Saturday, March 06, 2004


Conservatives Have Never Practiced Judicial Activism-- Not!

I recently criticized Jonah Goldberg for failing to come to terms with the long history of judicial activism by conservative Justices. Indeed, the New Deal revolution is in significant part a reaction to this long history, and when liberals innovated with constitutional doctrines in the second half of the twentieth century, it was conservatives who reminded them that judicial activism cuts both ways. They argued that if liberals of a previous generation didn't like conservative judicial activism in the Lochner period, contemporary liberals should not practice judicial activism even when it happened to favor liberal causes. This history is familiar to most students of constitutional law, and I was reminding Jonah Goldberg of this fact when he appeared to assert that judicial activism was a peculiarly liberal phenomenon.

Nevertheless, Stuart Buck has taken issue with my account of the long history of conservative judicial activism. My list of cases included, among other examples, Dred Scott v. Sanford, The Slaughterhouse Cases, The Civil Rights Cases, Pollock (The Income Tax Case), The Lochner Era police power decisions striking down labor laws, the Rehnquist Court's eleventh amendment decisions (Seminole Tribe, Alden v. Maine,), its decisions on section 5 power (Garrett and Kimel), and the post 1990 commercial speech decisions.

Stuart appears to agree with my inclusion of the eleventh amendment decisions and the section 5 decisions as examples of conservative judicial activism. He tries to define all of the others away as not being conservative decisions, because many conservatives *today* would not agree with the results in these cases.

This approach won't work. It's not responsive to my argument with Jonah. He claimed that judicial activism is a liberal phenomenon. I said that historically it was the product of conservative forces. So to see whether my historical claim is correct we have to look at what those people who were generally regarded in their own time as conservative believed to be the best interpretation of the Constitution. We can't impose the principles of contemporary conservatism because that is anachronistic and indeed, irrelevant to my quarrel with Jonah. For example, the vast majority of conservatives today think Brown v. Board is rightly decided. But in 1954 many, if not most, had very serious doubts about the opinion. The same is true for a whole host of other liberal causes of the 1950's and 1960's which have become part of the consensus that contemporary liberals and conservatives now share.

Put in these terms Stuart's objections don't really hold much water. For example, Stuart seems to think that the Lochner decisions striking down labor laws were not conservative (and not activist). This view is untenable. Lochner and its associated decisions were the very essence of what was then called laissez-faire conservative constitutionalism. The entire history of the progressive reaction to Lochner which led to the revolution of 1937 understood those opinions to be paradigmatic examples of conservative judicial activism.

Or take Slaughterhouse. It is true that many conservatives and libertarians today think Slaughterhouse was incorrect-- as do I, by the way. But in 1873, the position taken by Justice Miller was the relatively conservative position. It was the position of Northern Democrats and conservatives in the Republican Party who wanted to deny that the Civil War had significantly changed the balance of power between the states and the federal government. Stuart seems confused by the fact that the Court upheld challenged economic regulation in that case. But that's not what makes the result conservative. What makes it conservative is the fear that the national government would be able to use its new powers under the 14th amendment to intrude on the police powers of the states and take over regulation of contract and property rights. (By the end of the nineteenth century, a new generation of conservatives arises with a very different agenda and very different concerns: They want to protect railroads and other business enterprises from regulation by states. This gives rise to the police power jurisprudence of the Lochner era, which reaches results closer to the dissents in Slaugtherhouse. There is no contradiction in recognizing that Justices in both generations were taking conservative stands; it is simply that the imperatives of conservatism changed in the Gilded Era).

The Civil Rights Cases, which struck down the Civil Rights Act of 1875, also reflect the judicial activism of the Supreme Court immediately following Reconstruction. They reflected the conservative compromise of 1877 which denied that Congress could use its powers to protect black civil rights.

The claim that either Miller's position in Slaughterhouse or Bradley's opinion in the Civil Rights Cases was the relatively *progressive* position during this period cannot seriously be maintained. These were pro-state's rights positions which restricted Congressional power to protect basic rights for blacks as well as for other citizens. As noted above, the focus of conservatives changed in the forty years between Slaugtherhouse and Lochner. But such changes are a fairly familiar feature of American political history.

Next consider Dred Scott. Taney held many positions that were, in their time, relatively progressive. But on slavery his views were conservative. (They were actually moderate conservative, because there were many more conservative defenders of the slaveocracy).
*Contemporary* conservatives surely abhor slavery. But there is no denying that the position in 1857 that Taney took was, in its time, the more conservative position. It certainly was not the progressive position! I'm not claiming that any conservative today thinks Dred Scott is correct. That's just silly. Rather, I offer Dred Scott as an example of my general point there is a long line of conservative activist decisions throughout American history. What we think of today as being activist is largely the work of those people who were identified in history as being conservatives in their own time. Liberal judicial activism is the product largely of the twentieth century. It is this historical blindness of Jonah Goldberg's-- as well as his failure to take seriously the recent cases of the Rehnquist Court on federalism and the Eleventh Amendment-- that undermines his attempt to blame judicial activism on liberals.

Now let me turn to the contemporary commercial speech cases. Stuart seems to be under the impression that the founding generation believed that the first amendment protected commercial speech, because he denounces the Roosevelt Court for stripping commercial speech of any protection in the Valentine case. I have to say that I would really like to see the evidence for his view that commercial speech was generally protected under the First Amendment until the New Deal. I've seen no proof of this in my own research.

Stuart is completely correct, however, that the liberal Justices supported the extension of commercial speech in 1976 and later cases, but by the 1990s the political valence of commercial speech had shifted. Liberals now are hesitant to extend the doctrine while conservatives are pushing for expansion. I have written about the reasons for this shift in my scholarship, but my point here is simply that the 1990's cases are pretty good examples of the Rehnquist Court's conservative judicial activism. They have no basis in the original understanding, and they are extensions of previous precedents that did not have to be extended.

As for Hans v. Louisiana and Ex Parte Young, Stuart wonders how they can both be conservative if they go in opposite directions. The answer is that the cases reflect different situations in which different oxes were being gored. Hans was decided in order to settle a post-Reconstruction dispute. Ex Parte Young arose many years later when the Lochner era Justices wanted to restrict progressive era legislation under the Due Process Clause. They were hamstrung by the Court's earlier decision, so they created an exception to get around what their predecessors had done. Likewise, the conservative decision in Slaughterhouse created a doctrinal difficulty for the later generation of conservatives who decided Lochner. Denied use of the Privileges or Immunities Clause, they turned to the Due Process Clause instead. That does not mean that both decisions could not have been conservative in their own time. It simply means that conservatism, like liberalism, is a moving target.

Wednesday, March 03, 2004


Oregon Joins In The Fun

Multnomah County is now issuing marriage licenses to same sex couples, CNN reports.

The reason is interesting: The county attorney has taken the position that failing to do so is unconstitutional under the Oregon Constitution.

I think it's time for people to stop complaining about activist *judges,* and start focusing on the fact that members of the political branches are at the vanguard of this fight.

And what's perhaps more impressive is that this is being done by *state* officials, not federal officials.

This is somewhat akin to southern school districts in 1953 spontaneously deciding to desegregate elementary schools based on their understanding of the state constitution. Do you believe they should have waited for Brown v. Board of Education?


Does Reverence for the Constitution Argue Against Amending It?

Should we refrain from amending the Constitution because it's sacred and the Framers knew what they were doing? I don't buy this particular argument against the Federal Marriage Amendment at all. I agree with Jonah Goldberg that this sort of claim is a non-starter, especially if you believe in a "living Constitution" that responds to the times.

Indeed, the argument for amending the Constitution through Article V is at least as strong as the argument for allowing Article III judges to change constitutional meanings through interpretation, because Article V itself specifies a democratic process for amendment. Note that this process, strictly speaking, is not democratic in the same way that majority rule is: It actually requires a supermajority, so a very large number of Americans can support a change in the Constitution and it still won't become law under Article V. (The best example of this is the Equal Rights Amendment whose basic call for sex equality I would assume an overwhelming number of Americans now support. Instead, these norms entered the Constitution through judicial interpretation by Article III courts in the 1970s). But we probably can say that amendments that do satisfy the very stringent requirements of Article V probably do reflect overwhelming popular agreement. (Except, that is, for the Twenty Seventh Amendment, whose ratification over a two century long period is deeply suspect).

So the best argument against the FMA is not the one I hear banded about these days-- that we shouldn't tinker with the Constitution. The best argument is that we shouldn't tinker with it in this particular manner. We shouldn't tinker with it in ways that reflect a parochial concern with a particular substantive issue that is also, in my opinon, unjust, and we certainly shouldn't tinker with it in ways that we may be sorry about later on.

Popular attitudes about homosexuality are currently in flux. Attempting to lock in a particular view about homosexuality now would be just as unjust as an amendment that said the following in the wake of the Court's 1954 decision in Brown v. Board of Education:

Neither this Constitution, nor the Constitution of any State, shall be construed by any state or federal judge to prohibit laws preventing or regulating comingling, marriage, or sexual relations between persons of different races

I suspect that such an amendment might have had a decent shot at passage in 1954. Most people, even in the North, thought that interracial marriage was not a civil right, and certainly they believed that sex between people of different races outside of marriage was not a civil right. However, by 1967, the Supreme Court, reflecting a revolution in attitudes about racial equality, did hold that laws prohibiting interracial marriage violated the Equal Protection Clause of the Fourteenth Amendment in a case called Loving v. Virginia. (The same case, by the way, held that marriage was a fundamental right protected by our Constitution). And the point is that Loving was not opposed to emerging norms about racial equality. Rather, it reflected them.

This is the problem with the Federal Marriage Amendment. It wants to hold off a change in attitudes that the Religious Right sees as coming.

Does this mean that I think that amending the Constitution is a bad thing? Absolutely not. I think that Constitutional amendments are important, especially with respect to structural questions that cannot be addressed by courts. An example which my friend Sandy Levinson has suggested are the rules regarding succession in office when large numbers of members of Congress are incapacitated, for example, as a result of a bomb or a terrorist attack. The Twenty Fifth amendment takes care of the problem for the President, but it does not deal with the analogous problem for Congress. Congress should have the power to pass the equivalent of a succession in office act to deal with this problem. But the Constitution as currently implemented does not permit it. We should also amend the Constitution to allow non-native born citizens to run for the Presidency. I also strongly believe in Constitutional amendments that secure basic rights of citizenship, like the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments. I don't believe that the Federal Marriage Amendment secures basic rights of citizenship. To the contrary, it seems to me that it wipes the possibility of such rights for gays off the table. So my objection is not that you shouldn't ever amend the Constitution because it's perfect the way it is. It is that you should do so only for the right reasons. I oppose the FMA because it is not for the right reasons.

There are a couple of things I do disagree with Jonah Goldberg about, however. At one point he says:

By the way, I'm singling out liberals for a reason. Conservatives who oppose amending the Constitution are against the sort of judicial activism that rewrites the meaning of the Constitution while leaving the text unchanged. There's nothing inconsistent about being against judicial activism and against "tinkering" with the Constitution through the amendment process. You can't say the same about liberals who see the Constitution as if it were Felix the Cat's magic bag from which they can pull out any public policy they want.

Like many people, Jonah fails to realize that liberals have no monopoly on judicial activism. Conservatives, if anything, have a much longer history of reading their values into the Constitution. Here are only a few examples: The decision in Dred Scot v Sanford striking down the Missouri Compromise and holding that blacks could never be citizens, the gutting of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughterhouse Cases less than five years after the Amendment was ratified; striking down the Civil Rights Act of 1875, which was passed by the very same Congress that passed the Fourteenth Amendment, in the Civil Rights Cases; the creation of the police power jurisprudence of the Lochner Era which selectively struck down labor laws that conservatives didn't like; striking down the federal income tax in the Pollock case; reading the words "other states" in the Eleventh Amendment to mean "other states or same state" in Hans v. Louisiana; the creation of the exception to Hans in Ex Parte Young when Hans turned out to prevent conservative judges from enjoining laws that were inconsistent with their laissez-faire values; the manufacture of federalism doctrines out of whole cloth in National League of Cities v. Usery; and, after National League of Cities was overruled, the creation of new federalism doctrines out of whole cloth to the same effect in Seminole Tribe and Alden v. Maine; the manufacture of the "congruent and proportional" test and its use to limit civil rights legislation in Kimel and Garrett; the continued development of commercial speech doctrine to limit government power to regulate advertising; and last but not least, the application of strict scrutiny to race conscious affirmative action in the face of evidence that the Fourteenth Amendment was not intended or written to enforce a colorblind Constitution.

All I can say to Jonah Goldberg is, Mr. Pot, Meet Mr. Kettle.

Here's the second thing I disagree with:

I bet it would be a lot easier to repeal a constitutional amendment than it would be to overturn, say, the constitutional requirement of providing criminals with Miranda warnings, which was simply invented by the Supreme Court. Meanwhile, amendments have been repealed and superseded by other amendments several times.

Actually, it's *much* easier to overrule a case like Miranda than to amend the Constitution to get rid of the Electoral College. All you have to do is win enough elections to appoint judges who will limit it in various ways That's what happened with Miranda, by the way. It's a shell of its former self, even as the Court reaffirmed it in Dickerson a few year's back.

What Goldberg doesn't account for is that the Constitution is continually being changed in little ways through judicial interpretations, both by the judges he likes and by those he doesn't like. Put enough of those changes together over time, and you can get significant effects. For example, in 1970 the Supreme Court held that voucher programs that let children of poor people attend parochial schools violated the Establishment Clause. By 1983, that holding had been seriously undermined, and by 2003, it was essentially overrule in Zelman v. Simmons-Harris. Indeed, the key issue now is not whether vouchers are constitutional but under what circumstances states can *refuse* to include religious schools in voucher programs. That was one of the issues that the Court effectively put off deciding when it handed down Locke v. Davey last week.

What caused the shift in doctrine from 1970 to 2003? Well, the Republicans won a lot of Presidential elections after 1968, they stocked the courts with conservative judges who read conservative values into constitutional doctrine, and the constitutional law we have today is the result of those changes.

The truth of the matter is, whether people like it our not, we have a two track system for changing constitutional meanings. Article V amendments, and Article III interpretations. Liberal judges and conservative judges alike engage in constitutional change through judicial interpretation. Although some judges say they are only following precedent or only following original understanding, that's just simply not true. They are using the modalities of precedent or history or text or structure in order to argue for their preferred vision of constitutional norms. (See my previous post on Scalia's jurisprudence for my discussion of how he selectively invokes original meaning and precedent to get where he wants to go).

The fact is, we are all living constitutionalists now; but only some of us are honest about it.


Supporters Call For New Religious Crusade Against The Unclean

It's official. It's not just gays. God hates shrimp.

Frankly it's no surprise to me. I just *knew* they weren't kosher.

Well, sorry, call me intolerant, but that's just how I was raised. Look it up. It's in the Bible and everything.

Next thing you know, these shrimp will want to marry. And then they'll start demanding the right to adopt crawfish or something like that, and then.... well, don't get me started.

Tuesday, March 02, 2004


Is God on America's Side?

So Elizabeth Bumiller asked in Sunday's Democratic candidates debate, trying to trip them up. We know George W. Bush's answer. Of course God is on America's side. We are working to make things better. Our opponents are the evil doers.

Here is Abraham Lincoln's answer:

Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes.

"Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh." If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him?

Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous altogether."

As it was in the time of the Civil War, so it is today. Both we and our adversaries pray to the same God. He will not answer either their prayers or ours fully. The Almighty has His own purposes. The important question is not whether God is on our side, but whether we are doing our best to be on His side.

But if Lincoln had said that on Sunday night, I can just imagine Matt Drudge's headline the next day: ABRAHAM LINCOLN NOT SURE GOD ON OUR SIDE-- THINKS NATION MAY NEED TO PAY FOR OUR SINS.

And the pundits would click their tongues and say: My goodness, he doesn't think we're always right! How did such a man ever get to be elected president, anyway?


Dick Cheney Argues for Superiority of Democrats' Economic Policies

Vice President Dick Cheney gave strong reasons for preferring Democratic fiscal policies in an interview today, Reuters reports (via Brad DeLong):

"If the Democratic policies had been pursued over the last two or three years, the kind of tax increases that both Kerry and Edwards have talked about, we would not have had the kind of job growth that we've had," Cheney said.

Approximately 2.3 million jobs have been lost since the Bush Administration took office in January 2001.

Cheney also stated that he supported a constitutional amendment to prevent his daughter, Mary Cheney, who is a lesbian, from ever marrying her partner.

"The president's taken the clear position that he supports a constitutional amendment," Cheney said in an interview with MSNBC. "I support him."

I know that it's common for parents to object to the people that their children are currently dating, but this is going a bit far, don't you think?

Monday, March 01, 2004


Separation of Powers, or Stonewalling?

Josh Marshall provides the transcript of Scott McClellan's unconvincing attempts to explain why President Bush will meet with the 9/11 Commission-- you know, the one he tried to shut down early-- for only one hour. McClellan offers the argument that the Commission is a legislative body, which, I take it, is an appeal to the constitutional principle of the separation of powers.

But that argument won't wash. If we were to take it seriously, Bush should be refusing to appear at all. Saying that you will meet with a legislative body for only one hour is like being a little bit pregnant.

The reason that President Bush won't appear for more than one hour has nothing to do with the separation of powers. The president is worried that he will be asked deeply embarrassing questions about his conduct and that of his Administration in the run up to the September 11th attacks. Those embarrassing questions will, in turn, show his hypocrisy in repeatedly using the 9/11 attacks to justify every questionable policy of his administration, including his mismanagement of the national budget, while attempting to insinuate that anyone who questions his policies is therefore unpatriotic. The families of the 9/11 victims should give him hell for his repeated and cynical manipulation of this tragedy.

Sunday, February 29, 2004


John Kerry Discovers the Winning Meme

From a speech delivered on Friday, February 27th:

I do not fault George Bush for doing too much in the War on Terror; I believe he’s done too little.

Here is Kerry's preliminary list of reforms: Kerry promises to add 40,000 troops to active duty, reform intelligence gathering services to prevent a replay of the WMD debacle, streamline the national terrorist watch list, work to cut off the flow of terrorist funds, particularly from Saudi Arabia where the Bush Administration has feared to tread, coordinate with other countries to track and prevent the spread of weapons of mass destruction, retrain the Iraqi security force and stay in Iraq until the job is done, embark on a ten year program to make the U.S. energy independent of Middle East oil, fund homeland security programs that were promised funding by the Bush Administration but never got it, and improve technology at ports for screening for dangerous weapons.

That's a start, but there's plenty more to be done. The good news, however, is that the Democrats have started to rethink their position about war and national security. They will need to if they want to dominate presidential politics again.

Saturday, February 28, 2004


President Purges Bioethics Council of Unbelievers

In a further attempt to shore up his religious conservative base, President Bush fired two members of his bioethics advisory council and replaced them with three new members who were more likely to agree with the policy positions of the President and the council's chairman, Leon Kass. The Washington Post has the story:

Asked why [Elizabeth] Blackburn [a biologist] and [William] May [an ethicist] had been let go, White House spokeswoman Erin Healy said the two members' terms had expired in January, and they were on "holdover status." Asked whether, in fact, all the council members' terms had formally expired in January, she said they had.

Pressed on why Blackburn and May had been singled out for dismissal, she said: "We've decided to go ahead and appoint other individuals with different expertise and experience." She would not elaborate further.
. . . .

Michael Gazzaniga, a Dartmouth neuroscientist who sits on the council, said he was "upset" by Blackburn's ejection.

"She was one of the basic scientists who understood the biology of many of the issues we're talking about," Gazzaniga said. "It will be a loss for sure."

The council studies important issues ranging from human cloning to stem cell research and the use of biotechnology to enhance human beings. In the past several years the council has found it difficult to reach concensus that matches the Administration's preferred positions. Apparently that will no longer be a problem.

I think this undermines any credibility that the President's council on bioethics ever enjoyed.

Incidentally, the President's latest action comes on the heels of a recent report by the Union of Concerned Scientists finding that the Administration has regularly manipulated, distorted, and blocked scientific research to further its political aims and that "the scope and scale of the manipulation, suppression and misrepresentation of science by the Bush administration is unprecedented."

The Bush Administration's attitude toward science shows that it treats expertise not as a source of information for good governance but only as an adjunct to securing political advantage and pleasing its constituents. Its treatment of science is of a piece with how it used intelligence in the run up to the Iraq War: listen only to what you want to listen to, and discard or distort the rest. If you don't find information you like from objective sources, find someone with credentials (or without them) who will provide the information you want to hear.

Using propaganda to convince others that your policies are correct is one thing. But listening to your own propaganda to make decisions is a poor strategy for successful government.


A Lot More Troubling Than Jayson Blair

is the story of how the New York Times, following shoddy investigative methods, repeatedly asserted the existence of weapons of mass destruction in Iraq that turned out not to be there. Reports by the nation's leading newspaper and one of the country's primary shapers of public opinion greatly strengthened the false impression that Iraq posed an imminent threat to the United States, and that a preemptive war was fully justified.

Fabricating quotes is bad enough. Fabricating a causus belli is much much worse.

Nobody died as a result of Jayson Blair's misdeeds. But hundreds of American soldiers have been killed and thousands more wounded because of a war of choice that was sold as a war of necessity.

I've read and enjoyed-- and trusted-- the New York Times for many years. But the Times needs to take a long, hard look at itself for this one.

Friday, February 27, 2004



Josh Chafetz has the details of the head count in the Senate.

Even so, the real question is whether support for the Federal Marriage Amendment (FMA) helps or hurts Bush for November. I believe it hurts him.

Candidates who face primary opposition have to appease their ideological base in the primaries, and then move to the center in the summer for the general election. This always carries with it the risk that because of the positions they have to take in the primaries the public will think them too far out of the mainstream, or inconsistent, or both. Incumbent presidents who don't face substantial opposition have the luxury of staying in the center throughout the year, while their opponents must zig zag.

That is not what has happened this year. Following David Kay's revelations that there weren't any weapons of mass destruction in Iraq, Bush's poll numbers began to decline. Some Americans who once supported him no longer trusted him. The economy-- and new employment-- did not pick up as quickly as the President hoped it would. With a weak economy, and with growing distrust of the President over the WMD controversy, Bush found himself having to win over his base, even though he faced no opposition. The Mayor of San Francisco's decision to grant licenses to same-sex couples forced his hand. If he wanted to remain the leader of the religious and social conservative wing of his party, he had to exercise leadership and come out in favor of the FMA. In doing so, however, he risked being perceived of as intolerant. And he gave an opening to the Democrats to stake out a position which was much closer to the center of developing public opinion-- that states should decide for themselves what rules they wanted concerning marriage, and that civil unions (as opposed to same-sex marriages) were just fine if some states wanted them. No one could have predicted a year ago that this would become a moderate position on same-sex marriage, but events have outpaced almost everyone's calculations.

If you watch closely, you will note that Kerry and Edwards are trying to come as close to the emerging centrist position on same sex marriage as they can without angering the party faithful. Bush, however, will find it very hard to move much closer to the developing center, because the social and religious conservatives that he needs to court are adamant. That, of course, is the disadvantage that comes when an important constituency of your party cares more about ideology than about winning.

Bush's support for the FMA is not going to be the wedge issue that divides and discomfits his opponents, as flag burning, ACLU membership and Willie Horton were for his father in the disgraceful presidential campaign of 1988. Instead, because the center is moving so rapidly on this issue, the FMA is likely to divide and discomfit his own party.

What will the President do next? He can't run on Iraq or on the economy. The proposed mission to Mars went nowhere, his immigration proposal angered important elements of his conservative base, and his support for the FMA appears to be backfiring. What will he pull out next from his bag of tricks?

Whatever it is, I am quite sure it will be quite unpleasant. One thing we know about the Bush family and their advisors: They don't mind playing rough or playing dirty, as long as somebody else takes the heat and receives the blame.

Thursday, February 26, 2004


Bush: Democrats Lack Agenda

As the Washington Post reports, the President has complained that, unlike him, Democrats do not have a clear plan:

"The man who sits in the Oval Office will set the course on the war on terror and the direction of our economy," Bush said in downtown hotel. "The security and prosperity of America are at stake."

In contrast with those agenda-less Democrats, Bush has been very, very active. In three short years, he has run the economy into the ground, eliminated the existing federal surplus, busted the federal budget, taken the United States into war against a country that lacked the weapons of mass destruction he claimed were present, given enormous tax breaks to his wealthiest contributors, awarded the Vice President's friends large contracts in Iraq without competitive bidding (resulting in substantial war profiteering), stonewalled inquiries into the circumstances surrounding the 9/11 attacks, detained American citizens in violation of the protections of the Bill of Rights, violated international law and the Geneva Convention, undermined civil liberties and personal privacy, stocked the executive and judicial branches with right wing ideologues, proposed an amending the Constitution to enshrine intolerance and denials of equal rights, and presided over the loss of more than 2.3 million jobs.

A reformer with results, indeed!


Locke v. Davey-- Like a Garden Snake

Yesterday the Supreme Court handed down an important Free Exercise opinion in Locke v. Davey, holding that Washington state could give Promise Scholarships for individuals seeking college education except for those seeking degrees in theology. The Court held, 7-2, in an opinion by Chief Justice Rehnquist, that this did not violate the Free Exercise Clause. Justices Scalia and Thomas dissented.

The majority opinion is a characteristically Rehnquist opinion; it is like a garden snake-- short and slippery. Rehnquist emphasizes that Washington has not imposed civil or criminal penalties on people studying for the ministry but simply refused to subsidize training for one particular profession or calling because of the state of Washington's policy, written into the state's constitution, of not subsidizing the ministry.

What is important about Locke v. Davey is less what the Court decided than what it did not decide. The opinion is written very narrowly to avoid a series of important constitutional questions. For example, by focusing on professional or vocational training for religious positions, Rehnquist dodged the more difficult question of the constitutionality of school voucher programs that include only secular private schools. The latter policy does not make a distinction based on professional training, but rather on the nature of the school that provides elementary and secondary education. Although Locke v. Davey suggests that there might be no Free Exercise problem with such a policy, I think it is still an open question whether secular-school-only voucher programs are constitutional under the Free Exercise Clause.

There was also a free speech issue implicit in the case. You could argue that the Promise Scholarship program violated Davey's free speech rights because scholarships were available for people majoring in every subject but not in theology. In a footnote, Rehnquist distinguishes the Washington statute from cases where the state creates a public forum for all viewpoints by funding or providing access to government, and then unconstitutionally excludes one particular viewpoint. The Promise Scholarship, Rehnquist asserts, is not a forum for speech, but financial assistance for postsecondary education; it is not a policy designed to promote a diversity of views from private speakers. That holding is quite important because it suggests that a free speech attack on secular-school-only voucher programs would fail.

I don't think that Locke stands for the general proposition that whenever the government offers a general benefit but refuses to extend it to religious organizations, this poses no Free Exercise problems as long as there is no criminal or civil penalty against religious observance or religions activity. That is Justice Scalia's take on the meaning of the case. Scalia exaggerates, as he so often does, in order to make a point. Some exclusions of religious organizations from welfare state programs will still violate the Free Exercise Clause. The problem is that Rehnquist does not tell us which ones they are. Surely the government may not deny police and fire protection to churches or to the houses of ministers; and it may not exclude ministers from prescription drug benefit programs generally available for employees. All Rehnquist has done is to say that excluding ministers from a general vocational training subsidy is different. But he has not yet explained how. That may have been necessary to put together a broad majority of the Justices. But it leaves many questions unanswered.


Lincoln and the Thirteenth Amendment

Josh Chafetz gets the Lincoln story a bit wrong:

Anecdote: The Thirteenth Amendment was accidentally sent to the White House after having been passed by the requisite two-thirds majority in both Houses of Congress. President Lincoln, apparently unthinkingly, signed it. The Senate, at the behest of Senator Lyman Trumbull, later passed a resolution pointing out that the President's signature had been unnecessary.

As noted below, Lincoln signed the Thirteenth Amendment not by accident but as a deeply symbolic act: in part to show his strong support of the Amendment, and in part as a symbolic response to James Buchanan's signature of the Corwin Amendment, which was never ratified.

UPDATE: Apparently, Josh is planning to study at Yale. This is very good news for us; we can always use another smart blogger.

Wednesday, February 25, 2004


The FMA: Not The First Proposed Amendment to Exclude

Many opponents of the proposed Federal Marriage Amendment claim it is the first time that the Constitution would be amended to exclude a group of people. Well, that's technically correct: If *ratified*, the FMA would be the first amendment actually *adopted* that would do that. But it would not be the first such amendment proposed, and more importantly, it would not even be the first such amendment that passed Congress by a two thirds vote of both houses and was submitted to the states. That honor would go to the proposed Thirteenth Amendment of 1861.

Instead of arguing that what Bush has done is unprecedented, I think it's much more important to remember that this *has* happened before, and that the previous attempt is now universally condemned.

The proposed Thirteenth Amendment passed the House on February 28, 1861, and the Senate on March 2nd, 1861. The proposed amendment, sometimes called the Corwin Amendment, because it was proposed by Representative Thomas Corwin of Ohio, was a desperate measure designed to keep the Union from falling apart. By the time the amendment was submitted to the states, seven states had already seceded and four were soon to follow. The ensuing Civil War made it irrelevant, but it was ratified by several states and because it has no time limit for ratification, it is still technically before the country:


No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

As you can see, the point of the Corwin Amendment was to assure Southern states that the Constitution would never be amended to abolish slavery. (Ironically, it says nothing about the issue of slavery in the territories, which was one of the precipitating causes of secession). There is an interesting question whether amendments that prohibit future amendments can work. After all, one can simply amend them to remove the prohibition. The irony, of course, is that the Thirteenth Amendment that was ratified four years later in December 1865 did abolish slavery.

President James Buchanan, who had promoted the idea of an "explanatory" constitutional amendment to resolve the crisis over secession, signed the Corwin Amendment after the Senate passed it. This was technically unnecessary, because Article V of the Constitution does not require the President's consent to amend the Constitution. However, when what is now the Thirteenth Amendment was passed by Congress in February 1865, President Lincoln signed it in a symbolic attempt to negate Buchanan's action.

It is tempting to draw parallels between James Buchanan, who promoted the Corwin Amendment that would forever exclude blacks from full citizenship, and President Bush, who is now promoting an amendment that would exclude gays from full citizenship. Buchanan after all, was one of our worst presidents. But it's important to remember that in 1861, many people from both parties supported the Corwin amendment while holding their noses, including Abraham Lincoln himself, who makes passing reference to it in his First Inaugural Address:

I understand a proposed amendment to the Constitution--which amendment, however, I have not seen--has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.

Incidentally, the Corwin Amendment was not the only attempt to broker a deal: An earlier proposal in 1860, the so called "Crittenden Compromise," named after Senator Crittenden of Kentucky, would have reinstated features of the Missouri Compromise held unconstitutional in Dred Scott v. Sanford, and would also have prevented Congress from abolishing slavery in the District of Columbia and from regulating interstate transportation of slaves. This compromise failed to pass the House and the Senate.

President Bush should be justly criticized for attempting to amend the Constitution to deny one group of people full and equal rights. But he is not the first President to do so, and we should draw a lesson from the previous example of the unratified Thirteenth Amendment. What he is doing is not unprecedented, and we should resolve not to let it happen again in our own time.

Tuesday, February 24, 2004


Yo Andy, What Took You So Long?

Andrew Sullivan finally wakes up and smells the intolerance. Wait, where's that odor coming from? Oh my, it's coming from the right wing of the Republican Party and its leader, George W. Bush!

WAR IS DECLARED: The president launched a war today against the civil rights of gay citizens and their families. And just as importantly, he launched a war to defile the most sacred document in the land. Rather than allow the contentious and difficult issue of equal marriage rights to be fought over in the states, rather than let politics and the law take their course, rather than keep the Constitution out of the culture wars, this president wants to drag the very founding document into his re-election campaign. He is proposing to remove civil rights from one group of American citizens - and do so in the Constitution itself. The message could not be plainer: these citizens do not fully belong in America. Their relationships must be stigmatized in the very Constitution itself. The document that should be uniting the country will now be used to divide it, to single out a group of people for discrimination itself, and to do so for narrow electoral purposes. Not since the horrifying legacy of Constitutional racial discrimination in this country has such a goal been even thought of, let alone pursued. Those of us who supported this president in 2000, who have backed him whole-heartedly during the war, who have endured scorn from our peers as a result, who trusted that this president was indeed a uniter rather than a divider, now know the truth.

NO MORE PROFOUND AN ATTACK: This president wants our families denied civil protection and civil acknowledgment. He wants us stigmatized not just by a law, not just by his inability even to call us by name, not by his minions on the religious right. He wants us stigmatized in the very founding document of America. There can be no more profound attack on a minority in the United States - or on the promise of freedom that America represents. That very tactic is so shocking in its prejudice, so clear in its intent, so extreme in its implications that it leaves people of good will little lee-way. This president has now made the Republican party an emblem of exclusion and division and intolerance. Gay people will now regard it as their enemy for generations - and rightly so. I knew this was coming, but the way in which it has been delivered and the actual fact of its occurrence is so deeply depressing it is still hard to absorb. But the result is clear, at least for those who care about the Constitution and care about civil rights. We must oppose this extremism with everything we can muster. We must appeal to the fair-minded center of the country that balks at the hatred and fear that much of the religious right feeds on. We must prevent this graffiti from being written on a document every person in this country should be able to regard as their own. This struggle is hard but it is also easy. The president has made it easy. He's a simple man and he divides the world into friends and foes. He has now made a whole group of Americans - and their families and their friends - his enemy. We have no alternative but to defend ourselves and our families from this attack. And we will.

What I want to know is, why is Sullivan surprised? *Now* he gets that the president is not a uniter but a petty tyrant only interested in his own political survival? *Now* he gets that this guy is a shill for the worst sort of politics? *Now* he figures out that the motto of the Bush Administration is: Dissemble as long as possible, but when the chips are down, never piss off the right wing base?

Gee Andy, you *really* must have wanted to invade Iraq to support the guy for this long. Well, your favorite warmongerer just brought the war home to you. Hope you're happy now.

* * * * *

Note that, as you will see in the posts below, I actually don't think that its as bad as Sullivan thinks. I think that Bush is in an untenable position; he's now trying to avoid saying that civil unions should be outlawed as well, contrary to what the hard right wants. The FMA won't pass, and Bush is going to get squeezed from both sides. When his political strategy fails-- as it ultimately will- all that he will be left with is the reputation as a divisive, intolerant, and opportunistic politician, who demeaned a whole class of American citizens just to stay in power. But all of this will be cold comfort to Sullivan, who simply refused to believe what was always in front of his eyes and now has been tossed in the garbage as expendible by his Great Leader.


Bush Throws In The Towel, Says States May Enact Civil Unions

Here's the text of the President's endorsement of a constitutional amendment to ban same sex marriage.

Note carefully the following passage:

The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.

My friend Mark Tushnet who teaches at Georgetown University, remarked to me the other day that what is most remarkable about the debate over same sex marriage is that within a few year's time the moderate conservative position has now shifted from opposing all recognition of same sex partnerships to conceding that states may pass civil unions, as long as these are not called marriages.

Bush's statement confirms this. He is attempting to shape the issue in terms of what states may officially term "marriage," as opposed to preventing states from effectively giving same sex couples the bundle of rights enjoyed by married couples. This means that he cannot endorse the proposed FMA in its current form, because, as I have noted previously, it would also prevent states from passing civil unions or domestic partnership legislation. His strategy is to make the fight about semantics and symbolism rather than substance.

Because Bush wants to appeal both to his base and to moderate voters, this semantic strategy makes perfect sense. But it is well worth considering what he and other conservatives have given up in the process. The fact that Bush appears to have given up trying to prevent states from passing civil unions laws signals that the fight over same sex marriage has shifted ground decisively in favor of civil rights advocates and against the Christian right. The best that the Christian right can hope for now is a world in which some states have civil unions and others do not.

I suspect that some pundits will declare this to be a major offensive in culture wars. To me it looks like an admission of defeat.


Bush Rolls the Dice on Same Sex Marriage

As expected, President Bush finally endorsed a constitutional amendment banning same sex marriage.

Will the strategy make him seem intolerant or will it allow him to take the initiative and drive public attention to an issue that energizes his base? Only time will tell.

I have predicted in a previous post that a same sex marriage amendment is going nowhere. Assuming that there are two thirds majorities in both houses of Congress (which are both controlled by the Republicans) I'm fairly sure that it will not obtain the required three quarters of the states to ratify.

But actually passing the amendment is not necessarily Bush's goal. Rather, as with so many announcements and policy initiatives in the past few months, he has only one goal on his mind: getting reelected in November.


The Unconstitutional Restoration Act

Last week Alabama's Sen. Richard Shelby (R-AL) and Rep. Robert Aderholt (R-Haleyville) began a full scale assault on the American Constitution. The grossly misnamed "Constitution Restoration Act of 2004" is designed to pander to the far right by stripping the federal courts of jurisdiction to hear certain Establishment Clause cases, requiring that in deciding constitutional cases federal courts may not look at the law of any other nation but "English common law," and threatening impeachment and removal of any judge who defies its provisions.

The first feature of the bill prevents courts from passing on questions concerning certain government establishments of religion:

`Sec. 1260. Matters not reviewable

`Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.'.

Although Congress has the power to change the Court's appellate jurisdiction (this is one side effect of Marbury v. Madison) it may not do so in ways that violate the First Amendment. In this case Congress has made a viewpoint based distinction. Actions which acknowledge "God as the sovereign source of law, liberty or government" are shielded from judicial review, while actions which specifically denounce or reject "God as the sovereign source of law, liberty or government" may be reviewed under the Establishment Clause. (An example of the latter would be erecting a momument to atheism or placing the words "There is no God" on the state's flag). Since both types of acts may violate the Establishment Clause, the jurisdictional bar is based on the content of the government official's viewpoint. This would be akin to Congress denying jurisdiction to review cases where government officials punish someone on grounds of criticizing the war in Iraq while retaining judicial review in cases where government officials punish someone for supporting the war. Such a statute would also be an unconstitutional withdrawal of jurisdiction.

The second feature of the act restricts the ways that federal courts may interpret law:


In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law.

This provision is pretty obviously aimed at the Court's citation of international law in Lawrence v. Texas. It violates the separation of powers because it usurps the judicial power under Article III. Once again, according to Marbury, it is the duty of courts to say what the law is, and although Congress may remove certain elements of their jurisdiction, they may not dictate how judges may interpret law or decide cases, which is a core judicial function.

Quite apart from its unconstitutionality, the act also reflects the xenophobia characteristic of the far right wing of the Republican party.

The third part of the act attempts to remove precedental value from all decisions that define Establishment Clause violations in ways contrary to the act:


Any decision of a Federal court which has been made prior to or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 of title 28, United States Code, as added by this Act, is not binding precedent on any State court.

This provision also violates the separation of powers by attempting to modify how state courts are bound by Supreme Court precedents. This is in violation of the principle announced in Martin v. Hunter's Lessee that state courts are bound by decisions of the U.S. Supreme Court. It is especially problematic because it applies retroactively to decisions made before the Act takes effect.

The fourth part of the Act states that a violation of the Act's provisions constitutes an impeachable offense and withdraws the constitutional protection of life tenure under Article III, section 1, which states that judges "shall hold their offices during good behaviour":


To the extent that a justice of the Supreme Court of the United States or any judge of any Federal court engages in any activity that exceeds the jurisdiction of the court of that justice or judge, as the case may be, by reason of section 1260 or 1370 of title 28, United States Code, as added by this Act, engaging in that activity shall be deemed to constitute the commission of--

(1) an offense for which the judge may be removed upon impeachment and conviction; and

(2) a breach of the standard of good behavior required by article III, section 1 of the Constitution.

I express no opinion on whether Congress may statutorily define impeachable offenses before the fact, or whether it may define what conduct constitutes good behavior. However, regardless of how good behavior is defined by statute, judges may not be removed from life tenured positions unless they are impeached and convicted by the Senate under Article II, section 4. Moreover, Congress may not define conduct to be an impeachable offense on the basis of an unconstitutional statute because such a statute is beyond Congress's power to enact. (Note that this does not limit the possible *reasons* why Congress may choose to impeach and convict judges, it limits only the use of an unconstitutional *statute* to define those reasons). Because the other provisions of the statute violate the First Amendment and the separation of powers, this part of the statute is also unconstitutional.

I never cease to be amazed at how shameless politicians can be when trying to score political points with their constituents. Although the bill's sponsors claim that they are trying to restore the Constitution in the face of judges who have disregarded the basis of American constitutional government, in fact it is this statute itself which is blatantly unconstitutional and which shows utter disrespect for our constitutional system. The Senators and Congressmen who sponsored this bill should be ashamed of themselves. They swore an oath to uphold the Constitution of the United States. They are obviously unwilling to live up to that oath and therefore they should resign.

Monday, February 23, 2004


Run Roy Run!

Please, pretty please. The nation needs you Judge Moore! It needs you as a presidential candidate. Just look at all those terrible people in San Francisco, degrading marriage and stomping on the Divinely ordained order of things. Don't you think it's time someone like yourself said enough is enough? George Bush won't do it. He's too scared of what all those soccer moms in Ohio would say. It's up to you Roy, it's up to you!

Saturday, February 21, 2004


Evangelical Leaders Unhappy With Bush

The Washington Times reports that several figures in the Religious Right are openly criticizing President Bush for failing to respond more forcefully to the rise of same sex marriage and other cultural issues, and that Christian conservatives may stay home rather than go to the polls in 2004.

"The strength of this president is in his convictions, but our people do not admire his indecision and lack of leadership on an issue so basic as the sanctity of marriage," [Concerned Women for America President Sandy Rios] said.

Religious conservatives helped Ronald Reagan win the presidency in the 1980s and helped Republicans retake the House and Senate in 1994, but complain that they have little to show for their loyalty to the GOP.

"I'm not blaming the president, but religious conservatives have been doing politics for 25 years and, on every front, are worse off on things they care about," said Gary Bauer, president of American Values. "The gay rights movement is more powerful, the culture is more decadent, the life of not one baby has been saved, porn is in the living room, and you can't watch the Super Bowl without your hand on the off switch."

These criticisms are to be expected. George Bush is, after all, a part of the conservative Christian movement, and as president, he is the de facto leader of the Religious Right. Having put one of their own in the White House, Christian conservatives naturally want to see some results. But Bush is also a crafty politician, and he does not want to do anything that will make him be perceived of as intolerant. So you will get no ardent denunciations from this President. Rather, you will get nuanced and carefully calibrated support for Christian conservative causes designed not to offend too many voters in the Republican coalition who are not Christian conservatives.

Gary Bauer wonders why things have gotten worse since 1994. In one sense, they haven't gotten worse. His party controls all three branches of government, and the President has stocked the judiciary and the executive branch with people who are either Christian conservatives or are sympathetic to their views on cultural issues. What Bauer is objecting to is long term shifts in American culture, which he is fighting against, but which are more powerful than either his followers or the Republican Party. And he is putting pressure on the President to correct those trends. Yet, as Bauer himself realizes, there is only a limited amount that the President can do.

Bauer and other Christian conservatives are thus deliberately putting the President between a rock and a hard place. In order to gain their votes he must shift symbolically to the right and denounce the decay of American culture-- including most prominently the issuance of same-sex marriage licenses in San Francisco (and now New Mexico). Yet the President cannot afford to do so, because the general election season has all but started. But Bauer and his allies don't really care. They want the President to show that he is one of them; they want him to exercise moral leadership. What they don't realize is that this President only exercises "moral leadership" when he thinks it won't cost him any votes. In matters of politics, he is a complete and thorough opportunist.

Thursday, February 19, 2004


Is San Francisco Starting A Trend?

Other cities are considering issuing licenses for same sex marriage, the Washington Post reports.

What's important is not how many cities actually go ahead and do this, but the fact that the idea has moved from the positively unthinkable to the positively thinkable. And what is more important is that elected officials and not courts are taking the lead. As I argue in the previous post, that is how constitutional change occurs.


How Constitutional Meanings Change

Not by courts, but through political action. Courts are often the last to get involved.

What is remarkable about Mayor Daley's recent statement that he would have "no problem" with the Cook County clerk issuing same sex marriage licenses is that a number of prominent politicians are now standing up and saying that this is what fairness and equality means. Such statements in the context of larger social movement activism are quite important in reshaping public opinion, and, in turn, reshaping constitutional norms.

It's important to understand that politicians can do this for good or for ill, in ways we like and in ways we don't like. The Civil Rights Movement and the Civil Rights Act of 1964 reshaped the meaning of the Equal Protection Clause, but so too did massive resistance in the South, George Wallace standing in the school house door, and Richard Nixon's running against busing and in favor of "law and order" in the 1968 election. The point is not that politicians always do good when they promote constitutional norms through political action. The point is that the meaning of the Constitution is driven and produced by political activism, and later confirmed by judicial decision. People often complain that courts are writing their political beliefs into the Constitution. But if we look at the way the system actually works, its not just the courts, or even primarily the courts. It's all of us. This is the most important lesson about how constitutional change actually occurs.

Wednesday, February 18, 2004


More on Public Universities, Public Subsidies, and the Culture of Free Expression

Juan Non-Volokh points out correctly that if market forces by themselves would be insufficient to produce public goods, governments can either provide the goods themselves or subsidize private entities to produce them. Therefore governments might help support an infrastructure for free expression through subsidizing private universities instead of creating public universities.

That sounds fine to me. After all, as I said in my previous post, I've taught both in public universities and private universities that are heavily subsidized by the government. Both are important to production of a culture of free expression and a vibrant public sphere. If Juan prefers private universities subsidized by government funds, more power to him. But the important point-- and the point of my original posting-- is that government has to take affirmative steps to create the conditions for the exercise of free expression. It's not just a matter of preventing government from censoring individuals.

But Juan also wonders whether even public subsidies are a good idea:

The relevant comparison must always be between the admittedly imperfect private marketplace and the equally -- if not more -- imperfect government alternative. Too often, the assertion of market failure is taken as sufficient justification for government action without any consideration of whether the policy proposal in question, as it is likely to be implemented in the real world, will actually produce a superior net result.

Well, yes, in some cases its possible that remedying market failures either through public subsidizes or through direct government provisions of a public good can be worse than leaving things to the unassisted private market. But I have to say that providing education, and particularly higher education, is not one of those cases. And note that by education here I am speaking of more than mere vocational training, which markets can more easily provide; I mean education in features necessary for individuals to participate in governance and in culture generally. This sort of education is one of the clearest examples of a public good other than perhaps public defense (which is dealt with by a combination of government provision of goods and outsourcing to private entities according to government specifications). Sometimes the cure is worse than the disease, but this abstract formula becomes less plausible when you are talking about public education, and particularly higher education. If Juan has reasons to believe that Americans are actually made worse off by having a rich public culture produced by a combination of government subsidies and government provision of higher education, he has not yet revealed them.

Glen Whitman thinks he has the killer argument:

If the government could distinguish between the good and bad ideas, then it could subsidize only the good ones. But I have little or no confidence in government's ability to make such distinctions wisely, and the blanket subsidization of public universities assures funding of both the good and the bad. The strongest case for freedom of expression, I would argue, rests not on economic efficiency but on the inherent danger in giving a coercive government the power to decide what's good and bad in the realm of ideas. From that perspective, David Bernstein's position makes a great deal of sense: having public universities ipso facto puts the government in the position of having to make distinctions that it has no business making.

Glen's assertion that goverments should never be in the business of deciding which ideas are good and which are bad is much too broad. To a very large extent governments are in the business of deciding which ideas are better than others, because that is the basis on which they enact (or should be enacting) public policy. Moreover, governments are always in the business of promoting some ideas over other ideas. Does Glen seriously want to blow up the Washington Monument or the Lincoln Memorial? To keep children from visiting said memorials on the grounds that they will be unduly influenced to think that Washington and Lincoln were great presidents? Does he think that there is something nefarious in government officials asserting that democracy is good and tyranny is bad? (Would he object to the creation of a government program designed to promote belief in democratic forms of government over non-democratic forms? Does he believe that President Bush was wrong to give a speech advocating democracy and freedom for the rest of the world? Does he think government should not encourage the populace to engage in healthier habits through reporting the results of government funded health studies?)

The question is not whether government may not prefer some ideas or viewpoints over others, but what methods the government may properly use to prefer certain viewpoints and ideas or-- and this is a somewhat different objective-- to promote public expression, debate, and the exchange of viewpoints. In general, government may not punish people through criminal fines or civil penalties because of the viewpoints they express. This is the central meaning of the free speech guarantee in our Constitution. On this Glenn and I presumably would agree. But a healthy system of freedom of expression involves much more than securing this basic guarantee. It requires an educated populace and the opportunity for people to express themselves and participate in the culture in which they live. It requires a rich and vibrant public sphere. That public sphere will not be produced without government subsidy or government provision of important public goods. If government got out of that business entirely, we might still have a formal liberty of expression, because no one would be thrown in jail or fined for stating unpopular viewpoints. But our system of free expression would be much much poorer.

Government works through many different devices other than criminal penalities and civil fines. It also operates through providing public goods and subsidizing others to provide them. Very often government does this to promote particular ideas, for example when it provides free public education, or when it subsidizes charitable organizations. Glen is worried that governments will violate the free speech principle when this happens. He is right to worry: Governments *can* sometimes violate the free speech principle though selective subsidies or through providing public goods-- on this he and I agree. But Glen overstates his case when he assumes that use of subsidies and provision of public goods is always suspicious and tyrannical in the same way that the use of criminal fines and penalities is suspicious and tyrannical. I think there is a big difference between throwing a person in jail for being a communist and deciding to create a public library so that children and adults can have books to read. There is a big difference between preventing all demonstrations on the town green and requiring that all schools that receive public funding teach reading and mathematics. There is a big difference between the local sheriff giving parade permits only to Democrats but not to Republicans and the local university deciding that it will offer courses on microbiology but not astrology. Glen has run together a wide variety of different activities under the simple rubric of government tyranny. It's a much more complicated world than he describes.

As a first amendment scholar, I am the first to admit that when the government gets in the business of subsidizing and providing public goods to promote the infrastructure of free expression it takes on responsibilities to be fair. It does not escape the first amendment simply because it is creating or subsidizing public goods rather than punishing people. But the concerns of the first amendment are very different in the former case than in the latter. This is what Glen's argument overlooks. And, because producing the infrastructure of free expression is so important to a healthy and vibrant culture of free expression, it has real positive value that criminal penalities and civil fines usually do not have.


Antonin Scalia Opposes Brown v. Board of Education, Equal Rights For Women

At least that's what follows from the stump speech he has been giving in various forms around the country:

[Scalia] derided proponents of an opposing judicial philosophy that has reigned for the past half-century and who see the Constitution as a "living document." Such a notion is "phony," he said, adding, "People really believe this nonsense."

The steady application of that philosophy, he said, has meant that justices are free to interpret the document how they wish -- freeing the court from the text.

Such an approach is intellectually suspect and dangerous, he said.

"It's a legal document," he said of the Constitution. "It says some things which are permanent, and it doesn't say other things."

Scalia said originalism used to be orthodoxy. Now, people who profess it are looked on "as if its some kind of an affliction -- like when did you start eating human flesh?"

He said originalism is necessary to constrain judges and keep the balance of power in the country.

"You either have to abandon this idea of a living constitution, or essentially you say to your judges, govern us with no constraints -- except your own judgment.

"I'm not willing to do that."

I guess this is probably as good a place as any to reprint a posting I put on the CONLAWPROF Listserv (run by the most excellent Eugene Volokh) last year. My argument was that Scalia talks out of both sides of his mouth. He supports originalism when he doesn't like a precedent, and he completely ignores originalism and argues for stare decisis when he likes a precedent. This allows him to craft judicial opinions that hew closely to his poiltical views (which are an interesting mix of libertarian and social conservative). Hence there's no reason to think that originalism, at least in the way that Scalia practices it, constrains him any more than the Justices he derides. Here's the post from last year:

* * * * *

[T]he problem with Scalia's use of originalism is twofold: First, it is often badly done, which is the point that Professor Franck makes about [Chief Justice] Taney's originalism [in Dred Scott v. Sanford]: Both Scalia and Taney do questionable history in order to achieve a political conclusion that each likes. Then each of them has the nerve to insist that any other way of interpreting the Constitution is illegitimate and, in Scalia's case, to denounce and ridicule anyone who disagrees with him.

The second problem with Scalia's use of originalism is that it is opportunistic. Scalia invokes originalist arguments when they support constitutional positions he agrees with; but when they would be an embarassment to the positions he likes, he says nothing about originalism, instead using fairly standard arguments based on precedent, social policy,
and his favored values. You may remember that a week before Lawrence came down the Supreme Court decided the Michigan affirmative action cases. Neither Scalia nor Thomas said anything in their opinions about the original understanding of the Fourteenth Amendment in those cases, nor, to my knowledge has either seriously engaged with that history in any of their opinions on race relations. But that history sheds some degree of doubt on whether colorblindness is the operative meaning of the 14th amendment's section one, at least as originally understood by its framers. (And indeed, although it is certainly not conclusive proof, the Congress that passed the 14th amendment engaged in race conscious affirmative action in providing educational and social welfare benefits for blacks, including blacks who were not newly freed. (See Jed Rubenfeld's 1997 article in Yale Law Journal on this body of legislation.). This legislation was in addition to the Freedman's Bureau acts, which can be understood as either race conscious or race neutral depending on your interpretation of them. The history of Congressional affirmative action is not conclusive proof because Congress was not bound by the 14th Amendment, but then of course, on that line of argument, it's unclear how either Scalia or Thomas could have joined the Adarand decision.

At the end of the day, Scalia may be correct that the best translation (in Larry Lessig's terms) of the original understanding is a strict colorblindness rule. But I doubt it, and even if that is so, Scalia refuses to adopt that sort of translation methodology, because it is the very sort of living constitutionalism that he disdains. So he can hardly employ it to justify his position in the Michigan cases.

Stare decisis [respect for previous precedents] must temper originalism, and that is how many non-originalist decisions like Bolling v. Sharpe [which struck down segregation in the D.C. schools under the Fifth Amendment's Due process clause] (and Adarand) [which held that federal affirmative action programs are suspect under the Fifth Amendment's Due Process clause] might be justified for an originalist. The problem is that originalists like Scalia do not consistently follow precedent when it conflicts with original understandings, nor do they consistently follow original understandings when they conflict with precedent. Rather, they pick and choose, depending on which constitutional rules they like better. It is unlikely that Scalia would vote to overturn Bolling v. Sharpe, but he would love to overturn precedents like Roe, Casey, Stenberg, Eisenstadt, and Carey [which guarantee rights of abortion and contraception]. He defers to previous precedent (or expands on it) when it suits him, and he waxes eloquent about returning to the original understanding when that suits him. And all the while he insists that people who disagree with him are making illegitimate arguments, and are imposing their personal preferences on the Constitution. The irony is that when originalism is opportunistically applied in the way that Scalia employs it, it allows judges to do pretty much the same thing as the judges that Scalia criticizes. In this sense, Scalia's brand of originalism fails to perform the very function he says it should perform: the function of constraining judges. Having seen Scalia's body of work since he joined the Court, I have no reason to believe that Scalia is any more constrained from pushing the Constitution in his preferred direction using an artful combination of textual, originalist, and precedental arguments than William Brennan was. Scalia is the living constitutionalist who dares not admit that his is a living constitutionalism of the right rather than of the left.

Tuesday, February 17, 2004


Save Freedom of Speech, Get Rid of Public Universities?

A provocative post by David Bernstein, who by the way, is speaking here today at Yale, suggests that civil libertarians should be opposed to public universities on free speech grounds: "The inevitability of content-based regulation of academic expression on public university campuses suggests a strong civil libertarian case that government should not be in the business of running universities at all."

This remark demonstrates an interesting and important split between David's approach to freedom of speech and mine. David is interested in preserving individual rights of freedom of expression from government interference; I'm interested in promoting a democratic culture in which people are free to participate in culture and express themselves. For David, freedom of speech is the sum of individual rights of free expression against government interference. For me, freedom of speech involves important infrastructural elements in technology and institutions that undergird and enrich the system of free expression, produce an educated citizenry and give them the tools and the practical opportunity to participate in the growth and development of culture. These infrastructural elements include, among others free public education, public libraries, common carrier rules in telephony and government sponsored scientific research. Put in economic terms, the infrastructure of free expression is a public good that markets will underinvest in. Put in sociological terms, the infrastructure of free expression is a precondition to a vital public sphere and the vigorous exchange of ideas. You will not be surprised, therefore that I believe that public universities (and indeed public education generally) are central (although not sufficient) ingredients of producing a culture of free expression. Put in economic terms, once again, a healthy and well functioning system of freedom of expression requires a vast array of public goods to supplement, undergird, and enrich civil society, private institutions and the work of markets.

David points out, and rightly so, that when governments run universities, they will engage in content based (and viewpoint based) regulations of speech. But this begs the question whether such regulations violate the free speech principle. Some of them surely do, but many more of them do not. When the government is engaged in the promotion of professional and academic standards, the free speech principle is not necessarily violated. Thus it is perfectly fine for a university to have a department of biology and not astrology, and to refuse to tenure people who believe that the best way to study biology is through astrology. Nor is the free speech principle necessarily violated when the government regulates speech in order to manage its internal bureaucracies. (These points are central to my colleague Robert Post's theory of freedom of expression).

David might insist, nevertheless, that lots of line drawing will be required to sort out appropriate regulations of speech from inappropriate ones; there will be many complicated cases that risk violating individual's rights and that we would be much better off if governments never ran universities, because then the maintenance of professional standards and management of bureaucracies would be entirely in private hands and so there would be little or no chance that the free speech principle would be offended. On this point I respectfully disagree. Without public universities, our cultural life would be much poorer. I now teach at a private institution, but one heavily subsidized by public money, and I spent my formative years as an academic at two public institutions, the University of Missouri at Kansas City and the University of Texas. Precisely because public education produces so many positive public externalities that, almost by definition, cannot be adequately captured by markets, it is highly unlikely that markets would take up the slack if public universities were abolished. The history of universities, even nominally private ones, is the history of a very significant amount of state support, whether it be sponsorship of Kings (as in many of the Oxbridge colleges) or the use of land grants to support public education. Indeed, democratizing education, and particularly higher education-- one of the most important achievements of the twentieth century-- was due in large part to government decisions to invest in the public. Those investments have paid off handsomely if imperfectly-- they have contributed greatly to the practical freedom that Americans enjoy today and the health and vibrancy of American artistic, intellectual, scientific and political life.

In short, freedom of speech is more than the sum of all individual free speech rights against the government. Freedom of expression is a cultural system that produces a public sphere of inquiry, learning, artistic expression and political contestation. To understand freedom of expression it is not enough to prevent government restraints. We must pay greater attention to the institutions and practices that make this public sphere healthy and vibrant. Some of those institutions and practices are private entities and result from market forces; but a great many of them are not.

Saturday, February 14, 2004


The U.S. Army Is Taking Names At Academic Conferences on Islam

The U.S. Army sent intelligence agents to investigate a conference about women and Islam held at the University of Texas School of Law, were I taught for six years.

UT law student and organizer Sahar Aziz was shocked at the Army's interest and methods.

"It was not a terrorism related conference. It was very benign … The reason why we put it together is there had been a lot of debate on campus about these issues due to the burka [face-covering mask worn by Muslim women] in Afghanistan and Iraq," she said.

A few days later, two U.S. Army intelligence agents showed up and wanted a list of all the people who attended the conference.

They approached Jessica Biddle, who helped Aziz get funding for the event.

"[I said] that he was intimidating me and is there a problem? His response was 'no, no problem, we're investigating a couple of people who attended the conference and we need to see the list,'" Biddle said.

What the Army did may or may not violate anybody's constitutional rights. But there's a larger threat to free expression and association that we shouldn't overlook here. By attending conferences and asking for names, the Army is sending a message: if you are the sort of person who goes to these conferences, we may choose to create a file on you. For many people, that will be a strong disincentive to attend conferences, exchange ideas, and speak freely, especially if they have controversial or unpopular views. Moreover, it will also make it more difficult for groups like Biddle's and Aziz's to hold conferences on Islam and get funding for them, because some people will be afraid to attend, and potential sponsors will be afraid to become associated with conferences that the Army may be spying on.

I don't have any problem with the government investigating terrorism. I do have a problem with its doing so in a way that chills protected expression and reinforces unjust stereotypes about Islam. That's particularly true when people are trying to think about how the Islamic tradition is connected to equality, democracy, and human rights. Our government should be welcoming this kind of intellectual exchange. Instead, it's discouraging open and honest dialogue.


The Cost (Plus) of No-bid Contracting in Iraq

The New York Times reports that Vice President Cheney's former firm, Halliburton, which received lucrative contracts in Iraq without having to go through the usual competitive bidding process, is coming under increasing scrutiny:

On Thursday, two Democratic members of Congress informed the Pentagon that two former Halliburton employees had come forward with a variety of accusations about wasteful spending of government money, saying Halliburton "routinely overcharged" for its work in Iraq.

"High-level Halliburton officials frequently told employees that the high prices charged by vendors were not a problem because the U.S. government would reimburse Halliburton's costs and then pay Halliburton an additional fee," the two Congressman — Henry Waxman of California and John D. Dingell of Michigan — wrote in a letter to Pentagon auditors.

One of the former employees, according to the letter, said "a Halliburton motto was: `Don't worry about price. It's cost-plus.' "

In the letter, the congressmen said the two men approached Mr. Waxman after leaving jobs with Halliburton for personal reasons last month. The letter said the employees told them Halliburton worked hard to avoid putting purchases out for competitive bidding and therefore overspent for many purchases as well as common items.

War profiteering is a despicable practice; it is even more despicable when the profiteering is by the President's and Vice-President's friends, who are hand picked without having to go through normal channels of competitive bidding, and who happily pass on their overcharges to the public. There is nothing patriotic about using the war to line the pockets of your friends and campaign contributors. It is bad enough when the Administration moves its friends to the head of the line. It is even worse when if the companies use the opportunity to gouge the public.

This is crony capitalism, the sort of thing one would expect in a third world country.

The press should spend less time going over Bush's national guard service in 1973 and more time on this. The Administration's contracting practices in the Iraq war are the real military scandal; they speak volumes about the President's character, and his apparent belief that he is entitled to use the public treasury as his personal plaything to reward his friends regardless of the cost to the country.


Federal Marriage Amendment Suffers From Drafting Errors

The Washington Post reports that the proposed Federal Marriage Amendment, which I have discussed here, is so poorly drafted that even the people who wrote it disagree about its meaning.

What is particularly remarkable is that some fairly prestigious legal talent-- including Judge Robert Bork, Professor Robert George of Princeton and Professor Gerald Bradley of Notre Dame-- was involved in drafting the FMA. Yet the language is so shoddy and confusing that I would probably flunk a student who submitted it in a final exam question. (And if you know anything about Yale Law School's grading system, that's saying a lot!).

The Post story explains that the drafting was done by a committee rather casually, without much concern for precision, and in order to satisfy various conservative constituencies. Some of the drafters believed that the language banned both same sex marriages and civil unions, others believed that it banned only same sex marriages, and still others believed that it prevented courts from holding that civil unions were required by federal or state constitutional law but did not prevent legislatures from creating such unions by statute.

In 1987 the Senate didn't think that Bork could be trusted to interpret the Constitution as a Supreme Court Justice. I must say that this episode does not speak well for his skills at drafting a constitution either.

Friday, February 13, 2004


I Left My Heart and (Got My Marriage License) in San Francisco

On February 12th, the birthday of the Great Emancipator, Abraham Lincoln, the Mayor of San Francisco ordered the city clerk's office to begin awarding marriage licenses to same sex couples, the Los Angeles Times reports.

Because existing California law (which preempts municipal law to the contrary) defines marriage as the union of a man and a woman, the city's tactic will fail unless it can get the California courts to hold that the California law is unconstitutional. My guess is that the courts will not agree, and we may even see a proposed amendment to the California Constitution to reemphasize that fact.

Given that the mayor's stunt will almost certainly fail legally in the short run, is it a wise strategy in the long run? Yes, because the push is coming from an elected official and not from a court. Even if courts guarantee same sex couples the right to marry, that right won't be fully secure until lots of public officials support the practice. Right now a significant number of national politicians support civil unions, but not very many are on record as supporting same sex marriage. To be sure, one might expect that the Mayor of San Francisco would be among the first politicians to push hard for same sex marriage. But even if his action doesn't sway lots of people in California, or the nation as a whole, it's an important start.


The Black Hole of Gitmo

The New York Times reports: "Senior Defense Department officials said Thursday that they were planning to keep a large portion of the detainees at Guantánamo Bay, Cuba, there for many years, perhaps indefinitely."

When the U.S. government denies people access to the courts and further declares that it is not bound by the Geneva Convention, this is pretty much what you would expect. Without the rule of law to restrain the government, it will be arbitrary. That is why courts and the procedural protections of the Bill of Rights and international legal agreements exist: because those who hold absolute power do not cede it willingly.

We hold ourselves out as a nation that believes in human rights and the rule of law, and we repeatedly state that we want our values to spread to other nations, particularly those with histories of arbitary arrest, detention and confinement. The best way to show why our values are important is to practice them ourselves. For if we cannot be bothered to protect human rights and the rule of law when they are inconvenient for us, how can we persuade other countries to adopt them?

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