American Evil: A Response to Kleinfeld on Punishment

Andrew Koppelman

I've just published, in the Arizona State Law Journal, a response to recent work by my brilliant colleague Joshua Kleinfeld.  It is available on ssrn, here.  Here is the abstract:

Joshua Kleinfeld argues that American moral understandings are reflected in its system of criminal justice. Far more than Europeans, Americans regard those who have committed crimes as irretrievably defective people whom it is appropriate to lock away for many years. American law regards even minor and first-time criminals as having an unchangeable disposition of hostility or depraved indifference toward all that is good. This paper argues that under either of these understandings of the term, the American criminal justice system itself is evil.
Posted 1:40 PM by Andrew Koppelman [link]

The Supreme Court as running dog of the capitalist empire: Reflections on the Arbitration Act cases

Sandy Levinson

A sensationalist title, to be sure.  But it is important to recognize that the deepest ideological commitment of the current majority reveals itself not necessarily in constitutional law cases, where Anthony Kennedy, and even on occasion some of the other conservative justices, reveals a willingness to go off on what many of us would regard as "progressive" directions, just as some of the liberal justices, especially Breyer, can be found joining with his conservative colleagues in certain criminal procedure cases.  But it should now be clear that the conservative majority has fully imbibed the notorious memo from Lewis Powell in the earlier '70s arguing that business interests had to devote themselves to capturing control of the legal culture in order to protect themselves from dangerously leftist ideas (including, for Powell, the notion that labor unions really had rights worthy of respect).  The Court has made the Arbitration Act of 1925 into far, far more of a "constitutionalized" statute than it's now willing to do, say, with the Voting Rights Act of 1965, eviscerated in Shelby County by the usual five suspects.  But the Arbitration Act is now given precedence over the later National Labor Relations Act, and it is clear that the majority is totally indifferent to the consequences for ordinary individuals of being effectively unable to seek meaningful legal redress.

During an earlier era, there were many denunciations of the Court as a tool of big business, largely because of its proclivity (which may have been overestimated) to strike down progressive legislation in the name of what was called "substantive due process."  The canonical example include Lochner, but Coppice v. Kansas is another fine example, not least because the Court's opinion in that case, about the (in)ability of Kansas to protect the right of labor to organize, is unabashedly ideological and fully embraces the need for harsh inequality in order to make capitalism work.  And, of course, there was the crabbed reading of Congress's power under the Commerce Clause that doomed the Child Labor Act of 1918 (by one vote), not to mention the spate of decisions by the Five Old Men designed to stave off the New Deal.  Almost no one on the left viewed the Court as a friendly forum.  Its major decisions from the beginning had by and large legitimized the ability of "the interests" to capture state and national government for their purposes; one can, if one wishes, read McCulloch in this manner.  And, of course, it had been a resolute defender of the slavocracy in such decisions as Prigg and Dred Scott (though I'm also willing to argue that these decisions were based on a plausible reading of a Garrisonian Constitution that was indeed a "covenant with death and agreement with Hell").  The so-called Bill of Rights had no effective legal presence prior to the 1940s, and Justice Holmes, I believe in Buck v. Bell, referred to the Equal Protection Clause as the last refuge of a lawyer who had no real legal argument.  Segregation was firmly affixed as the law of the land, save for a few cases that were of little demonstrable import.  And, of course, the Court had proved a hollow hope to the Japanese Americans who objected to exile and detention, see Korematsu.  One could go on and on.

All of this changed, so far as the perception of the Court was concerned, with Brown, together with the creation of the contemporary willingness to take the Bill of Rights seriously.  Earl Warren was the first Chief Justice in American history to be a hero of political liberals.  And then there was Roe (written, of course, by Harry Blackmun, Richard Nixon's appointee).  All of this reinforced the belief that "we" had friends at the Court who would legitimately interpret the law in a progressive direction (with great consequence for the wider society).  Political scientists raised questions both about the validity of the assumptions that judges would necessarily be liberal and about the ability of the judiciary really to transform a society that might be resistant. (This is the importance, in particular, of Gerald Rosenberg's The Hollow Hope.)

The Arbitration Act Cases, though, are wonderful examples, first, of the importance of "high" politics (i.e., business=good, unions=bad) and, contrary to Rosenberg, the ability to use the judiciary indeed to gain one's fondest hopes.  Texas is one of those states that defines liberty in terms of "access to courts" to be able to set out one's claims.  The conservative majority at the Supreme Court, however, is actively hostile to access to courts, which might include access to dreaded jury trials, which are increasingly disappearing in the U.S.  (One could analyze the spate of "standing" decisions, particularly with regard to examining US misconduct in the Iraq war and elsewhere, in these terms.)

In any event, Lewis Powell may be the most important justice of the last half-century,  not because of his "constitutional decisions," which are all over the place--see, e.g., Rodriguez, McCleskey v. Kemp, and, notably, Bakke--but, rather, because of his stunning success in helping to achieve a Supreme Court majority that is truly hostile to the interests of ordinary Americans and willing to lend its formidable hand to almost all efforts to protect the interests of big business against having to be accountable of their behavior to customers or employees.  Evangelicals are thrilled because Gorsuch will protect them against secularists; big business, which I suspect couldn't care less about wedding cakes, is even more thrilled because Gorsuch is a solid vote for unimpeded business power.  "Running dogs of the capitalist empire" is perhaps a bit hyperbolic, but it certainly is more accurate than "neutral umpires simply calling balls and strikes."
Posted 1:33 PM by Sandy Levinson [link] (18) comments

"The Rule of Law"

Joseph Fishkin

The rule of law is one of those broad concepts, like human dignity or equal opportunity, that we all can agree we support in part because we don’t entirely agree on what it means.  Two especially unusual conceptions of the rule of law offered by politicians on the right, in this country and elsewhere, recently underscored this point.

The first came from Viktor Orban, the Prime Minister of Hungary, under heavy fire from the European Union for undermining the rule of law (by, among many other things, limiting the power of his country’s Constitutional Court and manipulating the judicial retirement age to pack the courts).  Orban says it is actually the EU that is undermining “the rule of law” in his country.  “The rule of law means people do not rule other people,” he argued in a speech in March.  It means law without “political bias,” and law that “does not make distinctions between countries” large and small.  Thus, he argues, when the EU singles out Hungary, treating it unfairly and exhibiting “political bias” by attacking the actions of Orban and his party, it is the elites of the EU who are undermining the rule of law.  Call this the protecting-democracy-against-elites conception of the rule of law.  On this view, Orban is the democratically elected (asterisks omitted) leader of the nation; if elite bodies such as the EU that were not similarly elected by the Hungarian people act to constrain Orban’s power or his party’s power, they are exhibiting “political bias” and in that way vitiating “the rule of law.”

The second came from Mike Pence.  This month he called former Sheriff (and now U.S. Senate primary candidate) Joe Arpaio “a tireless champion of strong borders and the rule of law.”  This statement implies a different but equally unorthodox conception of the rule of law.  I would think almost any defensible conception of the rule of law would be thick enough to include some principle that law enforcement must conduct itself without racial bias.  (For a powerful statement of this connection, consider Margaret Marshall’s description of the “lawless” government of her native South Africa under apartheid.)  But some might favor a thinner conception of the rule of law, independent of such substantive questions of equality and justice.  However, even the thinnest conception of the rule of law would almost inevitably require a principle that law enforcement has a particularly strong obligation, defeasible only in extreme circumstances, to obey the orders of legitimately constituted courts of appropriate jurisdiction.  Otherwise, how can law enforcement plausibly be regulated by law?  Joe Arpaio, as Sheriff, not only racially profiled Latinos, stopping them pretextually and arresting and detaining them even where there was no plausible criminal charge, but also was convicted of contempt of court for willfully refusing to obey a court order to stop doing this.  (President Trump subsequently pardoned him of this offense; Pence later declared him a “champion” of “the rule of law.”)  If we take Pence’s comment seriously, it seems to rest pretty squarely on a conception of the rule of law that renders that concept more or less the equivalent of what other politicians of like mind have long called “law and order.”

What brought these two unusual conceptions of the rule of law to my mind today was President Trump’s outraged insistence that the Department of Justice inspect both itself and the FBI to determine whether there was any improper politically motivated surveillance of the Trump campaign in 2016.  I doubt that Trump himself has any firm conception of “the rule of law.”  But he has embraced “law and order” as a rhetorical and political trope like no President since Nixon.  He would almost certainly find congenial his vice president’s dangerous conflation of the rule of law with law and order.  And yet, in both rhetoric and action, Trump seems to identify at least as closely with the core premises of the protecting-democracy-against-elites conception of the rule of law offered by Viktor Orban.  I suspect that one is actually the more dangerous of the two, as I’ll explain below.

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Posted 12:36 PM by Joseph Fishkin [link]

What We Learned (or not) About the Corker-Kaine AUMF

Deborah Pearlstein

Posted 10:41 AM by Deborah Pearlstein [link]

Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law

Sandy Levinson

In any event, this would be an excellent book to include among gifts to graduating seniors (and others) who are interested in the American constitutional order.  Sutton writes extremely well; his book is accessible to one and all.  I agree with Laurence Tribe, who writes that “It’s one of those books that lawyers and non-lawyers alike will benefit from.” One doesn’t have to buy into the metaphysics of “state sovereignty” or extravagant views of the Tenth Amendment in order to realize that American states (and their constitutions) are both interesting and important and deserve far more attention than they receive particularly from elite legal academics.  This book could make a real difference in generating new and valuable conversations. 
Posted 12:58 PM by Sandy Levinson [link]

Revisionist History--Season 3

Gerard N. Magliocca

I'm a fan of Malcolm Gladwell's podcast, and the first episode of this season is about the punctuation of the Constitution. More specifically, the episode discusses a paper by Michael Stokes Paulsen and Vasan Kesavan, which argues that the Texas Legislature has the power to subdivide the state into up to four new states because Congress gave its consent to that action when Texas was admitted to the Union in 1845. (Talk about the potential for partisan gerrymandering!)

There are several other fascinating points in the podcast. One is that Gladwell spends a lot of time talking about the punctuation in the Constitution without considering the possibility that the rules of grammar were different in the eighteenth century. I don't know if they were in a meaningful way, but the assumption in the episode is that we should understand the use of commas, semicolons, etc. as they are used now. Why is that?

Another Easter Egg is that Gladwell points out that the Twenty-Sixth Amendment, which was ratified in 1971 (when punctuation rules were presumably similar to our own) read literally says that anyone 18 or older is a citizen of the United States. Here is the Section One of that amendment:

"The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any State on account of age.

Read gramatically, the clause "who are 18 years of age or older" is defining "citizens of the United States." The text should read "The right of United States citizens who are 18 years of age or older" or "The right of citizens of the United States who are 18 years of age or older"  In other word, there should be no commas around the relevant clause. Of course, this is just the zillionth example of why we don't read legal texts literally because the drafters are often sloppy even when the meaning is clear from the background context. (The 26th Amendment was not trying to redefine citizenship.)

The podcast is definitely worth your time, if for no other reason than that Gladwell praises law review articles.

  
Posted 11:37 AM by Gerard N. Magliocca [link] (8) comments

Bomber Harris and the Haspel Nomination

Guest Blogger

John Fabian Witt

Gina Haspel, who testifies today before the Senate seeking confirmation as Director of Intelligence, is not the first American official to confront a past in black ops, torture, and humanitarian law violations.  To the contrary, she stands as the latest in a long line of Americans.  How we deal with such people speaks volumes not just about them, but about us.

The basic conundrum goes back to the very beginnings of the republic.  The frontier world of empire and Indian fighting regularly produced sharp controversies over war tactics.  No one was more controversial than George Washington, who as a young British officer was implicated in a possible massacre of captured French soldiers in the Seven Years War.  Washington himself, perhaps inadvertently, seemed to admit that something untoward had happened; the killings, he admitted, had been “assassinations.”  Soon Washington was a notorious figure, condemned by the Governor of New France.  “There is nothing more unworthy and lower, and even blacker,” wrote the Governor, “than the sentiments and the way of thinking of this Washington.”

Washington was hardly the only prominent American to be tied to an ugly past.  When Andrew Jackson was up for the presidency in the 1820s, he was dogged by claims that he had unlawfully executed two British nationals on his unauthorized raid into Florida.  Colonel John Chivington, commander of a regiment of Colorado Volunteers, killed hundreds of Cheyenne women and children in the infamous Sand Creek Massacre.  Chivington tried to reenter politics despite an Army judge’s conclusion that he had engaged in a “cowardly and cold-blooded slaughter.” 

Perhaps the closest analogy to Haspel is another less prominent figure in history, someone who like Haspel operated mostly in the shadows.  A hundred and twenty years ago, an Army lawyer named Colonel Edwin Glenn operated a secret torture team, not far from the black site in Thailand whose secrets now shape Haspel’s fate.  During the insurgency in the Philippines that followed fast on the Spanish-American War, U.S. forces employed a close cousin of waterboarding to obtain information about the location of insurgents in the hills.  Colonel Glenn organized the effort.  He was convicted at a court martial of illegal torture, but his sentence was a slap on the wrist: suspension from his command for a month and a $50 fine.  And like Haspel (who faced no prosecution at all for her role in the CIA interrogation program), Glenn, too, resumed a career in the military.

Americans have been willing (perhaps all too willing) to welcome back men despite ugly pasts.  But the usual pattern requires renewed commitment to the very standards they violated.  To overcome his early missteps, a more mature Washington held himself out in the War of Independence as complying with the highest ethical standards.  Qualifying as an independent state would mean that the laws of war applied.  And so, along with the upstart republic he served, Washington committed to close compliance with the Enlightenment laws of war.

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Posted 8:21 AM by Guest Blogger [link]

Normalcy and the Presidential Subpoena

Deborah Pearlstein

Read more »
Posted 12:50 PM by Deborah Pearlstein [link]

Interview on Facebook and Data Capitalism

JB

Yale Insights asks me three questions about Facebook, the Cambridge Analytica scandal, and information fiduciaries.



Posted 11:25 AM by JB [link]

The Art of the Rescission

David Super

Posted 9:58 PM by David Super [link]

The First Amendment in the Second Gilded Age - The 2018 Mitchell Lecture

JB

Here is the video of my April 13, 2018 Mitchell Lecture at Buffalo Law School, entitled "The First Amendment in the Second Gilded Age."

This lecture describes the political economy of free expression in our Second Gilded Age. It explains how we pay for the public sphere in the digital age. I argue that the recent Facebook/Cambridge Analytica scandal typifies the central problem of securing freedom of expression in the Second Gilded Age.

First, the key players who set the basic rules of free expression are not nation states but powerful private actors like Facebook who effectively act as the governors of digital spaces.

Second, free speech is not really free at all. Freedom of speech depends on an infrastructure of free expression, and that infrastructure must be paid for in one way or another.  In the early 21st century, people pay for free speech through a grand bargain only vaguely understood by most people: In return for the ability to speak to anyone at anytime, people agree to increasingly effective and powerful surveillance of their online lives. In short, in the Second Gilded Age, the infrastructure of digital free expression is also the infrastructure of digital surveillance. The two are one and the same.

Near the end of the lecture I discuss possible reforms, including my idea of treating some kinds of digital companies as information fiduciaries.




Posted 1:05 PM by JB [link]

A Liar, A Bigot, A Criminal, A Sexual Predator and a Probable Traitor

Mark Graber

Posted 9:34 PM by Mark Graber [link]

The Vice President and the Rule of Law

Richard Primus

Posted 4:55 PM by Richard Primus [link]