Wednesday, March 31, 2004


Divide Iraq Up?

Bruce Fein argues that "The United States should declare its post-Saddam nation-building enterprise a failure. It should begin immediately to arrange the partition of Iraq by regional self-determination plebiscites."

Although I have to agree with Fein that the Administration's post-war policies have not been a great success, I don't think that the solution is to divide Iraq up into separate regions. For one thing, the Turks would never stand for an independent Kurdish government. For another, there are significant numbers of Shiite Muslims in the Sunni-dominated regions. Any attempt to divide Iraq up into different countries is likely to destabilize the situation further.


Justice Department to Intervene in Oklahoma Dispute about Headscarves

CNN reports:

The Justice Department announced Tuesday the government's civil rights lawyers have jumped into a legal case to support a Muslim girl's right to wear a head scarf in a public school.

Assistant Attorney General for Civil Rights Alex Acosta said government lawyers would support 11-year-old Nashala Hearn, a sixth-grade student who has sued the Muskogee, Oklahoma, Public School District for ordering her to remove her head scarf, or hijab, because it violated the dress code of the Benjamin Franklin Science Academy, which she attended.

The girl continued to wear her hijab to school and was subsequently suspended twice for doing so.

I discussed this story back in October here.

I applaud the Justice Department, and Attorney General Ashcroft for intervening in this case. According to the complaint, the school's dress code allows students to wear some things on their heads but not others. It does not specifically mention the hijab, the traditional Muslim headcovering for women, but school officials held that it fell within the policy. The school's justification for the policy is that the ban on headgear is designed to prevent gang activity.

If these facts are correct, there is a good chance that the school will lose, as they should. The limited nature of the school's policy demonstrates that it is not completely opposed to all head coverings, and the hijab has no relationship to gang activity. So the policy may violate the equal protection of the laws because it discriminates between permitted secular reasons and religious reasons for wearing headgear. There would be a more difficult federal case if no headgear was permitted under any circumstances, but there still might be an argument that the policy violates Oklahoma state law.


The Best Laid Medicare Plans

The Miami Herald explains why the Administration's Medicare reforms didn't quite go as expected. (Link via Healthlawblog):

Enactment of a sweeping Medicare reform law last year was supposed to be the crowning achievement of President Bush's "compassionate conservatism" as he readied himself for re-election.

By providing a federally subsidized prescription-drug benefit for senior citizens, albeit a limited one, administration officials felt they usurped a major issue from the Democrats and cut into Democratic support among seniors age 65 and over -- an especially important voting bloc in key battleground states such as Florida.

But less than four months after he signed it into law on Dec. 8, Bush's Medicare-reform dream has turned into a nightmare and a potential drag on his bid for re-election.

-- The Bush administration deliberately didn't tell Congress that the measure could cost more than $100 billion more than advertised.

-- House Republican leaders abused House rules to push the measure to a narrow victory. There are also allegations of threats and bribes that are under investigation.

-- The Bush administration spent millions of taxpayer dollars on public service TV ads touting the Medicare reform law that look suspiciously like Bush campaign commercials. Those, too, are now under investigation.

-- Polls show that a majority of Americans don't like the Medicare reforms.

"It's something that's eating away at the credibility of the administration in an election year on a bill that he (Bush) thought was a building block for his re-election," said Stephen Hess, a political analyst for the Brookings Institution, a centrist think tank, and a former aide to President Eisenhower.

I wouldn't go so far as to call the bill a "nightmare" for the Republican Party. It simply hasn't turned out to be the clear winner that people expected. The problem is that the bill doesn't seem to mesh well with the Republican self-image of low taxes and low domestic spending, which or course, is why in the past the Democrats have usually been the party that pushed for new domestic expenditure programs. (Defense expenditures, are, of course, another matter.). The Administration had to hide the costs of the bill from the members of its own party, and then twist arms to get the final couple of Republican votes. The result was a distinct sense that something fishy was going on in the bill. The fake journalism segments and the disguised campaign ads also added to the notion that the Administration wasn't being entirely honest.

This was a wasted opportunity for the Republicans, who could have lived off of the glow of this new entitlement program for some time.

Tuesday, March 30, 2004


Stuart Buck Hospitalized

All our prayers go out for fellow blogger Stuart Buck, whose wife Farah reports that he has been hospitalized with a stroke.

The blogosphere is more than a debating society. It is a community, full of flesh and blood people who we come to care about the more we engage with them. Here's hoping you are on the mend soon, Stuart, and once again filling the pages of your blog with your own distinctive take on the world.


Rice Will Testify in Public and Under Oath


Nothing would be better, from my point of view, than to be able to testify,” Rice told Ed Bradley of CBS’s “60 Minutes.” “I would really like to do that. But there is an important principle involved here: It is a long- standing principle that sitting national security advisers do not testify before the Congress.


Principle? What principle? Come on, this Administration doesn't boldly assert constitutional principles and then abandon them when the poll numbers start to drop. You must have us confused with another Administration.

Here's the official explanation:

White House legal counsel Alberto Gonzales has sent a letter to the commission stating that Rice is prepared to testify publicly as long as the administration receives assurances from the panel that this is not precedent setting, the official said.

That is, there is a principle, but we can violate it when it's convenient for us as long as everybody promises that nobody will use our inconsistency against us later when it becomes convenient to invoke the principle again.

Now that's the sort of constitutional principle I think everybody can get behind.

Frankly, despite these assurances (which apparently, the White House demands must be in writing), I don't see how Rice's testimony can *avoid* becoming a precedent. Much of the institution of the separation of powers is a set of informal arrangements between the branches, which continually look to previous practice (as opposed to judicial precedents). Whatever the Administration says, people will remember that Rice testified and the circumstances under which she did so. Saying that this won't be a precedent is a little like the Supreme Court in Bush v. Gore saying that its decision was limited to the specific facts of that case. It's not the sort of statement that induces much confidence in the principled nature of the decision.

The White House handled this badly from the beginning. It would have been far better for the White House to have taken the position early on that it would allow a national security advisor to testify, but only under the most extreme or important circumstances. Avoiding a decline in poll numbers is not such a circumstance, while getting to the truth about one of the most important events in recent American history is. Under that line of reasoning, however, the Administration should have consented to Rice's testimony a long time ago. Now it looks as if the only reason why the Administration is acquiescing is a concern about the upcoming election, a concern which should be completely irrelevant (and inappropriate) from a constitutional standpoint. By stonewalling the way it has, the Administration has set a precedent, and of the wrong kind.

Monday, March 29, 2004


More Fun With The New Iraqi Constitution

The New York Times reports:

American soldiers shut down a popular Baghdad newspaper on Sunday and tightened chains across the doors after the occupation authorities accused it of printing lies that incited violence.

Thousands of outraged Iraqis protested the closing as an act of American hypocrisy, laying bare the hostility many feel toward the United States a year after the invasion that toppled Saddam Hussein.

From the Interim Iraqi Constitution:
Article 13.
(B) The right of free expression shall be protected.
(C) The right of free peaceable assembly and the right to join associations freely, as well as the right to form and join unions and political parties freely, in accordance with the law, shall be guaranteed.
. . .
(F) Each Iraqi has the right to freedom of thought, conscience, and religious belief and practice. Coercion in such matters shall be prohibited.

Fortunately for the Americans, the new Iraqi Constitution they insisted upon doesn't apply to them, and, moreover, it doesn't take effect for several months!

Isn't constitutional law fun?

Saturday, March 27, 2004


I-95 in Connecticut

Has become I-47 1/2 and I-47 1/2.

Traffic should be fun for the next couple of weeks, with potentially important long term side effects.

Friday, March 26, 2004


Digital Cops in a Virtual Environment

Today The Information Society Project at Yale Law School (of which I am the director) begins its three day conference on cutting edge issues in cybercrime. We've gathered together a number of top experts and it promises to be one of the biggest events of its kind. You can learn more about the conference here.


Senate Passes Unborn Victims of Life Act

The Senate passed the Unborn Victims of Life Act, which amends existing federal crimes to allow prosecution of persons who cause death to a fetus during the commission of a federal crime.

Opponents of the measure feared it would undermine Roe v. Wade. That is because of the definition section, which says that fetuses are defined to be "children":

`(d) As used in this section, the term `unborn child' means a child in utero, and the term `child in utero' or `child, who is in utero' means a member of the species homo sapiens, at any stage of development, who is carried in the womb.'.

Undermining Roe may be the purpose of one or more of its original sponsors, but it won't have that effect. Roe is a constitutional rule, and cannot be overturned or limited by statute. Congress can call a fetus a child but that doesn't change the constitutional right to abortion.

In any case, the statute by its own terms does not reach abortions:

`(c) Nothing in this section shall be construed to permit the prosecution--

`(1) of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;

`(2) of any person for any medical treatment of the pregnant woman or her unborn child; or

`(3) of any woman with respect to her unborn child.

This produces a perverse result for pro-life forces: Congress officially says that a fetus is a child, but also officially says that ending the life of this child through abortion is legal. Should a pro-life Senator vote for such a bill?

Equally interesting is the death penalty provision:

`(D) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.

This produces another perverse result: it distinguishes between born children and unborn children (as defined by the statute). Crimes against born children may deserve the death penalty under federal law; however, according to Congress, no crimes against the latter do. Why should this be, if fetuses are defined as children? Are pro-life forces conceding that the life of a born child is more valuable than the life of a fetus? Again, should a pro-life Senator vote for such a bill?

One suspects that most pro-life politicians will say, yes, on the theory that half a loaf is better than none; by defining the unborn as children, the bill symbolizes disagreement with Roe. But the symbolism cuts both ways, for the bill as actually written doesn't treat unborn children the same as other children, and it actually undermines the claim that abortion is the functional equivalent of murder.

Thursday, March 25, 2004


Hoisted By His Own Petard?

Today at lunch I was explaining the legal issues in the Newdow case (which concerns the Pledge of Allegiance) and why as a predictive matter Newdow is likely to lose no matter how good his legal arguments on the merits (see my previous post for a summary).

Suddenly it occurred to me: If Newdow wins his case, it will prove that atheism is wrong, because it's going to take a miracle.


Impervious to Facts

Harold Meyerson argues that the Bush Administration has a problem with empiricism:

[T]he security professionals who stayed at their station on Sept. 11 soon found they had philosophical differences with the neo[conservatives] in the shelter. They were empiricists: They took in as much information as they could and derived their conclusions on that basis. And, as Clarke and many of his fellow professionals were soon to discover, this has been a tough administration for empiricists.

Step back a minute and look at who has left this administration or blown the whistle on it, and why. Clarke enumerates a half-dozen counterterrorism staffers, three of whom were with him in the Situation Room on Sept. 11, who left because they felt the White House was placing too much emphasis on the enemy who didn't attack us, Iraq, and far too little on the enemy who did.

But that only begins the list. There's Paul O'Neill, whose recent memoir recounts his ongoing and unavailing battle to get the president to take the skyrocketing deficit seriously. There's Christie Todd Whitman, who appears in O'Neill's memoir recalling her own unsuccessful struggles to get the White House to acknowledge the scientific data on environmental problems. There's Eric Shinseki, the former Army chief of staff, who told Congress that it would take hundreds of thousands of American soldiers to adequately secure postwar Iraq. There's Richard Foster, the Medicare accountant, who was forbidden by his superiors from giving Congress an accurate assessment of the cost of the administration's new program. All but Foster are now gone, and Foster's sole insurance policy is that Republican as well as Democratic members of Congress were burnt by his muzzling.

In the Bush administration, you're an empiricist at your own peril. Plainly, this has placed any number of conscientious civil servants -- from Foster, who totaled the costs on Medicare, to Clarke, who charted the al Qaeda leads before Sept. 11 -- at risk. In a White House where ideology trumps information time and again, you run the numbers at your own risk. Nothing so attests to the fundamental radicalism of this administration as the disaffection of professionals such as Foster and Clarke, each of whom had served presidents of both parties.

The revolt of the professionals poses a huge problem for the Bush presidency precisely because it is not coming from its ideological antagonists. Clarke concludes his book making a qualified case for establishing a security sub-agency within the FBI that would be much like Britain's MI5 -- a suggestion clearly not on the ACLU's wish list. O'Neill wants a return to traditional Republican budget-balancing. The common indictment that these critics are leveling at the administration is that it is impervious to facts. That's a more devastating election year charge than anything John Kerry could come up with.

Because, as I have noted previously, presidential systems have inherent tendencies to corrupt the policy making process, I think that what Meyerson is describing is a matter of degree, rather than kind. But at some point, differences of degree become quite worrisome indeed, and this Administration seems to have reached a tipping point in a wide range of different areas. Clarke's story is making front page news because it concerns a key issue in Bush's re-election campaign-- the President's boast that he has kept America safe. As we learn more details about how the Administration's foreign policy has been conducted, this boast looks increasingly empty. However, as Meyerson points out, the same corruption of the policy process has occured in other areas ranging from fiscal policy to environmental policy.

I do think it's time for a change.

Wednesday, March 24, 2004


What's Law Got To Do With It?

The Supreme Court heard arguments today in Elk Grove Unified School District v. Newdow, and it is very likely that Newdow will lose. The only question is whether the Court will reach the merits or will dismiss on standing grounds. That's not because the law is clearly against Newdow. Indeed, as William Safire puts it in his column, "The only thing this time-wasting pest Newdow has going for him is that he's right." Rather Newdow will lose because no matter what the existing doctrine says the Supreme Court is not going to hold that government officials' use of the phrase "under God" in the Pledge of Allegiance violates the Establishment Clause. The doctrine will simply be parsed or altered in such a way as to avoid this result.

Newdow's strongest argument is that under the Establishment Clause, government may not itself engage in religious activities or encourage citizens-- and particularly schoolchildren-- to affirm particular religious beliefs. When public school teachers lead their classes in the post 1954 version of the Pledge of Allegiance (which includes the words "under God") it is doing both of these things. Newdow can point to the fact that the Pledge was changed in 1954 due to a lobbying campaign by, among others the Knights of Columbus, to draw attention to the difference between God-fearing Americans and the godless Soviet Union.

The best response to this argument is that when government officials lead the post-1954 version of the pledge, they are neither engaging in religious activities nor are they encouraging citizens to affirm particular religious beliefs. They are not engaging in religious activities because the inclusion of the words "under God" does not make the Pledge religious in character any more than the inclusion of the words "In God We Trust" makes the distribution of coinage or currency a religious activity. They are not encouraging others to affirm particular beliefs because the Pledge does not assert the religious belief that God exists but merely acknowledges a historical association between patriotism and belief in God.

The first response, that no religious ceremony is occurring, is quite plausible. The second argument-- that there has been no endorsement of religious belief-- is quite tricky to pull off. One embarrassment is that many people who support the use of the words "under God" in the pledge do so precisely because they like the association of patriotism with religion and with belief in God: they want to affirm that the United States is a country that believes in God and places itself under Divine protection. However, this is not a theory that the Supreme Court can adopt. The most basic principle of Establishment Clause jurisprudence is that the state is not supposed to prescribe what is orthodox in matters of belief about religious questions.

Rather, the Supreme Court must come up with a way of arguing that the use of term "under God," despite the legislative history, has nothing whatsoever to do with affirming or endorsing particular beliefs about God but is purely ceremonial. In the alternative, they must show that it is a permissible form of "ceremonial Deism" that has no strongly religious overtones and carries no religious endorsement in the eyes of a reasonable person. Put another way, the Court must come up with a justification that insists, without directly saying so, that people who support the post-1954 Pledge because they think it endorses their religious beliefs are simply being unreasonable. In part this is because, as I pointed out last year, ceremonial Deism tries to have it both ways: it seeks to satisfy the religious sentiments and traditions of a large portion of the public while denying that anything particularly religious is going on. It can do this because the expression "under God" seems rather plain vanilla to most members of the public (that is, to those who are not atheists). If the words "under God" were changed to read "under Jesus Christ," or "under God whom we all believe in and adore" the religious meaning would no longer be backgrounded and the Court would not be able to accept the pledge as a form of ceremonial Deism. It is no accident that at the oral argument Solicitor General Olsen agreed that if the pledge included the words "under Jesus" it would go too far. The phrase "under God" is just bland enough to mean nothing to those who want it to mean nothing and to mean everything who want it to mean everything.

Mr. Dooley once said that the Supreme Court follows the election returns. That is, the Supreme Court never strays too far from the views of a national political majority. This case is a perfect example. Even without reading the briefs, it is all but certain which way this case will come out. As Tina Turner might say, what's law got to do with it?


Ernie Miller Joins the Copyfight

Congratulations to Ernie Miller, a fellow of Yale's Information Society Project, for joining Copyfight, which has just become a group blog. Ernie started the ISP's blog, Lawmeme, and he also runs his own blog, The Importance Of.

Tuesday, March 23, 2004


Federal Marriage Amendment Revised

The sponsors of the Federal Marriage Amendment have tinkered with its language, "saying the changes were intended to make it clear that they do not seek to bar same-sex civil unions allowed by state law," the New York Times reports. (My analysis of the previous version, explaining why it would ban civil unions, appears here).

The revised amendment reads as follows:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and woman.

Actually, this version still prevents *courts* (like the Vermont Supreme Court in Baker v. State) from holding that civil unions are constitutionally required, because it says that state constitutions may not be construed to require that the legal incidents of marriage be conferred on same sex couples. Civil unions bestow most if not all of the legal incidents of marriage except for the name.

The amendment would permit *legislatures* to pass civil unions laws in some cases. But there's a twist, because the proposed amendments' sponsors forgot that legislators interpret constitutional provisions too, and indeed, are normally required to do as part of their oaths of office.

The irony of the new version is that legislatures could pass civil unions laws as long as they did not believe that they were interpreting the state or federal constitution and promoting constitutional values-- such as equal protection of the laws-- by doing so. For then the legislature (or the executive official) would be construing the state or federal constitution to require civil unions.

Put another way, if legislatures sincerely believed that civil union laws were necessary to protect important constitutional values of equality and civil rights for gays and lesbians, they would not be permitted to pass such laws. On the other hand, if the legislature thought that a civil unions bill would bring more tourism into the state, that would be a permissible reason.

But of course, that's what the authors of the proposed amendment think about equal rights for gays-- they don't see it as an issue of civil rights. And that's precisely where they're wrong.

Monday, March 22, 2004


Clarke: Bush Ignored Al Qaeda, Used Iraq As Political Tool

From the Washington Post:

Although expressing points of disagreement with all four presidents [Reagan, George H.W. Bush, Clinton and George W. Bush that he served under], Clarke reserves by far his strongest language for George W. Bush. The president, he said, "failed to act prior to September 11 on the threat from al Qaeda despite repeated warnings and then harvested a political windfall for taking obvious yet insufficient steps after the attacks." The rapid shift of focus to Saddam Hussein, Clarke writes, "launched an unnecessary and costly war in Iraq that strengthened the fundamentalist, radical Islamic terrorist movement worldwide."

Among the motives for the war, Clarke argues, were the politics of the 2002 midterm election. "The crisis was manufactured, and Bush political adviser Karl Rove was telling Republicans to 'run on the war,' " Clarke writes.

And there's this:
Like former Treasury secretary Paul H. O'Neill, who spoke out in January, Clarke said some of Bush's leading advisers arrived in office determined to make war on Iraq. Nearly all of them, he said, believed Clinton had been "overly obsessed with al Qaeda."

I think what is particularly galling is the Administration's repeated assertions that only they know how to keep America safe and that those who disagree with them are appeasers or worse. For too long the Bush Administration has gotten a pass on their efforts to combat terrorism, and the President has been praised repeatedly for exercising strong and decisive leadership in the face of the 9/11 attacks. Clarke's book argues that there were, to the contrary, serious failures of leadership both before and after 9/11. I hope this opens a real debate about whether the Administration's foreign policy really has been effective and really has helped keep America safe.

Sunday, March 21, 2004


Bush: Weak On Terror, Confused On Policy

So says Richard Clarke, who has advised four presidents on terrorism policy, and was Bush's advisor leading up to the 9/11 attacks:

"Frankly," [Clarke] said, "I find it outrageous that the president is running for re-election on the grounds that he's done such great things about terrorism. He ignored it. He ignored terrorism for months, when maybe we could have done something to stop 9/11. Maybe. We'll never know."

Clarke went on to say, "I think he's done a terrible job on the war against terrorism."

. . . . Clarke says that as early as the day after the attacks, Secretary of Defense Donald Rumsfeld was pushing for retaliatory strikes on Iraq, even though al Qaeda was based in Afghanistan. Clarke suggests the idea took him so aback, he initally thought Rumsfeld was joking. . . . .

After the president returned to the White House on Sept. 11, he and his top advisers, including Clarke, began holding meetings about how to respond and retaliate. As Clarke writes in his book, he expected the administration to focus its military response on Osama bin Laden and al Qaeda. He says he was surprised that the talk quickly turned to Iraq.

"Rumsfeld was saying that we needed to bomb Iraq," Clarke said to Stahl. "And we all said ... no, no. Al-Qaeda is in Afghanistan. We need to bomb Afghanistan. And Rumsfeld said there aren't any good targets in Afghanistan. And there are lots of good targets in Iraq. I said, 'Well, there are lots of good targets in lots of places, but Iraq had nothing to do with it.

"Initially, I thought when he said, 'There aren't enough targets in-- in Afghanistan,' I thought he was joking.

"I think they wanted to believe that there was a connection, but the CIA was sitting there, the FBI was sitting there, I was sitting there saying we've looked at this issue for years. For years we've looked and there's just no connection." Clarke says he and CIA Director George Tenet told that to Rumsfeld, Secretary of State Colin Powell, and Attorney General John Ashcroft.

Clarke then tells Stahl of being pressured by Mr. Bush.

"The president dragged me into a room with a couple of other people, shut the door, and said, 'I want you to find whether Iraq did this.' Now he never said, 'Make it up.' But the entire conversation left me in absolutely no doubt that George Bush wanted me to come back with a report that said Iraq did this.

"I said, 'Mr. President. We've done this before. We have been looking at this. We looked at it with an open mind. There's no connection.'

"He came back at me and said, "Iraq! Saddam! Find out if there's a connection.' And in a very intimidating way. I mean that we should come back with that answer. We wrote a report."

Clarke continued, "It was a serious look. We got together all the FBI experts, all the CIA experts. We wrote the report. We sent the report out to CIA and found FBI and said, 'Will you sign this report?' They all cleared the report. And we sent it up to the president and it got bounced by the National Security Advisor or Deputy. It got bounced and sent back saying, 'Wrong answer. ... Do it again.'

"I have no idea, to this day, if the president saw it, because after we did it again, it came to the same conclusion. And frankly, I don't think the people around the president show him memos like that. I don't think he sees memos that he doesn't-- wouldn't like the answer."

Clarke was the president's chief adviser on terrorism, yet it wasn't until Sept. 11 that he ever got to brief Mr. Bush on the subject. Clarke says that prior to Sept. 11, the administration didn't take the threat seriously.

"We had a terrorist organization that was going after us! Al Qaeda. That should have been the first item on the agenda. And it was pushed back and back and back for months.

"There's a lot of blame to go around, and I probably deserve some blame, too. But on January 24th, 2001, I wrote a memo to Condoleezza Rice asking for, urgently -- underlined urgently -- a Cabinet-level meeting to deal with the impending al Qaeda attack. And that urgent memo-- wasn't acted on.

"I blame the entire Bush leadership for continuing to work on Cold War issues when they back in power in 2001. It was as though they were preserved in amber from when they left office eight years earlier. They came back. They wanted to work on the same issues right away: Iraq, Star Wars. Not new issues, the new threats that had developed over the preceding eight years."

Clarke finally got his meeting about al Qaeda in April, three months after his urgent request. But it wasn't with the president or cabinet. It was with the second-in-command in each relevant department. For the Pentagon, it was Paul Wolfowitz. Clarke relates, "I began saying, 'We have to deal with bin Laden; we have to deal with al Qaeda.' Paul Wolfowitz, the Deputy Secretary of Defense, said, 'No, no, no. We don't have to deal with al Qaeda. Why are we talking about that little guy? We have to talk about Iraqi terrorism against the United States.'

"And I said, 'Paul, there hasn't been any Iraqi terrorism against the United States in eight years!' And I turned to the deputy director of the CIA and said, 'Isn't that right?' And he said, 'Yeah, that's right. There is no Iraqi terrorism against the United States."

Clarke went on to add, "There's absolutely no evidence that Iraq was supporting al Qaeda, ever." When Stahl pointed out that some administration officials say it's still an open issue, Clarke responded, "Well, they'll say that until hell freezes over."

By June 2001, there still hadn't been a Cabinet-level meeting on terrorism, even though U.S. intelligence was picking up an unprecedented level of ominous chatter. The CIA director warned the White House, Clarke points out. "George Tenet was saying to the White House, saying to the president - because he briefed him every morning - a major al Qaeda attack is going to happen against the United States somewhere in the world in the weeks and months ahead. He said that in June, July, August.

Clarke says the last time the CIA had picked up a similar level of chatter was in December, 1999, when Clarke was the terrorism czar in the Clinton White House. Clarke says Mr. Clinton ordered his Cabinet to go to battle stations-- meaning, they went on high alert, holding meetings nearly every day. That, Clarke says, helped thwart a major attack on Los Angeles International Airport, when an al Qaeda operative was stopped at the border with Canada, driving a car full of explosives.

Clarke harshly criticizes President Bush for not going to battle stations when the CIA warned him of a comparable threat in the months before Sept. 11: "He never thought it was important enough for him to hold a meeting on the subject, or for him to order his National Security Adviser to hold a Cabinet-level meeting on the subject."


Hate Speech Codes For Broadcasting?

Ernie Miller offers his take on the FCC's recent decision that Bono's use of the word "fucking" (as in "fucking brilliant") during the Golden Globes violated federal laws against broadcast indecency. This decision is known as the "Golden Globe Awards" decision.

A little background is necessary to understand why the Golden Globe Awards decision is so important. 18 USC section 1464 makes it a crime to broadcast obscene, profane or indecent programming. The government has given the FCC jurisdiction over violations of section 1464, which the FCC enforces through a combination of warning letters, fines, and, in extreme cases, revocation of broadcast licenses. The Supreme Court upheld the FCC's power to issue such sanctions in the Pacifica case in 1978.

The FCC defines broadcast indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." In its Golden Globe Awards decision, the FCC held that virtually any use of the F-word, as it is known at the FCC, was indecent, because it is always sexually suggestive. (For those of you who were wondering, the F-word in FCC stands for federal.). This decision strikes me as fucking implausible. Did that turn you on? No, I thought not.

Second, the FCC held that the F-word was also profane. The FCC has not, until this case, actively enforced section 1464's prohibition on profanity. One reason for this is that profanity traditionally meant blasphemy, and there would be serious first amendment problems with punishing speech because it was blasphemous. To solve this problem, the FCC has redefined profanity as "including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." That is to say, the new definition of profanity has nothing whatsoever to do with religious belief.

One question is whether the FCC is authorized to redefine statutory language in this way. But assuming that it does under the Chevron doctrine, there are many more problems.

Most news accounts assume that the FCC can ban indecency whenever it likes. This is not true. The Pacifica decision said that the FCC could punish indecency when children were likely to be in the audience. As a result, the FCC requires that indecent programming be relegated to what is called the safe harbor that falls between 10:00pm and 6:00am local time. In a 1995 case called Action for Children's Television v. FCC (ACT III) the D.C. Circuit held that the FCC could require that all indecent programming be broadcast in the safe harbor period.

The D.C. Circuit acknowleged that indecent speech, unlike obscenity, was constitutionally protected by the First Amendment and that the safe harbor requirement discriminated on the basis of the speech's content. Nevertheless, it held that the safe harbor requirement passed the constitutional test of strict scrutiny that the courts apply to content based restrictions on speech: The government had a compelling interest in the protection of children from indecency and a compelling interest in assisting parents in raising their children free from indecency. The D.C. Circuit did not require any showing of that indecency caused harm to children; instead it argued that it was common knowledge that exposure to indecent programming harms children. The D.C. Circuit also held that the safe harbor rule was narrowly tailored to achieve this compelling state interest because (most) children are presumed not to be watching during the hours of the safe harbor. Whether this justification holds water is disputable, and it becomes even more disputable given the possibilities for time shifting using VCR's and Tivo. ACT III is best understood as a compromise decision that holds that adults have to be given some period when they can watch indecent programming; Congress and the FCC simply settled on a particular time period and the D.C. Circuit more or less accepted it.

This set of rules describes the current state of the law regarding what you can and can't say on broadcast television and radio, and when you can say it. (Section 1464 does not apply to cable television, by the way; it only applies to broadcast stations, whether or not they are carried by cable).

Now the plot thickens. The FCC now takes the position that the safe harbor rule applies to profane speech as well as indecent speech. (Obscene speech, by the way, is constitutionally unprotected, so it can be banned 24 hours a day).

Ernie Miller's point is that the FCC's definition of profanity read literally would seem to include racial epithets and other forms of hate speech. After all, the N-word is much more likely than the F-word to be one "of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."

If so, then presumably the FCC could impose a hate speech code on broadcast television within the safe harbor period. It would argue that under the reasoning of ACT III the state has a compelling interest in protecting children from profanity and assisting parents in raising their children free from profanity. The ban is narrowly tailored because, just as in ACT III, most children are presumed not to be in the audience during the safe harbor. The only way to avoid the force of this reasoning would be to deny that hate speech causes any significant harm to children. The FCC would have to say that although it is obvious that hearing the F-word is bad for children, hearing the N-word is not obviously bad for them. I'd like to see them try that one.

Of course, any decision to expand broadcast profanity to include hate speech would be highly politically charged, and therefore is likely to lead to accusations of political favoritism and censorship on the part of the FCC. But the decision to punish the F-world but not the N-word is itself hardly politically neutral. All of this suggests that the original decisions in ACT III and in Pacifica were on shaky ground, because they assumed that 1464 could be enforced in a way that did not favor one political ideology over another and did not chill very much protected speech. The FCC's expansion of its jurisdiction to cover what it defines as profanity puts that assumption under a great deal of strain. My advice to the FCC would be to stop now before they completely f*** things up.

Saturday, March 20, 2004


Compassionate Conservatism R.I.P.

David Brooks' most recent column argues that President Bush's idea of compassionate conservatism was done in by the Florida election controversy, -- because it destroyed trust between Democrats and Republicans-- and by 9/11, because it drew attention away from domestic questions.

I don't agree. First, it's by no means clear that Bush's compassionate conservatism ever existed as more than a political slogan designed to gain votes in 2000, and to distance Bush from the unpopular Newt Gingrich. But to the extent that compassionate conservatism was more than a slogan, what did it in were Bush's two tax cuts and the Iraq war. Both took precedence over any other major domestic policies the Administration might have pursued, and both created huge deficits which undermined the chances of a series of new government domestic initiatives.

Brooks thinks trust was destroyed by Florida. It wasn't, or if so the damage was reparable. The fracas over the Florida election didn't keep Bush from trying to line up a few Democrats for his tax bill or No Child Left Behind. What destroyed trust ultimately was the Administration's political tactics once it got into office. It did not really work hard for political compromise, instead promoting strongly ideological policies in a vast number of areas, with a few notable exceptions like No Child Left Behind, which it then underfunded.

Brooks is right that the 2000 election does matter, but in a different way. After the election, everyone wanted to know how Bush would handle the allegations of illegitmacy: would he reach out to the Democrats or govern as if he nothing had happened? As it turned out, he governed as if he had won by a landslide. That is because he now had control of all three branches of government. If Bush had presented himself as a political moderate following the contested election, things might have been quite different in the domestic arena. But he did not do so, for four reasons. First, doing so would have undermined support from his conservative base. Second, it might be construed by the Democrats as a sign of political weakness or an implicit concession of the contested legitimacy of his presidency. Third, Republicans controlled all the branches of government. Thus, Bush and his advisors reasoned, why not push hard for one's agenda when you can? Fourth, as should be clear from what actually happened, Bush is not really a moderate at all. He is a religious conservative who believes in low taxes. Bush's compassion turned out to extend largely to his wealthiest donors in terms of tax relief, and to religious and social conservatives in judicial appointments, and also in various executive branch appointments that concern domestic policy. This was not a formula for either political moderation or a new form of compassionate conservatism, and so it is not surprising that neither of these things occurred.

I want to pause here and note that if Bush had come in with a Democratic controlled Congress, he would likely have been forced to compromise more, and this would might have led to more focus on compassionate conservatism as a triangulating or moderating strategy of domestic politics, similar to Clinton's, but approached from the opposite side of the ideological spectrum. Ironically then, winning all three branches by razor thin margins was a bad thing for compassionate conservatism as a new political approach. It encouraged the Republicans not to make compromises, but to push hard for a strongly ideological agenda while they still held all the levers of power.

Brooks also thinks that 9/11 diverted attention away from domestic concerns. Not really. 9/11 didn't require a war in Iraq. The latter is what really consumed the public's attention and the Administration's resources, and we now know that members of the Administration had been planning such a war for a long time. Again, if there ever was a thing as compassionate conservatism, it was preempted by the determination of the President's foreign policy team to go to war with Iraq as soon as practically possible.

Behind Brooks' argument is a deeper wistfulness, wondering about how things might have been otherwise in this administration. Could the Bush Administration have turned out differently than it did? Ironically, it would only have happened if the President turned his back on his core constituencies and avoided picking Dick Cheney as his Vice President and, more importantly, as a key advisor. Neither possibility was likely to occur. So on the day that President Bush was sworn into office by Chief Justice Rehnquist, compassionate conservatism was destined to be just a slogan.

Friday, March 19, 2004


Stupid Constitution Tricks

Here's the proposed Congressional Accountability for Judicial Activism Act of 2004 (H.R. 3920)(also available here):


This Act may be cited as the `Congressional Accountability for Judicial Activism Act of 2004'.


The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court--

(1) if that judgment is handed down after the date of the enactment of this Act; and

(2) to the extent that judgment concerns the constitutionality of an Act of Congress.


The procedure for reversing a judgment under section 2 shall be, as near as may be and consistent with the authority of each House of Congress to adopt its own rules of proceeding, the same as that used for considering whether or not to override a veto of legislation by the President.


This Act is enacted pursuant to the power of Congress under article III, section 2, of the Constitution of the United States.

Don't worry, it's just showboating. If it was this easy for Congress to overturn Supreme Court decisions, don't you think they would have tried it before? Article III, section 2 gives Congress power to make exceptions or regulations to the Supreme Court's appellate jurisdiction (i.e., its power to hear particular types of cases), but not to overturn particular decisions after the Court has heard and decided them. Without an explicit constitutional amendment giving Congress the power to overturn particular Supreme Court decisions (which, by the way, has been proposed on a number of occasions), the proposed bill would most likely violate the separation of powers by attempting to encroach on the judicial power which is vested in the Supreme Court (as well as the lower federal courts.).

Note, by the way that the act does not give Congress the power to overturn decisions of the Supreme Court that strike down state laws, only acts of Congress. It also doesn't apply to decisions of the lower federal courts. So if the Supreme Court someday strikes down the federal ban on partial birth abortions, and Congress overturns that judgment, the Court's decision in Stenberg v. Cahart is still good law, because it struck down Nebraska's partial birth abortion law. Moreover, any subsequent lower federal court decisions that struck down the federal partial birth abortion bill on the basis of Stenberg would also presumably be good law in the federal circuit or district in which the lower court sits. That's because the law affects only the Supreme Court's *judgment* that the law is unconstitutional. Overturning that judgment does not, in and of itself, require that the lower courts follow Congress's reasoning or its preferences. The bill could correct this problem only by violating greater chunks of the separation of powers, which would make it even more clearly unconstitutional than it is now.

Still, you've got to hand it to these guys. They really know how to make fools of themselves at the public's expense.

Wednesday, March 17, 2004


What Do Robert Bork and I Agree On?

The answer here.

Hint: the anniversary will be on the same day that gay couples and lesbian couples in Massachusetts can legally marry.

Tuesday, March 16, 2004


More on the Internet and Political Polarlization

An interesting article in the New York Times last Friday finds polarization in book buying habits-- one group of people (presumably liberals) purchase mostly liberal books on politics while another group (presumably conservatives) purchase and read mostly conservative books on politics. So far so good. This seems to square with the literature that says that people tend to seek out information they already agree with.

The Times then makes a puzzling assertion:

This finding appears to buttress the argument made by Cass Sunstein, a law professor at the University of Chicago, in his influential study "" (Princeton University Press, 2001) that contemporary media and the Internet have abetted a culture of polarization, in which people primarily seek out points of view to which they already subscribe.

Hardly. Sunstein's book made the controversial claim that the Internet was a special cause of political polarization. But the polarization described in the article concerns the most traditional of mass media, i.e., books. Using the Internet (in particular, made it easier for researchers to *discover* this polarization. That's not the same thing as saying that the Internet *caused* the polarization that led to the book buying habits measured in the study.

The argument that best supports Sunstein's claim in would be that people used the Internet to find books of a similar character, and that most people now buy political books on the Internet rather than in bookstores, thus causing the enhanced political polarization. If people already tended to buy books of a similar political character in traditional bookstores and were easily able to find like-minded books there, the Internet's filtering technologies would not be a major cause of the enhanced polarization, although they might be an additional cause at the margins.

The best way of testing whether the Internet contributed to the polarization would be to determine who purchased liberal and conservative books in 1992 or earlier, before the Internet became a prominent feature of American political discourse. (Note, ironically, that it will be more difficult to do that precisely because the Internet was not as widely used at that point.). And even then it's not clear that the Internet itself would be the cause; it could be other features of American political life that have been changing in the past twenty years. More research needs to be done to prove that the Internet exacerbates political polarization.

My guess is that the Internet makes polarization more salient, and also, as we have seen, easier to measure by social scientists. But that is not the same thing as saying, as has been suggested, that Internet speech presents special harms to democracy.

Obviously, the New York Times has an interest in reporting stories that make the traditional mass media look good and the Internet look bad as a source of people's political information. (And they have done a few of these stories in recent memory). But we have to look further if we want to get to the truth of the matter.


A Conversation Between David Brooks and the Spanish Electorate

David Brooks: You Spanish are a bunch of queso eating surrender monkey appeasers. The only way to stop terrorism is to follow the policies of our maximum leader George W. Bush.

The Spanish Electorate: Uh, supporting the U.S. in the Iraq War obviously didn't protect us from Al Qaeda. You spent so much time settling scores with Saddam (and demanding that we go along) that you diverted precious resources from getting rid of Osama Bin Laden's terror network. Perhaps your Presidente is a bit confused on his priorities, no es verdad?

Friday, March 12, 2004


They Can't Handle The Truth, But They Sure Can Manhandle It.

Dick Meyer introduces us to Bushworld.

I've written about the Administration's tendency to fudge the facts where science is concerned before. Let me offer a more serious take on this story. Here's the basic lesson: You can't have a successful administrative state in a complex democracy unless science and intelligence are insulated from politics.

This leads me to a short digression on comparative constitutional design.

Parliamentary systems in robust democracies generally produce a professional civil service whose basic job is to carry out the policy demands of whichever party is in power. (Knowing that the government may change at any time, the civil service will strive to present themselves as reliable technocrats, not as ideologues). Because their job is administrative efficiency, and they have incentives to put themselves at the service of whoever controls the government, their professional ethos places high value on factual accuracy and technical expertise.

Presidential systems that feature separation of powers, by contrast, cannot guarantee the same degree of loyalty from civil servants, because the latter can also appeal to Congress for political support and play one branch off against the other. Hence presidential systems tend to include a significant number of political appointees-- much larger than you will find in most parliamentary systems-- layered over the civil service in order to ensure loyalty at the top levels. Moreover, mature presidential systems-- like the United States-- may often duplicate existing functions performed by civil servants-- like intelligence gathering or environmental or foreign policy advice-- and staff them almost exclusively with political appointees.

And here's the problem. The more political appointees you have displacing the professional class of civil servants, the greater the danger that the policy process will get corrupted by short-term political considerations. If the political appointees play fast and loose with the facts on a regular basis, they will undermine the efficiency of the administrative state in any large and complex democracy. The danger of this is always greater in presidential systems than parliamentary systems, (although it can happen in the latter too!) but it's usually kept more or less in check.

Unfortunately, things seem to have come apart in the current Administration. I don't know whether this is due to the example set by Bush and his most senior political advisors, whether the Administration has ignored career people and paid attention only to information coming from political loyalists, whether a tipping point has been reached with too many political appointees in positions they should not hold, or whether the problem is an accelerating duplication of functions that have effectively shut out career employees from important information gathering and policy implementation decisions. Whatever the reasons, the corruption of the policy making and implementation process seems to be a real problem for this Administration.

The next Administration needs to seriously reconsider the structure of political appointments in government and the flow of information and advice from career officials to political officials. It needs to reduce existing incentives for short-term political considerations to infect policymaking and it needs to reform executive branch institutions to promote the production of accurate information for governmental decisionmaking. If it does not, the consequences for the country could be quite serious. We've already seen how mismanaged information practices have affected environmental policy, health care policy, and even the decision to go to war. If the production of accurate information for use by government officials continues to be corrupted, matters will only get worse.


Halliburton Admits To Overcharging (Again)

Capitol Hill Blue reports.


Bush Endorses New Constitutional Amendment to Protect Democracy

Because the Federal Marriage Amemdment seems not to have taken off, the Administration is offering this carefully worded substitute, the Protection of Democracy Amendment:

Democracy in the United States shall consist only of the union of one Republican candidate and one Presidency. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that Presidential status or the legal incidents thereof be conferred upon non-Republican persons or groups.

Presidential spokesman Scott McClellan explained that the new amendment will ensure that "the wrong sort of people don't hold power in our freedom loving democracy." When asked to specify who the "wrong sort of people" were, he replied, "I didn't say that."

Attorney General John Ashcroft stated that the Administration had tried unsuccessfully to convince the courts that only Republicans could be members of the federal government on the basis of Article IV, section 4, the so-called Republican Government Clause, which states that "The United States shall guarantee to every state in this union, a republican form of government." "As I've said to the courts over and over," Ashcroft explained, " what part of the word "republican" don't you understand?"

McClellan added that "because unelected judges have refused to read Article IV according to its plain meaning, and because unnamed persons have insisted on running for the Presidency and garnering significant public support, it is now necessary for the President to get behind this new amendment."

"When the President enjoyed eighty percent approval ratings," McClellan explained, "it wasn't really necessary to change the Constitution to guarantee his succession in office. But now that the poll numbers are slipping below fifty per cent, there's a real danger that activist politicians will undermine democracy by winning more votes than President Bush. We barely avoided this catastrophe four years ago, and we are not going to allow it to happen again."


Walid Horton

I for one am glad that the Bush campaign isn't trying to invoke racial stereotypes and play on the public's fears about anyone who looks vaguely Middle Eastern.

Oh wait, this was from the Bush campaign!

Thursday, March 11, 2004


Get Well Soon John

The Attorney General is expected to make a complete recovery, CBN reports.

I guess we will no longer be able to say: "How does John Ashcroft have the gall to do that."


Families of Soldiers Form Antiwar Movement

The Washington Post reports. Military families tend to be among the staunchest supporters of the Administration. A small but growing number, however, now feel a sense of betrayal. The key moment for many was when it became clear that there were no weapons of mass destruction:

When the invasion of Iraq began, Dvorin -- a 61-year- old Air Force veteran and a retired cop -- thought the commander in chief deserved his support. "I believed we were destroying part of the axis of evil," he says. "I truly believed that Saddam Hussein was a madman and that he possessed weapons of mass destruction and wouldn't hesitate to use them."

By the time Army 2nd Lt. Seth Dvorin was sent to Iraq last September, however, his father was having doubts. And now that Seth had been killed, at 24, by an "improvised explosive device" south of Baghdad, doubt had turned to anger."Where are all the weapons of Mass Destruction?" Richard Dvorin demanded in his letter. "Where are the stockpiles of Chemical and Biological weapons?" His son's life, he wrote, "has been snuffed out in a meaningless war."

His is not the only military family to think so. In suburban Cleveland a few days later, the Rev. Tandy Sloan tuned in to the "Meet the Press" interview with President Bush and felt "disgust." His 19-year-old son, Army Pvt. Brandon Sloan, was killed when his convoy was ambushed last March. "A human being can make mistakes," the Rev. Sloan says of the president. "But if you intentionally mislead people, that's another thing."

In Fullerton, Calif., paralegal student Kimberly Huff, whose Army reservist husband recently returned from Iraq, makes a similar point with a wardrobe of homemade protest T-shirts that say things like "Support Our Troops, Impeach Bush."


Wednesday, March 10, 2004


More Reasons to Think That The Internet Is Helping Public Deliberation

Readers of this blog know that I have criticized Cass Sunstein's argument in Republic.Com (both here and here) that the Internet, more than traditional mass media, is likely to lead to ideological polarization and balkanization of public discourse. (Note that I have no problems with balkinization, by the way). Daily Kos offers yet another reason to think that Sunstein's fears are overstated: the ability of political opponents to fact check each other's work and report it to the Internet for consumption by the public and by reporters, who, in turn can distribute it in the traditional mass media. In order for this to occur people must be reading, linking to, and discussing statements by their political opponents, precisely what Sunstein is worried will not happen on the Internet. This fact checking is counteracting some of the "echo chamber" effect that Sunstein worries will improverish public discourse.

In fairness to Sunstein, he wrote his book before the advent of blogs, and thus based his analysis on traditional mass media models, which, I have argued, are inapposite. I continue to believe that we have to rethink how the public sphere is reconstituted by the Internet. That reconstitution may not be always to the good, but it is much much healthier than many of the Internet's critics have feared.


Fun With the New Iraqi Constitution

Are you sure we have a Republican administration in the White House? Check out the following provisions:

Article 14.

The individual has the right to security, education, health care, and social security. The Iraqi State and its governmental units, including the federal government, the regions, governorates, municipalities, and local administrations, within the limits of their resources and with due regard to other vital needs, shall strive to provide prosperity and employment opportunities to the people.

My goodness, what do I see? A social rights provision? Constitutional protections for health care and educational benefits? How did this one get past Grover Norquist?
Article 15 . . .
(G) Every person deprived of his liberty by arrest or detention shall have the right of recourse to a court to determine the legality of his arrest or detention without delay and to order his release if this occurred in an illegal manner.

Jose Padillia is probably wishing we had this provision in our Constitution.
Article 17.

It shall not be permitted to possess, bear, buy, or sell arms except on licensure issued in accordance with the law.

Did anyone run this one by the NRA? Not a very good way to appeal to the base, Georgie boy!
Article 23.

The enumeration of the foregoing rights must not be interpreted to mean that they are the only rights enjoyed by the Iraqi people.

Well, you might as well just invite Bill Brennan and his crazy liberal brethren to set up shop in Iraq. But wait, it gets worse:
They enjoy all the rights that befit a free people possessed of their human dignity, including the rights stipulated in international treaties and agreements, other instruments of international law that Iraq has signed and to which it has acceded, and others that are deemed binding upon it, and in the law of nations. Non-Iraqis within Iraq shall enjoy all human rights not inconsistent with their status as non-citizens.

What? Incorporate international human rights law into the Constitution? Where's the National Review crowd when you need them?

My advice to any self-respecting conservative Republican: stop the madness, before the Iraqi Constitution infects us all!

Tuesday, March 09, 2004


More on Conservative Judicial Activism

Several people have now joined in the original debate begun by Jonah Goldberg's offhand assertion that liberals, and not conservatives, are judicial activists. I responded that judicial activism has a long history by conservatives, and that the current Rehnquist Court has made many activist decisions. Stuart Buck has responded that we can't blame contemporary conservatives for the actions or practices or views of people in the past who were called conservatives, because their views are so different from those of contemporary conservatives. Larry Solum argues that to identify conservatives in the past with conservatives today is sheer nominalism. And he also argues that the term "judicial activism" is without meaning.

Let me try to disentangle a few of the many issues raised in these posts.

First, Stuart has not yet attempted to demonstrate that the current Rehnquist Court has not been engaged in conservative judicial activism in its federalism and commercial speech decisions. (Need I mention Bush v. Gore in addition? Oh well, why not?) Rather, he has spent most of his time trying to distinguish contemporary conservatives from conservatives of the past. He is haunted, as so many are, by the ghosts of Lochner, Pollock, and Dred Scott. I'll return to Stuart's concerns in a moment, but let me point out that if Stuart agrees with me about the conservative majority in place and its work, that's all I need to respond to Jonah Goldberg's original claim: Jonah is under the delusion shared by many conservative pundits that the Warren Court is still in operation. It's not. Today conservatives control the judiciary and they are discovering the virtues of activism in all of its wonderful forms. This is the thesis, by the way of Keith Whittington's recent paper "The New Originalism." Whittington points out that originalists like Robert Bork argued for a jurisprudence of original intention because they thought it would deter what they considered to be the liberal activism of the Warren Court. But once conservatives took over the judiciary, Whittington points out, they developed a new use for originalism-- to strike down laws that they didn't like. The New Originalism is no longer aligned with judicial restraint; rather it's a tool of judicial activism. The point I was making to Jonah is that he is holding on to old fashioned stereotypes which haven't been adequate for some time. Today judicial activism is not the prized possession of wild eyed liberals: conservatives-- and especially today's conservatives-- are doing it too, and because they control the courts they probably have more opportunities. At the same time many liberal scholars and judges are rediscovering the virtues of judicial restraint, as you can see in their positions on areas ranging from campaign finance to affirmative action.

Second, I certainly agree with Stuart and Larry Solum that conservatives have changed their views on many issues over the course of the nation's history. I would add that there have been many different types of conservatives existing at roughly the same time: Compare, for example, Northern Whig defenders of business interests with Southern Democrat defenders of slavery in 1838. Or compare today's conservative libertarians with today's social conservatives. Nevertheless, I can't go as far as Stuart or Larry and say that there are no transhistorical notions of conservatism in the United States. Many scholars in political science and history have devoted their entire academic careers to studying the growth and development and transformation of these ideologies. It simply won't do to dismiss this body of scholarly work with a simple philosophical expression like "nominalism." Political formations exist over time and endure through their transformations. (Religions do too, by the way). Would either Stuart or Larry deny that FDR was a liberal because FDR's liberalism differs in important respects from that of the Warren Court? The more plausible way of looking at things is that American liberalism shifted many of its positions in response to political, social, and economic changes, as did American conservatism. But certain themes have remained dominant in American liberalism-- the concern with egalitarianism (both economic and social) and with breaking down older social hierarchies.

Liberals have not been consistent about advocating judicial restraint precisely because their political ideologies cross cut with institutional concerns, and the same, I should add, is true of conservatives. My point in raising the example of Lochner was to remind Jonah, and now Stuart and Larry, of the long period of time in which it was the liberals who were complaining of judicial activism by conservative Justices and preaching judicial restraint; this was followed by a period in which conservatives like Robert Bork were attacking what they regarded as the judicial activism of the Warren Court and arguing for judicial restraint. My point was, and remains, that it is a big mistake to think that judicial activism is the modus operandi of any one political ideology. Political ideologies are quite often opportunistic with respect to institutional questions. Exhibit A is the Religious Right's demand for a constitutional amendment that would take the power to define marriage away from the states, where it has traditionally resided. In this example it seems clear that federalism concerns are yielding to ideological goals.

Third, I want to endorse Randy Barnett's point that judicial activism is often an epithet hurled at decisions you don't like. That is the way that I understood Jonah Goldberg's use of the term-- he was, after all, writing a short op-ed piece on a blog; he was not engaged in a scholarly discussion of what the term might mean. When used as an epithet, people normally mean by "judicial activism" that a court is exercising judicial power in *unjustified* ways given their perspective of what the best interpretation of the Constitution is. That's what I understood Jonah Goldberg to be saying about liberals. And when I have criticized the Rehnquist Court's judicial activism, I have implicitly suggested that I think that those decisions are unjustified (which is, in fact, my view).

If we define judicial activism in the way that Randy suggests-- as unjustified assertions of judicial power viewed from the perspective of the person making the charge-- then it follows rather easily that neither contemporary liberals or conservatives are committed to judicial restraint or judicial activism as a general rule. That is because the accusation of judicial activism is relative to a particular view of what the right interpretation of the Constitution is. Liberals and conservatives pick and choose whether they think courts should intervene or not in particular cases based on their larger political visions (restrained, as always, by the available modalities of constitutional argument). Because their visions are often opposed in these cases, they inevitably disagree in many cases about whether judicial power was exercised legitimately or illegitimately. Hence the liberals end up arguing for restraint when the conservatives argue for what in the view of liberals appears to be judicial activism, and vice versa. Remember that if judicial activism is defined as the unjustified or illegitimate use of the judicial power, then when liberals exercise judicial power in ways that conservatives think is unjustified conservatives will call it judicial activism, while when conservatives exercise judicial power in ways that liberals think is unjustified liberals will call it judicial activism. It is this feature of contemporary political and legal discourse that makes me deeply suspicious when someone like Jonah Goldberg offers casual aspersions about how liberals-- and not conservatives-- are judicial activists.

Larry Solum argues that there must be an analytic distinction "between decisions that depart from precedent, text, and original meaning--and those that do not" and this distinction should be used instead of the activism/restraint distinction. In his view this solves the relativity problem. Because there is a right answer to cases based on original meaning and precedent, we can tell who is *really* being a judicial activist. I wonder whether this distinction can do the work that Larry wants it to, in part because I regard precedent as much more flexible than he appears to, and in part because I don't think that most of the important constitutional disputes that divide liberals and conservatives have a single right answer. But that is a subject for another post.

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.

Older Posts
Newer Posts