Friday, April 04, 2003


The Use and Abuse of the Federal Material Witness Statute

The New York Times reports today that Maher Hawash, an American citizen who is a 38 year old software engineer who works for Intel Corp. and who lives in the Portland, Oregon area, has been held in prison for the past two weeks without being charged with a crime or brought before a judge. Instead, the Justice Department has chosen to detain him indefintely as a material witness. TalkLeft also has coverage here.

The federal material witness statute allows federal officials to detain people whose testimony is thought to be material to an ongoing criminal investigation for the purpose of testifying before a grand jury or in a criminal trial. The material witness statute, passed in 1984, was used rather infrequently before 9/11, mostly in drug smuggling and organized crime cases.

Following 9/11 the Justice Department has used the statute to round up an unspecified number of people and hold them indefinitely without trial. (You can find previous stories on the Justice Department's policy here, here, here, and here.) The statute is designed to ensure that people are available to testify in criminal proceedings, and states by its terms that detention is *not* permitted if the testimony can be obtained by deposition. As the statute, codified at 18 U.S.C 3144, states:

No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

Nevertheless, the Justice Department does not appear to be interested in actually having many of the detainees testify. Rather, they simply want to hold them so that they can incapacitate them or interrogate them at their convenience. This is a clear abuse of the purposes of the statute.

Does the "failure of justice" language justify indefinite detention? No, for two reasons. First, the point of this language is to permit flexibility in situations where the government would like to hold someone *temporarily* until the government can determine whether their testimony at a grand jury hearing or criminal is necessary in addition to deposition testimony. It should not apply to permit *indefinite* detention if the government isn't really serious about obtaining such testimony. Second, and perhaps more importantly, the "failure of justice" language cannot be used to permit indefinite detention of persons the government thinks might be involved in wrongdoing. That is because the government always retains the authority to charge the detainee as a criminal suspect, and hold him or her for trial. If the government doesn't even have probable cause to arrest a citizen, it is not clear why the government may subject that citizen to indefinite incarceration. This is competely backwards: if the government *did* have probable cause to arrest, then the citizen would have various procedural rights to appear before a judge to determine whether the test of probable cause was met, and the case against him or her would have to be set for prosecution and trial. Thus, if the government is permitted to use the material witness statute in the way that the Justice Department is currently using it, a citizen is *worse off* if the government lacks evidence to prosecute him or her. The statute should not be read to permit an end-run around the criminal procedure protections of the Bill of Rights.

Using the material witness statute to detain people when there is no serious interest in obtaining their testimony for a grand jury or a criminal trial is an abuse of the federal material witness statute. It is important to recognize that this statute may be constitutional on its face and yet it may be unconstitutionally applied if its undelying purposes are abused by overzealous government officials. That is what has been going on in the months following 9/11. The Justice Department needs to stop misusing the statute, and if they will not, Congress needs to amend this statute to prevent these violations of civil liberties. Unfortunately, I fear that this particular abuse of civil liberties is not very high on Congress's agenda, and that the Ashcroft led Justice Department would, if anything, like even more power to detain people indefinitely.

Friday, March 28, 2003


Protesting Government Foreign Policy During Time of War is as American as Apple Pie

As David Greenburg explains:

In American history in particular, wartime dissent has a venerable lineage. Even during that most mythic of causes, the Revolution, fully one third of Americans opposed independence, in John Adams' famous estimate, while an equal third favored it. Only in retrospect did the Revolution become an unambiguously glorious endeavor.

Dissenters spoke out against virtually every subsequent conflict. The humiliating defeats of the War of 1812 made that fight so unpopular that the states of New England considered seceding from the Union. A generation later, many Americans viewed the Mexican-American War (not unreasonably) as an act of naked U.S. aggression. In 1848, shortly after the war's conclusion, Congress censured President James Polk for "unnecessarily and unconstitutionally" commencing hostilities. Supporting the rebuke was Illinois Rep. Abraham Lincoln, who attacked Polk as "a bewildered, confounded and miserably perplexed man."

Well, we all know what a traitor Abraham Lincoln was.

Not only have anti-war movements caused the nation little direct injury; they've made positive contributions. Dissent has produced important works of American political and social thought. Henry David Thoreau wrote his classic Civil Disobedience as a cri de coeur against the Mexican-American War ("the work of comparatively a few individuals using the standing government as their tool"). Randolph Bourne wrote his greatest essays protesting World War I.

Anti-war efforts have given rise, too, to valuable institutions and movements. From the War of 1812 emerged the first full-fledged peace organizations, a key part of the ensuing reform wave that brought penal reform, new opportunities for women, public education, and, in some states, the abolition of slavery. The aftermath of World War I saw the formation of the American Civil Liberties Union (headed by Roger Baldwin, who had been jailed for his dissent) and increasing protections for free speech.
. . . . .

If the doves were [to] give in to their critics and shut up, then we would all have to trust the Bush administration completely to decide whether to continue, escalate, or end the war. The government would have a free hand to do as it likes. Far from showing their patriotism, critics who muzzle themselves in wartime are abdicating a democratic responsibility.

Greenberg is correct to suggest that something good might well come out of the present anti-war movements. A key question for our country is whether the Perle/Wolfowitz strategy of dominating and overthrowing countries like Iraq, and possibly Iran and North Korea makes sense, or whether this course is an arrogant overreaching that will destroy our security abroad and corrupt our democracy at home. The larger strategic interests of the United States, and the path that the country will follow in the decades to come, are very much at stake in what we do now. This is the worst possible time to shut off discussion.

Wednesday, March 26, 2003


Sucking the Air Out of Democracy

The coverage of the Iraqi war has all but swallowed up every other subject in the mass media, particularly on cable networks like CNN and Fox News. The tendencies that were so pronounced in the first Gulf War have now become dominant in the coverage of this conflict. The major networks and cable outlets have seized upon the war as a "big story" and pursued it relentlessly to the discussion of virtually everything else. There is no doubt that this is the most important story right now, and deserves the most coverage. My criticism is that it has become the only story. That is not good for democratic self-governance.

The form of media coverage I am criticizing is not new. It evolved over many years, but it was perfected in response to scandals like the O.J. Simpson Trial and public events like the death of Princess Diana. It is part of a more general cultural phenomenon, in which the news media rush from ‘big story’ to ‘big story.’ rather than offering a wider array of issues as part of the relevant public agenda. Because the media expect that their viewers want round the clock coverage, they give them round the clock coverage, and they find every new ways to fill the time to prevent boredom and loss of audience.

This is not simply the familiar criticism that coverage of news-- and in this case of war-- has become a species of entertainment. That is a worrisome aspect of current war coverage. Rather, my point is that media coverage of the "big story" proliferates discussion about itself and pushes aside most other public discourse and most other items that might be on the public agenda of attention.

During coverage of such a "big story," the mass media does not simply repeat the same stories over and over again. Rather, to avoid boredom, the media find ever new angles to discuss. They chew over the events repeatedly, generating new lines of inquiry and new ways to cover the events. Experts are called in; maps are displayed, argument and counterargument are arranged, quarrels are produced, subsidiary controversies are stoked and relished. In this way the media coverage produces every new aspects to discuss. The culture of the big story, in short, proliferates discourse about itself.

Proliferating discussion in this way does not increasingly get to the truth – rather it approaches the question of what is true from increasingly diverse angles of inquiry. A big story's natural trajectory is not towards depth but rather breadth of coverage – it ceaselessly expands its agenda for discussion outward, capturing more and more subjects, experts, political players and other individuals as possible topics of discourse.

The problem for democracy arises because a Darwinian logic is at work. Audience attention is a scare commodity. More time spent on covering the big story and its mushrooming concerns means less time for coverage of other events. What starts as a demand for transparency – for more information and for more accountability – ends up as a form of diversion that crowds out other information and other public concerns.

While all attention is focused on the big story, government is still operating and government officials are still laying plans and hatching schemes. But nobody is watching them or paying attention to what they are doing. Public choice theory teaches us that interest groups are best able to dominate government policy making when they have concentrated interests and when the political system offers them "slack"-- that is, when public attention and the public agenda is diverted elsewhere. Similarly, government oficials are most likely to engage in self-dealing or enact unwise policies when no one is paying attention. That is precisely why the culture of the big story is so dangerous. By diverting public attention to a single story, endlessly reported and discussed, the mass media effectively increase the amount of slack available in the political system. This allows politically powerful interest groups to push their favored agendas and politicians to make unwise decisions and promulgate unwise laws without democratic oversight.

Slack has always existed in democratic political systems, but the media has played an important role in combatting this slack. But the way that media coverage has evolved has produced precisely the opposite effect-- instead of the mass media shining more light on government abuses of power; it how helps to conceal them through its obsessive focus on a single "big story." As a result, we are now going through a particularly dangerous time for American democracy. A great deal of undesireable legislation and executive decisionmaking is going to happen during this period, hiding in plain sight. It is incumbent on the media to tear themselves away from their obsessive compulsion to cover it. Increasingly, I fear that they will not.


Originalism and Consistency

David Wagner, who runs Ninomania, has pointed out that there is evidence that the First Congress that drafted the Establishment Clause and the Congress that framed the Fourteenth Amendment engaged in support of religion in ways that many scholars today think would violate the Establishment Clause:

But then surely Prof. Balkin can see (perhaps he has never denied it -- I don't know) that the accommodations of public religiosity undertaken by the federal government in the 18th and 19th centuries, as detailed by Justice Rehnquist in his Jaffree dissent, must have been perfectly in keeping with the Establishment Clause.

Some of Rehnquist's exhibits, it must be noted, antedate the ratification, though not the enactment by Congress, of the 1st Amendment. Does that mean Congress was hastening to enact financial and symbolic support for religion (e.g. reenactment of the Northwest Ordinance; resolution requesting a Thanksgiving Day proclamation) that it knew perfectly well was about to become unconstitutional? Does it not seem (quoting Rehnquist) "highly unlikely that the House of Representatives would simultaneously consider proposed amendments to the Constitution and enact an important piece of territorial legislation which conflicted with the intent of those proposals"?

David points out that I have criticized Justice Antonin Scalia on the grounds that affirmative action is consistent with the original understanding of the Fourteenth Amendment. If so, David argues, am I not committed to the view that nonpreferential aid to religion is permissible under the Establishment Clause?

David's argument rests on a confusion about my views and about the nature of the criticism I was making against Justice Scalia. I myself am not an originalist, nor do I regard original intention or original understanding as the touchstone to all legitimate constitutional interpretation. I think that there are many modalities of constitutional interpretation, of equal validity, including text, history, original understandings, original intentions, consequences, structure, and narrative ethos. Moreover, I am a constitutional historicist. My view is that what the Constitution means changes over time, in response to constitutional politics and social movement contestation. Thus, you can see my views are quite different from Justice Scalia's.

My criticism of Scalia is that he states that original understanding is the touchstone of all legitimate constitutional interpretation (a view I do not hold) but he nevertheless picks and chooses the occaisions under which he will invoke original understandings, based on his substantive views about the Constitution. Pointing this fact out does not commit me to acceptance of the philosophy of original understanding as the touchstone of all legitimate constitutional interpretation. Rather, it suggests that Scalia isn't being entirely honest about what his views on constitutional interpretation are.

Indeed, my view is that people who think that original understanding is the touchstone of all legitimate constitutional interpretation often (1) don't know enough of the relevant history; (2) conveniently fail to invoke originalist arguments when they collide with their substantive views about the Constitution; or (3) fall back on various forms of prudential argument-- like reliance on previous decisions and stare decisis, to avoid unpalatable results. However, the argument for reliance on stare decisis is itself applied inconsistently, since originalists do not think that all previous decisions are immune to originalist attack, just the ones that they think aren't too bad or that they actively support. As a result, originalists generally produce constitutional interpretations that are largely (if imperfectly) consonant with their substantive views about the Constitution. This fact completely undermines the justification given for originalist interpretation-- that it restrains judges from imposing their own substantive political and policy views into constitutional law. In theory originalism does so, but in practice the interpretations of originalist judges are often tethered to their preexisting political views, and this is as true of originalists on the left like Justice Hugo Black as it is with originalists on the right, like Antonin Scalia. Both Black and Scalia have many fine qualities, but neither is (or was, in the case of Black) a particularly good historian and neither is or was really consistent about their originalism.

Now, back to David's point about the Establishment Clause. My understanding of the original understanding of the Establishment Clause was that it was a rule of federalism, allowing the states to have their own established churches, but denying an established church to the federal government. Nevertheless the antebellum Congress did a lot of things that we today would think violated separation of church and state; they supported Protestant Christianity nonpreferentially. It is mistake to think that they supported all religions equally, or even all Christian denominations equally. Rather, they tried as best they could to be neutral as between Protestant sects, much to the chagrin of Catholic immigrants who began entering the country in large numbers in the 1830's. Nobody thought there was any obligation to be even handed with respect to Judaism or Islam. So the practices of the antebellum Congress are hardly an appropriate model for constitutional conduct today. (Again, this is part of the problem of invoking original understanding as a justification without knowing how deeply embarassing the actual history often is).

After the Civil War, the Establishment Clause could not coherently be understood as a federalism principle, precisely because if one believed that it was incorporated into the Fourteenth Amendment, it would apply to the states as well. And for many years after the Civil War, the states, I might point out, were perfectly happy to impose Protestantism on their citizens, again, to the chagrin of Catholic immigrants.

The contemporary notion of nonpreferentialism as between all religions is a product of the twentieth century, and the notion that atheists and agnostics are also protected by the Establishment Clause is a product of the second part of the twentieth century. Today many religious conservatives argue that government should be permitted to promote religion (as opposed to atheism and agnosticism), as long as the govenrment promotes all religions equally. But it is a fantasy to think that this position is the same as that of the original understanding. Every originalist today who argues for nonpreferentialism between different religions is actually arguing for a position that developed at least a century after the Establishment Clause was framed. Once again this is bad history in the service of a particular substantive agenda, not devotion to the Framers' original understandings.

Monday, March 24, 2003


The Role of the Press in the Debate Over War

An article in today's New York Times discusses the reasons why the press did not push the Bush Administration harder to justify its plans for war against Iraq. One important reason is Congress's abdication of opposition last fall:

Experts say the news media's role was particularly
important this time because Congress offered such a muted
challenge until the final weeks of the buildup to war. With
leading Democrats signing off on the use of military force
last fall, these experts say, the burden fell more heavily
on the news media to examine and analyze the
administration's rationale for war.

"Washington bureaus couldn't see the argument about the war
as the political conflict they're always looking for," said
Todd Gitlin, a professor of journalism and sociology at
Columbia University. "It would have had to be put on the
agenda by themselves - as something they cared about -
which is something they are loathe to do."

We can see this problem in constitutional terms. A free press is generally regarded as an essential feature of democratic politics. But the press often needs political conflict to play off of, and that conflict usually has to come from the political ambition of some checking the political ambitions of others. The example of Woodward and Bernstein doggedly pursuing the Watergate story when no one else would is the exception rather than the rule. If politicians aren't willing to debate issues fully and fairly, the press will feel less comfortable in going against what appears to be the received wisdom and common consensus.

The natural source of partisan opposition to the war would have been the Democratic Party in Congress. But the Democrats were largely feckless during the period leading up to the war, afraid of being cast as soft on security and defense. Moreover, the Democratic leadership and a large number of Democrats joined Republicans in giving the President essentially unchecked authority to attack Iraq whenever he wanted. This mean that Congress had abidicated its fundamental role as a check on Executive adventures. Without the separation of powers to spur serious political debate, the quality of public debate suffered accordingly.

The supine nature of Congress, however, is only part of the story. Another element is the way in which press coverage has suffered from cutbacks in news organizations due to increasing media concentration and the increasing tendency of reporters to wait to be fed information from official briefings rather than going out to get it themselves.

A third element was the press's inability to rebut misleading statements by Administration officials:

The Bush administration's assertion of a connection between
Iraq and Al Qaeda was an important part of its case for
military action against Saddam Hussein, but that link was a
matter of some dispute.

Still, a recent New York Times/CBS News Poll showed that
nearly half of Americans said they believed that Saddam
Hussein was personally involved in the Sept. 11 attacks. A
Knight Ridder poll taken in early January showed that half
said they believed at least some of the 19 hijackers on
Sept. 11 were Iraqis. None were.

The Administration's policy, as I have noted in a previous post, is to say things that are simply not true or are highly misleading and dare the press to rebut them or prove them wrong, and when rebuttal is offered, to deny the charge and repeat the same misleading information again.
Some reporters based in the White House say it is hard to
compete against an administration that sticks to its
message and make its arguments at daily news briefings that
are carried live on the major cable networks, often in
their entirety. The most penetrating questions, they said,
are met only with the answers the White House wants viewers
to hear, a point of pride among administration officials.

"The questions do get asked, but they don't get answered
and that's what drives people nuts," said Bill Plante, a
CBS News White House correspondent. "The president uses his
public appearances very artfully to advance his message; he
says the same thing over and over. What I'm not convinced
of is whether that should change how we work."

White House reporters also said they were left with the
administration's assertions until investigative reporters
could check them out, which takes time.

This Administration is handling the press quite well for its own short term political purposes, but the techniques of diversion and disinformation it has perfected are not good for the long term health of a free press in this country. The blogosphere, of course, has been full of hard hitting discussion and debate about the Administration's policies, but the institutional press has fallen short. This is a very worrisome development, and I fear things are going to get much worse before they start to get better.

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.

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