Friday, March 21, 2003


Antonin Scalia Declares Affirmative Action Constitutional, Part III

Stuart Buck responds to my previous post by suggesting how Scalia might strike down the Michigan affirmative action plan consistent with his adherence to a philosophy of original intention. Stuart makes some fine points, and I would add only the following comments:

1. Stuart assumes that my evidence of race conscious remedial relief by the Reconstruction Era Congress that framed the Fourteenth Amendment is the Freedman's Bureau statutes. I'm actually thinking of the various acts that my colleague Jed Rubenfeld discusses in his 1997 piece on Affirmative Action in Yale L.J. They applied not only to recently freed blacks who had been enslaved, but also to free blacks who had been free for many generations.

The freedman's bureau acts, which Eric Schnapper discusses, are some evidence, but they also present many interpretive problems. Rubenfeld's argument is much cleaner.

2. Stuart doesn't adequately address the basic problem for Scalia: squaring his interpretive theory with the whole set of proof requirements the Court has added since Bakke to enforce strict scruinty. As I mentioned in my previous post on the subject, there's no evidence that the Reconstruction Era Congress thought they were required to make the sorts of findings of fact that the Court now requires. Nor in those cases, did the body that engaged in the discrimination have to be the same body that engaged in race conscious relief. Rather, Congress appears to be remedying general societal discrimination, which existing law does not permit. Quite apart from whether diversity would be a permissible goal to the Reconstruction Congress, remedying past societal discrimination clearly would be, and that would also be inconsistent with existing doctrine.

3. In conjunction with this last point, it's important to recognize that the statutes that Rubenfeld identifies can't be distinguished on the grounds that they remedied discrimination by identified victims of discrimination. They applied to free blacks without any proof of discrimination against them. That presumption is not permitted by Croson or Adarand.

4. All of this is covered in my conlaw casebook, Brest, Levinson, Balkin and Amar, Processes of Constitutional Decisionmaking (4th ed. 2000) and you can look it up for more details.

5. The basic point I am trying to make is not, as Stuart suggests, that Scalia is necessarily engaged in logical contradiction. There are certainly ways to strike down affirmative action laws even given the congressional history, and I talk about them in the casebook. Rather, my complaint is that Scalia is being hypocritical, because he has never, to my knowledge, discussed the historical issues, even though they are easy to learn about, and even though he states, to any one who will listen, that original understanding is the touchstone of constitutional interpretation. My problem with Scalia is that he speaks with the arrogant assurance of one completely convinced that he is in the right when he has not done the necessary research to justify his conclusions about the constitutionality of affirmative action.

Judging from his public writings on the subject, my first year con law students appear to know more about the original understanding of the Fourteenth Amendment than Antonin Scalia does. That, I think, is a disgrace for someone who claims to have the interpretive philosophy that he purports to have, and who has the power to shape the U.S. Constitution that he possesses.

6. Finally, the point of my previous post was to chide Scalia for a more general failing: In his opinions, he tends to invoke original intention as a rhetorical ploy when it suits his agenda, and when it does not, he simply fails to say anything at all about history or original understandings. And all the while he insists that he has no authority to do anything but follow the original understandings of the text of the Constitution. That may or may not be a logical contradiction. I do think it is hypocritical.

Wednesday, March 19, 2003


Textualism and Original Understanding, or Antonin Scalia Declares Affirmative Action Constitutional, Part II

Stuart Buck responds to my previous post on Justice Scalia by pointing out that Scalia is a textualist, not an originalist, so that he might easily strike down affirmative action laws as inconsistent with the Fourteenth Amendment.

Stuart is half right. Scalia is an adherent of original meaning, not original intention. For him, the question is about text, not secret intentions; about words, not individual or group psychology. For him, the test is what the words the Framers produced would fairly have been understood to mean at the time of their adoption. It is important to understand (and I think Stuart glosses over this point) that Scalia is not referring to what the same words fairly mean to us today, for otherwise, Scalia would be commited to a Living Constitution, which he despises.

The original understanding of the constitutional text of the Fourteenth Amendment is exactly what my previous post on colorblindness was concerned with: What did the words of the Fourteenth Amendment mean at the time they were adopted? What was their generally accepted public meaning? The answer is not difficult to discover.

It is quite clear that the words "privileges and immunities" and "equal protection" were used precisely to avoid a general rule against racial classifications. The framers did not use the word "race" in the Fourteenth Amendment (as they did in the Fifteenth, when they specifically wanted to give black males, but not women, the right to vote). They refused to adopt a rule of racial colorblindness even though such language was repeatedly pressed upon them. Nor did they create language that forbade all racial classifications. That is not the way that people in 1868 thought about the problem. Our focus on suspect classifications is anachronistic. They were concerned with the rights of citizenship-- what privileges and immunities all citizens had by virtue of being citizens. Their key idea was that all citizens should be equal before the law; that is, that they should enjoy civil equality, not political or social equality. That is what the words "privileges or immunities," and "equal protection of the laws" were fairly understood to mean in 1868. One need not look to any secret intentions to discover this. It is clear from the debates over the Fourteenth Amendment themselves, as well as from general intellectual histories of the period.

Indeed, the privileges or immunities clause, and not the equal protection clause, was understood to do most of the work in protecting civil equality. The equal protection clause was at best a minor addition emphasizing that all persons were equal before the law, which was another way of saying that all citizens enjoyed civil equality and that all other persons (remember the EP Clause refers to persons, not citizens) enjoyed the equality of rights before the law that non-citizens enjoyed. (Nobody thought that the words "equal protection" made citizens and non-citizens equal in all respects).

So we return to the question that a textualist (or more correctly, an original meaning textualist) like Scalia would ask: Were the words of the Fourteenth Amendment fairly understood at the time of their adoption to prohibit democratically elected legislatures from race conscious remedial relief? The answer is quite clearly no. The best evidence of this understanding is what the Congress that passed the Fourteenth Amendment actually did, not what their secret intentions were. They passed a whole slew of relief acts for "colored" people, both former slaves and free blacks. Many of those concerned special educational benefits for blacks.

At best, one might make a distinction between what Congress might do and what the states might do. That would mean that Adarand is wrongly decided, and the federal government today could engage in race conscious affirmative action. However, if one believes that the privileges or immunities of national citizenship bind Congress as well as the states (otherwise, why would they be privileges or immunities of *national* citizenship?) then the same rules would apply to the states as to the federal government. That means Croson is also wrongly decided.

Finally, one might try to get around this fairly convincing evidence of the public meaning of the Amendment's words by insisting that what Congress did was actually consistent with the distinction between civil, political and social equality. What Congress did was not a matter of civil equality, but a matter of social equality-- giving special welfare and educational benefts to blacks involve issues of social, not civil equality. I myself don't buy this interpretation, but let's accept it for the moment and consider its logical consequences. If the argument is correct, why doesn't the civil/political/social distinction apply equally in our own time? After all, if one is concerned with what the words of the Fourteenth Amendment were fairly understood to mean at the time they were adopted, the words "privileges and immunities" and "equal protection" *meant* civil equality, not political or social. They were meant, and were generally understood to mean, that civil, and not political or social equality was guaranteed by the Amendment. They should mean today what they meant then, at least to someone like Scalia. Under that reading, then what Michigan is doing is also not a matter of civil equality, and is therefore untouched by the Fourteenth Amendment's prohibitions.

Again, I await Scalia's opinion in the Michigan case with great interest.

Tuesday, March 18, 2003


Antonin Scalia Declares Affirmative Action Constitutional

Well, at least that seems to follow from this speech reported by the Associated Press (via Howard Bashman):

Supreme Court Justice Antonin Scalia on Monday said he can only interpret the Constitution as it was written and not factor in the time it was written when ruling on issues such as affirmative action.

Scalia said during a speech at the University of Toledo he can't dismiss the Constitution "and say it's the work of old, dead white males."

"The only power I have as a federal judge, I derive through that of the Constitution," he said.

As I've pointed out in a previous post, the Congress that framed the 14th Amendment did not believe in the colorblindness principle, and, moreover, it engaged in a host of race conscious remedial measures that would not pass muster under the Court's existing strict scrutiny doctrines. If I read Scalia right, I'm afraid all these doctrines will have to go out the window, including the decisions in Croson and Adarand in which Scalia himself joined.

After all, Scalia wouldn't want to be accused of imposing his own conservative predelictions on the country.

If the Framers believed that democratically elected legislatures could engage in race conscious remedial legislation, who is the Supreme Court to strike such legislation down? If the Framers thought race conscious remedial relief was constitutional, then it doesn't matter whether judges think it's bad social policy. As Scalia put it in response to a question following the speech, "As long as we're operating under [the Constitution], it is the only source of my authority."

After reading Scalia's remarks, I breathed a sigh of relief. It's good to know that at least one Justice is a man of his word, principled and devoted to the Rule of Law and the Framers' original understandings above all else.

I await his opinion in the Michigan affirmative action case.


A Great Gamble, By an Untrustworthy Man

My op-ed on Iraq, of which the previous post is the first draft, appears in today's Hartford Courant.

Several readers have asked for a bill of particulars justifying my conclusions about the election.

Here's what happened in 2000.

Before the election, officials in the Florida Republican Party violated the Voting Rights Act of 1965 by purging African-American voters from the authorized voting lists, reducing the number of votes for Gore. This purging of the voting rolls was completely overshadowed by the controversies over butterfly ballot and chads, and the greater percentage of spoiled ballots by minority voters. The purging of voter rolls to exclude African-Americans, however, was the most serious violation of law and went almost completely unreported by the American press.

After the election, the U.S. Supreme Court stayed the recounts in Florida on December 9th just as Gore was about to push ahead. (Bush I) The reasons given for the stay were completely at odds with the law governing when injunctions should be issued.

The Supreme Court then handed down a decision on December 12th (Bush II) that argued that the manual recounts violated Equal Protection and that the recounts should cease permanently. The Court's interpretation of the EP Clause was unprecedented, and was supported by Justices who are opposed to novel extension of Equal Protection claims. Perhaps more suspicious, the Court argued that its interpretation of the Equal Protection Clause, announced for the first time in this case, applied only to the facts of this particular case and to no others.

Finally, the Court offered a remedy wholly inconsistent with the underlying claimed violation of Equal Protection. If the EP Clause were violated, the proper remedy would not have been to stop all recounts (for that might have violated EP as well) but to recount under a method consistent with Equal Protection.

There is no doubt that if the parties had been reversed, there would not have been five votes either for the initial stay or for the EP argument and final remedy. Indeed, there might not have been a single vote for what the Court did.

These issues are discussed at length in my academic writings. A discussion of the violations of the Federal Voting Rights Act appears here, in an article that was published in the Virginia Law Review, and a discussion of the role of the Supreme Court appears here in an article that was published in the Yale Law Journal.

Monday, March 17, 2003


The Die is Cast

By the time most of you read this, we may be at war.

Many Americans will now rally around the President. All Americans will rally around and support our troops in the field. All of them hope, as I do, that the war will be short and with a minimum loss of life for both sides.

It does not matter what our position was before. Once war has started, we want things to go as well as they possibly can. We want our generals to do what it takes to win.

But the fact that we support our troops once war has begun does not mean that we would have chosen this war in the first place. Rather, the man who sits in the Oval Office has placed our country in this precarious position. Our troops are mobilized and in harm’s way. They must fight to survive.

This is not a war of necessity. It is a war of choice. A choice made by George W. Bush and his advisers.

All this would be bearable if a President clearly and legitimately elected by We the People had taken us into war. But many Americans, myself included, do not believe that Bush legitimately won the election. We believe, and continue to believe, that the election was stolen.

To many Americans, it is especially galling that we are being pushed into an unnecessary war by a man who did not legitimately attain the vast power he now enjoys. It is one thing to democratically elect a President who makes bad decisions. It is quite another if the President who leads us into danger was forced on the country through trickery and deceit.

Make no mistake: A man who took power illegally is now taking us into war. And if he miscalculates, he may well bring blood and destruction on countless numbers of people.

The election of 2000 seems so long ago for many of us. But the consequences of that struggle haunt everything that is happening today.

The President’s political legitimacy was established not by the election of 2000, but by the events of 9-11. Our country was attacked, and we needed to put aside previous disputes in order to respond to that attack. George W. Bush was, quite literally, the only President we had.

Moreover, no matter who became President, that person would have invaded Afghanistan and made war on the Taliban in response to 9-11.

But at that point important differences began to emerge. It began to matter greatly who held power.

It is hardly clear that President Gore would have made the centerpiece of his Administration a war on Iraq, and that he would have engaged in blunderbuss diplomacy that would fracture alliances of fifty years’ standing, and squander all the good will America enjoyed in the wake of the terrorist attacks.

Nor is it clear that Gore would have hatched such a grand scheme against Iraq while disregarding the mounting threat simmering in North Korea.

Every day, the consequences of the disputed election of 2000 become clearer and clearer, and that clarity is not to the advantage of the man who now wields power over us and over the whole world.

For those Americans who think that the election was illegally concluded, the path our country is traveling is deeply troubling. For we know that we would not be moving in this dark and dangerous direction but for a constitutional coup, an unlawful accession to power. We now see, all too clearly, that the power of the Presidency, obtained dishonestly and unconstitutionally two years ago, has not brought us peace, but only more struggle, more danger, more strife.

The constitutional coup of 2000 has led to a great gamble by a man we do not trust, a gamble that threatens ever more wars, ever more death and destruction.

If war comes, I want our troops to win. I will pray that our generals are discerning, that their strategies are sound, and that their victory is speedy.

But I have no confidence in the man who sent them into war. He knows only how to seize power, not how to use it wisely.

Alea jacta est. The die has been cast by a would-be 21st-century Caesar.

Let us hope that we do not end up paying for his arrogance.

Saturday, March 15, 2003


Hey Tom, Wake Up and Smell the Napalm

Like many others, I greatly enjoy Tom Friedman's columns at the New York Times. If you read them closely over the past three weeks or so, you will notice a very interesting shift going on. Friedman originally came out fairly strongly in favor of the war, recognizing the risks, but arguing that it would help bring democracy to Iraq and presage a remaking of the Middle East. In short, he supported the war on Iraq largely in terms of spreading democratic values, and creating a progressive model of Muslim democracy for the entire region.

That was the argument he made on January 26th. Since that point, his weekly columns have gotten progressively worried. Friedman has gradually realized that his war isn't Bush's war. He has figured out that Bush isn't really serious about the degree of nation building that is necessary to make the war with Iraq justified in Friedman's terms.

Indeed, what Friedman has gradually come to recognize with increasing alarm in the past month is that he simply doesn't trust Bush to do the right thing. He has been reduced, in his latest column, to wishing that Tony Blair, and not Bush, were calling the shots. The reason is that he thinks Bush is not pursuing the sort of war Friedman wants to fight:

I deeply identify with the president's vision of ending Saddam Hussein's tyranny and building a more decent, progressive Iraq. If done right, it could be so important to the future of the Arab-Muslim world, which is why I won't give up on this war. But can this Bush team be counted on to do it right? Mr. Bush's greatest weakness is that too many people, at home and abroad, smell that he's not really interested in repairing the world. Everything is about the war on terrorism.

Well Tom, it's time to wake up and smell the mocha java. Your hope that Bush is going to a fight the war you want him to fight and expend the resources and time you want him to expend to make Iraq a beacon of democracy in the MIddle East has been a pipe dream. You need to recognize what you already know in your gut: Your agenda is not his agenda. So are you still so gung ho about this war? Because if Bush isn't serious about spending the time and the effort and the money to build a democratic Iraq, he's going to make a very, very big mess, and you know it better than I do.

A recent article in the New York Times shows why Friedman is hoping against hope. A panel of national security experts, drawn from both Republican and Democratic Administrations, has suggested that "the cost of postwar reconstruction of Iraq will be at least $20 billion a year and will require the long-term deployment of 75,000 to 200,000 troops to prevent widespread instability and violence against former members of Saddam Hussein's government."

However, the article continues, that is not exactly what the Bush Adminstration has in mind:

At the Pentagon yesterday, two senior Defense Department officials, speaking to reporters on condition that they not be identified, said the new office charged with establishing a postwar administration hoped to be able to turn over control to an interim Iraqi government within months. But they did not say how they planned to root out the thousands of intelligence and security service agents that Mr. Hussein is known to have placed within virtually every government ministry.

The officials said Iraq's frozen assets might be tapped to pay for the Iraqi government salaries, or some of Iraq's oil revenues might be used to finance the interim government. That had not yet been decided, they said.

I think it's time for Tom Friedman to reassess his position on Iraq. He's not going to get the designer war and reconstruction he's been hoping for. None of us are. Instead, we are going to get stability on the cheap, without democracy, and paid for by Iraqi oil. Or, to put it another way, we are going to get what is, in all probability, a recipe for disaster.

For those readers who think that the reason we should fight this war is to rid the world of a despicable tyrant and replace him with a vibrant democracy, I salute you. I applaud your idealism and your commitment to making this a better, freer world. But you need to realize that your agenda is not Bush's agenda. Your motives are not his motives. He is playing you, and all of us, for fools. Don't be taken in. He isn't serious about making the long term commitment that will be necessary to secure a democratic state in Iraq. And, as a result, he is going to make this world an even bigger mess, and an even more dangerous place than it was before he became President.

God help us. God help us all.

Tuesday, March 11, 2003


The Padilla Case

The New York Times reports that Federal District Judge Michael Mukasey in the Southern District in Manhattan has reaffirmed his earlier ruling in December that Jose Padilla has the right to consult with counsel. Padilla, an American citizen, was accused by the government of conspiring with Al Qaeda operatives to bring a "dirty bomb" (a bomb that explodes radioactive material) into the United States. He was arrested May 8th in Chicago, returning from a trip to Pakistan. At first the Justice Department claimed that he was being held as a material witness, but on June 9th, they stated that he was an enemy combatant and had effectively no Bill of Rights protections, including no right to consult with counsel.

The district court disagreed, ordering that Padilla be permitted to meet with counsel in December. However, instead of complying with the judge's order, the Justice Department asked the judge to reconsider his decision. The judge made clear in today's written order that he would not accept further delay, as the Times reports:

"Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further `dialogue' about whether he will be permitted to do so. It is a ruling -- a determination -- that he will be permitted to do so," the judge said.

No one is going to mistake Padilla for a choirboy. He is a member of a Chicago street gang. He may well be up to no good, and if he violated the law, he should be punished for his crimes. But he is also a United States citizen. The rights of citizens include the rights in our Bill of Rights, including the Sixth Amendment right to counsel. Those rights apply whether one is good or bad, whether one is guilty or innocent, and whether one is a Muslim, a Jew or a Christian.

The Justice Department was wrong to insist that by simply designating some one an enemy combatant, the Executive can strip away the basic constitutional protections that all citizens enjoy. If the government can strip away Padilla's rights at will, it can strip away yours and mine. When you give government arbitrary power, eventually it will use that power arbitrarily.

I for one fully believe that members of the Justice Department are trying to keep our country safe. But I do not think that good intentions justify a blank check to the Executive. Even the best of intentions must be constrained by basic rights; otherwise, convinced of its own rectitude, the government will overreach.

It is important that courts exercise some check on the Adminstration's zeal. But it is equally important that members of the public make their opposition heard as well. Courts will not keep us safe from government overreaching in times like these. Only we ourselves can do that.

Sunday, March 09, 2003


The Importance of So-Called "Inferior Courts"

Deborah Sontag's article on the Fourth Circuit Court of Appeals in Richmond Virgina in today's New York Times explains why it matters who sits on the circuit courts:

The appellate courts, created in the late 19th century to relieve overcrowding of the Supreme Court's docket, decide about 28,000 cases a year compared with the highest court's 75 or so. Practically speaking, they have the final say in most matters of law; their reach is broader, if not deeper, than the Supreme Court's itself.

Judges on the Fourth Circuit say that they just follow the Supreme Court's lead. And it is true that the Fourth Circuit is the appellate court closest in thinking to the Rehnquist Court. But the relationship is symbiotic: the Fourth Circuit does not just imitate; it also initiates. It pushes the envelope, testing the boundaries of conservative doctrine in the area of, say, reasserting states rights over big government. Sometimes, the Supreme Court reins in the Fourth Circuit, reversing its more experimental decisions, but it also upholds them or leaves them alone to become the law of the land. There is a cross-fertilization, which could see its apotheosis this spring: the Fourth Circuit is dominated intellectually by two very different conservative judges, J. Harvie Wilkinson 3rd and J. Michael Luttig, both of whom are leading candidates for the next Supreme Court vacancy.

Sandy Levinson and I have argued that major constitutional change occurs through a process of "partisan entrenchment." The theory is rather complicated, but put in its simplest terms, partisan entrenchment occurs when relatively ideologically coherent political parties stock the federal courts with their ideological allies. When a critical mass of such jurists are present, you can get significant shifts in constitutional doctrine over a long period of time. That is the best explanation of the conservative constitutional revolution in doctrine we have been seeing in the United States in the past decade.

Lower courts-- which are sometimes called "inferior courts" because Art. I. section 8, cl. 9 of the Constitution speaks of "Tribunals inferior to the supreme Court"-- play an important role in such constitutional transformations for four reasons. First, they are effectively the last word on the Constitution in a whole host of areas that the Supreme Court has not yet considered. Second, they apply and implement existing Supreme Court decisions, which can very often be spun in a more liberal or more conservative direction. Third, the lower courts are a proving and testing grounds for innovative constitutional claims by social movements and their ideological allies. Lower courts can provide either a sympathetic or hostile ear to innovative constitutional claims, helping to shape cases and caselaw in preparation for the moment when the Supreme Court focuses on them. Fourth, lower courts (and particularly district courts) have the ability to find facts or render procedural decisions that shape the record on appeal to the Supreme Court and limit what that court can do or else effectively insulate a decision from review.

Presidents reshape constitutional law through their appointments to the Supreme Court. But their appointments to the lower courts also matter, too, and perhaps even more, in determining what the Constitution means in day-to-day litigation. Moreover, because lower court nominees are generally subjected to much less scrutiny by Congress, Presidents often have a much freer hand in stocking the lower courts with more strongly ideological candidates. Although Supreme Court Justices get most of the glory, lower court judges are the shock troops of any effective and sustained constitutional revolution. This is a point that has not been lost on the Republican Party.

Saturday, March 08, 2003


A Pretty Funny Way of Courting the Hispanic Vote

As Paul Krugman reports in Friday's New York Times, the Bush Adminstration has begun to threaten our neighbor to the South. Apparently, if Mexico votes against the U.S. resolution on Iraq, a little "discipline" will have to be applied, and the Bush Administration can't guarantee that the American people won't take it out on Mexicans, or, for that matter, Mexican-American citizens in the U.S.

Last week The Economist quoted an American diplomat who warned that if Mexico didn't vote for a U.S. resolution it could "stir up feelings" against Mexicans in the United States. He compared the situation to that of Japanese-Americans who were interned after 1941, and wondered whether Mexico "wants to stir the fires of jingoism during a war."

Incredible stuff, but easy to dismiss as long as the diplomat was unidentified. Then came President Bush's Monday interview with Copley News Service. He alluded to the possibility of reprisals if Mexico didn't vote America's way, saying, "I don't expect there to be significant retribution from the government" — emphasizing the word "government." He then went on to suggest that there might, however, be a reaction from other quarters, citing "an interesting phenomena taking place here in America about the French . . . a backlash against the French, not stirred up by anybody except the people."

And Mr. Bush then said that if Mexico or other countries oppose the United States, "there will be a certain sense of discipline."

These remarks went virtually unreported by the ever-protective U.S. media, but they created a political firestorm in Mexico. The White House has been frantically backpedaling, claiming that when Mr. Bush talked of "discipline" he wasn't making a threat. But in the context of the rest of the interview, it's clear that he was.

What in the world is our President thinking? I've said before that he is a terrible diplomat. But the very idea of suggesting that if Mexico doesn't toe the line there will be a "blacklash against" Mexicans (and presumably Mexican-Americans), "not stirred up by anybody except the people" is outrageous. Especially since, in context, it doesn't appear that Bush thinks that he has any duty to speak out against such a backlash. He warns Mexico of what his fellow countrymen might do, but he doesn't warn his fellow countrymen against doing it.

What I want to know is, why isn't Bush in bigger trouble than Trent Lott?

Wednesday, March 05, 2003


A Pay-As-You-Go War?

Here’s a little separation of powers problem I’ve been worrying about for a while, ever since the Senate held hearings last week on the cost of the war with Iraq.

The Bush Administration has been refusing to answer questions about how much the war with Iraq will cost. Outside studies have placed the cost as ranging from anywhere from $50 billion ( cheap, quick victory, short, easy, reconstruction) to more than a trillion dollars (tough, difficult victory, long, difficult reconstruction).

The White House argues that it shouldn’t have to provide any estimates because the timing and length or war, and the duration and nature of post-war peacekeeping and reconstruction, are currently unknown. Therefore, the President should be allowed to go ahead with the war and Congress will get the bill later, and, of course, it is expected to pay that bill in full.

The problem with this approach is that it significantly undermines the separation of powers and its constitutionally mandated set of checks and balances. The President is Commander-in-Chief, but Congress has the power to declare war. Originally, the Framers separated the powers to declare war from the power to command troops because of the fear that Presidents might attempt to aggrandize themselves by continually getting the country into one war after another. (Think Napoleon). Requiring Congressional authorization helps rein in presidential ambitions and presidential overreaching. This sort of check and balance has been made relatively ineffective in the twentieth century. Moreover, in the case of Iraq, Congress has given the President authority to attack Iraq based on his representations of the danger and need for military action.

Nevertheless, suppose it turns out that the President has not been altogether honest about the need for war, or suppose he mishandles the diplomacy necessary to ensure support from our allies, or suppose that he tries to demagogue the issue in order to increase his political standing at the expense of what Congress believes is the national interest. Does the separation of powers in our constitutional system offer any recourse, once Congress has given him authority to go to war?

Yes it does. Congress has the power to appropriate funding for all government expenditures, including military expenditures for wars. If Congress thinks that the President is misbehaving, or is engaged in an unwise military adventure, it can rein him in through its power of the purse. It’s important to recognize that to exercise this check and balance, Congress doesn’t actually have to refuse to appropriate funds for American troops; it is politically risky to do this when our men and women are fighting overseas. But it can use the appropriations process as a method of oversight– it can ask the tough questions that the Executive might rather not answer, and it can hold the Executive accountable if the President screws up or is trying to pull a fast one.

The Administration’s preferred strategy of pay-as-you-go short circuits this method of accountability. By refusing to divulge information about what the war might cost, or even what the Administration thinks the war might cost, the President is telling Congress that it is expected to simply dole out money as the President thinks best. This allows the President to get the country into a terrible mess, at which point he can simply turn to Congress and demand that it appropriate as much money as it takes to clean up that mess.

This Administration has long been known for its lust for secrecy and its desire not to be held accountable for anything. Ironically, the Administration has insisted that other institutions (e.g. failing schools) must be held accountable by withdrawing funding if they don’t measure up to standards of success.

But all joking aside, there is an important constitutional issue at stake. Congress should stand up to the President and members of his Administration when they refuse to explain how much the war and reconstruction will cost and how long the war and reconstruction will last. If the President genuinely doesn’t know the answers to these questions, that’s a reason not to go down this path-- for the President’s strategy may very well be unwise and dangerous. And if the President does know and simply isn’t telling, there is an even greater need to stand up to him, for it is likely that the reason he isn’t telling the truth is that the American people would not countenance what he secretly wants to do. If so, Congress has a duty to protect the national interest by acting as a counterweight to presidential ambitions and presidential overreaching.

Our Constitution isn’t perfect, but separation of powers is one of the most important features Americans have for checking potential abuses of authority. Congress should not allow the President to do an end run around our constitutional system by stonewalling on crucial questions of war and peace.

Tuesday, March 04, 2003


John Ashcroft, Thug

In this week’s edition of Newsweek, Steven Brill reports that in the original version of the Patriot Act, Attorney General John Ashcroft proposed suspending the writ of habeas corpus indefinitely.

In legal terms, this would mean that the government would be permitted to arrest and detain people-- citizens and non citizens alike-- at will, and without the right to a judicial hearing to determine the legality of their detention.

In Article I, section 9, clause 2, the U.S. Constitution permits Congress to suspend the writ, but only “when in Cases of Rebellion or Invasion the public Safety may require it.” It seems quite clear that although 9-11 was a traumatic event in our nation’s history, it did not require full-scale suspension of the writ so that the police could arrest anyone and hold them as long as they liked. Perhaps even more disturbing, Ashcroft’s proposal for suspension of the writ had no time limit. It would last as long as the government wanted it to last.

The portrait that Brill paints is of a politician particularly eager to amass more power for himself and to promote himself as crucial to preserving the nation’s security. Equally worrisome, Ashcroft is portrayed as particularly uninterested in legal niceties, particularly the legal distinctions that lawyers use to secure basic civil rights.

Beyond [Ashcroft's] predilection to want to control as much as he could, some on his own staff thought that another reason Ashcroft hadn’t “scrubbed” the bill [i.e. vetted it with relevant departments] beforehand was that he didn’t appreciate the significance of the prosecutor-written laundry list he was proposing. Although Ashcroft is a graduate of the highly regarded University of Chicago Law School and a former Missouri state attorney general, even some of his own deputies at Justice were surprised by how uninterested he was in the niceties of the law. One veteran staffer recalls that through six different meetings on this bill and another key legal initiative, he had never once heard Ashcroft cite a legal case and had watched him blanch when someone in the room cited a case, as if that person was discourteously speaking another language. Whether it was lack of interest or lack of intellectual firepower, the Attorney General seemed not to appreciate the complexities of the constitutional issues he was dealing with.

I grew up in Missouri, and I well remember Ashcroft in earlier phases of his legal career, as state Attorney General, governor, and later as Senator. My impression of him then is the same as now: A man who cares nothing for civil liberties. Or, put to put it more accurately, he cares only for civil liberties of those people he likes, in particular gun owners.

When Ashcroft was first proposed as U.S. Attorney General, he was repeatedly asked whether he would enforce civil rights laws and protections rather than attempt to undermine them. Ashcroft insisted indignantly that of course he would. One might conclude from Brill’s article that Ashcroft was not altogether accurate in his representations of his bona fides. But anyone who knew of Ashcroft’s previous record in public service would know that Ashcroft is the last person who could be trusted to keep our civil liberties safe from government overreaching. After all, overreaching is what Ashcroft knows how to do best. It is what he has done throughout his career. Bullying is his stock in trade, unfairness is his modus operandi.

The President should fire this man immediately and replace him with someone who genuinely cares about our Constitution and our civil rights. The only problem is, President Bush probably agrees with him, for he has, if anything, even less interest in these issues.


When, Oh When Will the War Start?

Assuming that nothing that happens can sway Bush's mind when it is made up (think tax cuts) when exactly will the war start? I had originally thought it would be when the skies over Iraq are darkest, near the new moon, which fell on March 2d and will occur again on April 1. But a more likely date is the middle of March. (Ides of March, anyone? Et tu Bushe?) Read Michael O'Hanlon's views on the question, courtesy of Tacitus.


Bad Diplomacy, Worse Results, Part II

Capitol Hill Blue reports that Bush's advisors have begun suggesting that he not press for a second resolution at the U.N. on the grounds that it is likely to fail.

"The vote in Turkey f**cked things up big time," grumbles one White House aide. "It pushes our timetable back. On the other hand, it might give us a chance to save face."

"Saving face" means backing away from a showdown with the UN Security Council next week and agreeing to let the weapons inspection process run its course.

"The arrest of Khalid Shaikh Mohammed gives us some breathing room," says a Bush strategist. "We can concentrate on the favorable publicity generated by the arrest and the valuable intelligence we have gained from that event."

Mohammed, arrested in Pakistan, masterminded the 9-11 terrorist attacks. CIA agents found computer files, memos and other materials which pointed to plans for new attacks against the U.S.

"The prudent thing to do would be to let Iraq cool off on a back burner and concentrate on Mohammed," says Democratic strategist Arnold Beckins. "Saddam isn't going anywhere. There's too much heat on him right now for him to pull something."

Right now, only the U.S., Britain and Spain favor immediate military action against Iraq. With most of the other allies lining up against the U.S., Bush faces both a diplomatic and public relations nightmare if he proceeds against Hussein without UN backing.

"We've always needed an exit strategy," admits one White House aide. "Circumstances have given us one. We shouldn't ignore it."

Three things about this story.

(1) Would that all of this were true. I'd be thrilled if Bush decided to take more time. As I've noted before, if you are planning a war, October is a much better time to have it than March. I'd be even happier if Bush decided to declare victory and go home, arguing that his threats of armed action have effectively boxed Saddam in for the present.

(2) Despite my hopes that he will see the error of his ways at this late date, I very much doubt that Bush will refrain from going to war, given his temperament and all the signals he's been sending over the past few months. He seems determined to do the wrong thing at the wrong time for all the wrong reasons.

(3) The reason why Bush is being put in this pickle is that his Administration has been simply terrible at diplomacy. By alienating his allies, throwing his weight around, and insisting that nothing anyone else does can sway him, Bush has effectively made it impossible to achieve what he most desires-- a strong U.N. resolution placing the support of the world community behind his goal of disarming and replacing Saddam. The Administration's problem has been that it doesn't take diplomacy seriously-- it appears to believe that tough talk and threats of force are the only way to get things done internationally. The events of the last few months have proved that this position is both naive and dangerous. If Bush has to back down at this point, he will reap what he has sown. And if he goes to war regardless, we all will reap what he has sown.

Sunday, March 02, 2003


Keeping an Eye on Patriot Act II

Nat Hentoff adds a piece on the Domestic Security Enhancement Act of 2003, popularly known as Patriot Act II. The bill, which was drafted in secret, was leaked on February 7th. You can find my assessment of the Act here and here. EPIC has a useful compendium of resources, including the ACLU's section by section analysis of the proposed act.

As TalkLeft points out, there is a real danger that this bill is going to get introduced as soon as we go to war with Iraq. It's very important that people keep the issue before the public and get Ashcroft and the Bush Adminstration to disassociate themselves from the bill's unconstitutional provisions. Up to this point, the mainstream press has been giving them too much of a free ride. It's entirely appropriate, I think to ask our leaders if they actually support stripping the citizenship of natural born citizens if they contribute money to organizations that the Attorney General deems subversive. The press should also ask Bush and Ashcroft whether they agree that state and local governments should be given free rein to spy on innocent citizens who belong to unpopular groups by preventing courts from enjoining such practices. I think that the more Americans know about what the Administration is proposing in secret, the less confidence they will have that our leaders are really keeping us safe as opposed to aggrandizing their own power.

Saturday, March 01, 2003


How to Say Anything and Get Away With It

Dwight Meredith has been running a series of valuable posts on the Bush Administration's tendency to lie, mislead, and generally to say one thing while doing another. I first noticed this tendency during the 2000 campaign. When Vice President Gore argued that Bush's proposed tax cuts would cause severe deficits and mainly benefit very rich people, Bush simply repeated over and over that these criticisms were "fuzzy math." It seems quite clear in retrospect that it is Bush who has been the master of fuzzy math. His Administration has repeatedly fudged figures, and hidden the long term costs of his tax cuts. It has announced support for a wide variety of programs and policies-- like homeland security-- and then cut back on spending for them in its budgets. It has repeatedly asserted its belief in the values of decentralization and federalism and then told the states that they will have to go it alone in funding and financing programs, with the result that state and local governments are in their worst fiscal crisis in many many years.

How does the Bush Administration get away with this? It gets away with it by stating that the President believes in X and then, some days or weeks later, failing to fund X or doing the exact opposite of X. For example, the President will say that he supports clean air and water, and a healthy environment in a public statement, and then will cut funding for EPA enforcement or weaken environmental regulations. Or he will announce that he strongly believes in Americorps but cut it out of his budget. He will announce that the government needs to make the homeland safe and denounce those who oppose him as uninterested in protecting the homeland and then fail to appropriate sufficient money for homeland security in his budget.

This strategy puts the burden on the press, and the public, to connect the earlier statement of what the Administration says it believes in and promises to do with what it actually does later on. If the press and the public do not follow up, because the news cycle has moved on, or the public's attention has been diverted to other matters, then the Administration gets away with it. It appears to be in favor of the environment while actually harming it; it seems to be in favor of helping states take on regulatory tasks while actually refusing them any help; it appears to be devoted to making America safe while actually failing to make the necessary expenditures to guarantee our safety. Because there is no follow up, and no follow through, the Administration can have it both ways. It can say whatever it thinks is popular, or compassionate, or fair, and then do things that are unpopular, heartless, and deeply unfair.

If, by some chance, an intrepid journalist or commentator asks the Administation how it can justify its policies given its stated committments, the response is simple: The journalist is wrong. The Administration remains committed to a strong environment, a healthy economy, more jobs for more Americans, fair tax breaks for everyone, a safe and secure homeland, and so on. That is to say, the Administration simply insists that it isn't doing what it is in fact doing, and then dares journalists to prove otherwise. And even if they prove otherwise, the Administration will simply deny that proof has been offered.

The Administration, in other words, has learned that in the current media world, it is enough simply to say things over and over again, and wait for the news cycle to bury any inconsistencies. It has, so far, at least, been a fairly effective strategy, for most Americans do not really know great a disconnect there is between this President's public pronouncments and his actual policies. And if the Administration has its way, they never will.


Pledging Allegiance

The Ninth Circuit Court of Appeals has issued an opinion refusing to rehear its June 2002 decision holding that the Pledge of Allegiance may not be recited in public schools if it includes the words "under God," which were added by Congressional act in 1954.

Politicians will have a field day with this one, especially as we are about to go to war.

Is the Ninth Circuit's decision correct? Well, it's not obviously incorrect, but the court could have decided the case the other way.

First, consider a much easier case. Suppose that in 1954 Congress modified the pledge to say "under Jesus Christ our Lord and Savior." There seems to be little doubt that public school teachers could not lead classes in recitation of that version of the Pledge of Allegiance at the beginning of each school day. It is too sectarian a statement. Similarly, even if the Pledge said "One Nation, with fervent belief in a God who created us all," it might seem to be too obvious an endorsement of a particular theological position. The one thing that the state may not do under the First Amendment's Establishment Clause is endorse a particular concept of religion or religious belief as the correct or official one. Nor may it create its own theological beliefs or doctrines and pronounce them as the official beliefs of the government. To do this is to violate the most central command of the Establishment Clause.

But Congress didn't do this exactly in 1954. Instead it asserted that the United States is one nation "under God." Now is this an endorsement of a religious viewpoint? Is it an assertion of a preferred or official position about a religious point of view? Well, on its face it appears to be. And given the time the amendment was made, it might well have been designed to distinguish God-fearing Americans from godless Communists in Soviet Russia.

Nevertheless, the expression "under God" might fall into a small category of situations or cases that have been called "ceremonial Deism." These are situations where people express hope or faith or trust in God through traditional and styilized invocations that have very little religious feeling to them. Ceremonial Deism is hallowed by long practice and tends to lose its religious significance over time. The idea is that it has become essentially secular and people shouldn't get too upset about it; it is just the sort of thing one is supposed to say on important occasions and we shouldn't understand it as an official religious point of view.

An example of ceremonial Deism is the use of the motto "In God We Trust" on the nation's coins. That motto is so old (and the way the sentiment is expressed is so archaic) that it seems backgrounded in social life. Nevertheless, the idea of ceremonial Deism is quite tricky, for it relies on a generalized sense of social meaning. If Congress changed the motto from the archaic "In God We Trust" to the more straightforward "We Believe in God" it might be unconstitutional, because the new motto would no longer be hallowed by long usage and it would appear to be a more direct endorsement of a religious viewpoint. What differentiates "In God We Trust" from "We Believe in God" is not that the phrases have different meanings (they actually mean pretty much the same thing) but that we would suspect that the replacement of the first with the second was motivated by a desire to impose a particular religious viewpoint. Otherwise, why change the wording?

Under this line of reasoning, Congress might well have violated the Establishment Clause in 1954 when it added the words "under God," for Americans had gotten along quite well just saying "one nation, indivisible, with liberty and justice for all" for decades. But, over time, the use of the words has become comfortable like an old shoe, and has lost its religious edge. It's purely ceremonial, and we can retain it.

Note that the doctrine of ceremonial Deism is a double edged sword. It allows state officials to acknowledge God's existence, but only by requiring them to affirm that the meaning of the acknowledgment is purely ceremonial and doesn't reflect fervent adherence to a particular religious belief. However, one suspects that many people want to invoke God's name precisely because they do have such fervent beliefs and they want other people to share in those beliefs, or, at the very least, publicly say the words that reflect such beliefs. But *that* purpose for legislation really is impermissible-- Our Constitution doesn't allow us to force our religion on other people.

If the Supreme Court takes the Ninth Circuit case, they may very well reverse the decision on the grounds I've just outlined-- that the pledge is just ceremonial Deism, and therefore doesn't mean what religious Americans want it to mean. That would be a predictable result, and an ironic one.

But the irony works in both directions. For a court to strike down the words "under God," particularly when they have been said formulaicly for decades, may have exactly the opposite social meaning-- suggesting that the court is attempting to remove God from the public square. Ceremonial Deism by its nature tries to have it both ways. It treats certain religious expressions as being both religious and not "really" religious. It justifies this on the grounds that the practice is one of long standing and its religious content has long since faded into the background. The problem, however, is then that deviating from the status quo in any direction-- making the goverment's claims more overtly religious or removing the religious language altogether-- seems to create a social meaning of non-neutrality with respect to religion. So in most cases the best thing to do with examples of ceremonial Deism is just to leave them alone.

Friday, February 28, 2003


Cloning Bans and Fair Weather Federalism

The House of Representatives voted overwhelmingly yesterday to ban all forms of human cloning. The Weldon-Stupak bill, H.R. 534, makes it a crime "for any person or entity, public or private, in or affecting interstate commerce, knowingly--

(1) to perform or attempt to perform human cloning;

(2) to participate in an attempt to perform human cloning; or

(3) to ship or receive for any purpose an embryo produced by human cloning or any product derived from such embryo.

In addition, the bill makes it a crime for "any person or entity, public or private, knowingly to import for any purpose an embryo produced by human cloning or any product derived from such embryo."

Human cloning, in turn is defined in the bill as "human asexual reproduction, accomplished by introducing nuclear material from one or more human somatic cells into a fertilized or unfertilized oocyte whose nuclear material has been removed or inactivated so as to produce a living organism (at any stage of development) that is genetically virtually identical to an existing or previously existing human organism."

The bill leaves untouched scientific "research in the use of nuclear transfer or other cloning techniques to produce molecules, DNA, cells other than human embryos, tissues, organs, plants, or animals other than humans." The idea, basically, is that forms of cloning that do not involve the creation and destruction of human embryos would not be prohibited.

However, currently, the creation of embryonic stem cells does require the creation of human embryos from which the stem cells are taken, so creation of new stem cells from newly cloned human embryos would be prohibited under this bill. Stem cells are important to medical research because they can be made into many other different types of cells. The hope is that such cells can be turned into replacement tissues for people who are suffering from spinal cord injuries or degenerative diseases, including Parkinson's and diabetes.

There are any number of important issues raised by the new bill. One of them is federalism. The bill outlaws cloning at the national level, instead of leaving the issue up to individual states. In the past conservatives have often criticized liberals for seeking national solutions to economic and social issues rather than leaving these issues up to the states, which, conservatives often claim, are closer to the people. It's important to recognize that many people would probably say the same thing about human cloning. But we have not heard much about this from conservative politicians in Congress who have been pushing for a ban on cloning. The reason is not difficult to understand: Throughout American history debates over federalism and state's rights have been a stalking horse for other, substantive issues, like tarrifs, child labor, civil rights, racial equality, and reproductive freedom. Many conservative politicians talk loud and long about federalism, but in reality they are committed to decentralization only so long as it serves the substantive agendas they like. They are fair weather federalists.

I myself have no problem with a national solution to the cloning issue. For me the issue is whether a total ban on cloning, including both therapeutic cloning and cloning employed to make babies, is good public policy.

There is a constitutional twist to this issue. The constitutional basis of the cloning ban is Congress's power to regulate interstate commerce. In the Supreme Court's 2000 decision in United States v. Morrison, the Court's five person conservative majority struck down the Violence Against Women Act on the grounds that the problem of violence against women was not related to interestate commerce; Congress should have left the issue of domestic violence to individual states. The Court, attempting to strike a blow for state's rights, argued that the federal government did not have the power to reach "non-economic" subjects which included crime and family law, even if these activities had substantial cumulative effects on interestate commerce. Violence against women, the Court argued was non economic because it involved crime and family relations, which, it claimed, were traditionally local activities. It is interesting to know what the Court would make of a nationwide ban on human cloning. After all, making babies seems to be about families and family law. There is no requirement in the bill that the cloning be done for a fee or as part of any other economic activity. Ironically, therapeutic cloning-- involving stem cell research to create replacement tissues and organs-- might be the most "economic" version of cloning, since one assumes that these services will be bought and sold like other medical services. But a more plausible argument is that the ban on human cloning is evidence that the Supreme Court's distinction between inherently "economic" and "non-economic" activities simply makes no sense, and the Surpeme Court's attempt to limit federal power in Morrison was misguided and the case should be overruled.

Tuesday, February 25, 2003


Bullying, again

The Washington Post reports that the Bush Administration is now telling other countries that it has decided to go to war no matter what and that it is up to them to preserve the United Nations as a viable organization by voting to give the U.S. authorization to invade Iraq. The issue is not whether or not there will be war, but "whether council members are willing to irrevocably destroy the world body's legitimacy by failing to follow the U.S. lead, senior U.S. and diplomatic sources said." Put another way, it will be the fault of these other countries if the U.N. is rendered irrelevant because they didn't unquestioningly obey the orders of the United States.

A senior diplomat from [a Security] council member [nation] said his government . . . . was told not to anguish over whether to vote for war. "You are not going to decide whether there is war in Iraq or not," the diplomat said U.S. officials told him. "That decision is ours, and we have already made it. It is already final. The only question now is whether the council will go along with it or not."

This approach has three basic problems. First, it tells countries that the U.N. is already irrelevant, because the United States has stated that it will do whatever it wants. The U.N.'s job is simply to rubber stamp American adventures overseas. In what sense, then, is the irrevocable damage to the U.N. the the fault of countries that fail to go along with American bullying? Why isn't the real cause of the damage the bullying itself?

Second, this strategy is likely to cause some states to dig in their heels. If the United States is going to war regardless of the evidence that Hans Blix produces, and if the U.S. doesn't really care what they think, why should they bless the U.S. attack? If the war goes badly, they can say "I told you so." If it goes well, they can free ride on the benefits. The only reason to go along is a fear that the U.S. will punish them later on for failing to toe the party line. But the U.S. can't possibly punish all the countries that fail to go along. It will need at least some of them later, and the more influential they are (e.g., China, Russia, France, Germany), the more the U.S. will need to get past the present disagreements in the long run. Thus, ironically, the current strategy of bullying may be counter-productive because it allows countries to free ride while telling their populations that they did not kowtow to the Americans.

Third, this strategy gives Saddam absolutely no incentives to disarm. Why disarm when the U.S. has publicly announced that no matter what the U.N. says or does Iraq is going to be invaded by the Americans? Again, it is the Bush Administration that has made the U.N. irrelevant by preventing the U.N. from offering Saddam the following deal: Disarm and stay alive; fail to disarm and be deposed. The U.N. cannot offer that deal if America will attack no matter what Saddam does.

The President has continued to insist officially that he has not made up his mind whether or not to go to war. It is clear that this is a lie. That fact in itself is not so troubling. Politicians lie all the time. The problem is that this is a lie that his diplomatic officials are now openly saying is a lie.

This is no way to run a railroad, much less conduct foreign policy.

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