Saturday, May 10, 2003


Throwing in the Towel on Weapons of Mass Destruction

The Washington Post reports that Task Force 75, "the principal arm of the U.S. plan to discover and display forbidden Iraqi weapons," is winding down operations and preparing to leave Iraq next month, unable to find any weapons of mass destruction.

Leaders of Task Force 75's diverse staff -- biologists, chemists, arms treaty enforcers, nuclear operators, computer and document experts, and special forces troops -- arrived with high hopes of early success. They said they expected to find what Secretary of State Colin L. Powell described at the U.N. Security Council on Feb. 5 -- hundreds of tons of biological and chemical agents, missiles and rockets to deliver the agents, and evidence of an ongoing program to build a nuclear bomb.

Scores of fruitless missions broke that confidence, many task force members said in interviews.

Army Col. Richard McPhee, who will close down the task force next month, said he took seriously U.S. intelligence warnings on the eve of war that Hussein had given "release authority" to subordinates in command of chemical weapons. "We didn't have all these people in [protective] suits" for nothing, he said. But if Iraq thought of using such weapons, "there had to have been something to use. And we haven't found it. . . . Books will be written on that in the intelligence community for a long time."

Motivated and accomplished in their fields, task force members found themselves missing vital tools. They consistently found targets identified in Washington to be inaccurate, looted and burned, or both.

Even as Task Force 75 is winding down operations with little hope of finding weapons of mass destruction, the Administration is insisting that the search has just begun. In his statement of victory aboard the U.S.S. Abraham Lincoln, President Bush asserted that the search was only in its initial stages, with hundreds of sites to be investigated.

I well understand the need of the Administration to save face about coming up short in its major justification for sending American troops into combat. But at some point the Administration should feel some compunction to be more honest with the American public about what it is doing. It seems increasingly clear that the war in Iraq will have to be justified in hindsight for reasons other than the Administration said it would be fought. The justification will be the creation of a democratic republic in Iraq rather than stopping the threat posed by Saddam Hussein's weapons of mass destruction. It is unlikely that the public would have supported the war without the Administration's confident assurances that Hussein possessed weapons of mass destruction that someday would pose a threat to the United States. Those confident assurances appear to have been overconfident. As a result, the Administration is hoping that the fact of a decisive victory will paper over serious concerns about the honesty of its representations to the American people and the reliability of its weapons intelligence.

Wednesday, May 07, 2003


Oh How I Love Them Frenchy Jokes!

Here's a great joke that's been making the rounds, and has been attributed to Tom Delay. I'm quoting a version courtesy of Eugene Volokh:

American to Frenchman: "Do you speak German?"

Frenchman: "No."

American: "You're welcome."

Come on, that's funny, guys.

And here's another one I'm sure you'll enjoy equally well:

Frenchman to American: "Are you a subject of Her Majesty the Queen of England?

American: "No."

Frenchman: "You're welcome."

Yes, I'm afraid its true. The Frenchies pulled our proverbial chestnuts out of the fire in 1778 when the Marquis de Lafayette arrived to whip our troops into shape, and France recognized our government and signed the the Treaty of Alliance and the Treaty of Amity and Commerce. Once France entered the war on the side of the Americans,
Great Britain was forced to defend the rest of its empire, fearing attacks in, among other places, the West Indies. They scattered their troops and resources, making them too weak to battle the Americans effectively in the colonies.

The French played a crucial role in the endgame too. By August 1781, Washington and Rochambeau (yes, a frog, if you are wondering) learned that a large French fleet under Admiral Francois de Grasse (zut alors, un autre frog!) was headed toward Virginia to prevent General Cornwallis from escaping by sea. That led Washington and Rochambeau to rush their forces southward to Virginia to trap Cornwallis on land. (In fact, although Washington had wanted to stay up north and attack New York, it was Rochambeau who convinced him that the best strategy was to turn south. Very devious, those frenchies!) By September 1781, Cornwallis knew his goose was cooked, as a combined French and American force of about 18,000 soldiers and sailors surrounded him at Yorktown. (Mon Dieu!) He surrendered on October 19, 1781. The treaty recognizing independence was not signed until 1783, appropriately enough, at Paris. However, during this period, the interests of the French and Americans began to diverge, (as they would so many times in the future) and the Americans negotiated a separate peace.

In any case, mes amis français, merci beaucoup! Je penserai à vous sur le 4ème juillet!

UPDATE: By the way, who exactly is this Tom De Lay guy, anyway? Is that a *French* name?

Better keep an eye on him.

Monday, May 05, 2003


Were We Lied To?

Neil MacKay of the Sunday Herald reports:

The Bush administration has admitted that Saddam Hussein probably had no weapons of mass destruction.
Senior officials in the Bush administration have admitted that they would be 'amazed' if weapons of mass destruction (WMD) were found in Iraq.

According to administration sources, Saddam shut down and destroyed large parts of his WMD programmes before the invasion of Iraq.

Ironically, the claims came as US President George Bush yesterday repeatedly justified the war as necessary to remove Iraq's chemical and biological arms which posed a direct threat to America.

Bush claimed: 'Saddam Hussein had weapons of mass destruction. We will find them.'

The comments from within the administration will add further weight to attacks on the Blair government by Labour backbenchers that there is no 'smoking gun' and that the war against Iraq -- which centred on claims that Saddam was a risk to Britain, America and the Middle East because of unconventional weapons -- was unjustified.

Pauline Jelinek of the Associated Press tells the story a little differently:

In the American hunt for Iraq's banned weapons, drums of suspicious chemicals turn out to be crop pesticide; a cache of white powder is found to be explosives.

More than six weeks into the Iraq campaign, there has been a string of false alarms but no discovery of what the Bush administration said was its main justification for going to war chemical, biological and nuclear weapons programs.

"I'm absolutely sure that there are weapons of mass destruction there, and the evidence will be forthcoming,' Secretary of State Colin Powell said Sunday.

But after scores of fruitless searches, other administration officials privately have stopped promising that. Some now say that instead of finding weapons stockpiles, they might find nothing more than documents and other evidence that the program once existed and was either destroyed or abandoned.

"Politically, this could be a big problem,' said Paul Keer of the Arms Control Association, a Washington disarmament group. "If it turns out they ... exaggerated, people will say we attacked without justification some are starting to say that now.'

Before the war, administration officials did not just say Iraq had weapons of mass destruction, they also said they knew where some of them were.

In an unsuccessful bid for U.N. approval for the war, Powell showed the Security Council satellite photos and intelligence he said indicated weapons were being moved, and he named sites where he said chemical weapons were held.

"The intelligence community still stands behind that information. I do,' he said Sunday.

U.S.-led teams of military and civilian experts have reported finding nothing conclusive, however, after visiting most of some 100 sites that prewar American intelligence agencies said were the most probable hiding places. Hundreds more sites remain.

Expected intelligence from senior captured Iraqis who might have been most knowledgeable about the government's secrets is not materializing. One by one, they are insisting under interrogation that the government had no chemical, biological or nuclear weapons programs in recent years, U.S. officials say.

Pentagon officials said just days before the war that they had intelligence that chemical weapons had been distributed to some Iraqi military units. None has been found.

Arguing for patience, Loren Thompson of the Washington- based Lexington Institute noted that U.N. inspections struggled with Iraq for a dozen years and could not find all they were looking for.

"I don't think the expectation was that this stuff would be sticking out like a sore thumb,' he said. "I think eventually they'll find the weapons, but the important point is that the government that would have thought to use them against us is gone.'

Some critics maintain that is not the point at all. They say the question always has been not whether Saddam had weapons, but whether those weapons were a big enough threat to the United States to justify war.

"If the Iraqis did not use them ... to defend an invasion of their own country, when were they ever going to use them, and how were they a threat to the United States?' asked Cato Institute's Pena. "That's the question that has to be asked and is being glossed over.'

I must confess I did not much trust the Bush Administration's stated reasons for going to war, which were ever changing. Many Americans will simply take comfort in knowing that we won a swift military victory and elminated a despicable tyrant. Nevertheless, I can't help but think that if the Administration is proved wrong about its central justification for going to war, that does not inspire much confidence in their foreign policy. Either they lied to us, or their intelligence isn't very good. Neither alternative is acceptable. I for one don't particularly like being lied to about why my government is using deadly force. And I don't like my government going off to war if its intelligence is as incompetent as it would have to have been to avoid the conclusion that we were being lied to. At some point, I fear, either the Administration's dishonesty or its intelligence failures will catch up with it. That can't be a good thing.

UPDATE: Ken Fireman reminds us about the President's stated justifications for war:

On March 17, with war in Iraq just 48 hours away, President George W. Bush laid out in clear and succinct terms the rationale for the military action he was about to unleash.

"Intelligence gathered by this and other governments leaves no doubt that the Iraqi regime continues to possess and conceal some of the most lethal weapons ever devised," the president said in a televised address to the nation from the White House.

"This regime has already used weapons of mass destruction against Iraq's neighbors and against Iraq's people. The regime has a history of reckless aggression in the Middle East. It has a deep hatred of America and our friends. And it has aided, trained and harbored terrorists, including operatives of al-Qaida.

"The danger is clear. Using chemical, biological or - one day - nuclear weapons obtained with the help of Iraq, the terrorists could fulfill their stated ambitions and kill thousands or hundreds of thousands of innocent people, in our country or any other."

Fireman continues:

U.S. officials now acknowledge that Hussein may have destroyed or transferred at least part of his alleged arsenal before the war began. No new evidence has been uncovered on Hussein-al-Qaida links to buttress an administration case that many analysts have long regarded as tenuous. And an Iraqi army that Washington repeatedly portrayed as a major security threat to the region proved to be incapable of defending its own territory, let alone waging offensive operations against a neighbor.

This state of affairs has led some foreign affairs analysts to conclude that the Bush administration had something else in mind when it planned, organized and launched the war: a high-profile demonstration of American military might and the political resolve to use it that would reverberate through the Middle East and beyond, causing governments as near as Syria and Iran and as far away as North Korea to recalibrate their actions.

"I think the president and other senior officials were captivated by the neoconservative vision of a world transformed by American military power," says Joseph Cirincione, an arms control expert at the Carnegie Endowment for International Peace. "It promised a quick, dramatic improvement in U.S. national security, and control of a critical global resource, that the United States could do completely on its own without bothersome multilateral bodies."

The question, in the minds of Cirincione and other like-minded experts, is whether an administration determined to remove Hussein from power grossly inflated his military capabilities in order to sell its policy to the public.

"It was the only way to get the American people to go to war against Iraq," Cirincione said. "You couldn't get the American people to go to war to free the Iraqi people and overthrow an evil regime, because there are lots of evil regimes in the world. So they cited two reasons: that Hussein possessed weapons of mass destruction and Hussein had operational ties to al-Qaida.

"Neither appears to be true. I think this story is still developing. I think we're on the edge of realizing that this was either a massive intelligence failure - or a deliberate campaign to mislead the American people."

Say it isn't so, George, say it isn't so.

Sunday, May 04, 2003


”High” Politics and Judicial Decisionmaking

Larry Solum rejects my distinction between high and low politics:

[T]he distinction between high politics and low politics .... [is a] conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics.

I think Larry has misunderstood the distinction I am making, which arises out of a larger theory of constitutional change that is intended as an alternative to my colleague Bruce Ackerman's. I am certainly not claiming that there is only politics in legal decisionmaking. Plenty of legal decisiomaking could not be so understood. Rather, I am trying to give an account of how opposed political visions legitimately operate in the context of *legal* decisionmaking, and what sort of political motivations should be viewed as inappropriate. The notion of “high politics” helps us understand how constitutional doctrine changes over time in relatively predictable ways given the appointments process and the changing personnel of the courts.

It’s very hard for me to separate *in practice* lots of Supreme Court decisions that are “based on the law” from those that are “based on high politics,” where by “high politics” I mean the invocation of larger visions about the key values that should underlie our understanding of the Constitution. This is not a claim that there is no difference between law and politics. That is certainly not my view. Rather it is a claim about how we characterize legal decisionmaking in the sorts of complicated and controversial cases that appear before the courts, and particularly the Supreme Court of the United States.

Decisions come before the Supreme Court because, for the most part, the Court is being asked to decide difficult legal questions for which there are a number of plausible legal solutions that make use of the familiar modalities of text, history, structure, doctrine, non-judicial precedents, consequences, and appeals to the ethos of the nation. Not every solution is equally plausible, but in most cases that come before the Supreme Court there is usually more than one way to decide the case consistent with the existing norms of legal argument. You and I might think that one solution is clearly better than all of the others, but very often (especially if you have views about the Constitution like mine) that solution is not the one chosen by the Court, and the solution the Court does choose becomes law nevertheless, and you have to deal with it in succeeding cases.

Now which solution seems to you or me to be most persuasive as a *legal* matter may have something to do with our constitutional politics– our views about the political principles and values that we think the Constitution read in its best light espouses– and our views about how those principles and values should be applied to the facts of the case as we understand those facts. As Justice Frankfurter once put it, a lot depends on the pictures of the world inside a judge’s head when a judge makes a decision. We can call those pictures ideology, or political or moral beliefs, or whatever you like. But the point is that people have them, and they influence how they see the world, and what is good and bad in it, and what could be improved in it, and also the best way to read and interpret the basic law of our nation, our Constitution.

When these pictures inside our heads, our ideology, our constitutional vision, frame what we think is the best understanding of our Constitution, which they inevitably do, should we regard this decisionmaking as not really “based on law” but instead secretly “based on politics?” It is very hard for me to accept that duality. Rather, I think that if you put someone on the bench, and ask them to take an oath to uphold the Constitution of the United States, and find the best *legal* solutions to questions of law, using the traditional modalities of text, history, structure, etc., you will simply get different answers to lots of important constitutional questions (but hardly all or hardly even the majority of such potential questions) depending on what Frankfurter called the pictures inside their heads. I don’t think this is a radical view about the relationship between politics and law. Indeed, I think it is just common sense.

Now the point of the distinction between high and low politics is that we *expect* that judges will promote their visions of what the Constitution means and should mean as they wrestle with the legal issues before them, and that it is not surprising that if you appoint nine conservative jurists to the Supreme Court of the United States that the constitutional law they produce will, in time, look significantly different than the constitutional law that would be produced by a Court staffed with nine liberals. But this does not mean that either of these hypothetical benches is necessarily deciding according to politics but not according to law. It just means that people disagree about what the best meaning of the Constitution is, and they tend to promote their favored view in *legal* argument, and, if they are Justices, write those views into law, where they become the doctrinal substrate for future decisions.

It is important to recognize that this is not a claim that the law is radically indeterminate. Quite the contrary: It assumes that the law (even Constitutional law) has pervasive elements of relative determinacy to it. Why is that? Because if the law were so indeterminate, there would be no point in fighting to put liberals or conservatives on the bench in order to move the law in a particular direction that would bind future jurists. The reason why it matters who sits on the bench, paradoxically, is that the law is only partially, or modestly underdetermined from the standpoint of existing legal norms of practice. The content of a case like Roe or Miranda, or Croson, or Alden v. Maine actually matters. It matters a lot.

Furthermore, it is important to recognize that a lot of what judges do is not simply following the rules laid down, in Mark Tushnet’s phrase, but rather involves doctrinal innovation. Courts make up new distinctions and doctrines to solve problems. These distinctions and doctrines are genuinely new in the sense that you couldn’t have easily derived them from previous doctrinal structures, much less from history, structure, text, and original understandings. Examples are the direct/indirect distinction in early 20th century commerce clause cases, the rejection of this distinction and the creation of the substantial effects test and the cumulative effects test in Darby and Wickard, the “congruence and propotionality” test in Boerne, the actual malice rule in New York Times v. Sullivan, the “public figure” doctrine as developed in later cases, the public forum doctrine, and so on. Indeed most of constitutional law is made up in this way at one point in time or another. It does not come from the text, history, and structure, but is creatively produced and inserted into doctrine in order to articulate and realize deeper constitutional values. These innovations are crucial in shaping the later development of constitutional law. And it is simply the case that people with different pictures in their heads, different ideologies, different visions of constitutional politics, will innovate in different ways. Justice Sutherland, for example, would not have come up with the “substantial effects” test; Justice Scalia, one suspects, would not have come up with the “endorsement” test in Establishment Clause cases, much less the three pronged test of Lemon v. Kurtzman.

To make a distinction between high and low politics, then, is to make a distinction about the relationship of ideology to the work of legal decisiomaking. It is ok for a judge to say, “I decided this case this way because I believe in decentralization as a principle that underlies our Constitution,” or “I am deeply suspicious of the ability of schoolboards to keep religious practice out of the public schools if they are given this degree of discretion,” or even “I think that gay people have a right to form intimate relations with those they love just like everybody else.” If one reads the conference notes of members of the Surpreme Court in decisions, this is precisely how they talk amongst themselves in explaining how they decide cases. It is ok for judges and Justices to have constitutional politics, to have larger visions of what the Constitution means or should mean and what rights Americans have or should have. That is what I mean by “high politics,” and there’s nothing wrong with judges having such views.

If what I have said is correct, then it is very difficult for Larry to insist, as he appears to do that Court’s shouldn’t be making decisions based on high politics, but just ones “based in law.” I don’t know how to parse that distinction. And anybody who pays careful attention to how Constitutional law actually changes over history, in countless doctrinal areas, can’t make sense of it either. Constitutional law changes over time because of the influence of high politics, which is worked out through legal argument, not outside of it. And we should just get used to that fact. Like the old joke about baptism, I not only believe in it, I’ve seen it done.

The description of Bush v. Gore as “low politics” is a claim that the decision cannot be understood as the fulfilment or promotion of a larger constitutional vision, but rather is a fairly transparent attempt (in the stay and remedy portions of the two Bush v. Gore opinions) to manipulate doctrine in order to place George W. Bush in office. I will repeat what I said before: By now most people understand that judges pursue “high politics” through their legal arguments. What they are not supposed to do is pursue is “low politics” in the sense of manipulating doctrine to secure advantages for their favorite political party. That is not simply because “low politics” is bad politics. It is because it is also bad legal decisionmaking. It is inappropriate to the judicial role in the way that the pursuit of “high politics” is not.

Larry seems to think that my use of the “high politics/low politics” distinction means that there is only politics and no law. I take issue with that characterization. I think that the distinction captures what we mean by decisions according to law where people disagree about constitutional values and doctrine is moderately underdetermined. High politics is the great engine of constitutional change. It is inextricable from the life of our Constitution. It is the explanation of the great doctrinal transformations that we see in history of constitutional doctrine, and, I would submit, the explanation of the conservative constitutional revolution we are living through now. I disagree with that constitutional vision. I think that the doctrinal innovations of the conservative five are ill-considered and false to the best interpretations of our Constitution. But I don’t think that judges should refrain from pursuing deeply held constitutional visions in the development of constitutional doctrine through legal arguments. Quite the contrary: that is their job.

Saturday, May 03, 2003


Is Bush v. Gore Sauce for the Goose?

At the end of his discussion of the appointments process, Juan Non-Volokh adds this interesting point, which I cannot resist commenting on:

[M]any of those on the right (myself included) see Bush v. Gore as the Warren/Brennan legacy coming home to roost. For decades, liberals generally supported an activist court that discovered constitutionally protected rights and discarded traditional restraints on an activist judiciary (e.g. much of the political question doctrine, as in Baker v. Carr). In the view of many on the right, the Constitution was "taken over by ideological extremists" during this period. (Nonetheless, the response was not to shut down President Carter's nominees, but to wait until more conservative judges could be nominated by a sympathetic president.) Therefore, when we hear Balkin or anyone else inveigh against Bush v. Gore, our gut reaction is to say "Well now you know how we felt about [insert Roe, Baker, Miranda, or some other outrageous case here]." So while I agree with Balkin that those on the right should try and appreciate the outrage of left over the election, I would also suggest that those on the left should try and appreciate that the right feels the left is simply reaping what it sowed.

I've heard this argument many times since Bush v. Gore was decided. I take the point, but I also think that the it's also a bit misleading in two ways.

First, there is an important distinction between Bush v. Gore and liberal decisions like Roe, Miranda, and Baker v. Carr. It is the difference between "high" politics and "low" politics. Here I will simply quote from my Yale Law Journal article:

Bush v. Gore was troubling because it suggested that the Court was motivated by a particular kind of partisanship, one much more narrow than the promotion of broad political principles through the development of constitutional doctrine. The distinction is between the "high" politics of political principle and the "low" politics of partisan advantage. The same five conservative Justices who formed the majority in Bush v. Gore had been engaged, for over a decade, in a veritable revolution in constitutional doctrines concerning civil rights and federalism. In those decisions, the five conservatives had been promoting a relatively consistent set of ideological positions like colorblindness, respect for state autonomy from federal interference, and protection of state governmental processes from federal supervision. But the decision in Bush v. Gore did not seem to further those values, at least not directly. Rather, the five conservatives seemed to adopt whatever legal arguments would further the election of the Republican candidate, George W. Bush. This is the "low" politics of partisan political advantage. Although few legal academics these days are shocked to learn that Justices' decisions are "political" in the sense that they promote "high politics"-larger political principles and ideological goals-they were quite disturbed by the possibility that Justices would use the power of judicial review in so prominent a case to promote the interests of a particular political party and install its candidates in power.

When we look at the decisions of the Warren Court and early Burger Court, most of them do not seem to be examples of Justices engaged in "low" politics-- making decisions that will help Democrats win future elections. Rather, most of them are examples of "high" politics-- promoting a liberal ideology. Indeed, many of the most famous liberal decisions of this era, including Miranda, Roe, and the busing case, Swann, actually harmed the Democratic party's electoral chances, because they made the Supreme Court a convenient target to run against. Both George Wallace and Richard Nixon used the Warren Court as a convenient foil in their campaigns, and so would many other conservatives in the years following. So Bush v. Gore seems to me to pose a quite different problem of judicial misbehavior than Miranda or Roe. It's not just a case of Justices "making stuff up" in order to promote a conservative ideology through the development of judicial doctrine. It's Justices "making stuff up" in order to put Republican candidates in office. In fact, the majority opinion in Bush v. Gore doesn't really promote any important values normally associated with conservative causes, and the most badly reasoned parts of the decision, the initial stay and the remedy-- stopping the counts instead of remanding for further proceedings consistent with the Equal Protection Clause-- don't have any particular ideological spin at all. They are simply unsupportable exercises of judicial discretion. This is not what liberal decisions of the 1960's sowed, for the liberal decisions in the 1960's could not plausibly be understood as attempts to boostap Democrats into office; indeed, they were done precisely with the expectation that many of them (like Miranda) would not be popular and would precipitate a backlash. Certainly Baker v. Carr did not immediately help Democrats, for it actually undercut the power arrangements that had propped up in the largely Democratic one party South. And anyone who thinks that Roe and the busing cases were thinly veiled attempts to get more Democrats elected to office has been smoking something very strong indeed.

Thus, conservatives might well object to the revolutionary work of the Warren Court, but that objection is somewhat different than the objection that liberals might have to Bush v. Gore. Here let me quote a passage from a Virginia Law Review article that I wrote with Sanford Levinson:

The distinction between high and low politics is important because it suggests two different sorts of criticisms that one might make about the Court’s behavior during a period of constitutional revolution. As we shall argue in more detail later on, constitutional revolutions always concern “high politics”—the promotion of larger political principles and ideological goals. This was true during the New Deal and it is true today. Thus, one might criticize [the Court's recent federalism decisions] because one disagrees with the political principles of the five conservatives, which, one believes, are false to the best understandings of the Constitution.

But the objection to Bush v. Gore is quite different. The result in Bush v. Gore is not easily explained as the promotion of principles of “high politics.” The five conservatives were the least likely, one would think, to extend the Warren Court’s equal protection doctrines in the area of voting rights. Indeed, one member of the majority, Justice Scalia, is on record as opposing novel interpretations of the Equal Protection Clause that undermine traditional state practices. It is hard to imagine that if the parties had been reversed—and Vice-President Gore had been ahead by 537 votes—the five conservatives would have been so eager to review the decisions of a Republican Florida Supreme Court that was trying to ensure that every vote had been counted. The unseemliness of Bush v. Gore stems from the overwhelming suspicion that the members of the five person majority were willing to make things up out of whole cloth—and, equally importantly, contrary to the ways that they usually innovated—in order to ensure a Republican victory and keep their constitutional revolution going. It was obvious to everyone—including the Justices—that many of the key cases in this revolution have been decided by a bare 5-4 majority, and that the party controlling the White House in the next decade would determine the fate of the revolution. Conservative Justices would propel it forward; liberal Justices would curtail or unravel it. With a Republican in the White House, conservative Justices could retire with the expectation that they would be replaced by persons of like mind. If one of the more liberal Justices left the Court, the conservative majority might even increase.

Even if these thoughts never entered the mind of any of the Justices, the circumstances of the decision created the appearance of a conflict of interest and a strong inference of impropriety. The Justices could have avoided the appearance of a conflict of interest by simply remaining out of the fray, but they seemed altogether too eager to get involved. Had Bush v. Gore been an easy case involving clear precedents and rigorous legal argument, one might put some of these concerns to rest. But Bush v. Gore is so shoddily argued and so badly reasoned—from the initial stay on December 9 through the bizarre chain of reasoning that justified the remedy —that it is almost impossible to believe that the best explanation of the result is the internal logic of the law. The case is not only unpersuasive; it is an embarrassment to legal reasoning.

To be sure, the Justices who have spoken out since the decision was handed down have denied that any political motivations or calculations were involved. Justice Thomas, for example, has insisted that the Court has never been motivated by partisan considerations during his time on the bench, that the last political act that Justices engage in occurs during their confirmation hearings, and that he never thought about the political result in Bush v. Gore but was concerned only about the proper implementation of the law. But the more the Justices offer these protestations, the more unbelievable they seem. There is no reason to believe them unless one credits the notion that members of the judiciary are almost altogether different from other Americans who have succeeded in the political world and that they have no agendas of their own or any desire to leave a “legacy” in their decisions.

The claim that Bush v. Gore allows liberals finally to "know what it feels like" is misleading in another respect. The argument seems to assume that until Bush v. Gore the liberals were basically in control, that all of the judicial shenanigans one might have complained about in the 1980s and 1990's were liberal decisions. It makes it sound as if there has been no conservative judicial activism in the recent past, and that conservatives have been repeatedly victimized by an unreleting stream of liberal decisions from the moment that Earl Warren ascended to the bench to December 12, 2000. This is fantasy. Earl Warren has been dead for over thirty years. The Democrats got no Supreme Court appointments from 1967 to 1994. From the retirements of Warren and Fortas to the present day the Supreme Court has become increasingly conservative, and has been in a relatively continuous conservative retrenchment in a whole host of areas, including criminal procedure, the rights of the poor, and race relations. Anyone who has actually been following what the Court has been doing must have noticed that Brennan and Marshall started to write a whole lot of dissents starting in the early 1970's, and they didn't stop. They kept on losing. And losing. And losing. And losing, in a whole host of areas.

There are two big exceptions to this trend. Both have to do with women. The first is Roe v. Wade. The second is the creation of equality jurisprudence for women. However, I take it that when conservatives complain about liberal judicial activism, they are not saying they are very upset that women are now protected from discrimination. (Bush v. Gore-- ha! Now you liberals know what we felt like when women got equal rights!) They are mostly complaining about Roe, and the fact that it hasn't been overruled. That's fair enough, although one must admit that Casey cuts back considerably on Roe and cases like Akron and Thornburgh.

But the more important point is that, particularly in the decade since Clarence Thomas was appointed, the conservative Justices have been striking down statute after statute using what, from a liberal perspective, is just made up stuff. Those decisions, particularly in the federalism area, and not Bush v. Gore, are really the sauce for the goose that Juan is talking about; they, and not Bush v. Gore are the demonstration to liberals of what it is like to be on the wrong side of a constitutional revolution. My point is that those sorts of decisions have been coming out of the Supreme Court of the United States for a very very long time. To pretend that they have not is to pretend that conservatives haven't been controlling the courts, and winning most of the battles for quite a few years now.

The idea that liberals never understood this until Bush v. Gore, and that now, finally, they are getting their righteous comeuppance, is bizzare. Anyone with a leftist sensibility, and any sense of history, knows that the Supreme Court has rarely been a liberal institution. It has always been an elite institution, but throughout most of its history it has been run by conservative elites. From the larger historical perspective, the Warren Court was just a blip on the screen. Knowing this, it is hardly surprising that progressives, not conservatives, have argued for judicial restraint at many points in the Nation's history. For the past decade at least, progressive scholars have been increasingly critical of judicial supremacy and what they see as conservative judicial activism run riot. Bush v. Gore was not the wakeup call; if anything, it simply confirmed what progressive constitutional scholars had known for some time: If you hand the Supreme Court over to people on the opposite side of the ideological spectrum, they will do lots of things that you think are very bad to the Constitution. They will do this both through upholding government actions that should be struck down as unconstitutional, but equally importantly, they will do this by striking down laws and policies that should be upheld.

Thursday, May 01, 2003


A Fight Over Judicial Nominations in Extraordinary Times

Responding to my previous post on the judicial appointments process, Juan Non-Volokh points out that following the Fortas nomination, Democrats blocked two of Nixon's appointees in the 1970's (although the case is somewhat different because the Haynesworth and Carswell nominations actually came to a vote) and that in 1986, when the Dems regained the Senate, they began a practice of slowing down judicial appointments in the last two years of both the Reagan and George H.W. Bush presidencies. Hence my claim that the Dems rolled over and played dead until the George W. Bush presidency is, in Juan's words, "just plain wrong."

It's not clear how much Juan and I disagree, since I was looking at the years from 1992 to the present, and he's looking at the period from 1968 onwards. My view is that slowing down of judicial appointments-- which both the Dems and the Republicans did before the Clinton Presidency, is within the rules of the game, as long as it doesn't go too far. In fact, an important part of the checks and balances that come from having a Senate with opposition politicians is that the Senate can put up some resistance to partisan entrenchment by the President's party with the goal of generating more moderate judicial appointments from the President. Whether Juan agrees with me or not on this, I continue to think that the contemporary Democratic Party has been much more passive than they should have been and the Republicans have had the zeal of a party that has been taken over by a social movement. My sense is that Clinton generally responded to Rebublican delaying tactics by nominating more moderate candidates and avoiding nominating too many liberals. George W. Bush has responded to Democratic delays by sticking to his guns and continuing to nominate candidates who are strongly ideological. By focusing only on the Senate's behavior, Juan has neglected how the separation of powers works-- how the President responds to challenges from the Senate. It takes two to tango, and it takes two branches of government to cause a train wreck.

Juan concludes:

If Balkin wants to claim that Democratic hardball in judicial fights is a response to the 2000 election controversy, he has to explain why Democrats were slowing down judicial nominations in the 1980s and early 1990s.

My explanation is that what the Dems were doing in the early 1980's and 1990s is part of ordinary politics. What the Dems have doing following the 2000 election-- particularly the Estrada fillibuster-- is extraordinary. Fillibusters on judicial nominations are rare. Don't get me wrong-- the Dems have confirmed a number of Bush's judicial appointments. But they have also fillibustered Estrada, and that is something you just don't see every day.

Juan doesn't like what either party has been doing, and he doesn't like fillibusters. By contrast, I'm somewhat more tolerant of delaying the most strongly ideological nominations by a President of the other party as a signal that the President and the Senate should come to an accomodation. In my view, that's part of the way that the two branches check and balance each other.

I guess that the biggest difference between Juan and myself is how to view the meaning of current historical events. Juan sees the current strife as an example of accelerating misbehavior by the two major political parties during a time of essentially normal politics. My view, by contrast, is that we are no longer in an ordinary period of constitutionalism. The election of 2000 was a trauma, an extraordinary constitutional event. To be sure, Bush could have diffused the trauma by nominating more centrist candidates, thus signalling that he would deal with the contested election by forging an accomodation with the other party. Instead, he pushed for strongly ideological candidates in order to complete a constitutional revolution. Not only did he do so without a popular mandate as Roosevelt had, but, in the minds of many Democrats (including myself, I might add), he did not even win the election. The Dems view this attempt to amend the constitution through partisan entrenchment as deeply unfair. They see the Constitution as in danger, about to be taken over by ideological extremists. They love the Constitution as much as the Republicans do, and they view the Constitution as under siege. That is what explains how a party of softies suddenly got a spine, and did what neither party has done for more than a generation. Extraordinary times lead to extraordinary measures.

I think that many folks on the other side of the political divide don't quite get how angry many Dems are about the election. They well understand that Dems are upset about losing the Presidency, but what they don't quite understand is that it's more than just being sore losers-- the Dems think that something *illegal* happened. They don't get how seriously many Democrats feel that our constitutional system has been hijacked by people they don't trust. The Bush Administration, in turn, has done little to reassure them that it will play nice or play fair, or that it will use its powers with restraint. Indeed, the Bush Administration has cultivated a reputation for taking no prisoners. (Or to put it another way, the only prisoners the Bush Adminstration takes are being held at Guantanamo Bay.)

If you look at current events from this perspective, I think you can see why the confirmation process has broken down. It has broken down because trust has broken down, and trust is what keeps the wheels of government working smoothly even when people have strong disagreements about public policy.

Wednesday, April 30, 2003


Why the Confirmation Process is Broken

I've said very little about the fights over Miguel Estrada and other Bush judicial nominees. Howard Bashman has had exemplary coverage of the issues for those who are interested. The decision by Democrats to fillibuster some nominations and hold up others is explicable in part by the fact that the Republicans did not behave themselves very well during the Clinton years. But I think something else is going on.

Generally speaking, much constitutional change occurs not through amendments under Article V but through interpretation by Article III judges. The best way to change the Constitution is through stocking the courts with your ideological allies, a process that Sandy Levinson and I call "partisan entrenchment." Some presidents make judicial appointments as political favors, or to reward friends. But some presidents consciously set out to restock the courts according to an ideological vision. Roosevelt's Supreme Court appointments, for example, were designed to give constitutional legitimacy to the New Deal. The sea change in constitutional understandings that occurred after 1937 is due less to the Court's famous "switch in time" in West Coast Hotel and NLRB v. Jones and Laughlin than to the fact that by 1940 Roosevelt had been able to replace several conservative jurists with New Deal acolytes. For better or for worse, this is how our Constitution changes.

Of the two major political parties, the Republican Party has been considerably more devoted to the goal of partisan entrenchment in recent years. That is because the conservative social movements of the past thirty years, which helped the Republicans gain repeated electoral victories, saw the federal courts, and particularly the Supreme Court, as liberal elite institutions out of touch with popular morality and American values. For this reason, Reagan and the two Bushes have tended to value ideological purity in judicial appointments somewhat more than Clinton did. Republicans, or at least the hard right of the party, really cared a lot about judicial appointments, and wanted to change the Constitution to their way of thinking. To a considerable extent they have succeeded, but not in all respects. There is still a great deal more work to be done.

The Republican strategy of delaying Clinton's appointments was part of this crusade to remake the courts. Many Republicans didn't think Clinton deserved to be president in the first place, and they quickly recognized that he could be pushed around. So they fought hard to keep many of his nominees from getting a hearing. And they succeeded in a number of cases. Elena Kagan, who is going to be the next Dean of the Harvard Law School, was nominated to the D.C. Circuit, but never got a vote. (Incidentally, had she gotten a chance, President Bush would not have been able to nominate Miguel Estrada to fill the same vacant slot on the D.C.Circuit.)

Until the Bush Presidency, the Democrats tended to roll over and play dead when the Republicans played hardball on judicial appointments. Why did things change? The reason is simple: The election of 2000 infuriated their base and convinced many Democrats (yours truly included) that a serious miscarriage of justice had occured (more about that here). Five conservative justices on the Supreme Court had handed the Presidency to the man who would appoint more conservative Republicans to be their colleagues and successors. Once Bush took office, he made clear that he would not govern from the center; rather he would govern from the right, and his judicial appointments contained many strongly ideological conservatives. It became clear to the Democrats that the Republican agenda of stocking the courts with strongly conservative ideologues would continue apace, and even be accelerated during the Bush administration.

The view among many Democrats was that the election had been stolen, and thus the power to appoint judges and Justices had been improperly given to the Republican Party by five conservative Republican Justices. Most Democrats in the Senate did not openly talk this way, since they well understood that the public did not want a continual rehash of the election, particularly after 9/11, but they thought it nevertheless. And many were particularly incensed that Bush would use the legitimacy he gained as Commander-in-Chief arising out of 9/11 to push for strongly ideological appointments to the judiciary. For this reason they thought it important to indicate to the Republicans that they would resist what they regarded as the most egregious appointments at the circuit court level. In other words, I think that the broken down judicial appointments process is not just payback for Orrin Hatch's stonewalling during the Clinton years. I think it is also due in part to outrage at the election, and outrage at the Supreme Court's apparent conflict of interest in handing the Presidency to the party that the members of the Court's five-person conservative majority preferred.

If, as I suspect, the 2000 election is an important, although unspoken part of the story of judicial appointments, then we can expect that there will be a particularly vigorous fight over the next Supreme Court nomination, particularly if the person who retires is a swing Justice like O'Connor or a moderate-to-liberal like Stevens. Many Democrats do not want the five conservatives on the Supreme Court to get away with what they regard as a particularly atrocious deed. Republicans can pretend that Democrats have put this aspect of the past behind them, as Republicans themselves have. But this sort of trauma inflicted on one of the two major political parties does not go away so easily.

I have said before that election of 2000 is like Poe's tell-tale heart. Many people think that the election is ancient history. But in my view the election, and the felt sense of grievance by many Democrats, frames a great deal that is occuring between the two parties today, particularly on judicial appointments.

The Democratic Party was originally assigned the donkey because the donkey was thought to be rebellious and the Democrats were the party of the secessionist South. The Republican party was assigned the elephant because they had long memories about the Civil War, and the joke was that they never wanted people to forget about what the Democrats did. I think that the mascots probably should be reversed now. The Republicans have become the stubborn rebellious mules, and the Democrats are going to be the ones with the long memories.

Monday, April 28, 2003


Is a "Strong and Decisive" Leader a Good Leader?

David Broder argues in an essay in the Washington Post that Democrats can't attack Bush on leadership, which is his "strong suit." Opinion polls repeatedly suggest that the public believes that Bush is a "strong and decisive leader" and support him for that reason.

It is evident that the event that defined Bush as a strong and decisive leader was the terrorist attacks of Sept. 11, 2001. A month earlier, only 55 percent of Gallup respondents attributed those traits to him. A month after the assault on the World Trade Center and the Pentagon, it had jumped to 75 percent -- and it has basically stayed at that stratospheric level.

It appears that 9/11 did for Bush what the assassination attempt that Ronald Reagan survived and almost laughed off did for his reputation, barely two months into his presidency in 1981. That event formed an indelible impression of Reagan in the minds of millions of voters and gave him an almost mythic dimension that withstood recession, scandal and controversy.

Almost everything Bush has done since becoming president has been designed to create a similar sense of steadfastness. His pursuit of adversaries in Afghanistan and Iraq is of a piece with his persistence in pressing for passage of big tax cuts and confirmation of conservative judges here at home.

It is not surprising that many people respond positively to Bush's decisiveness. When times are tough, it is nice to know that the people in charge have a plan and will stick to it come thick or thin. But strong and decisive leadership is not necessarily the same thing as good leadership. If the President is headed in the wrong direction and won't listen to reason, then the same characteristics of perseverance that seem admirable may actually be quite harmful for the country. It is true enough that George W. Bush is no Jimmy Carter. He doesn't obsess about details (indeed he doesn't even bother to master them) and he has absolutely no problem with making firm decisions, sticking to his guns, and refusing to compromise. However, as I mentioned in a previous post, a person can fail to be up to the job of President not because he is too reticent and weak-willed, or because he freezes in a crisis, but because he overreacts and pushes too hard and too fast at the wrong times. George W. Bush’s failings are not neurosis and indecision. They are stubbornness, tunnel vision, narrowmindedness, over-aggressiveness, belligerence, and hubris.

Moreover, the appearance of steadfastness may be illusory. Although Bush routed the Taliban in Afghanistan, a year later the country is in shambles and has fallen off the radar screen of public attention. The Administration has simply not carried through on its promises here; instead, it has diverted public attention to a war with Iraq. Moreover, refusing to compromise is not necessarily a virtue if a leader won't have to suffer the consequences of the course he chooses or pay for his mistakes. Bush's determination to cut more and more taxes for the wealthiest Americans is going to create long term problems for the nation's fiscal health that may emerge many years after he leaves office.

The problem with a decisive president like George W. Bush is that he may decisively get the country into a whole series of messes that his successors will have to clean up. In a sense, this is a familar pattern in Bush's personal history: He takes risks, acts foolishly and aggressively, gets into trouble, and then somebody else cleans up his mess. But this time he is not simply the owner of an oil company or a baseball team. He is directing the domestic and foreign policy of the most powerful nation on earth. If he makes a mess this time, it may be a very big mess indeed.

But at least we will have the comfort of knowing that he never lost a night's sleep about it.

Friday, April 25, 2003


Undermining the "Traditional Family"

Stanley Kurtz comes to Santorum's (partial) defense in this NRO online column:

when the pope says that sexual relations not directed toward reproduction within the context of marriage tend to threaten the structure of the traditional family, he is absolutely right. It is not necessary to be Catholic — or religious — to grant the acuity of the pope's sociological insight. In fact, it is not even necessary to agree with the pope about the need to limit non-marital sexual relations to see the validity of the connection he is making. The truth is, a whole series of non-marital or non-reproductive practices that have gained social approval over the last 30 years — from birth control, to abortion, to premarital sex, to homosexuality — have in fact helped to undermine the structure of the traditional family. That is true, whether or not you are religious, and whether or not you think that these developments have been positive or not.

So when Santorum says that "all these things" (homosexuality, polygamy, etc.) tend to undermine the traditional family, he is absolutely right. And I can agree with Santorum about this, even if I personally happen to believe that the tradeoff in family instability happens to be worth it in the case of sodomy laws, which I think should be abolished. We all need to decide — individually, and as a society — how to balance the complex tradeoff between family stability and personal freedom. But the tradeoff is real, and there is nothing wrong with any individual consulting his religious beliefs to help him decide how to balance these competing goods. In this case, moreover, I believe that Santorum's religiously derived wisdom contributes to the public debate by reminding naive secularists that there is in fact a tradeoff between sexual freedom and family stability.

The flaw in this logic is Kurtz's equation of the stability of the "traditional family" with "family stability" per se. Pre-marital sex and acceptance of homosexuality may have destabilized or undermined traditional notions of how families should be formed, including, for example, the subordinate role of women and the sexual division of labor. But it does not follow that other understandings of how families should be organized might not replace those traditional understandings. To a very significant degree, this has been the case. Men and women have somewhat different views about their responsibilities to each other in and out of marriage than they had in say, the mid 1950's, although it would be foolish to think there are not also strong continuities in expectations about gender roles. And homosexual families have formed, which can be, and are, just as stable and loving as heterosexual families.

We should not think that the choice is one between "traditional families" with all of their hierarchical elements and gendered expectations, or personal freedom. This is a false dichotomy. American society is in the process of producing new ways for families to be families. (Indeed, the nature of the family has been in continuous change throughout the country's history, and the notion that there was once a golden age when American families were simply "stable" is a myth that involves forgetting much of the coutnry's history, including the effects of, among other things, chattel slavery, immigration, industrialization, war, and so on.). Kurtz and I share, I think, a desire that family relations be relatively stable because both of us think that families are important units of social cohesion that help inculcate moral values and promote many of the goods of social life. What we appear to disagree about is whether there is more than one way to constitute a family.

Wednesday, April 23, 2003


Why the Jury is Still Out on the War in Iraq, Part II

According to a report by the Washington Post

With little to show after 30 days, the Bush administration is losing confidence in its prewar belief that it had strong clues pointing to the whereabouts of weapons of mass destruction concealed in Iraq, according to planners and participants in the hunt.

After testing some -- though by no means all -- of their best leads, analysts here and in Washington are increasingly doubtful that they will find what they are looking for in the places described on a five-tiered target list drawn up before fighting began. ...

If such weapons or the means of making them have been removed from the centralized control of former Iraqi officials, high-ranking U.S. officials acknowledged, then the war may prove to aggravate the proliferation threat that President Bush said he fought to forestall.

I must say that this does not inspire confidence in President Bush's judgment. We can still hope that these weapons will be found soon, or at least conclusive evidence uncovered that virtually all of them were destroyed shortly before the war began. For if they were not *all* destroyed, and we can't find them, there is a strong possibility that they were distributed to or stolen by terrorist organizations during the chaos that surrounded the fall of Baghdad.

One could say that this is ironic-- that going to war to disarm Saddam might bring about the arming of terrorists with weapons of mass destruction, the very thing we wanted to prevent-- but in fact it's not ironic at all. The Bush Administration was repeatedly warned that attacking Iraq might have this undesireable side effect. It simply didn't listen to these warnings. Indeed, it didn't listen to a very large number of warnings about the unintended consequences of starting this war.

Now we must pray that we will not be punished for our President's overconfidence.


Why the Jury is Still Out on the War in Iraq

I was and continue to be a war skeptic, although, like my pro-war friends, I am delighted that Saddam and his Stalinist-style regime have been overthrown. My concern has not been that the U.S. might not win, or that the war would take too long, but rather that the occupation would be very long and difficult, and that the war would unleash a set of unintended consequences that would get the United States into deeper and deeper trouble, destroy our security, fracture our alliances, undermine our moral authority, and ensnare us in many more destructive wars in the future.

The jury is still out on those questions, and indeed, we will not know for some time whether the Bush Administration's strategy was far wiser than I now believe it to be.

In the meantime, when I read stories like the following from today's Washington Post, I am not comforted that our leaders know what they are doing:

As Iraqi Shiite demands for a dominant role in Iraq's future mount, Bush administration officials say they underestimated the Shiites' organizational strength and are unprepared to prevent the rise of an anti-American, Islamic fundamentalist government in the country.

The burst of Shiite power -- as demonstrated by the hundreds of thousands who made a long-banned pilgrimage to the holy city of Karbala yesterday -- has U.S. officials looking for allies in the struggle to fill the power vacuum left by the downfall of Saddam Hussein.

As the administration plotted to overthrow Hussein's government, U.S. officials said this week, it failed to fully appreciate the force of Shiite aspirations and is now concerned that those sentiments could coalesce into a fundamentalist government. Some administration officials were dazzled by Ahmed Chalabi, the prominent Iraqi exile who is a Shiite and an advocate of a secular democracy. Others were more focused on the overriding goal of defeating Hussein and paid little attention to the dynamics of religion and politics in the region.

Chou-en-Lai famously responded to the question "Do you think the French Revolution was a success?" with the answer "It's too soon to tell." I think that the same is true of Bush's adventure in remaking the Middle East in America's image. Perhaps we will look back on this moment in history with satisfaction, and view Bush and Rumsfeld and their neoconservative allies as visionaries who saw that America could remake the world into a vibrant garden of democracy with enough military force and enough political will. But I doubt it very much.

And so, I continue to be a war skeptic, and, indeed, I think it important more than ever to call the President and his followers to task for their shortcomings and misjudgments about this war and its aftermath. That sort of criticism, whether made in time of war or in time of peace, is the most crucial to the health of a democracy like ours. If we allow the President simply to do what he thinks best, his thinking may not be the best thinking, and we shall all have to pay for his hubris, for many years to come.

Monday, April 21, 2003


Rick Santorum and Homosexuality

Pennsylvania Senator Rick Santorum angered gay rights groups with this recent interview with the Associated Press:

Referring to an upcoming decision from the U.S. Supreme Court on the constitutionality of antigay sodomy laws, Santorum told the Associated Press, "If the Supreme Court says that you have the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything." He then added, "All of those things are antithetical to a healthy, stable, traditional family. And that's sort of where we are in today's world, unfortunately. It all comes from, I would argue, this right to privacy that doesn't exist, in my opinion, in the United States Constitution."

I well understand that Santorum was trying to compare homosexuality to incest and polygamy in order to criticize homosexuality. I completely disagree with his criticism of homosexuality and think that the Supreme Court should overturn Bowers v. Hardwick, the 1986 case that upheld criminalization of same-sex relations. Nevertheless, Santorum's remarks raise an important issue about constitutional interpretation and how the meaning of constitutional rights changes over time that is well worth discussing.

First some background on what Santorum said: The Supreme Court has protected procreative liberty under a mis-named "right to privacy," which is really a combination of several different rights, including the right of intimate association, the right to decide the conditions under which one will bear or beget a child, and the right to sexual autonomy. Judicial recognition of this set of rights stems from two cases decided in the 1920's that concerned the right of parents to direct how their children were raised, a case in the 1940's which struck down a compulsory sterilization law directed at lower class criminals (as opposed to white collar criminals), and was finally recognized in a 1965 case which upheld the right of married couples to purchase contraceptives, and a 1972 case which extended the right to unmarried persons. The 1973 decision in Roe v. Wade is based on this right as well.

The basic problem with the right of privacy is not that it is not mentioned in the Constitution (the word "liberty" does appear in both the 5th and 14th Amendments) nor is it that it was unknown under the original understanding (a lot of rights that we would not be willing to give up today were unprotected according to the original understanding). It is rather that it is difficult to put a precise boundary on how far the right to privacy extends. A convervative traditionalist might argue that the right of procreative liberty only should extend to traditionally recognized rights of intimate association and procreative liberty like those of married couples to have sex and beget children, but not to anything that is nontraditional. The argument is that courts are not very good at defining the boundaries of the right of privacy, so they should just stick to rights that have a long and hallowed tradition.

If courts move past the most traditional versions of the right to intimate association and procreative autonomy that almost everybody agrees are ok, the argument goes, they will not be able to find a clear stopping point. That's because all of the practices that courts might wish to protect will be controversial and immoral to someone or somebody. This is Santorum's point: You may think that incest (even between consenting adults), polygamy and adultery are morally wrong, but not homosexualty. Santorum thinks they are all morally wrong and undermine the stability of society. Other people might think that all of them (or some of them) are morally permissible (Think about the official position of the Mormon Church in the 19th century, for example). Whose views about morality should win out? Since there is strong disagreement about these practices, courts should leave it up to local communities to determine their legality. This is, I think, the best version of the argument that Santorum was trying to make.

But this argument overlooks an important point about how constitutional rights get their content. In fact, the scope of the constitutional right of privacy is determined by evolving social norms, not by legal logic. It is determined by politics and social movement contestation, even if judges don't recognize this fact or admit it to themselves. We often think that fundamental rights should reflect basic values that do not change over time. In fact it is quite the opposite. Through social movement contestation, people demand that the articulation of fundamental rights keep pace with their changing ideas of what values are most important and fundamental. Rights become timeless, in other words, when the time is right for them.

The right of privacy is a perfect example of this phenomenon. The right of privacy is always responding to changing notions of what is sexually appropriate and inappropiate. Today most people in the United States (and certainly most young people) think that heterosexual sex between unmarried individuals is permissible. It was not always thus. The sexual revolution changed people's views about the morality of pre-marital sex. That, in turn, changed what people thought the state had a right to regulate. Most people now probably think that it is none of the state's business whether heterosexual couples have sex and whether they wish to live together outside of marriage.

The same thing, I would submit, is happening with same-sex relations. When the Supreme Court first considered the issue in 1986 in Bowers v. Hardwick, homosexuality was only beginning to win widespread social acceptance. Not surprisingly, the Supreme Court, filled with people of a much older generation, could not muster five votes to protect the rights of gays and lesbians. What was surprising was that there were already four votes to do so. Now, with Will and Grace one of the top-rated comedies on television, it is quite clear that a very large number of people have changed their views. It is only a matter of time before the Supreme Court begins to protect same-sex relations. Whether they will do so through extending the right of privacy or through the use of the equal protection clause is yet to be determined. But they will change constitutional law to accomodate changing social mores. However, since there have been no similar changes in social attitudes about incest or polgyamy, there is no reason to think that courts will protect those practices. As I have said, the reason is not based on logic, but experience, which, as Oliver Wendell Holmes, Jr. once said, is the real source of the life of the law..

Conservative religious groups used to have the upper hand in the debate over gay rights. But now they have seen the writing on the wall. They are, for the most part, resigned to the Supreme Court's overruling or severely limiting Bowers v. Hardwick. Santorum's comments should be understood in this light. He is giving this feature of right wing politics its last hurrah. Right wing politicians will quickly see that the most overt forms of gay baiting do not work except to an increasingly small number of their constituents, and so they will gradually give up trying to do it. Instead, they will shift to more subtle forms of homophobic appeals, just as they did in the case of race. Within twenty years or so, it will be impossible for Santorum or someone like him to make comments like this and still expect to be elected to national office. At that point, it will be seen as akin to Trent Lott's comments about race. In fact, as the outcry over Santorum suggests, we are witnessing this transformation of what is politically acceptable to say before our very eyes. Santorum is on the losing side of a long battle. In the future, social conservatives will change their rhetoric, for example, by insisting that gays have a perfect right to do what they want behind closed doors, as long as they do not try to flaunt their practices in front of heterosexuals. The struggle for gay rights will then focus on the question of full acceptance rather than mere tolerance.

Thursday, April 17, 2003


Where are the Weapons of Mass Destruction?

A small case of being hoisted by one's own petard: (as Reuters reports.)

LONDON (Reuters) - The United States launched the war to disarm Iraq after accusing Baghdad of concealing weapons of mass destruction.

Baghdad denied having any banned weapons, and so far there have been no confirmed findings of any on Iraqi territory.

President Bush urged the United Nations on Wednesday to lift 13-year-old sanctions on Iraq, which would allow it to sell oil to help pay for postwar construction following the overthrow of Saddam Hussein.

But the sanctions cannot be ended until the U.N. inspection agency UNMOVIC certifies Iraq is free of weapons of mass destruction and the 15-nation Security Council adopts a resolution lifting them.

Why haven't we found any weapons of mass destruction?

Here are some possibilities:

(1) They are there and we will find them if we keep looking.

(2) The weapons were distributed to or sold to terrorists during the overthrow of Saddam's regime and the chaos that resulted, which is precisely what the Bush Administration was repeatedly warned about as a reason not to attack Iraq.

(3) The weapons are in Syria, and we should go to war with them to see if they are there. Unless they are in Iran, so we should go to war to find them there, unless... well, you get the general idea.

(4) The Bush Administration lied to us, and the accusation about weapons of mass destruction was essentially a pretext for overthrowing Saddam.

Well, that makes me feel much better.

I'm hoping we find them in Iraq, and find lots of them, soon.

I don't trust the Bush Administration's motives for going to war, especially since the Administration constantly changed its stated objectives, from regime change (in 2002) to disarmament (during the debates at the U.N.) to liberation of the Iraqi people (after it was clear that the U.N. would not approve the adventure). I do think we were lied to, and lied to repeatedly. And I continue to think that the Bush Administration doesn't have a clue about how long the reconstruction of Iraq will take and how great a danger it has unleased by destabilizing the region. Nevertheless, if if large caches of weapons of mass destruction are found, that will help justify the war in hindsight.

I repeat: Let's hope that we find Iraq's weapons of mass destruction, and find them soon.

Monday, April 14, 2003


Cyberdemocracy conference

The Information Society Project at Yale Law School, which I direct, held its spring conference on Democracy in the Digital Age. The conference was a rousing success, if I do say so myself (and I do). James Grimmelmann, the well-known enfant terrible of Lawmeme, offers the play by play.

Sunday, April 13, 2003


Eagleburger to George W. Bush: Don't Go For More Or You'll Be Impeached, You Knucklehead

From the BBC News (via Atrios, via Tom Runnacles):

The British will take heart from the more cautious voices coming out of Washington. Lawrence Eagleburger was Secretary of State for Bush's father, the first President Bush, and he and other leading veterans of the first Bush administration warned last summer about the dangers of attacking Iraq. In fact they were thought to be acting as proxies for their old boss, who was said to be privately unconvinced of his son's policies. Now that the military campaign seems to be drawing to a close, we ask Mr Eagleburger if it is true that winning the peace will be much harder.

In an impassioned interview, Mr Eagleburger also tells us that if George W. Bush were to take military action against Iran and Syria, he should be impeached.

Here's another report, courtesy of the Belfast Telegraph:
Lawrence Eagleburger, who was US Secretary of State under George Bush Snr, told the BBC: "If George Bush [Jnr] decided he was going to turn the troops loose on Syria and Iran after that he would last in office for about 15 minutes. ... In fact if President Bush were to try that now even I would think that he ought to be impeached. You can't get away with that sort of thing in this democracy."

You can get the full interview here and here.

I was curious whether Eagleburger was impeachment happy, so I found the following story, also from the BBC on November 19, 1998:

Lawrence Eagleburger, a former Secretary of State in the George Bush administration, said he believed [President Clinton] would survive - but in a much weakened state.

He told BBC Radio 4: "I don't much like him as president but I don't want to see him impeached."

Well, at least the man has his priorities straight. Lying about sex under oath is one thing, bringing untold chaos and destruction on the world is another.

BTW, in case you're wondering, no, we haven't attacked Syria or Iran. Yet.

So this is all academic, but then I am an academic and these sorts of things interest me.

You might well be wondering at this point, does Eagleburger have his constitutional law right? Can a president be impeached for taking the country to war repeatedly? Well, I'll discuss that one in a future post. Stay tuned.


Nino and me, in full agreement (well, almost)

At an address at the University of Mississippi, Justice Antonin Scalia spoke out against the dangers of treating the Constitution as a "living document." (courtesy of Howard Bashman as well as Patrick Carver, the Ole Miss Conservative)

Scalia, 67, a conservative justice known for legal decisions based on strict interpretations of the U.S. Constitution, said people who want change in society should use the democratic process, not the courts, to bring it about.

"What makes you think that a living Constitution is going to evolve in the direction of greater freedoms?" Scalia asked. "It could evolve in the direction of less freedom, and it has."

When the man is right, he's right. When judges make up constitutional doctrines that keep democratically elected legislatures from reforming society and securing liberty and equality, they are failing to do their job properly.

A few examples might include Scalia's own votes to strike down affirmative action programs in Croson and Adarand, and his votes to strike down damage remedies when state governments violate federal civil rights laws in cases like Kimel and Garrett.

On the other hand, Scalia pointed out, when judges refuse to enforce constitutional guarantees against unconstitutional legislation, they also fail to do their job, and this is so even if the meaning of the constitutional guarantee is more expansive than the original understanding:

In 1989, he cast the deciding fifth vote in Texas v. Johnson, the decision that struck down laws against burning the American flag. At the time, conservatives were incensed. Thursday afternoon, Scalia told the UM crowd in that case and others, he was handcuffed by the Constitution.

"I would have been delighted to throw Mr. (Gregory Lee) Johnson in jail," Scalia said of the man tied to the flag case. "Unfortunately, as I understand the First Amendment, I couldn't do it."

Now there's no evidence of which I am currently aware that flag burning was protected under the original understanding of the Free Speech clause in 1791, so Scalia is not making an argument from the original understanding. Rather, he is making an argument, as he forthrightly says, from what he understands the First Amendment to mean.

Good for him.

Now if, according to Scalia, the best interpretation of the meaning of the First Amendment has changed significantly from the original understanding-- a position which Scalia must apparently hold given his views not only on flag burning but on many other subjects like commercial speech-- then it is up to judges to do the best job they can in interpreting the document so as to protect fundamental rights from legislative depredations.

But please, whatever you do, don't call this a living Constitution.

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