarily involved in infringement may, then, without any corresponding procedural safeguards, result in pretextual anticompetitive uses of SOPA well beyond the purposes of the law. At the very least, section 105 is likely to yield confusion on the parts of many providers as to when they are immunized from blocking the flow of information or money to targeted sites, and what constraints they must satisfy before they do so.

The immunity provisions currently in section 105 of SOPA should either be eliminated from the text of SOPA or tightly cabined to a narrower range of providers, a more specific range of actions, and robust procedural safeguards.

Nick Bramble is the Law and Media Program Director at the Yale Information Society Project. You can reach him by e-mail at nicholas.bramble at yale.edu

How to Think About War Powers, Pt. 1

2011-12-14T14:49:00.001-05:00

Having finished a draft of a book on war powers, this is the first of several posts on topics arising from the book. If I had to boil the book down to one claim, it would be that wars, “real” post-1945 wars such as Korea, Vietnam, the 1991 Gulf War, Afghanistan and Iraq, pose extraordinary challenges and risks for our democratic constitutional order that clearly separate them from other types of military conflicts. At the same time, I add covert wars and decisions on nuclear strategy to the usual list of wars fought by the US since 1945 because significant presidential decisions were made in those spheres without the participation of Congress.

In these initial posts I will concentrate on clearing away the conceptual underbrush of the war powers debate. The debate has been going on, after all, for several decades, at least since the Vietnam War became controversial in the mid-1960s. Last July 4, Time magazine summarized it as a clash of two constitutional clauses – “declare war” in Article I versus “commander in chief” in Article II. This popular way of describing the debate, indulged in by both sides (although more by pro-president than pro-Congress scholars), is misguided. It misses how presidential war powers have always been exercised in the context of US foreign policy and treats the use of military force as completely separate from that policy. This foreign policy perspective has in fact been advocated from time to time, mostly by presidentialists. I don’t believe that this basic point has a particular valence for either side in the debate. But it is true that congressionalists have often failed to engage with the real-world context of the use of armed force because of a blind spot about the role of foreign policy in presidential decision making. For some legal liberals in particular, the war powers debate has served as a kind of substitute for confronting broad issues of US strategy in foreign affairs. And that is a shame because it makes their cogent critique of presidential decisions for war almost unrecognizable to the executive branch officials it is supposed to influence.

So accepting that presidents exercise war powers in the context of advancing the foreign policy and defending the national security of the US is not a sop to presidentialists. It is rather an essential precondition for having a useful debate in the first place. Acting within the context of foreign policy, presidents do not typically think of themselves as starting “wars.” Rather they are advancing and defending as specified. Nevertheless, war is not like other aspects of foreign policy or even like low level uses of armed force. Its risks and challenges are of a different character. That difference is backed by the Constitution, which makes “war” a meaningful category of government action and identifies Congress as the branch which has to authorize war. Treating war as a subset of foreign policy does not either establish presidential predominance in war powers or avoid the obligations that the Constitution imposes on the executive branch as a matter of law.

Few would dispute that presidential power in foreign affairs has a basis in practice or tradition. But does this power have a basis in the text of the Constitution? Here is where my opinions changed the most over the course of my project. Thanks largely to the excellent scholarship of Mike Ramsey and William Casto, I accept that it is likely that the vesting clause of Article II is a reasonable textual basis for presidential power in foreign affairs. Mind you, I don’t go all the way with scholars who view the vesting clause as a source of all presidential power. But historical evidence strongly suggests it is a location of power in foreign affairs. I recommend Ramsey’s book The Constitution’s Text in Foreign Affairs and Casto’s book Foreign Affairs and the Constitution in the Age of Fighting Sail to everyone interested in presidential power in foreign affairs. Among other points, they establish that Hamilton and Madison agreed more than they disagreed with respect to war powers in their famous 1793 debate as “Pacificus” and “Helvidius” respectively. My own research supports their conclusions.

Students of debates over presidential power know this relates to Justice Jackson’s concurring (now controlling) opinion in the Steel Seizure case. Jackson specifically rejected the vesting clause thesis and assumed that founding era debates such as the Pacificus-Helvidius clash showed that it was fruitless to rely on historical evidence to resolve separation of powers problems. But Jackson did not consider the narrower possibility that the vesting clause underwrote presidential power with respect to foreign policy. And he was simply too quick in concluding that the Pacificus-Helvidius debate was a wash. The belief that the Pacificus-Helvidius debate showed deep divisions among the framers as to presidential power in foreign affairs, including the war power, has been one of the main stumbling blocks preventing scholars from seeing that there was a univocal founding era judgment that only Congress could commence “war.” Ramsey and Casto have shown that careful scholarship can improve our knowledge of the past even with respect to texts that have long been available and discussed for decades. How does regarding war powers issues in the context of foreign policy aid our understanding of the constitutional issues at stake? That’s for next time.

First Amendment & Stop Online Piracy Act's Manager's Amendment: Some Thoughts

2011-12-14T14:19:00.000-05:00

The tech and civil liberties communities are all focused on a pair of bills in Congress aimed at "rogue foreign sites" like All of MP3 and The Pirate Bay, but that actually appear to target Tumblr, Twitter, and YouTube--and commandeer search engines, domain name services, and advertisers to target these legitimate sites. Today, dozens of top tech CEOs have taken out full page ads in major papers across the country. And thousands of Americans are contacting Congress through the amazing effort of AmericanCensorship.org, a joint project of several civil liberties groups.In reviewing these bills, I produced a memorandum for Congress analyzing their First Amendment problems. Professor Laurence Tribe filed a letter on the same day, he on behalf of the consumer electronics industry and I on behalf of tech companies. We agreed on several, fundamental key points, including that the bills were overbroad and unconstitutional as written. I discussed the pieces on Balkinization.The House version of the bills--called the Stop Online Piracy Act, or SOPA--will face a Committee vote tomorrow. Two nights ago, the Committee leadership swapped out the original bill for a new bill. The new version, substituted through a procedure known as a Manager's Amendment, is designed to address some objections raised by tech companies, civil liberties groups, and academics. As a result, in the past 36 hours, those interested in Internet freedom and copyright have moved quickly to analyze the new bill. (See here, here, and here.)Yesterday, I joined in a staff briefing organized by friends at Net Coalition to discuss the new version.At the briefing, I made three points:

The new version is an improvement.
The Committee staff seems to have grappled with concerns raised by technology companies, citizens, the 100 academics who have commented on the House bill, and by Professor Tribe and by me. The staff and leadership deserves some credit and thanks. On a personal note, I was happily surprised to see many tweaks that seemed directly to take my memorandum's suggestions into account.
Despite these initial steps, more must be done to resolve other concerns.

Let me note some weaknesses and encourage some additional movement forward.First, the new bill still provides far too much uncertainty. The section governing Attorney General enforcement authorizes measures against sites now subject to “seizure or forfeiture in the United States." That standard provides little guidance. And the DOJ has had an unfortunate record of seizing non-infringing sites, including a hip-hop blog that was wrongly taken offline for a year. According to critics, this terrible mistake was subject to an apparent cover-up. Our government has also wrongly seized thousands of innocent sites in a child pornography action--seizing one site resulted in the accidental blocking of thousands of other sites. Finally, the DOJ seized a Spanish website that has been cleared, by Spanish courts, of infringement. So Congress should provide websites more certainty and provide the DOJ more guidance.

My suggestion would be to require the DOJ to prove that a site is liable for secondary infringement under existing Supreme Court precedent. If the goal is to target The Pirate Bay and All of MP3, the current tests would clearly capture them--as they captured Napster and Grokster.

Second, the definitions for sites subject to private rights of action are a novel creation, one that does not track existing Supreme Court precedent. This provides uncertainty because tech companies will undoubtedly be subject to a decade of litigation to define this new standard. The existing precedent--pertaining to secondary liability and the Digital Millennium Copyright Act--would clearly capture The Pirate Bay and All of MP3. There is no reason to create a new definition, unless Congress wants to target YouTube and Twitter and Facebook. If that is the intent of Congressmen, they have not said so. The simpler method is to stick with existing tests. That way, this section does not change the substantive requirements of infringement; it would merely expand the remedies available to copyright holders. (Many others have discussed the problems with the remedies, such as DNS blocking and search engine manipulation, which should be considered.)

Third, one section of the bill enables service providers to block sites based merely on "good faith" and "credible evidence" that a site is covered by another section of the bill. That is very dangerous, as no court order is required for such action. Could Viacom have notified Comcast and Verizon to block YouTube? Viacom probably had "credible evidence" to present, even if that evidence was not enough to win in district court. And Comcast and Verizon would have been subject to a simple choice: immunity through blocking or potential suit from Viacom. Immunity is the surer route. In my memorandum, I discussed the district court case CDT v. Pappert (pdf, pp. 77-79) and its reliance on the Supreme Court decision of United States v. Playboy to demonstrate that Congress will violate the First Amendment by encouraging private parties to restrict more speech, not less, to comply with a law. This immunity provision encourages intermediaries to restrict more, not less, speech, and lacks the necessary judicial determinations set out in the Court's prior restraint jurisprudence. It should be deleted.

Fourth, the search engine provisions and the domain name provisions will encourage global censorship. The OECD, the European Parliament, the State Department, the Internet Society, and others have emphasized the importance of a unified, open Internet. Blocking domains and search results is a tactic used by repressive regimes. And messing with the domain name system is something the US has consistently opposed--when repressive regimes, have, for example, attempted to transfer more domain name authority to the International Telecommunications Union.

To provide a concrete example, the bill might make The Tor Project illegal. That project, funded by the State Department, creates encryption technology used by dissidents in repressive regimes. Repressive regimes would outlaw this American-sponsored free-speech technology. So would SOPA. Tor is used heavily, by users unconnected to creating Tor, to transfer copyrighted files. It would be illegal for that purpose. Moreover, the technology would end-run around many of the copyright-bills' remedies, and be illegal for this second purpose. Any American legislation that makes State Department-sponsored free-speech technology illegal in the United States for two separate reasons should give us pause.

Finally, I would recommend processes to permit intervenors in litigation involving foreign sites. The seminal case of Lamont v. Postmaster makes it clear that Americans have the First Amendment right to read and listen to foreign speech, even if the foreigners lack a First Amendment speech right. And our system of law is based on adversarial hearings. If foreign sites are unwilling to submit to American jurisdiction, but their users in the US wish to defend these sites as not engaged in infringement, the users' rights should be vindicated with at least a simple ability to intervene and litigate the issues. The users would likely lose a case involving The Pirate Bay or All of MP3, but an adversarial hearing would be the best route to determining legality.

These are just some quick thoughts, and there are others out there. Because of the rush to vote on this legislation tomorrow(!), my thoughts, like others, must necessarily be rushed and quick on matters of grave importance.

Dad-or-Daughter Contest: We Have a Winner

2011-12-13T21:10:00.002-05:00

Cross-post from Freakonomics

Ian Ayres
11/07/2011 | 2:00 pm

(iStockphoto)

I’m happy to announce that Elizabeth Simpson won the Dad-or-Daughter Songwriting Contest by correctly identifying Friend Zone as the song that I coauthored with my daughter, as well as correctly identifying a line in that song that I composed (“But you just laughed it off and said we’d always be bros”) and a line in the song that Anna composed (“I bought a shirt today with your favorite band.”).
Elizabeth turns out to be a former student from my 2006 small group in contracts. In her email, she describes the method behind her entry:

I listened to some of your daughter’s other songs to get a sense of her songwriting voice. Then, I picked the song that diverged most from her signature style. Finally, to get inside your head, I tried to channel my own father (a white, male, lawyer, economist who loves making wagers about his weight or any other subject). He is prone to composing spontaneous poems, so I pretended that I was trying to pick out a rhyme that he would be apt to come up with.

A Ph.D student from Berkeley, Zachary Liscow, came closest to predicting the total number of views, which was over 3,200. A grateful father thanks you.
For the number crunchers out there, a quick and dirty analysis of the 29 Freakonomics votes mildly rejects the wisdom of the crowds. The proportion of people choosing Friend Zone in the first half of entries was 57.14 percent, while the proportion choosing Friend Zone in the second half of entries was 46.67 percent. So, later entrants didn’t seem to benefit from the public prior information.
Listeners liked Friend Zone the least of the three songs. (Longer seemed to be the favorite.)
The story behind the writing of the song is an example of creativity prompted by resistance. I originally had challenged Anna to write a song using a kind of blues chord progression. She resisted. I then went further and came up with the basic idea of a protagonist who was trying to get out of the “friend zone.” Anna still resisted. And I even came up with a melody for the tune and the basic hook. Anna was still not feeling it but came forward with a first draft of the remaining lyrics. I wasn’t satisfied and substituted many of my lines into the song and added the final verse. Friend Zone is also the only song of Anna’s on which I play guitar. That’s me laying down the funky lead riff during the break.
Honorable mention goes to Caleb B who wrote:

Since my incentive is to have the maximum amount of leisure time for myself, and not listen to amateur music, I have chosen to not listen to any of the songs, but simply guess using a combination of publicly available guesses below.

My favorite comment (in part because of the gory detail of its method) was one of the last contest entries. Karearea wrote:

Unless Anna has a special talent for mimicking the writing style of 52-year old men, the song written by Ian really has to be Friend Zone. That was my initial feeling about it anyway. However I decided to seek professional consultation, starting with my 22-year old daughter and her boyfriend. To my shock and horror they thought it was Your Way, leading me to consider that they might be candidates for some sort of “re-education.” I then consulted my 14-year old son – he instantly identified Friend Zone as having the try-hard feel of a 52-year old man attempting to write like a 14-year old girl. I then sought the opinions of my 6-year old son and his friend but they were not up to the job – their stories changed under repeated questioning and after a lengthy appeals process involving claims of parental intimidation and bribery their testimony was determined to be inadmissible. In desperation I asked my husband (59-years old). Usually his choices are useful in that the wrong answer is immediately identified, but he chose Friend Zone too, leading to a long period of self-doubt, soul-searching and reflection on my part. Next on the list was my 18-year-old daughter who chose Friend Zone. By the time she got to the line “We could hug it out in a whole new way” she was apparently in no doubt that this was a tragic case of an old man trying to get down with the kids. Then I moved on to my 12-year-old daughter (also a writer of lyrics). She wasn’t sure but felt that Friend Zone may well have been written by “a dork Dad trying to be cool, sort of like if our Dad tried to write something like that”. She was concerned though that father and daughter may have both engaged in deliberate deceit in their writing styles. Finally, I decided to disregard all opinions except my own and those who agreed with me.

Anna was particularly amused by the “hug it out” analysis. Friend Zone is not one of Anna’s favorite songs. In performing it, she gave the old college try. But I think you can tell she was not that into it when she abashedly sings “make sweet romance.”
I hereby officially announce my retirement from the songwriting game. But you can check out more of Anna’s music at her YouTube channel.

2012: 1936? 1992?

2011-12-13T17:31:00.008-05:00

Adam Liptak’s lead article in today’s New York Times underlines that the Supreme Court’s decision to hear the Arizona immigration case means (as the headline puts it) that the “case is the third accepted in a month on major political issues” (the others involve the 2010 health care law and the future of the Voting Rights Act of 1965). Many Supreme Court decisions can be fairly arcane. But sometimes they line-up with issues that are politically salient in party and social movement politics.

When this happens, law’s politics is foregrounded. Inevitably, scholars are asked to comment on the degree to which there is precedent for such fireworks. In Liptak’s article, various law professors are quoted suggesting 1936 and 1992 as parallels. The FDR vs. the conservative Court comparison is, of course, the most arresting alleged precedent. I confess that, especially if I am teaching undergrads, the temptation to draw this comparison is hard to resist. It imports a sense of high-drama portending a fundamental clash of political visions, to the point (possibly) of constitutional breakdown itself – enough drama to get my students to put down the iPads and to imagine they are witnessing, and participating in, a turning point in American history. For liberals, the 1930s clash, moreover, offers lessons/warnings about severe disjunctions between a Court and the politics of its times. For conservatives, interestingly, we see the mainstreaming of a new (old) interpretation: that the failure of the Court to stand up to the President in the 1930s invited into American government a Trojan Horse progressivism/socialism that destroyed the American constitutional tradition. Whatever your view – liberal, conservative, or just a professor desperate for student attention – there are thus lots of temptations right now to draw the New Deal parallel.

Of course, the 1930s parallel is catnip to the most ideologically inflamed on both sides. But the current politically salient issues aren’t really part of a systematic program set out (or invented) by Obama, as was the case with FDR’s New Deal. Despite our limping economy, the times aren’t (yet) as dire, and the measures under review aren’t put forth as a new way to rescue the economy in total meltdown. They involve a fairly random mix of policies in a diverse array of policy areas. It is possible they will be implicated in the election, and signal an ongoing turn rightward on the Court. But the 1936 comparison is a stretch.

I would add that not the least of the reasons for rejecting the “shock and awe” parallel of 1936 is what Yale political scientist Stephen Skowronek has called the “institutional thickening” that has occurred within the American state since the New Deal. Our politics and policies may swing back and forth between liberal and conservative, but (as the Reagan administration showed; see also No Child Left Behind), in its essentials, the New Deal state is deeply entrenched institutionally. Even conservatives are more likely to use that state to advance their own (micro) purposes than to disassemble it in any fundamental way (although there is a lot of ideological rhetoric out there these days insisting on their intention to do just that).

As for the 1992 comparison, the Times article notes that that term’s big decisions dealt with abortion, the freedom of speech, religion, and school desegregation. This comparison might be more apposite. One interesting feature of that comparison – not mentioned in the article -- is the degree to which 1992 involved the post-New Deal, Warren Court antagonism between liberals and conservatives over civil liberties and civil rights – culture war issues, in many respects. In 2012, the cases are much more structural. This may say something about the direction of constitutional antagonisms today between political opponents (maybe it is 1936! (which was largely about structure)). It may also mean that contemporary conservatives are increasingly inclined to use structural means to reach what are really cultural ends. Or, in a time of thickened institutions, it might mean that "shock and awe" constitutional revolutions are passé – that fundamental changes may now be enacted via slow-motion, structural adjustments (something John Roberts understands well). Or the differences between 1992 and 2012 might simply be random.

No need to get carried away. But the parallels are worth pondering … for heuristic reasons, if nothing else.

Gingers

2011-12-12T15:36:00.003-05:00

When I teach Carolene Products, I ask my students to identify who falls within the final category of footnote 4 in which the Court preserves the possibility of close judicial scrutiny of governmental classifications. This produces an interesting discussion because that portion of footnote 4 is rather complex. It says:

Nor need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Thus the footnote is concerned with "minorities" who are both "discrete" and "insular" and also victims of "prejudice"--so that the political process breaks down and those discrete and insular minorities end up disadvantaged.

Who meets those conditions, I ask?

The point of the exercise is to have students think about what the Court means to achieve in footnote 4 (mid-way in the discussion I draw on Bruce Ackerman’s persuasive showing that anonymous and diffuse minorities, rather than those that are discrete and insular (and as a result better positioned to protect their interests) really deserve the judicial protection the Court is concerned about). Reflecting on the exercise at the end of the equal protection unit of the course also allows students to assess how well the Court has lived up to the footnote 4 promise.

Over the years, the lists of discrete and insular minorities my students have supplied have contained some predictable candidates (gays and lesbians; the Amish) and some less predictable (“forest people”).

On occasion, I have gotten redheads.

This, I suspect, is because my students have watched the South Park episode, “Ginger Kids,” in which Eric Cartman announces that redheads suffer from "Gingervitis" and have no souls.

When, however, I poll the class to ask who should be on the list and who off it, there is always an overwhelmingly majority against including redheads/gingers on the footnote 4 list.

But perhaps my class majority is too hasty. Today at the Yale Law School there is the following event sponsored by the American Constitution Society:

Are Redheads a Suspect Class?

Are redheads protected by the 14th Amendment? Join ACS for a lively student discussion on the reach of the Equal Protection Clause, moderated by a very special guest.

The description is a bit misleading because of course redheads are protected by the Equal Protection Clause: the real question is whether redheads should warrant special status based on their hair color. (The error in the description recalls descriptions earlier this year of Justice Scalia's view that the equal protection clause does not protect against discrimination on the basis of gender as the view that women are not protected by the equal protection clause.)

That said, the, er, really burning question is: who was the special (presumably redheaded) guest? Australian PM Julian Gillard? David Caruso from CSI: Miami? Ronald McDonald? Elmo? The possibilities seem endless. And just compiling the list of prominent redheads (Thomas Jefferson! George Washington!) surely puts to rest the claim for a new suspect class.

"A Permanent State of Remote War"

2011-12-12T14:25:00.000-05:00

William J. Astore, retired lieutenant colonel (USAF), has a post today on the remoteness of American wars from the American people:

America’s wars are remote. They’re remote from us geographically, remote from us emotionally (unless you’re serving in the military or have a close relative or friend who serves), and remote from our major media outlets, which have given us no compelling narrative about them, except that they’re being fought by “America’s heroes” against foreign terrorists and evil-doers. They’re even being fought, in significant part, by remote control—by robotic drones “piloted” by ground-based operators from a secret network of bases located hundreds, if not thousands, of miles from the danger of the battlefield.

Their remoteness, which breeds detachment if not complacency at home, is no accident. Indeed, it’s a product of the fact that Afghanistan and Iraq were wars of choice, not wars of necessity. It’s a product of the fact that we’ve chosen to create a “warrior” or “war fighter” caste in this country, which we send with few concerns and fewer qualms to prosecute Washington’s foreign wars of choice.

Astore goes on to argue that wars of choice have led to "a state of permanent remote war" that "has weakened our military, drained our treasury, and eroded our rights and freedoms."

The engagement of the people with a nation's wars has been central to ideas about warfare. War theorist Carl von Clausewitz wrote of the people as both an engine and a restraint on warfare. Clausewitz's "wonderful trinity," describes the nature of war as "composed of the original violence of its elements, hatred and animosity, which may be looked upon as blind instinct; of the play of probabilities and chance, which make it a free activity of the soul; and of the subordinate nature of a political instrument, by which it belongs purely to the reason." The trinity is often reduced to those Clausewitz thought to embody these elements: the people, the military, and the government.

The emotional element of war, centered in the people, can help motivate a nation to warfare. But the people can also rein in warfare. When the costs of war are too great, the people are thought to lose their will to fight, hampering the nation's ability to pursue war.

But what happens if the people are never in engaged in a war in the first place? This where Astore's point is so important. The remoteness of the American people from American wars, he argues, enables the nation's wars of choice. The absence of the people -- the embodiment of the emotional element Clausewitz thought was a central feature of warfare -- means that the people do not tire of the costs of war. The people's remoteness and isolation from war undermines their traditional role as a restraint.

Astore writes:

As Admiral Mike Mullen, former Chairman of the Joint Chiefs of Staff, put it recently to Time: “Long term, if the military drifts away from its people in this country, that is a catastrophic outcome we as a country can't tolerate.”

One of the consequences of this development appears to be our current "permanent state of remote war."

Cross-posted from War Time.

John Bingham--Moderate or Radical?

2011-12-10T18:45:00.004-05:00

I'm now about half-way through my draft of the Bingham biography, and I wanted to post about an insight into his political profile that I think others have overlooked.

One of the most vexing questions for scholars of Reconstruction is whether Bingham was a moderate or a radical. You can find evidence that points both ways, which may suggest that the inquiry is pointless. Another way to think about the issue, though, is that Bingham was one of the most radical Republicans in the House of Representatives prior to the Civil War, while after the war he often opposed the more extreme faction led by Thaddeus Stevens and was considered a leading moderate. Did Bingham mellow with age? What other explanation could there be?

Here's one possibility. Take a look at his share of the popular vote in his congressional races before the War:

1854: 65%
1856: 58%
1858: 57%
1860: 64%

Now look at his shares during and after the War:

1862: 45%
1864: 52%
1866: 52%
1868: 52%
1870: 50%

In 1862, Bingham's congressional district was redrawn and became more conservative. He lost that election in part because troops from the district who were in the field could not vote. Indeed, in 1864 Bingham again lost the votes of men residing in the district and won only because of military votes. After that, every election was touch-and-go until he left Congress in 1873.

Thus, it may be that the "moderate" John Bingham of Reconstruction was a politician who needed to be more cautious to retain his majority. This is consistent with the man who supported the Fugitive Slave Act of 1850 initially because he thought that was where public opinion in Ohio was, even though privately he wrote letters saying that the Act was horrific. Such is politics.

Resisting Elites’ Resistance to the Rule of Law (Review of Glenn Greenwald’s With Liberty and Justice for Some)

2011-12-09T08:52:00.009-05:00

(Glenn Greenwald is having a fundraiser; link here. I think his work is well worth supporting.)

There are few (if any) "free markets" in the largest sectors of the US economy. The health care industry is a labyrinth of public and private payers. Sectors known as "guard labor" are also larded with subsidies. The Departments of Defense and Homeland security contract with thousands of companies. The communications industry enjoys various government "givings." And at this point, everyone knows that our largest financial institutions are taxpayer supported entities. Without the implicit backing of the federal government, they would collapse.

Government subsidy to large industries is not, in and of itself, a bad thing. When wages are stagnant and capital gains are mainly enjoyed by the top thousandth of the population, some entity has to spend for common provision. But the price of that spending should be higher standards for the propped-up industry. In health care, for instance, Medicare Conditions of Participation (and laws like the 1986 EMTALA) require many hospitals to provide care regardless of patients' ability to pay. Tough fraud and abuse enforcement subjects providers' bills to rigorous audits; privacy law will soon require audit-capability for digital medical records. Legislation passed in 2009 and 2010 creates many other requirements to channel private provision of health care toward more public ends. It's certainly not a perfect system, but regulation is serious and purposeful. There are real consequences for many lawbreakers.

Glenn Greenwald tells a very different story about three other heavily subsidized industrial sectors. He gives us serious reason to doubt that law has constrained banks, telcos, and the security sector when they posed critical threats to our economy, privacy, and liberty. His book With Liberty and Justice for Some is a passionate indictment of four distinct trends:

1) elites who violate laws with impunity,
2) retroactive immunity for acts unlawful at the time they were committed,
3) lobbyists' power to influence legislators to render bad conduct lawful or even subsidized, and
4) a radical increase in punishment of those who fall outside the charmed circle of political and economic elites.

Greenwald has examined each area in his blog, as have other, lonely voices in corporate law (and a more robust chorus in communications & cyberlaw troubled by telecomms' sweetheart deals). The vital contribution of With Liberty and Justice for Some is to show how the four trends mutually reinforce one another, contributing to a politics of wealth and privilege defense commonly known as oligarchy.

An Agenda-Setting Book

There is much in Greenwald's book to interest legal scholars. The very concept of "retroactive immunity" militates against the rule of law, and I could find only twenty or so mentions of it in Westlaw's database of journals and law reviews prior to 2005.* While there have been 40 pieces addressing "retroactive immunity" since then, we need both research and activism on the topic. Whose rights are abrogated when retroactive immunity is granted? Is this a taking?

A note by Olivia Radin in the Columbia L. Rev. suggested that legal rights are a form of property. She argues that, "When a state confers retroactive immunity on a defendant, the [Supreme] Court understands that the plaintiff has suffered an injury to his existing legal rights." Shouldn't retroactive immunity be costlier, then? If the state entirely takes away a vested right of yours, to enrich another, why shouldn't there be some sort of compensation? When Congress afforded retroactive to the telecoms for warrantless wiretapping, it should have at least acknowledged the cost of its actions, both to individuals and to the rule of law as a whole. And it should have stepped in to pay the fines that it spared communications giants from suffering, directing them to future privacy enforcement efforts.

Another question is: how much worse have things gotten over the years? Bill Black has frequently noted that "In the Savings and Loan crisis, which was 1/70th the size of [the current] crisis, our agency made over 10,000 criminal referrals, and that resulted in the conviction on felony grounds of over 1000 elites in what were designated as major cases." Why so few referrals now? Have priorities shifted so far in the direction of terrorism and homeland security that law enforcers aren't even accepting criminal referrals? Or have staffers at financial regulatory agencies become so captured by the industry that they are terrified of alienating potential future employers, or exposing their own past deeds? What were the institutional safeguards that let people like Black do their jobs in the aftermath of the S&L crisis, and how can they be replaced? Why is the Nevada AG such an outlier in these matters? And how have we come to the point where the yearly income of a hedge fund manager can easily be twice or three times the entire annual SEC budget?

Greenwald's book is also a call to lawyers to "wake up" and try to do something about a legal regime whose deficiencies have been thoroughly documented and theorized. Greenwald doesn't advance a detailed political program in the book. Rather, he mentions some suggestive historical precedents and principles. Many come from the Founding Fathers, including George Washington's insistence that constitutional governance rests on "the denial of every preeminence." Greenwald mentions the example of Theodore Roosevelt, recently revived in Osawatomie by President Obama. Paine called equal application of the law "the true and only basis for representative government," and Franklin worried about society divided between the "favored" and the "oppressed" if the rule of law were not applied fairly to all.

Paradoxes of Penality

What would Franklin, Paine, or Washington think of today's great divide between the 1% and the 99%? Greenwald details case after case in which connected, wealthy individuals escape sanctions for transgressions costing millions or billions of dollars. But law enforcers turn from lamb to lion upon ordinary citizens.

Bernard Harcourt has both documented and theorized the "neoliberal penality" that lets Dick Fuld walk away with hundreds of millions of dollars from what was in essence a disastrous mix of gambling and misrepresentation, but unleashes new Inspectors Javert on food stamp recipients. (Or: sell a school system toxic investments, and retire rich; try to enroll your kid outside your district, and get arrested for a $15,000 theft.) Harcourt describes "two paradoxical tenets" that seem to rule contemporary politics: "government incompetence when it comes to regulating the economy and government competence when it comes to policing and punishing." Greenwald explores these tenets' effects: incredible wealth for a connected "top 0.1%," and untold misery for a bottom 1%---my conservative estimate of the number of now-jailed or stigmatized Americans who would not be in prison (or suffering from collateral consequences) if they lived in a country like Canada, which regularly gives sentences as third as long as US prison terms for the same crimes (235).

Greenwald's chapter on "American Justice's Second Tier" is a tour de force compilation of stories and stats: America's spectacularly high level of incarceration, the 1 in 9 black children with a parent behind bars, the manifest failure of the War on Drugs. These are depressingly familiar themes. However, they feel newly urgent in Greenwald's hands. Mass incarceration for drug possessors seems a far more disproportionate punishment when it's contrasted with the coddling of politically connected torturers and perjurers.

Next time an apologist for the finance industry says that suits against the likes of Citi must be settled because the SEC lacks resources (after other apologists for the finance industry defunded them), we might wonder if the Florida foreclosure kangaroo courts provide a model for action:

The judges . . . openly admit that their primary mission is not justice but speed. One Jacksonville judge . . . even told a local newspaper that his goal is to resolve 25 cases per hour. Given the way the system is rigged, that means His Honor could well be throwing one [person] on the street every 2.4 minutes.

A society which "efficiently" dispossesses homeowners cannot long stand as a democracy if it fails to apply the same standards of "swift justice" to its largest debtors. As Loic Wacquant and Mike Konczal have argued, there is something essentially feudal in this logic of "rule by men," not law.

Does Inequality Breed Instability?

Toward the end of the book, Greenwald concludes that "In the face of ... massive financial inequality, the notion of equal legal treatment for everyone has crumbled away completely" (270). With Liberty and Justice for Some is often bleak. By the last chapter, Greenwald predicts that "ever-greater inequality will result" from America's 2-tiered justice system, and "the inevitable discord that such inequality provokes will come to threaten the country itself" by generating social unrest. He says that this could prove the "undoing" of American elites, an analysis that Bruce Judson has developed in more detail in his book It Can Happen Here. The Occupy Wall Street movement may seem to vindicate this perspective. However, as I noted about 2 weeks before OWS started, I have my doubts.

US authorities are getting more creative in defusing protests, deploying chemical agents, smear campaigns, and increasingly militarized police forces. Technologies of surveillance have made dissent more costly. Sarah Jaffe has explained the consequences of the application of military-grade technology on the homefront:

As a burgeoning international protest movement takes shape, opposing austerity measures, decrying the wealth gap and rising inequality, and in some cases directly attacking the interests of oligarchs, we're likely to see the surveillance state developed for tracking "terrorists" turned on citizen activists peacefully protesting the actions of their government. And as U.S. elections post-Citizens United will be more and more expensive, look for politicians of both parties to enforce these crackdowns. Despite growing anger at austerity in other countries, those policies have been embraced by both parties here in the States.

Add into the mix the growing power of entities that secretly generate reputational data about individuals, and you have a variety of "chilling effects" on political activism that challenges inequality in the US. Meanwhile, the Bush-Obama war on whistleblowers has demonstrated the dangerous consequences of trying to publicize misuses of that technology. The end result is a mass "learned helplessness," as the very idea of collective action becomes a bitter joke to a critical mass of the populace.

Is Disclosure the Answer?

But there are at least three ways out of that "doom loop." First, the punitive policing of the "99%" could be redirected toward corporate wrongdoing. As Bernard Harcourt has written,

What is required is constant vigilance of all the micro and macro rules that permeate our markets, our contracts, our tax codes, our banking regulations, our property laws — in sum, all the ordinary, often mundane, but frequently invisible forms of laws and regulations that are required to organize and maintain a colossal economy in the 21st-century and that constantly distribute wealth and resources.

A lot of what I've written in the past few years, in fields ranging from internet governance to health law, explores when and how such strategies work. There is some hope here: agencies ranging from the SEC to the HHS are trying to entrench "audit trails" in order to create a digital record of suspect corporate behavior. The FTC will be auditing the privacy practices of companies like Google and Facebook. Corporate actors may engage in better behavior once they understand their misdeeds can be exposed.

But there are many pitfalls to an "audit society." Greenwald painstakingly documents a government revolving door in the national security and finance sectors that spins so fast it's hard to know where critical officials' "public service" begins and their private employ begins. Both corporate and government leaders are fighting a "war against disclosure," trying to assure that whatever monitoring happens is too episodic, fragmentary, and amateurish to deter bad behavior.

A passion to hide potential wrongdoing provokes a second strategy: extraordinary and possibly illegal disclosures, as exemplified by Bradley Manning and Wikileaks. I am less of an enthusiast for this strategy than Greenwald is; I've worried both about backlash and unintended consequences.

But perhaps most dangerous is the possibility that disclosures will have no effect at all. Alastair Roberts's book Blacked Out is one of the best recent treatments of government secrecy. After analyzing freedom of information movements around the world, Roberts considers in his closing chapter whether they actually can do any good. For example, Mark Danner lamented a near complete lack of action against high Bush administration officials who had authorized torture even after details of their chilling program became clear. “Wrongdoing is still exposed; we gaze at the photographs and read the documents,” Danner observed, “and there the story ends.” Indeed, exposure may just have made the US a more torture-accepting nation, as programs like 24 lionized "whatever-it-takes" law enforcement.

Resisting Elites' Resistance to the Rule of Law

If disclosures can't rouse the nation's conscience, the third option is resistance. There is a telling contrast between the lawbreaking along the securitization chain in foreclosure fraud, and the defiance of the subsequent dispossession that leads to homelessness and community decay. A firsthand account of OccupyLA gets to the heart of the matter:

Each seated, nonviolent protester beside me who refused to cooperate by unlinking his arms had the following done to him: an LAPD officer would forcibly extend the protestor’s legs, grab his left foot, twist it all the way around and then stomp his boot on the insole, pinning the protestor’s left foot to the pavement, twisted backwards. Then the LAPD officer would grab the protestor’s right foot and twist it all the way the other direction until the non-violent protestor, in incredible agony, would shriek in pain and unlink from his neighbor. . . . My hands were then zipcuffed very tightly behind my back, where they turned blue. I am now suffering nerve damage in my right thumb and palm. . . . I spent most of my day and night crammed into an eight-man jail cell, along with sixteen other Occupy LA protesters. My sleeping spot was on the floor next to the toilet.

So that’s what happened to the 292 women and men were arrested last Wednesday. Now let’s talk about a man who was not arrested last Wednesday. He is former Citigroup CEO Charles Prince. Under Charles Prince, Citigroup . . . . spent years intentionally buying up every bad mortgage loan it could find, creating bad securities out of those bad loans and then selling shares in those bad securities to duped investors. And then they sometimes secretly bet *against* their *own* bad securities to make even more money. For one such bad Citigroup security, Citigroup executives were internally calling it, quote, “a collection of dogshit”. To investors, however, they called it, quote, “an attractive investment rigorously selected by an independent investment adviser”.

[Prince] received fifty-three million dollars in salary and also received another ninety-four million dollars in stock holdings. What Charles Prince has *not* received is a pair of zipcuffs. The nerves in his thumb are fine. No cop has thrown Charles Prince into the pavement, face-first. Each and every peaceful, nonviolent Occupy LA protester arrested last week has has spent more time sleeping on a jail floor than every single Charles Prince on Wall Street, combined.

To date, about 5,000 people have been arrested, and many of those jailed, for protesting Wall Street firms' destructive and often illegal acts leading to the financial crisis. Virtually no executives in critical firms have been prosecuted. I cannot imagine a jurisprudence which could rationalize this asymmetry. And as Greenwald continues to chronicle the disparities in our two-tiered system of justice, arrested protesters start looking more and more like Lech Walesa and Vaclav Havel than the hippies or dilettantes the media loves to portray them as. (Lest that seem overdramatized, Janine Wedel recently directly compared "the sense of helplessness, the gut-wrenching frustration and mounting anger" she felt at Bank of America to the desperation she felt in communist Poland in the early 1980s.) The "power of the powerless" begins when they realize that the playing field truly isn't level, that there is one set of rules for elites and another for everyone else.

Greenwald has eloquently and passionately documented the failures of American justice for years. When future historians explore the tenor of our time, they will turn to With Liberty and Justice for Some for a powerful account of ideals betrayed, elites run amok, and the terrible human toll left in their wake. After reading Greenwald, one truly understands why Occupy Wall Street began on September 17---America's Constitution Day.

* Many had to do with the Truth in Lending Act Amendments of 1995, which "gave retroactive immunity to creditors for certain violations"---one more bank error in their favor.

Simulposted: Concurring Opinions.

Originalism and Sex Discrimination, or, How Thick is Original Public Meaning?

2011-12-08T17:55:00.011-05:00

Steve Calabresi and Julia Rickert's new article, Originalism and Sex Discrimination, attempts to do for the 1970s sex equality decisions what Michael McConnell's 1995 article, "Originalism and the Desegregation Decisions," did for Brown v. Board of Education. Nonoriginalists argued that originalism was an unworkable or normatively unattractive theory because it could not account for Brown or for the modern sex equality decisions. McConnell responded that Brown was indeed consistent with the 14th amendment’s original meaning. Calabresi and Rickert try to show that properly understood, the original meaning of the 14th amendment-- in conjunction with the original meaning of the 19th amendment--prohibits discrimination on the basis of sex.

There are many interesting things about this piece. In this post, however, I want to focus on Calabresi and Rickert’s version of original meaning originalism. Calabresi and Rickert note early on that they agree with me that original meaning is not the same thing as original expected applications. This is a central claim of New Originalists like Randy Barnett, Larry Solum, and myself. At the same time, Calabresi and Rickert’s version of original meaning originalism differs from New Originalist approaches in important respects. Equally important, it also differs from the original meaning originalism of scholars like Michael McConnell, John McGinnis, and Michael Rappaport, as well as that championed by jurists like Antonin Scalia and Clarence Thomas.

Thus, although Calabresi and Rickert’s article might seem to be in the same vein as McConnell’s famous article, in fact the two are quite different, because they use historical evidence quite differently. And, as I shall now try to show, the way they articulate original meaning orignalism—“thicker” than framework originalism but “thinner” than the approaches of McConnell and McGinnis and Rappaport—creates puzzles that they don’t adequately address.

But before we get to those puzzles, let me take you through the basic argument of the piece: The original public meaning of the 14th amendment's equal protection and privileges or immunities clauses prohibited caste and class legislation of all kinds, not merely that concerning race. It was widely agreed that the Black Codes and other (but not all) forms of race discrimination constituted class or caste legislation. The framers and ratifiers of the Fourteenth Amendment, however, did not recognize that sex discrimination had many of the same qualities as race discrimination. In Calabresi and Rickert’s view, the framers and ratifiers were simply mistaken about the facts. We are bound by the value judgments that appear the text's original public meaning—which includes the ban on caste and class legislation-- but we are not bound by their factual mistakes today. This attempt to distinguish facts from values is consistent with the goals of much of conservative originalism: to attempt, where possible, to accept the normative judgments of the framers as binding, but to adjust them to changed factual circumstances, for example, new technologies. That is because conservative originalism does not believe that the practice of constitutional interpretation should delegate controversial value judgments to contemporary majorities, and especially not to contemporary judges. In my view, a crisp distinction between fact and value is impossible in practice, because so many constitutional questions are interpretive in nature, but this is the goal, and, as we shall see, it creates some difficulties for Calabresi and Rickert’s argument.

Next, Calabresi and Rickert agree with McGinnis and Rappaport that we should use the same original interpretive methods that lawyers used in 1868 when the 14th amendment was adopted. The original interpretive methods allowed judges to reason from existing cases by analogy. If we apply these original legal methods today, and do not make the factual mistakes of the framers and adopters, we will see that the case of sex discrimination is analogous to that of race discrimination; therefore the principles against caste and class legislation apply to government action that discriminates against women.

Moreover, the original public meaning of the 19th amendment gave women full political equality with men, not just the right to vote. But if women had equal rights to decide the most important issues facing the nation, it made no sense to say that they lacked equal rights to contract and to own, lease, and convey property. Therefore once the 19th amendment was adopted, it was clear that the correct interpretation of the 14th amendment was that sex discrimination was unconstitutional.

That’s the basic outline of the argument.

Now let's consider their theory of original meaning. Calabresi and Rickert argue that:

Original public meaning can be illuminated by legislative history and by contemporary speeches, articles, and dictionaries. Additionally, understanding the original public meaning depends on knowing what interpretive methods legislators and informed members of the public used to arrive at the meaning of the provision, as professors John McGinnis and Michael Rappaport have argued persuasively. Our analysis leads to the conclusion that the text of the Fourteenth Amendment was meant, as an original matter, to forbid class-based legislation and any law that creates a system of caste.

This immediately creates a puzzle. Nowhere in the text of the fourteenth amendment do we find the words “caste” or “class legislation.” What we find instead are the words “equal protection of the laws.” These words had the same semantic meaning now that they did in 1868. So what Calabresi and Rickert mean by “original public meaning” is far more than original semantic meaning. Their view of original meaning is “thicker:” It includes principles and purposes that the framers and adopters intended to promote and achieve through their choice of words. That is why Calabresi and Rickert look to Congressional and state ratification debates, and to newspaper editorials and political speeches. They want to show us that supporters and adopters of the amendment believed that by adopting a text that said “equal protection of the laws” they would ban caste or class legislation in the states. Indeed, they want to show that the adopters did not merely wish to ban caste and class legislation against blacks; in their view, the adopters meant to ban all caste and class legislation, no matter at whom it was directed. So even though we do not have a lot of evidence that the supporters of the amendment specifically meant to protect women from discriminatory legislation, this does not matter because there is no limit on the principle. Indeed, Calabresi and Rickert insist that they are not looking for the particular intentions or purposes of the adopters or the framers; what they are looking for instead is the “objective” public meaning of the text, which can be inferred from statements of purpose or principle but is not identical with these statements.

To summarize: Calabresi and Rickert treat the principles against caste and class legislation as part of the original meaning of the text, even though the principles they discover cannot be found in the text itself and do not follow from its semantic meaning. They seek to show that these principles are part of the original public meaning by looking at initial constructions of the text and statements of principle and purpose offered by framers and adopters. Nevertheless, they insist that they are not interested in original intentions or original understandings for their own sake, but rather are interested in the objective public meaning of the text.

In my 2007 article, Abortion and Original Meaning and in my recent book, Living Originalism, I argue that the principles against caste and class legislation are underlying principles of the Fourteenth Amendment but that they are not part of the Amendment's original meaning. I make three basic points about underlying principles.

First, original meaning should generally be limited to original semantic meaning, including any generally recognized terms of art. Underlying principles are not part of original semantic meaning. They are constructions. They are ways of fleshing out and implementing the principles that we find in the text. They are principles that we ascribe to the text in order to make sense of it and apply it in practice.

Second, the statements of principle and purpose that were made contemporaneous with adoption of an amendment are the initial constructions of the amendment; they are a form of original expected applications, and they are not binding on us today.

Third, we can and should use such initial constructions-- as well as all of the other modalities of constitutional argument-- to articulate underlying principles. But the underlying principles that we ascribe to the text do not have to be intended by anybody in particular.

My point is that once we distinguish between original meaning and original expected applications, we cannot treat original constructions as part of original meaning, because these constructions are just another form of original expected applications. Nevertheless these initial constructions may be very helpful to forming the best constructions of the constitutional text today. But they are resources for construction, and not commands that are themselves part of original meaning.

Calabresi and Rickert, by contrast, want to treat some of these initial constructions, described at a fairly high level of generality, as part of original meaning. Because they are part of original meaning, they are not resources for construction. They are mandatory commands. We cannot avoid them. In short, they want a thicker conception of original public meaning than the thin conception offered by framework originalism.

But in attempting to provide a thicker account of original public meaning, and claiming that it is objective, Calabresi and Rickert put themselves in a difficult situation. The do not want an account of original meaning as thin as framework originalism, but they also do not want an account as thick as that of other originalists like John McGinnis and Michael Rappaport or Michael McConnell, for under such an account, sex discrimination would not violate the Fourteenth Amendment. We can see this in the way that Calabresi and Rickert alternatively adopt and exclude certain kinds of evidence.

When we look at debates, statements of principle, practices and laws adopted or repealed contemporaneous with adoption of the constitutional text, we will inevitably find many different statements of principle at different levels of generality, offering cross-cutting accounts of what the text achieves. We will also find different practices in different states, and these practices can be interpreted in different ways. An “objective” public meaning, however, must be the same for all participants in the process of adoption. So we face the problem of how to interpret these different statements and practices to generate a single “objective” public meaning.

Calabresi and Rickert argue that we should adopt a very broad and general account of original public meaning and discard or ignore narrower or more qualified accounts and interpretations. Thus, it is important to them to discard evidence that points to a more limited account of what constituted caste or class legislation. Moreover, they argue that we can disregard some of these constructions and opinions because they are based on mistaken facts about women and their place in society. But this begs the question whether the adopters’ views and statements of purpose and principle involve mistakes about facts, or actually demonstrate disagreements with our present-day judgments about values. That might be so because interpretive judgments often mingle factual and normative premises together.

Under the basic political theory underlying the Fourteenth Amendment, all persons--men and women alike--were entitled to civil equality. Civil equality meant equality in the enjoyment of basic civil rights like the rights to contract, to own property and to have access to courts. However, married women were subject to the common law coverture rules—under which they lost almost all of these rights under the fiction that their legal identity was merged with that of their husband. Because it was assumed that most adult women would be married (or living with male relatives like fathers or brothers), legislatures could apply the assumptions of coverture generally in passing legislation under their police powers. Thus, in Bradwell v. Illinois, the State of Illinois explained that women could not become members of the bar because most of them could not make contracts, so it would be difficult for them to represent clients.

During the Congressional debates over the fourteenth amendment, several proponents of the amendment pointed out that the new amendment would not disturb the common law coverture rules through which women lost most of their common law rights through marriage. They argued that laws that treat married women differently from single women, or married women differently from men, did not violate the proposed amendment. Calabresi and Rickert argue that these statements rest on factual mistakes, and that opponents of the amendment understood the amendment’s meaning and purposes better than the supporters did.

But to know whether an adopter’s statement rests on mistaken facts, we must already know the *real* principle that is part of original meaning. For the adopters’ disagreement with our current judgments may not rest on differences of fact, but on a different normative judgment that underwrites their views about the facts. The statement that “the paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother” is not simply a claim about facts that might turn out to be mistaken. Rather, it is a claim about facts and values mixed together. And if many or most of the adopters believed that the proper normative role of women is to be wives and mothers, then it is easy to see why the principles against caste and class legislation might not apply to legislation that ratifies or encourages these roles.

Michael McConnell, defending a thicker account of original meaning originalism, pointed out in an important article in 1997 that we cannot claim to understand the adopters’ principles and purposes unless our account is consistent with most of their assumptions about how the text would be applied in practice. The adopters might have been mistaken about a few things, but if they turn out to have been mistaken about a lot of things, then it is likely that we have misunderstood what principles they were trying to articulate through the text.

Because Calabresi and Rickert want original public meaning to include principles and understandings that go well beyond what is required by original semantic meaning--they must confront McConnell’s arguments. I do not think that they have a very good response, at least in this article. They say that original meaning does not include original expected applications, but McConnell’s point is that if you think that original meaning is “thick” in this way—-i.e., that it is more than the original semantic meaning—-your theory has to cohere with most of the adopters’ interpretive judgments. The more things that turn out to be mistakes, the more likely it is that you have misinterpreted their normative views, and therefore, the objective public meaning. This puts Calabresi and Rickert between a rock and a hard place.

To be sure, I agree with Calabresi and Rickert that the common law coverture rules are unconstitutional today. But that is because my theory of framework originalism argues for a thin rather than a thick account of original public meaning. I believe that we are bound only by original semantic meaning, and that the rest is a question of constitutional construction, which draws on the adopters’ theories and views but does not treat them as mandatory. I believe that the best construction of equal protection of the laws today makes the common law coverture rules unconstitutional. But I do not attribute this conclusion to the original public meaning of the Fourteenth Amendment. Nor do I do not attribute it to the original public meaning of the Nineteenth Amendment. After all, for fifty years after the Nineteenth Amendment’s ratification, courts continued to assume that most forms of sex discrimination were subject only to a simple test of reasonableness. The most important judicial statement to the contrary, the Lochner-era decision in Adkins v. Children’s Hospital, was overruled in West Coast Hotel v. Parrish in 1937, which upheld a minimum wage law for women but not for men. Today we might believe that the best synthesis of the 14th and 19th amendments outlaws sex discrimination generally, but that is a contemporary construction, or rather, a post 1970s construction. This construction is *consistent* with original public meaning but it is not *required* by the original public meaning of the text. Moreover, this construction is not due to the Nineteenth Amendment; it is due to the movement for women’s rights fifty years later, a movement that, to be sure, was made politically possible by women’s gaining the right to vote in 1920.

A similar problem arises when Calabresi and Rickert argue that we should use original interpretive methods to show that sex discrimination was unconstitutional in 1868, citing John McGinnis and Michael Rappaport’s theory of original methods originalism. Calabresi and Rickert argue that reasoning by analogy was a well accepted method used by lawyers in 1868. If we reason by analogy to race discrimination, we see that discrimination against women was also unconstitutional.

But this is not what McGinnis and Rappaport mean by “original interpretive methods.” Their point is that we should ask how lawyers at the time of adoption would have used these methods to decide the most likely interpretation of the text. That is, the legal meaning of the text is the most likely interpretation that lawyers would have settled on at the time of adoption. And if well-trained lawyers would have assumed that the coverture rules were likely constitutional, then that is the legal meaning of the text. What we are not permitted to do is to apply original legal methods today, using our contemporary judgments about values. For if we do that, then we are delegating controversial value choices to contemporary decisionmakers, including contemporary judges. And this is what conservative originalists generally want to avoid.

Drawing analogies today between the Black Codes and laws discriminating against women is not simply a matter of reasoning about similar facts. Arguments from analogy usually involve (or smuggle in) a wide range of normative assumptions. In law things are similar or different in light of particular purposes or normative judgments. So even if we today think that the cases of race and sex discrimination are analogous, that does not mean that most well trained lawyers at the time of adoption would agree with us.

Applying McGinnis and Rappaport’s approach, the most likely interpretation in 1868 would probably be that coverture rules were consistent with the proposed amendment’s legal meaning. One reason why we know this is that supporters of the amendment said so, and opponents, who were trying to sink the measure, argued that it would have consequences that a supermajority of the public would probably not accept.

When Michael McConnell tried to show that Brown was consistent with original meaning, he did something quite different from Calabresi and Rickert. He did not rely solely on general statements of principle. Rather, he showed that many of the Congressmen and Senators who had voted for the Fourteenth Amendment specifically endorsed legislation that would have required desegregation of public schools; moreover, McConnell showed that they endorsed this legislation because they though it was constitutionally required by the proper interpretation of the Fourteenth Amendment. McConnell's article, in short, used original expected applications to justify a thick account of original meaning. He tried to connect the principles behind the amendment to the way its supporters would have applied it. By contrast, Calabresi and Rickert have not shown that a substantial number of framers or adopters of the Fourteenth Amendment believed that it would make common law coverture rules unconstitutional. Indeed, the supporters who spoke on the issue seemed to think that it would not have this effect. For Calabresi and Rickert’s account to succeed, they must show why McConnell’s method does not undermine their argument; in the alternative, they must show why McConnell's approach is incorrect.

One last point: Calabresi and Rickert argue that sex equality is required by the original public meaning of the text. But they do not tell us what forms of sex discrimination are caste or class legislation. In Abortion and Original Meaning I argued that the principles against caste and class legislation make criminalization of abortion unconstitutional under the equal protection clause.

Calabresi and Rickert express no opinion on this question. But surely it is the elephant in the room. Pro-choice advocates argue that criminalization of abortion imposes life altering obligations on women because of their duty as mothers. Without access to abortion, women will be pushed into greater and greater dependence on men or on the state. That is, pro-choice advocates argue that abortion is a modern form of class or caste legislation that singles women out for special burdens and reproduces their inferior status in society without sufficient justification.

Indeed, there is more than one elephant in the room. Calabresi and Rickert do not tell us what other kinds of discrimination are caste or class legislation. However, if we apply analogical reasoning today, and if we discard the adopters' incorrect factual views, why isn’t discrimination against homosexuals class or caste legislation? (As I’ve argued in Living Originalism, this is pretty close to what the Supreme Court concluded about Colorado’s Amendment 2 in Romer v. Evans.)

Thus, it would seem that Calabresi and Rickert’s next article should explain why Lawrence v. Texas and the unconstitutionality of the Defense of Marriage Act are required by original public meaning. I dare say that most conservative originalists would be surprised by this result. But it seems to follow from the basic arguments about original public meaning presented in Calabresi and Rickert's article. I suspect that many modern conservative originalists would conclude that if that is so, then there is something wrong with Calabresi and Rickert’s account of original public meaning. When they signed up for original meaning originalism, they certainly didn't sign up for that.

I see things differently, of course. I have no problem with concluding that discrimination against homosexuals violates the Constitution, but that is because I have a different account of original meaning originalism. In my view, discrimination against homosexuals violates the Fourteenth Amendment not because of the original public meaning of the Fourteenth Amendment, but because this is the best contemporary construction of the Amendment.

Controversial Copyright Bills Would Violate First Amendment--Letters to Congress by Laurence Tribe and Me

2011-12-08T13:36:00.003-05:00

Today, both Professor Laurence Tribe and I submitted letters and legal memoranda to Congress explaining that proposed copyright legislation would violate the First Amendment and be struck down in court. (His letter is available here, and mine is available here.)

Professor Tribe is perhaps the nation's leading constitutional law expert and among its greatest Supreme Court advocates. My expertise is in Internet law, and I research, write on, and litigate issues concerning the 21st Century First Amendment.

We both felt compelled to write because of the threat to freedom of speech from the PROTECT IP Act in the Senate and the Stop Online Piracy Act (or SOPA) in the House. Others have also come out to oppose the bills, including the leading civil liberties organizations (at home and abroad), venture capitalists, the leading technology platforms from Facebook and Google to Tumblr and Zynga, and (today) hundreds of entrepreneurs. In fact, a million people emailed Congress and well over 90,000 personally called their Members to oppose the bills, many during a coordinated "American Censorship Day" inspired by the bills' free speech burdens, a day organized by Fight for the Future, Demand Progress, Electronic Frontier Foundation, Public Knowledge, and Mozilla, among others. Over 90 law professors have also come out against the Senate version and even more against the House version.

The bills are not limited; they're sledgehammers not scalpels.

They do not, as often advertised by the copyright industry, merely target foreign "rogue" sites like the Pirate Bay. They are not even limited to sites guilty of any copyright infringement, direct or even contributory infringement. Instead, the bills would extend not only to foreign but also to domestic websites that merely "facilitate" or "enable" infringement. Thus, in their language, the bills target considerable protected speech on legitimate sites such as YouTube, Twitter, and Facebook. The bills also affect non-infringing speech by search engines, advertisers, and domain name providers.

Coupled with this overbroad scope, the bills authorize remedies that lack the usual procedural safeguards, ensuring that even more protected, non-infringing speech will be restricted. Even though a judicial determination is generally required to remove speech from circulation, the House version empowers copyright-holders to send notices to payment processors and advertisers to shut off funding for non-infringing sites that meet the bill's broad definitions. The bills also encourage over-enforcement by making companies immune from suit for mistakenly punishing sites outside even the bills' over-expansive scope.

My letter addresses the threshold question of why standard First Amendment scrutiny applies to these bills. Some suggest that the bills should get a constitutional pass because they merely suppress copyright infringement, and copyright statutes generally receive relaxed scrutiny under the First Amendment. But, as noted above, these bills target considerable speech by speakers who are engaging in no direct or indirect infringement, from websites "enabling" infringement to advertisers engaged in truthful, non-infringing commercial speech and search engines delivering results. Because these bills restrict considerable protected non-infringing speech, several different doctrines would trigger standard First Amendment scrutiny. These doctrines include the Supreme Court's doctrines of overbreadth, vagueness, and prior restraint, as well as its decisions in United States v. Stevens and Eldred v. Ashcroft. Standard First Amendment scrutiny, not any standard applicable to copyright infringement, would logically apply for restrictions on non-infringing, protected speech by search engines, domain name providers, and advertisers. Under standard First Amendment scrutiny, both PROTECT IP and SOPA are clearly unconstitutional in restricting these categories of protected speech.

Professor Tribe's letter reaches the same conclusion, focusing on the House version of the bill, SOPA, and focusing on the application of standard First Amendment principles, rather than my letter's focus on justifying these principles' application. His analysis concludes that portions of the bill are unconstitutional as prior restraints, as unconstitutionally vague, and for not being narrowly tailored to a compelling or important interest as required to pass the heightened scrutiny applicable to speech restrictions. Professor Tribe also responds to the arguments provided by Floyd Abrams that SOPA is not an unconstitutional prior restraint; he explains that Mr. Abrams's own analysis provides evidence that SOPA's provisions are in fact unconstitutional. (Abrams' clients are copyright companies; Tribe's are consumer electronics companies; mine are tech companies.)

Professor Tribe and I make some overlapping arguments, even without coordination or planning, because the House and Senate bills so evidently violate core principles of First Amendment doctrine--overbreadth, vagueness, prior restraint and others.

Civil liberties organizations describe the bills as encouraging "American censorship," a weighty charge; the legal analysis by Professor Tribe and I support that conclusion. At least, according to the American Supreme Court's established First Amendment jurisprudence.

Congress does not need to pass bills sure to be struck down after years of litigation, uncertainty, and millions of taxpayer dollars wasted in fruitless litigation. Congress need not send a message to the Internet that it seeks to censor the web.

Congress can, in fact, remedy the bills by narrowing them to conform to constitutional limits. As both Professor Tribe and I suggest, Congress should begin by focusing its bills on actual infringement, rather than on speech far beyond infringement. And Congress should ensure adversary judicial proceedings before the silencing of speech available to Americans.

I provide greater detail in the last few pages of my memorandum on the particular steps Congress should take to narrow the bills enough to survive First Amendment scrutiny--steps that can preserve freedom of speech for the future users and creators on the Internet.

The "Early-Bird Special" Exception to the Tax Anti-Injunction Act

2011-12-07T15:16:00.002-05:00

Mike Dorf and I have posted a new paper on SSRN that is forthcoming in The Yale Law Journal Online. We recently previewed the paper in a Verdict column. We argue that, in view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the U.S. Supreme Court decides the merits of the present constitutional challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. (In a recent blog post, Mike further discusses why prompt adjudication is the best course.)

Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), 26 U.S.C. § 7421(a). This statute bars any “suit for the purpose of restraining the assessment or collection of any tax.”

The dispute to date has turned on the fraught and complex question of whether the ACA’s exaction for being uninsured qualifies as a “tax” for purposes of the TAIA. We argue that the Court need not untangle this knot because the TAIA does not apply for a distinct reason: the present challenges to the ACA’s minimum coverage provision do not have “the purpose” of restraining tax assessment or collection. We so argue because, in order for the TAIA not to bar tax refund suits, the TAIA must be read to bar only suits with the immediate purpose of restraining tax assessment or collection. The present challenges do not have such an immediate purpose because the very authority to assess or collect will not exist until long after the litigation is concluded.

Among other virtues that we discuss in the paper, our proposed resolution of the TAIA question does not predetermine whether the tax power justifies the minimum coverage provision.

In a counsel of caution, we also call on Congress to pass a special-purpose statute stating that the TAIA does not bar pre-enforcement challenges to the minimum coverage provision until the provision goes into effect. There is no dispute about the authority of Congress to pass such a law. Moreover, if the political branches were to turn their attention to the matter, there would be good reason to expect that the bill would pass both chambers and be signed into law by the President.

The Conservative Movement’s “Goldilocks” Originalism

2011-12-05T22:30:00.016-05:00

Most of the discussion of originalism as an interpretive method is part of a professionalized debate amongst law-school-based normative constitutional theorists. But, of course, originalism is also enormously important as a strain of the constitutional politics of the conservative movement, where it is used to help forge movement identities and motivate political participation. As it lives in movement politics, there are important strains of originalism that operate on a different axis entirely from that orientating (most) legal academics.

One of the most influential of these is what I will call “Goldilocks Originalism.” Conservative “Goldilocks” originalists do not orient themselves (in the first instance) in opposition to “living constitutionalists,” but rather in opposition to secularist, positivist, relativist, liberals and progressives. To these movement originalists, the fatal flaw of their antagonists is not that their constitutional theory leaves judges, in ruling in cases, unrestrained in imposing their politics rather than following the law (though Goldilocks originalists certainly believe that to be the case, and often say so), but rather that that the constitutional theory of their opponents severs the tie between our perpetually besieged nation and the only anchor that will truly hold -- the belief in (a Christian, or Judeo-Christian) God. In this, as they see it, the Founders, and the Founders’ Constitution, are squarely on their side.

The axis of opposition constructed by the conservative movement between those who revere the Founder’s (God-anchored) Constitution, and the secular, relativist, progressives is omnipresent on the contemporary political Right -- at the grassroots, to be sure, but also in a scholarly literature, not written, for the most part, by law professors, but rather by theologians and political theorists. There are three wellsprings of this vein of conservative originalist scholarship: 1) Evangelical Christianity; 2) Catholic Natural Law; and 3) Straussianism. Indeed, a highly ideological originalism that girds itself for battle against Godless secularism and relativism is what holds these three groups – which, historically, had long often been at each other’s throats – together, as compatriots in an effective political coalition.

The orientating axis I have described is evident everywhere in the constitutional thought of influential evangelical conservatives – but I will focus here mainly on the other two wellsprings. Straussian political philosophers – students of the émigré University of Chicago philosopher Leo Strauss (1899-1973) (and students of students, and, now students of students of students) are often taken to be atheists – it is hard to tell, in many cases, for, even if you ask them, given their beliefs about esotericism in philosophy (the threat posed by true philosophers the extant political order), you can’t trust their answers. For our purposes, I will note that one of their animating tropes is the indispensability of reconciling “Athens and Jerusalem” (or, put otherwise, “Reason and Revelation”) in the construction of a just and good political order. In Straussian Harry Jaffa’s highly influential account in Crisis of the House Divided (1959), Abraham Lincoln’s world-historical accomplishment was in doing just that, by incorporating the opening lines of the Declaration of Independence into the U.S. Constitution – thereby redeeming the American Founding, which was all but fatally compromised by its acceptance of chattel slavery. Much of contemporary Catholic constitutional thought, beginning with John Courtney Murray’s We Hold These Truths (1960), holds that Thomist theology has itself successfully reconciled Reason and Revelation, or, put otherwise, that the Rome is situated at the ideal point between Athens and Jerusalem. (In recent work, the influential Catholic political philosopher Peter Augustine Lawler has accordingly offered Thomism to the United States as the “just right” common ground for evangelicals, whose emphasis is on Revelation alone, and secularists, who prize Reason above all). In all three perspectives, what is distinctive about the American political and constitutional tradition is that (through the Founders, through Lincoln, through the work of America’s “accidentally Thomist” Founders (Lawler’s pregnant characterization)), it has arrived at the Goldilocks “just right” solution to the central problems of political and moral life.

This, for many Constitution-venerating conservatives, is the great achievement of the American Founding, of Lincoln, of the (Christian) United States. And it is precisely this achievement that the reason-worshipping, secularist, positivist, relativist, liberals and progressives (purportedly) spurn -- with consequences that are all too plain to see (an out-of-control socialist state, abortion-on-demand, gay marriage, government control of health care, etc.).

These social movement actors -- popular and scholarly -- are more than capable of spinning this constitutional outlook as “originalism,” which, in some sense, it is. But this form of movement originalism is very different from the legal originalism that law professors typically debate. That said, law school originalism and this movement-based Goldilocks Originalism buttress each other. Each has played a major role in the ascendency of contemporary constitutional conservatism.

Goldilocks Originalism emphasizing the degree to which, properly understood, the U.S. Constitution strikes the perfect balance between Reason and Revelation, doesn’t get much attention in the law schools. But, if we want to understand contemporary American constitutionalism, I think it is a least half the story… and maybe more.

The Indebted Lawyer

2011-12-05T11:17:00.012-05:00

Bruce Ackerman bemoans that "even in elite schools, it is astonishingly easy for law students to lose themselves in clinical work and avoid the sustained, and multi-disciplinary, course-work that should be required for the leaders of the next generation." He suggests that those who advocate basic lawyer training are succumbing to the anti-intellectual tenor of the age.

As an outspoken critic of contemporary legal academia, I feel compelled to explain that my position is not anti-intellectual. What I am arguing for is greater differentiation in legal education.

Not all law students are "leaders of the next generation." The vast majority of lawyers do basic yet essential work that helps people and businesses carry on with the tasks of life. And while it is true that the lawyer-statesman ideal has taken a hit, as Kronman argued in The Lost Lawyer, it was always an ideal drawn by the elite of the bar, not a description of most lawyers.

A tragic aspect of the present debate is that it has been going on for over a century in exactly the same terms, with elite law schools asserting that lawyers should be trained as the future leaders of society, and opponents arguing that law schools should be allowed to provide basic lawyer training at a reasonable cost. Here is a delegate opposing the proposed three year requirement at the inaugural AALS meeting in 1900:

I do not care at this time to go into the question as to whether a three-year or a two-year course is the more desirable. I do want to say that there is a very great difference of opinion among educators on that question; that in the opinion of many educators of wide experience two years spent at a law school and one year in an office is the best education a student can have...I am not arguing against the existence of those great schools which with their endowments and able faculties, large attendance of students with ample means, may think it is desirable to have three-year courses. But it is an entirely different question whether you shall say that every law school ought to have a three-year course and that the student cannot have the benefit of the two-year course if he desires.

His plea proved unavailing. Elite law schools successfully argued that law schools are not trade schools but academic institutions that train the future leaders of society. The three year standard was imposed on all, first by AALS in 1900, then two decades later by the ABA at the urging of AALS. On both occasions, opponents objected that the uniform academic model of law school was unnecessary for most lawyers and too expensive, and would keep out immigrants and poor people from pursuing legal careers.

Fast forward a hundred years: Today annual tuition at private law schools is between $30,000 and $50,000. The total cost of a legal education (including expenses) for many students exceeds $150,000. Average law school debt is approaching $100,000. The median salary for 2010 graduates who landed lawyer jobs was $63,000, which is not enough to manage the monthly payments on $100,000 debt. Many graduates are not getting legal jobs. Middle class and poor people are foregoing law school in increasing numbers because it costs too much.

When Lost Lawyer was published 15 years ago Kronman's battle to preserve the professional ideal was already largely lost--to our detriment. But at least legal education was still affordable then. The current generation has a different battle, and the battleground is not the legal profession but the halls of academia. The enormous economic barrier to a legal career that now exists is a disaster for society as well as for the profession.

Some of the recent criticism of law schools, including the article in the Times, has had anti-intellectual overtones. That is unfortunate. But it is not anti-intellectual to criticize legal education for being too costly for 45,000 law students (annually) nationwide because ABA/AALS accreditation standards impose the same "research university" model on all law schools. (As the author of six books in legal theory/law and society, it goes without saying that I value intellectual pursuits.)

Legal academics have responded to recent criticisms defensively or apologetically or defiantly. That is all beside the point. We should instead acknowledge that there is a serious problem with the economic structure of legal education and look for ways to solve it.

The Lost Lawyer

2011-12-05T08:05:00.003-05:00

Bruce Ackerman

Balkinization has been the site of three responses to the New York Times’ harsh critique of modern legal education – all largely apologetic. Come to the modern law school, David Levi and Jason Mazzone tell us, and you will see that the Times’ critique is out-of-date -- proliferating clinics and internships provide precisely the sophisticated practitioner-training that the newspaper is calling for. We live in (almost) the best of all possible worlds.

Sandy Levinson adds a characteristically iconoclastic note by putting Milton Friedman onto his list of intellectual heroes. He suggests that law schools be stripped of their monopoly on bar admission: it should not be necessary “to invest in three years of legal education” before a professional should be licensed to engage in “basic areas” like “uncontested divorces, simple wills, basic landlord-tenant,” among (how many?) others, which don’t require a three year “investment.”

This collective apologia represents a striking confirmation of Tony Kronman’s brilliant Lost Lawyer, and its diagnosis of the decline and fall of the lawyer-statesman ideal in America. My Kronmanian dissent, published as a letter in today’s Times, serves as a counterpoint. The truth is that, even in elite schools, it is astonishingly easy for law students to lose themselves in clinical work and avoid the sustained, and multi-disciplinary, course-work that should be required for the leaders of the next generation. We are adapting all-too-well to the temper of the Times – generating increasing numbers of anti-intellectual lawyers to express the growing anti-intellectualism of American politics.

The Twilight of the Last Banana Republic?

2011-12-04T00:18:00.002-05:00

Miguel Schor

The failure of the so-called Congressional super committee to reach a compromise on a plan to deal with the budget deficit calls into question our system of separation of powers. The question is whether gridlock is a constitutional flaw or a virtue. Justice Scalia, in recent testimony before the Senate, was unapologetic in his defense of separation of powers. What sets the United States apart from other countries, he stated, was not the Bill of Rights, which “every banana republic” has, but separation of powers. Americans, he concluded, “should learn to love the gridlock.”

Americans are not learning to love gridlock. Congressional approval ratings are at record lows. The government is paralyzed at a time when action is badly needed to deal with a severe economic downturn. American citizens, unlike Justice Scalia, understand what is the source of the problem. The first job of government is to govern. The framers, after all, proclaimed in the Preamble to the Constitution that the job of our government is “to promote the general Welfare.”

The question is what constitutional roadblocks to governance exist in the other republics of the world? The considered judgment of the world’s developed democracies, the majority of which are parliamentary governments, is that gridlock is a constitutional bug, not a virtue. Written constitutions have a tough job to do: they empower government to solve national problems and seek to limit the exercise of that power. There is a crucial difference, however, between constitutional systems that favor affording government the power to put in place policies for which it will be held accountable and those that disfavor affording government that power. Historically, presidentialism emphasized the importance of limits whereas parliamentary government emphasized the importance of power. The point is that virtually no other developed democracy seeks to constitutionally cripple the ability of the government to promote the general welfare. Parliamentary governments can and do suffer from a variety of democratic pathologies but they do not superimpose constitutional roadblocks on top of any political roadblocks that may exist.

But what about our sister republics of Latin America? They after all adopted presidentialism in the nineteenth century but it has become presidentialism with a twist. The advent of democracy in the 1980s occurred during very difficult economic circumstances. Presidents sought and obtained legislative or decree powers to deal with these problems. The result is a hybrid presidentialism that moves the constitutional systems of Latin America closer to parliamentary government inasmuch as it favors affording government the power to implement policies for which it will be held accountable. If Barack Obama had been fortunate enough to have been elected President of a Spanish speaking democracy located south of the border, he would have the power to actually govern.

While Justice Scalia is right that our system of separation of powers is exceptional, he is badly mistaken in his understanding of how banana republics operate. Separation of powers has not been too terrible a bug in our system of government because political actors understood that compromise was necessary to make government work. Since political parties were ideologically heterogeneous for much of our history, moreover, political actors had little choice but to bargain. Bargaining was woven into our democratic politics and etched into the Constitution.

The United States is now embarked on a great constitutional experiment. Our political system has become ideologically polarized but our constitutional system demands bargaining. The emergence of politically homogeneous parties that are better suited to parliamentary than presidential democracy has undermined, perhaps fatally, the ability of political actors to compromise. In a system of separation of powers, to bargain is to govern. The current inability of our government to promote the general welfare of the nation is the true hallmark of a banana republic and may yet prove our undoing.

Miguel Schor is Professor of Law at Suffolk University Law School. You can reach him by e-mail at mschor@suffolk.edu

Another definition of originalism

2011-12-03T18:19:00.001-05:00

The recent exchange over originalism between Gerard Magliocca and Jack Balkin made me think again about what is distinctive about originalism. I’d like to suggest that originalism is a distinctive rhetorical strategy, one that somehow connects the proposed course of action, judicial or otherwise, with the revered framers of the Constitution. This is not just generic constitutional argument. It is a distinctive modality of constitutional interpretation. Its function is to connect our present course of action with the project of the framers. Originalist argument is any argument that aims to persuade you that this kind of continuity is possible.

Let me elaborate.

Originalists do not think that their field is in crisis. They should. They are now fragmented on multiple methodological questions. Is the object of inquiry the original intentions of the drafters of the Constitution, the original semantic meaning of the language, or its original public meaning? Is the meaning that matters that subjectively held at the time of enactment or the objective meaning of the language? Is it the actual understanding of those who lived at the time, or that of a hypothetical reasonable interpreter? Can original meaning include standards and general principles, which may be understood at a high level of generality? Is the law appropriately based upon the entire set of original expectations about the application of constitutional principles, or some original meaning more narrowly construed? Is construction, the practice by which the interpreter exercises discretion to create specific applications of broad and vague terms, legitimate? Originalists are now on all sides of these debates. As a consequence, originalism has fragmented into an enormous number of different theories.

In most scholarly fields, fragmentation is not a problem. Most scholarly fields are fragmented. John Milton observed long ago that diversity of opinion is a healthy sign of intellectual life: “Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making.” In professional scholarship, the imperative of originality also doubtless plays a role. But the stated purpose of originalism is to produce unique and indisputable answers to legal questions in order to eliminate the possibility of judicial discretion. The proliferation of originalisms, and the certainty that none of them will vanquish its rivals, together with the concession in many of the sophisticated variants that interpretive discretion is unavoidable, make this enterprise a forlorn one. Multiple originalisms, then, are problematic for the same reason that multiple popes are problematic. Some writers have concluded that there is no longer any practical difference between originalism and nonoriginalism. Pamela Karlan analogizes originalism to a product whose name has come to refer to an entire category of products regardless of their source, like aspirin or cellophane. She argues that “it would be better if arguments over interpretive theory stopped trying to invoke this now-meaningless brand name.”

Yet the appeal to originalism has continuing power. The proliferation of originalisms is testimony to that power: everyone wants to get into the act.

The explanation is local. Originalism is a manifestation of American exceptionalism. Jamal Greene observes that in Canada and Australia, whose legal systems in many ways resemble that of the United States, originalism has had no rhetorical or legal traction: almost no one makes such arguments. Many originalists claim that interpretation just is recovery of original meaning, that nothing else could count as interpretation. They think that because they are Americans. Greene offers several possible explanations for this distinctive national tendency: America’s tendency to lionize its founders, our Constitution’s revolutionary origins, the originalists’ desire to constrain the Warren Court, the public nature of Supreme Court confirmations, assimilationist tendencies in American identity, and the fundamentalist elements of American religion. In a similar vein, Jack Balkin observes that faith in the Constitution involves a selective identification with the past: we take pride in our history because it is ours, because our forebears are part of the same political project that we are engaged in. Balkin notes that “originalist theories of interpretation may tend to piggyback on this identification,” even though the official justification for originalism is different, having to do with claims about legal legitimacy. Jed Rubenfeld observes that some degree of identification with the past is an indispensible part of national identity.

It is the identification, and not any promise of judicial constraint, that is really doing the work in originalism. That is why the debate among originalisms can never end. There are many different ways of identifying with the past, because there are so many different aspects of the past with which one can identify. Original intention (to the extent that it can persuasively be shown), original public contextual meaning, and original semantic meaning each have a plausible claim to constitute a link to the revered framers, and so each has a plausible claim upon our attention. Similar points could be made about each of the other factional divisions within originalism. Each of these approaches therefore can do useful rhetorical work, and will be conscripted when that is likely to help with a constitutional argument. There is no way to stop constitutional interpreters from using all the tools they find in the kit, and so none of these can be permanently elevated to exclusive authority. Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.

I do not intend to be pejorative when I say that originalist argument is a kind of constitutional rhetoric, connecting us with the past, constructing a narrative of national identity. Persuasive advocacy is an honorable undertaking. It can never be illegitimate to call your audience’s attention to something that they care about, or ought to care about, such as “your father would have been appalled by what you are proposing to do.”

Originalist argument can be an argument from authority, citing texts that lay down legal rules or from which such rules can be inferred, or they can describe commitments, laid down at the time of the framing and still attractive today. If the latter, then originalist argument must offer a story about the pertinent commitment. Where the commitment is a decision to break with the past in some way – and, I shall shortly argue, many constitutional commitments take this form – then a story must be told about what was wrong with that past. Then the argument must contend that the same kind of wrong is present in the instant case.

Understanding originalism in this way can explain some persistent puzzles. For example, originalists are committed to certain substantive results. Now that Raoul Berger has died, there is to my knowledge no originalist who does not think that originalism, properly understood, supports the result in Brown v. Board of Education. On the other hand, Jack Balkin is a heretic among originalists (and I’m going to be, too) because he thinks originalism supports Roe v. Wade. Yet Keith Whittington is obviously correct when he writes that “[I]nterpretive results are separate from interpretive methods.” He notes with regret the “tendency to push originalists to meet some judicial litmus test and to evaluate interpretive approaches by their ability to reach desired results in designated cases.” It is a matter of pull as well as push. Michael McConnell writes: “Such is the moral authority of [Brown v. Board of Education] that if any particular theory does not produce the conclusion that Brown was correctly decided, the theory is seriously discredited.” Robert Bork thinks that the need to account for the rightness of Brown is “a matter of psychological fact, if not logical necessity.” But the psychological fact might as well be a logical necessity. It is that inescapable. Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.

The attachment to these specific outcomes shows that originalism’s apparently consequence-insensitive methodology is embedded within a larger set of commitments in which originalism must be trimmed and modified to fit. In other words, theoretical tidiness will not do unless the theory as a whole is capable of inducing rhetorical uptake. The ultimate enterprise is not theoretical but rhetorical.

One may object that this understanding of originalism as a rhetorical strategy misrepresents originalism, which is in fact a distinctive set of theoretical claims, entirely unrelated to rhetorical considerations. But the question of definition is connected to the question of function. When I speak of a “chair,” you may think of an assembly of arms and legs, but a chair can also be defined functionally, as an artifact designed for a person to sit on it. That is why a beanbag chair is a chair. Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin.

Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite. Karlan is right that originalism has now become a generic name for a number of different products, but that does not mean that the name is meaningless. If I ask you for some cellophane, please do not hand me an acetylsalicylic acid tablet (that is, an aspirin). Originalism is a distinct modality of constitutional argument. It is not precedent. It is not prudence. It is not even constitutional structure. It is a useful name for a specific kind of argument with a specific kind of function.