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Wednesday, August 31, 2005

Disaster Relief and the Constitution: A History of "Strict Construction"

JB

Our prayers and best wishes go out to our friends in New Orleans and in the states of Louisiana, Mississippi and Alabama who have been hit by the effects of Hurricane Katrina. Today the federal government has several programs in effect for providing disaster relief to individuals, localities and states when natural disaster strikes, and no one questions the right and the duty of the federal government under the Constitution to do this.

It was not always thus.

One of the earliest and most contentious debates during the first years of the Constitution's history was whether or not the federal government had the power, under its authority "to pay the debts and provide for the common defence and general welfare of the United States," to spend money for disaster relief for a specific community. Jeffersonian strict constructionists argued that the words "general welfare" precluded such a power, arguing first, that the general welfare clause only gave Congress the power to spend on behalf of one of its other enumerated powers, and second, that even if the power to spend for the general welfare were an independent power, Congress could not devote money to a specific locality or region, but must spend for the entire country as a whole, i.e., "the general welfare of the United States." Loose constructionists, following Alexander Hamilton, argued that the general welfare clause gave Congress a separate power, and that the clause gave Congress wide latitude to spend money to promote what it viewed as conducive to the general welfare. (N.B.: the discussion that follows is drawn from the upcoming Fifth edition to Brest, Levinson, Balkin, Amar and Siegel, Processes of Constitutional Decisionmaking (Aspen 2006), and, in particular, to the wonderful work of my colleague Sandy Levinson).

The strict constructionist/state's rights position which was offered by Jefferson's party caused the Republicans political embarrassment because of floods and fires that occurred in the South, where the Republicans were strongest.

As David Currie writes in THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801, at 224 (1997):

A fire that devastated the Georgia port city of Savannah presented a spectacular opportunity for Hamilton's disciples, for the idea of aiding the victims had obvious emotional appeal for Southern Representatives, many of whom were ideologically allergic to federal spending…. One has the sense that wily Federalists were hoping to slip this one by on sympathy grounds, only to employ it mercilessly as a precedent later on.

Despite this, the Jeffersonian Republicans, claiming that they were being faithful to the original understanding, refused to support federal funds for a specific area of the country.

Hamilton's view has won out, which is why nobody in the federal government today has any constitutional qualms about sending federal money and assistance to New Orleans. Professor Michele Landis Dauber at Stanford Law School has done some excellent work on the history of disaster relief and its connection to the modern regulatory and welfare state, see, for example, Michele Landis Dauber, The Sympathetic State, 23 Law and History Rev. 387 (2005); Michelle L. Landis, Let Me Next Time be "Tried by Fire": Disaster Relief and the Origins of the American Welfare State, 1789-1874, 92 Northwestern U. L. Rev. 967 (1998).

Reasoning along similar strict constructionist lines, President James Madison (who had supported federal disaster relief) vetoed a bill for using federal money to build canals and other internal improvements in 1816, arguing that

To refer the power in question to the clause "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust.

If the views of strict constructionists in the early years of the republic had prevailed, there would be little that the federal government could do today by way of relief expenditures or internal improvements to help the people hurt by Hurricane Katrina; that is so even though the devastation included more than one state. (As today, some disasters during the country’s first century involved more than one state, and the internal improvements bill that Madison vetoed offered assistance to many different states and localities and facilitated interstate transportation.)

Although there were several successful appropriations for disaster relief in the 19th century, strict constructionist objections that such appropriations went beyond the Constitution's limited and enumerated powers did not entirely cease. In 1887, Democratic President Grover Cleveland vetoed a bill “to enable the Commissioner of Agriculture to make a special distribution of seeds in the drought-stricken counties of Texas, and making an appropriation thereof.” Although Cleveland admitted that distributing relief could mitigate the drought and prevent future disasters, he argued that it was beyond a strict construction of the federal Constitution:

I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service [as with veterans, for example] or benefit. A prevalent tendency to disregard the limited mission of [national] power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that though the people support the Government the Government should not support the people.

Cleveland went on to argue that “[f]ederal aid in such cases encourages the expectation of paternal care on the part of the Government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood.”

Fortunately, the constitutional text does not require so narrow a construction as Madison, Cleveland and various state's rights politicians have contended for over the years, and a wiser and more liberal interpretation (in both the older and the newer senses of that word) has prevailed, first in the case of disaster relief, and later in the case of internal improvements. By 1888, the Supreme Court upheld legislation that provided partial federal financing for interstate railroads, in the California Railroad Cases, 127 U.S. 1 (1888); however, Justice Bradley relied on the commerce power rather than the spending clause, as we would today. By the New Deal it was long settled that Congress could spend money for “the general welfare” directed at specific localities and regions, including, for example, the Tennessee Valley Authority. In this area at least, strict construction has lost out to loose construction, and it’s a good thing too. There is no doubt that Congress can and has abused its powers to tax and spend– every year we seek more and more pork in the federal budget. But preventing Congress from providing disaster relief to specific areas of the country, as strict constructionists argued early in the country’s history, is not the right solution to the problem. The remedy for bad decisions about public money has to be found within the democratic process itself.


Tuesday, August 30, 2005

The Case for A New Computer Crime Law

Orin Kerr

As I explained yesterday, the field of cyberlaw has evolved in recent years. Its focus nowadays is mostly on specific areas of law in which the new technologies alter old assumptions. In this post, I want to explain why I think the area of law that will be most changed by the Internet is going to be criminal law, even though criminal law is mostly ignored in today’s classes on cyberlaw.

A quick look through some cyberlaw casebooks confirms that the topics covered in today’s cyberlaw courses are almost entirely civil law topics, not criminal law topics. I think this is true for two reasons. First, the first generation of cyberlaw professors were mostly constitutional theorists and intellectual property professors, rather than criminal law professors. Constitutional theorists like Larry Lessig were interested in constitutional theory generally and used “cyberspace” as a new “place” to test their ideas. IP professors were likely to be techies by nature, and readily made the jump to cyber topics when they arose. The second reason cyberlaw courses focus on civil law topics is that the world of legal academia is mostly concerned with civil law, and there is a pretty sharp divide between the crim law people and the civil law people. Specialists in one don’t often jump over to the other.

As a result of this history, most law professors -- and even most cyberlaw professors – have missed the area of law that is going to be most altered by computers and the Internet: criminal law and criminal procedure. The field of criminal law and procedure is most prone to a rethinking in light of computers and the Internet because it is notably sensitive to the specific means by which individuals engage in legally relevant acts. To paint with a very very broad brush, most areas of civil law are focused on harms, and on victims of the harms recognizing when they are harmed. As a result, the precise means by which A harms B is not nearly as relevant as the fact that A somehow does so. What matters isn’t the precise mechanism so much as the end result.

Criminal law and procedure is different. The rules of criminal law and procedure are particularly sensitive to mechanisms. Substantive criminal laws are statutory prohibitions explaining what individuals cannot do or else face criminal prosecution; under the void for vagueness doctrine, the law must state in reasonably clear terms what is prohibited. The law can’t simply say, “don’t harm B,” or “don’t be negligent.” Rather, the laws are more specific and more rule-like: “Do not enter into B’s dwelling at night without B’s permission,” or “Do not operate a motor vehicle on a public road with a BAC of .08 of over”, etc. The same goes for laws of criminal procedure, which are legal commands that govern police conduct in the course of investigating crime. The law can’t simply say to the police to “investigate nicely,” or “don’t go overboard.” Rather, the rules end up being developed by the courts into often unusually specific commands. They say exactly when the police can enter a person’s home, when they can get a warrant, what the warrant allows the police to do, and the like. Relative to most areas of civil law, the regime of substantive criminal law and procedure has produced clear mechanism-dependent rules.

This has profound significance for the future of criminal law and criminal procedure because computers and the Internet change all of the mechanisms. Traditional criminal law and criminal procedure are designed for a world of physical property. The crimes themselves are tied to physical property: theft is taking away of physical property with intent to permanently deprive; trespass is entrance onto physical property without permission; etc. So are the rules of criminal procedure, and particularly the Fourth Amendment. Entering a home or opening physical containers is a Fourth Amendment “search;” taking away physical property is a “seizure.”

Computers replace the familiar mechanisms with something new. The old crimes remain the same, of course. But there’s a new world that is becoming more and more important over time: a new world of digital crimes and digital evidence. Computers facilitate new types of criminal activity: some of the activity falls into the category of computer misuse crimes, such as hacking and viruses, and the rest of it is traditional criminal activity facilitated by computers, such as fraud schemes, child pornography crimes, and online threats. Even when the crime is a traditional offline offense, like a homicide, there may be digital evidence (e-mails, websurfing records, etc.) that the police may want to collect to prove their case. In the new environment, however, many of the familiar mechanisms used by preexisting law can no longer work. The physical spaces and properties used to define the basic rules of criminal law and procedure are gone, and instead we just have zillions of zeros and ones of electricity.

Coming up with legal rules to define exactly what conduct involving the zillions of zeros and ones is permissible, both as a matter of criminal law and procedure, proves surprisingly difficult. A simple translation of old concepts to the new environment proves much harder than you might think; it triggers a seemingly endless series of new puzzles for the law. To pick just a few basic doctrinal examples, what does it mean to “steal” data? What does it mean to “possess” contraband files? To “search” files? To “damage” them? How about to “seize” them? What rules govern the process of retrieving evidence from computer hard drives? What are the rules that govern government access to e-mail? Are they the same as rules that govern access to homes? Does it matter how the e-mails are obtained? Stepping away from doctrine and looking at a more conceptual level, do the traditional physical concepts “theft” or “search and seizure” even work for digital evidence? Or do we need something else?

As such questions suggest, the new environment of digital evidence ends up creating a new platform for the classic questions of criminal law and procedure where the old answers don’t seem to fit. Existing law is heavily mechanism-dependent, and the mechanisms have changed. The new facts demand new law. As I will explain in my next post, the themes of the new law end up cutting across substantive criminal law and procedure and working together to create a new field of computer crime law.


Monday, August 29, 2005

A Brief History of Cyberlaw

Orin Kerr

As I mentioned earlier, I’m blogging this week about the new field of Computer Crime Law. To frame the topic, I want to start by discussing the broader topic of “cyberlaw.” Tomorrow I’ll explain how trends in cyberlaw point the way to computer crime law as a surprisingly distinct field.

When I went on the law teaching market in the summer of 2000, the field of cyberlaw was very hot. Most law schools felt they needed to hire a cyberlaw scholar, and students flocked to the new courses offered on “the law of cyberspace.” Although there were a few skeptics like Frank Easterbrook, the idea of a new “cyberlaw” was seen as quite plausible and also very exciting.

What explains the excitement about cyberlaw from the 1999-2000 period? Part of it was the Internet stock boom, which added a golden shine to all things Internet. But part of it was that the new cyberlaw scholarship promised to reflect and enliven the contemporary experience of being an Internet user. Most American Internet users in the late 1990s were Internet newbies with a dial-up connection to an AOL account, or something similar. Going online really did feel something like jumping onto the “information superhighway,” and using chat rooms and visiting websites really did feel kind of like entering a new space and traveling around a new online world.

The new “cyberlaw” scholarship resonated with a wide audience in part because it was very user-focused. Perhaps the most interesting example is the early work of Larry Lessig. Lessig viewed the Internet much as many users did back in those days, and his work seemed to promise a new kind of law based on that world. The Internet was a world of cyberspace with virtual streets, virtual meeting places, and virtual crimes. Lessig focused much of his attention on who set the rules for this new virtual space, and popularized the idea that “code is law” as a way of explaining the relationship between the decisions of the coders who defined the new space and the environment they created. As of 1999, at least, lots of people expected the new cyberlaw to be the new law that governed this new virtual world.

Now let’s fast forward to today. Most schools still offer some kind of Internet law course, but the ground has shifted considerably. Instead of focusing on Internet law as the law of a new virtual world, courses are more likely to feature a grab bag of interesting questions of civil and constitutional law implicated by the Internet. Intellectual property is one core area (particularly copyright); First Amendment law is another; jurisdiction and choice of law is a third. Although the different casebooks offer different approaches, my sense is that most are focused on covering a few areas of law in which the new facts of the Internet may change the assumptions of prior law.

Why the shift? There are many reasons, but perhaps the most important is that the user-focused approach to cyberlaw didn’t quite pan out. The user experience changed with the introduction of broadband and wifi; the Internet became integrated into our experience with the physical world rather than a place to go that was somehow separate from it. As users became more sophisticated and the range of Internet applications broadened, it became harder to see a user’s experience as quite as important as it first seemed. Without user experience as a reliable hook, the focus among courses in Internet law turned more to doctrinal disputes in specific areas of law.

In short, my sense is that Internet law has settled in a bit in the last five years. Its aspirations today are less grand and more doctrinal, and the key questions have shifted from virtual worlds to updating old rules given new technological facts in a few specific doctrinal areas of law.

Guest Blogger: Orin Kerr

JB

I'm very happy to announce that Orin Kerr, who is one of the leading figures in the study of cybercrime, will be guest blogging at Balkinization. Please give him a warm welcome.

Introduction

Orin Kerr

I’m delighted to be guest-blogging here at Balkinization. I teach criminal law, computer crime law, and criminal procedure at George Washington University Law School, where my office is down the hall from Daniel Solove. I plan to blog about a few different things while I’m here, but I want to focus first on a project I started in 2001 and have been working on intensely for the last few months: writing a casebook for West Publishers on Computer Crime Law. I want to explain what the field of computer crime law is about, why it’s important, and why I think computer crime law is going to end up someday as a standard part of the curriculum at most law schools. I’ll start my substantive blogging shortly, with a post on the Rise and Fall of Cyberlaw as a field of law. I should be posting it later tonight.

Synthesizing Originalism and Living Constitutionalism

JB

My defense of the idea of a living Constitution and my criticism of the way originalism is currently understood appears in Slate here. As you'll see from the piece, I argue that everybody is actually a living constitutionalist whether they admit it or not, because nobody wants to be bound by the original understanding once they understand what that really entails. Conversely, I argue that living constitutionalists are and should be bound by the original meaning of the constitutional text but not by its original expected application.

This puts me in the same camp for many purposes as someone like Randy Barnett, who regards himself as an originalist, or my colleague Akhil Amar, although in the Slate piece I'm distinguishing myself from and criticizing other people who also regard themselves as originalists (like Scalia and Thomas).

In fact, if my views are originalist in any degree, then it suggests that some forms of originalism and living constitutionalism are fully compatible, rather than opposed, as Justice Scalia contends. That by itself should suggest that the labels "originalist" and "nonoriginalist" may do far less work than people might think.

Perhaps more importantly, it also suggests the possibility of a synthesis of the historical work that originalist scholars have been doing over the past twenty years in uncovering the original meaning and understanding of the constitutional text with the premises of a living Constitution. In fact, I think such a synthesis is not only possible, but highly desirable.


Saturday, August 27, 2005

Does God Mess With Free Will?

Ian Ayres

A few years back in the movie Bruce Almighty, the character Bruce (played by Jim Carry) got to temporarily substitute for God. Bruce was omnipotent except for two rules. He couldn’t tell any one about his powers and he couldn’t change anyone’s desires. He could make people do things, but he couldn’t change their free will.

For economists, this is the ultimate “de gustibus non est disputandum” constraint. Stigler, GJ and Becker, GS (1977). De gustibus non est disputandum. The American.Economic Review, 67(2): 76-90. Even God can’t quarrel with people’s tastes or preferences.

But here’s a biblical pop quiz. When does the God of the Bible violate the Bruce Almighty rule and change people’s desires?

I can think of two examples (which come from my recent stint as a Sunday school teacher), but please let me know if you can think of any others.

The most famous example is that God repeatedly “hardened Pharaoh’s heart” to keep Pharaoh from letting the Israelites go. See for example Exodus 9:12 Apparently God wanted Pharaoh and his people to experience the pain of all the plagues (maybe so that God could prove to the Israelites or the Egyptians what God was capable of dishing out or maybe so God could make Pharaoh look like a fool for flip flopping).

But Pharaoh was not the only villain whose free will God froze. God also hardened the hearts of several enemies of Joshua:
For it was the LORD himself who hardened their hearts to wage war against
Israel, so that he might destroy them totally, exterminating them without mercy,
as the LORD had commanded Moses. Joshua
11:20


But the more disturbing instance of God’s intervention with free will happens at the very beginning of the Bible. We all remember that Eve’s punishment was pain in childbirth. But that was only part of her fate:

16 To the woman he said, "I will greatly increase your pains in childbearing; with
pain you will give birth to children. Your desire will be for your husband, and he will rule over you."

Genesis 3:16

This passage is truly disturbing. At least one interpretation is that God punished women by giving them pain in child birth and making their husbands rule over them. But God seems to have gone further. He had to make sure that women wouldn’t turn away from men (who would subordinate them and through impregnation cause them childbirth pain). So in this passage, God seems to take away women’s freedom to desire whomever they want. God ordains “Your desire will be for your husband.”

The punishment of heterosexuality

The mandatory heterosexuality of women can be read as part of God’s punishment for the fall from grace. Under this reasoning, epidurals and lesbianism are both rebellions against the will of God. Indeed, religious conservatives have argued that Eve’s punishment is evidence that the Bible views homosexuality as sinful.

But seen within the larger pattern of God’s heart hardening, it is more reasonable to view the “your desire will be” heterosexuality as merely part of women’s punishment and not a sign that homosexuality is sinful. Just as it would not be a sin for Pharaoh to let the Israelites go, the punishment of heterosexuality doesn’t mean that it would be a sin for women to desire women.

Indeed, the trifecta reappearance in our world of painless childbirth, the appearance of different sex unions where the man does not rule over the woman (pace MacKinnon) and the appearance of women whose desire is not for their husband might all be signs that the punishment is no longer in effect. You see, sin without free will is not even possible. Pharaoh’s failure to let the Israelites go when his heart was hardened by God cannot in good conscience be considered sinful. The reappearance of choice – of women that choose whether or not to desire husbands – opens up the possibility for sin, but it does not indicate that same-sex desire is sinful. Indeed, it may be a sign that we are step closer to the garden, a step closer to grace.

The Washingtonienne Case and the Still-Very-Much-Alive Public Disclosure Tort

Daniel Solove

Earlier this summer, I blogged about the Washingtonienne case. Recently law professor Andrew McClurg wrote a piece for the Washington Post about the case. He writes:

Cutler's blog, written under the pseudonym Washingtonienne, was a daily diary of her sex life while working as a staffer for Sen. Mike DeWine (R-Ohio). It recounted, entertainingly and in considerable -- sometimes embarrassing -- detail, her ongoing relationships with six men, including [the] plaintiff. . . .
Although McClurg notes that the plaintiff “suffered a genuine wrong,” he also states that the law “appears to be against him” because he “does not allege that any of the statements about him are untrue.” McClurg notes that the plaintiff is suing under the public disclosure of private facts tort, which “provides a remedy when one publicizes private, embarrassing, non-newsworthy facts about a person in a manner that reasonable people would find highly offensive.” McClurg notes that “while Cutler's actions may meet this standard, courts have long been hostile to such lawsuits because of a fear of inhibiting free speech.” McClurg continues:

In 1989 the court tossed out a lawsuit against a newspaper for publishing a rape victim's name in violation of Florida law. While it stopped short of ruling that a state may never punish true speech, the test it adopted for when that can be done without violating the First Amendment is so stringent Justice Byron White lamented in dissent that the court had "obliterate[d]" the public disclosure tort.
Not so. Time after time the Supreme Court has explicitly carved out space for the public disclosure tort to exist. In the series of cases involving the First Amendment and privacy restrictions on true speech, the Court has always confined the First Amendment to speech about matters “of public significance.” The Court did this in Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103 (1979) as well as its most recent case on the issue, Bartnicki v. Vopper, 532 U.S. 514 (2001), where the Court held that “privacy concerns give way when balanced against the interest in publishing matters of public importance.” Id. at 534.

Even in the 1989 case that McClurg refers to, Florida Star v. B.J.F., 491 U.S. 524 (1989), the Court explicitly rejected the “invitation to hold broadly that truthful publication may never be punished consistent with the First Amendment. Our cases have carefully eschewed reaching this ultimate question.” Id. at 532.

So it could very well be that the newsworthiness test of the public disclosure tort – that weeds out cases involving matters of legitimate public concern – can address the First Amendment interests. The Court has left the issue open. It has not obliterated the tort . . . far from it. While the Court may have waved its sword near the tort, it left the tort almost totally intact.

McClurg goes on to argue that although Cutler’s blog wasn’t newsworthy, “newsworthiness has proved to be a broad and elusive legal test in privacy lawsuits.” This is true, but then McClurg says: “The rape victim's name in the 1989 Florida case, for example, was deemed to be sufficiently related to the public's interest in crime to doom her claim.” This isn’t exactly correct. Florida Star did not involve the public disclosure tort. It involved a Florida law restricting the disclosure of rape victims’ names. Here’s what I wrote in an article about privacy protections and the First Amendment regarding Florida Star:

Many have read Florida Star as a broad indication that restrictions on the disclosure of true information are unconstitutional. Nevertheless, this case can be read very narrowly. The Court suggested that the Florida statute was far too broad. The statute applied “regardless of whether the identity of the victim is already known throughout the community; whether the victim has voluntarily called public attention to the offense; or whether the identity of the victim [had] otherwise become a reasonable subject of public concern.” The law focused only on the nature of the information, rather than on whether each particular use of a rape victim’s name in a specific context would be of public or private concern. Florida Star can be construed to suggest that a law adopting a less categorical approach—by addressing the use of the identifying data more contextually—might not be subject to strict scrutiny under the First Amendment.
In other words, the law involved in Florida Star was struck down in part because it lacked a newsworthiness exception! The statute was also problematic because it applied even if the rape victim’s identity was already known to the public. The rationale of the Florida Star Court was not, as McClurg says, that the rape victim’s name was “sufficiently related to the public’s interest in crime” but that the law didn’t contain the necessary limitations to withstand First Amendment scrutiny. The public disclosure tort has these limitations – it doesn’t apply to matters of legitimate public concern and it only applies to private matters.

The Florida Star Court also held that since it was the government that disseminated the rape victim’s name, it could not then punish the press’s disclosure of that information: “[W]here the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release.”

In the Washingtonienne case, the government didn’t disseminate the information; Jessica Cutler did. It’s hard to see how Florida Star is even applicable.

The public disclosure tort is alive and well. It has not been killed or obliterated by the Supreme Court. Reports of its demise are greatly exaggerated.

Thursday, August 25, 2005

Roberts and the Ghost of Iran-Contra

JB

The Washington Post reports that during his time in the Reagan Administration John Roberts offered advice on the establishment of the Nicaraguan Humanitarian Assistance Office (NHAO), an organization used by the Reagan Administration to circumvent the Boland Amendment.

For those of you who don't remember, the Boland Amendment made it illegal for U.S. intelligence agencies to provide covert funding to the contras in Nicaragua. John Poindexter and Oliver North attempted to get around this prohibition by diverting millions of dollars to the contras through a secret deal-- approved by the President-- which sold anti-tank and anti-aircraft missles to Iran. Poindexter and North then funneled the money to the contras.

The NHAO was formed within the State Department to provide what was, at least on the surface, legitimate humanitarian assistance to Nicaragua; Oliver North, however, used it to send money and supplies that the CIA couldn't send directly. Put another way, he used the NHAO as a cover for illegal covert funding for the contras in violation of federal law.

We do not know what Roberts' role was in any of this. For example, he might simply have been asked to set up the NHAO for purely humanitarian purposes and then North infilitrated and twisted the organization for his own illegal ends. If so, there's nothing in the file on the NHAO that should be problematic for Roberts. He simply did what any good lawyer would do for his client.

On the other hand, if Roberts was asked to justify circumventing the Boland Amendment in any way, he would have been a hitherto unknown part of the Iran-Contra scandal. If that were so, it would be inappropriate for someone who had participated in fomenting a serious constitutional scandal to be rewarded with a Supreme Court appointment.

The Democrats obviously want to know what is in those files; the Bush Adminstration doesn't want anyone to know. At the very least the senators should ask Judge Roberts for his recollections, to the extent that he can provide them.

More on the Iraqi Constitution

JB

On the same day that David Brooks lauds the Iraqi Constitution as what is just right for Iraqis, the Iraqis themselves announce that they have not been able to agree on the terms.

The sticking point, as I suggested in my previous post, is not primarily the idea of Islam's role in a democratic state. It is federalism. The Sunni want a strong central government for two reasons. First, they led a strong central government for many years. Second, they are worried that without such a government, they will be the poorest and least powerful of three basically autonomous regions. The Shia and the Kurds, conversely, would like nothing more than to become autonomous regions if not fully independent.

The problem, as I explained before, is that it is not yet clear to the different parts of Iraq why there should be a single country called Iraq. It is clear to the Bush Administration, of course, but it's the Iraqi's constitution, not the Bush Administration's, and without a strong reason to unite, different incentives among the various groups in Iraq will prevent agreement.

The Bush Administration may ultimately decide to bully its way through (as it has so often in its foreign policy), by aligning itself with the Shia and Kurds and bringing forward a blueprint for a very loose confederation for popular approval. The problem, of course, is that this will only further alienate the Sunnis, who are already paranoid that their interests will be disregarded by the other two groups which form a majority in the country. If enough Sunni's feel this way, and if they feel that the Americans occupying the country are forming a conspiracy with the Shia and Kurds against them, this will only add support to the insurgency.

We may get a constitution, if cooler heads prevail, and all three groups decide that they need each other. Or we may get civil war.

Laissez Faire Redux?

Brian Tamanaha

Edward Corwin's Constitutional Revolution, Ltd. (1941) describes the rise of laissez faire views in court opinions in the late 19th Century:

In 1878 the American Bar Association was founded with a membership which included the elite of the American bar. On its roster in its early years appeared such names as John A. Campbell, Thomas M. Cooley, John W. Cary, William M. Evarts, Joseph H. Choate, Christopher G. Tiedeman...and others--former Justices of the Supreme Court, future Justices thereof, future Attorneys-General--and one future President!

...the Association soon became a sort of juristic sewing circle for mutual education in the gospel of Laissez Faire. Addresses and papers presented at the annual meetings iterated and reiterated the tenets of the new creed: government was essentially of private origin; the police power of the state was intended merely to implement the common law of nuisance; the right to fix prices was no part of any system of free government; "in the progress of society, there is a natural tendency to freedom"; the trend of democracy is always away from regulation in the economic field; "the more advanced a nation becomes, the more will the liberty of the individual be developed," and so on. The basic assumption of these cerebrations is inescapable. It is that the guaranties which the Constitutions affords private rights were intended chiefly to supply an added sanction to the laws of Political Economy and an endorsement of Evolution, and particularly Herbert Spencer's conception thereof....

Indeed, when one turns from the Reports of the American Bar Association to those of the Supreme Court one discovers a long line of cases...in which some or other of the gentlemen listed above appeared as counsel against the legislation involved.

"The development of the law," say Judge Baldwin in his volume The American Judiciary, "whether unwritten or written, is primarily the work of the lawyer. It is the adoption by the judge of what is proposed at the bar." He ought to have added, "and at the Bar Association meetings, and in books written by lawyers." For the membership of the Association was also prolific during this period of legal or semi-legal treatises whose teachings were strongly penetrated by the gospel of Laissez Faire--works like Cooley's Constitutional Limitations, the most influential work ever published on American Constitutional law...

Thus were the feet of the Court set upon the pathway of Laissez Faire...


Sounds familiar? It's still early, and most successes, if they are to come, lie in the future, but the core agenda substantially overlaps and the method of propagating it is the same: The Federalist Society (and a loosely surrounding network). A supportive circle for the exchange of ideas and mutual promotion, the production of quality papers and books, ample financial and institutional support (Cato and AEI), leading intellectual lights (Randy Barnett and Richard Epstein), well placed judges (not even counting Justice-to-be Roberts) and high level government officials, lawyers actively bringing cases to implement this vision (Washington Legal Foundation, Center for Individual Rights, etc.)--it's all there. Of course there are many differences, but nonetheless there are striking similarities.

This is the Age of Legislation (or, actually, the Age of Administrative regulation). Yet it is still the case that the legal understandings that course through and inform the interpretation of legislation, constitutions, and the common law are largely the production of lawyers, judges, and legal scholars. Legal actors--their ideas, beliefs, and concepts--give life to the law. If that is correct, the Federalist Society and its various supportive adjuncts may come to have a formidable impact on American law.

Don't misunderstand: this is not in the least to bash the Federalist Society. To the contrary, even as I disagree with a good deal of what the Society promotes (or at least what some of its more vocal members promote), I admire their conviction and strategic acumen.

Even at the height of its dominance, laissez faire never completely controlled US jurisprudence, but it had a real impact for almost five decades. We may be in for another round, more modest perhaps, not threatening the basic elements of the social welfare state (I hope), but no less real in its consequences. Time will tell. Meanwhile, those who oppose these views must recognize that we are being out organized and out produced. The Federalist society is spreading its views and (more importantly) acting strategically to advance them.

Wednesday, August 24, 2005

The Fourth Amendment, New Technology, and Judicial Deference

Daniel Solove

It’s come to fisticuffs. Professor Orin Kerr and I have taken our many debates out of the halls of GW Law School and into the pages of a forthcoming symposium issue in Fordham Law Review.

My piece is a short essay, entitled Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference, which critiques an article Orin wrote in Michigan Law Review about the Fourth Amendment, judicial review, and new technologies. Orin argued that “courts should place a thumb on the scale in favor of judicial caution when technology is in flux, and should consider allowing legislatures to provide the primary rules governing law enforcement investigations involving new technologies.”

I argue vigorously that Orin is wrong. My essay is a short easy read, and you might find it entertaining to watch me dismantle my colleague and friend – or laugh at me for failing in the attempt. You can be the judge.

And Orin, of course, wanted to have the final word, so read his short reply essay to my attack, which will also appear in the Fordham Law Review.

In the end, my scorecard has me winning by TKO. Orin’s scorecard, surprisingly, has him winning by TKO. So to settle this thing, let us know what you’ve got down on your scorecard.

Monday, August 22, 2005

Godless Darwinism?

Guest Blogger

Andrew Koppelman

The movement against Darwinism is spreading from Protestant fundamentalists to the Catholic Church. Cardinal Christoph Schonborn, archbishop of Vienna, has denounced the idea that mankind came into being through “evolution in the neo-Darwinian sense -- an unguided, unplanned process of random variation and natural selection.” The Cardinal has thus joined millions of others who think that a mechanical process of evolution is inconsistent with belief in God. The growing popularity of anti-Darwinism is strange, because religious rejection of Darwin rests on such bad theological arguments.

Religious objections to Darwin take two very different, in fact inconsistent, forms. The first holds that the account of creation in the Book of Genesis is literally true, and that any talk of one species emerging from another, or indeed of the earth being millions of years old, cannot be true. Here the conflict is undeniable. But hardly anyone still wants to deny what the fossil record establishes, and even Cardinal Schonborn concedes that “evolution in the sense of common ancestry might be true.”

The other religious response to Darwin is “scientific creationism,” which jettisons Genesis, but claims that the process by which new species have emerged is one in which some enormously powerful intelligent being must have periodically intervened. (Guess Who.)

The shrewdest of America’s “scientific creationists,” Phillip Johnson, has emphasized that scientific method is predisposed to reject intelligent design, because it assumes, rather than proving, that nature is all that there is. The job of a scientist is to look for natural physical causes, rather than divine interventions. If God had played a role in the creation of new species, then, scientists would have trouble seeing it.

Johnson is right. Science presupposes that everything in nature has a physical, not a supernatural, cause. It only looks for physical explanations. But there is a reason why science has become so prestigious in the last few centuries. The assumption of mechanical causation in nature has led to spectacular results. All of modern technology rests on the assumption that nature is mechanical and predictable.

Is the idea of a causally determined, self-sustaining world inconsistent with religion? If it is, then it isn’t just the evolutionary biologists who are in trouble. Anyone who acts on the physical world, on the assumption that matter is inert and manipulable, would be rejecting religion too. Are auto repair shops hotbeds of atheism?

Cardinal Schonborn writes that there is “purpose and design in the natural world, including the world of living things.” He could mean two things by this. The first is that there is a point to the universe’s existence, and human life has cosmic significance. The second is that ordinary physical processes are not the product of blind causation, but of continuing divine intervention. You can accept the first proposition without accepting the second one. God might well have created a universe in which physical processes – say, the emergence of homo sapiens from other species, or the operation of your car’s engine – take place by themselves. The universe as a whole might be fraught with purpose, even if its parts operate mechanically. This in fact appears to be the view of the book of Genesis, which informs us that on the seventh day, after creating the universe, God rested. If God was resting, then evidently the universe was able to keep running by itself.

Darwin’s most important precursor in arousing the wrath of the religious is, of course, Galileo: the idea that the earth was not the center of the universe was as disconcerting then as evolution is now.

It is, however, at least equally consistent with the Judeo-Christian tradition to consider it impious for one to presume knowledge of God's intentions in creating the universe. As God said to Job: "Where wast thou when I laid the foundations of the earth? declare, if thou hast understanding." There is no reason in principle why one cannot believe in God without also believing that He is a kind of cosmic Kilroy, who feels impelled to leave His initials carved on every tree.

It is even doubtful that the hypotheses of the scientific creationists deliver the comfort they purport to give. If the story they tell is accepted, some very powerful being repeatedly intervened in the evolutionary process. The logic seems to be the following:(1) here is a being more powerful than any we have ever encountered; (2) any being more powerful than any we have ever encountered must be God; (3) this is God. The fallacy should be obvious: proposition (2) was accepted by the Aztecs when they met the Spanish conqueror Cortes in 1519. He turned out not to be God. God’s existence may not be the kind of thing that you can prove with historical evidence.

Galileo and Darwin do place greater demands on religious faith than their predecessors. They require that faith stand on its own bottom, rather than leaning on comforting hints drawn from observed phenomena. And this is, perhaps, why they are resisted so fiercely. Faith is hard. But the enemies of Darwin are not helping religion’s cause. If we did not, in our daily activities, assume a mindless, predictable nature, we probably could never do anything at all. The idea that religion necessarily rejects science and mechanism ought to appeal only to the most militant atheists. Its embrace by sophisticated religious people is bizarre.

What Fearless White Men Are Afraid of

Dan Kahan

Why are white men less concerned with all manner of risk (global warming, gun accidents, various medical procedures, etc.) than are women and minorities? Known as the “white male effect” (see, e.g., Melissa Finucane, Paul Slovic, C.K. Mertz, James Flynn & Theresa A. Satterfield, Gender, Race, and Perceived Risk: The "White Male" Effect, 3 Health, Risk, & Soc'y 159 (2000)), this phenomenon has long puzzled scholars of risk perception. Various hypotheses -- that white men are more informed than women and minorities, that women and minorities feel more vulnerable or less able to protect themselves, that women (and perhaps minorities) are more empathetic than white men -- have all been found wanting in empirical tests.

The phenomenon of “cultural cognition” suggests a different explanation, one that has been confirmed in a national study of culture and risk. The reason white males are less fearful of various risks is that they are more afraid of something else: namely, the loss of status they experience when activities symbolic of their cultural worldviews are stigmatized as socially undesirable.

Cultural cognition refers to the processes by which cultural worldviews influence risk perception and related beliefs. Insofar as risk perceptions are responsive to emotions (and boy, are they ever), cultural values matter because they determine the content and strength of the emotions people experience toward putatively dangerous activities. Insofar as perceptions of risk depend on the information we receive, cultural values matter because they influence what information catches our attention and is thereafter recalled. And insofar as risk perceptions reflect what other citizens have to say, cultural values matter because we tend to trust the opinions of those who share our worldviews and distrust the opinions of those who don’t.

As a result of these dynamics, disputes over how to respond to nuclear power, guns, domestic terrorism and various other asserted risks can be understood to reflect what Joseph Gusfield describes as symbolic status competition. Because differences of opinion on these matters cohere with the worldviews of competing cultural groups, what position the law takes will inevitably come to be understood as a measure of whose stock is up and whose down in the market for societal esteem. In particular, to the extent that some activity symbolic of the values of a particular group is attacked as dangerous, we can expect members of that group to display a defensive form of risk skepticism and members of opposing groups to display an aggressive form of risk sensitivity.

Status-protective motivations help to explain not only differences in risk perception across cultural groups but also certain demographic differences within such groups. Within different ways of life (hierarchical, individualistic, egalitarian, and communitarian), the types of behavior that entitle persons to esteem can vary according to gender and even race. It follows that within particular cultural groups, men and women, and whites and minorities, will react with different degrees of risk skepticism and risk sensitivity depending on whose status the dangerous activity supports.

This dynamic, I and other researchers have found, accounts for the so-called “white male effect” in risk perception. Firearm possession, for example, is integral to predominantly male roles (father, protector, hunter) within a hierarchic way of life and symbolic of predominantly male virtues (courage, honor, physical prowess) within an individualistic way of life. For that reason, hierarchical and individualistic males have the most culturally grounded status to lose when guns are singled out as a source of danger worthy of regulation. They therefore display considerably more risk skepticism than do hierarchical and individualistic women. Indeed, once this culture-specific gender differential is taken into account, it turns out there is no general differences in the risk perceptions of men and women toward guns.

Culture-specific status concerns also explain the impact of race on gun risk perceptions. Traditionally at least, the positive connotations that guns bear within a hierarchic way of life have been largely specific to whites. As historian Richard Hofstadter put it, “in the historic system of the South, having a gun was a white prerogative,” making gun ownership an enduring “symbol of white male status” in particular. Not surprisingly, holding a hierarchical worldview strongly predicts gun-risk skepticism among white males, but not among African-American ones.

Within an individualistic way of life, however, the positive association of guns with male roles doesn’t seem particularly race specific. And in fact, among individualistic blacks, as among individualistic whites, men are much more skeptical of guns than are women. In this case, at least, male status anxieties don’t discriminate on the basis of race!

We found a similar relationship between the cultural status anxiety and the white male effect in environmental risk perceptions. To begin with, there are no differences in risk perception across race once cultural worldviews are controlled for. Gender differences do persist. But they are due entirely to the the wide discrepancy in the views of extremely risk-skeptical white hierarchical males and considerably less risk-skeptical hierarchical women. There are no gender (or race) based differences in environmental risk perception among relatively individualistic or egalitarian persons.

Again, these patterns suggest the impact of culture-specific gender differences in status-conferring social roles. Within a hierarchic way of life, men tend to earn esteem by achieving success in civil society, while women earn it by successfully occupying domestic roles. Accordingly, it is hierarchic men, not hierarchic women, who experience the greatest status threat when commercial and industrial activities are challenged as dangerous. Within an individualist way of life, success in the market is status-conferring for men and women. Accordingly, individualistic men and individualistic women react with status-protecting skepticism when commerce and industry are attacked as dangerous. Commerce and industry are symbolic of social inequality and unconstrained individualism within egalitarian and communitarian ways of life. Accordingly, as a means of promoting their status, men and women alike within these cultural groups tend to embrace claims of environmental risk.

As should be clear, it would be wrong to suggest that white hierarchical or individualistic men are the only ones whose risk perceptions are shaped by status anxieties. Indeed, we found that status concerns also help to explain interesting variations in risk perception among women relating to the dangers of obtaining an abortion. Hierarchical women but not individualistic or egalitarian ones perceive obtaining an abortion to be very dangerous to a woman’s health. Sociologist Kristin Luker depicts abortion as the symbolic focal point in a status conflict between two groups of women: those who subscribe to hierarchical norms that confer esteem upon women who occupy domestic roles such as motherhood; and those who adhere to individualistic and egalitarian norms that confer esteem upon women and men alike for successfully occupying professional roles. It is thus status protective for the former group of women to accept the asserted health risks of abortion and for the latter to reject these asserted risks.

What is the practical upshot of the relationship between cultural status anxiety and risk perception? It certainly isn’t that white males (or hierarchal and individualistic white males) are “wrong” and everyone else “right” about global warming, guns, etc. -- or vice versa. Knowing the social psychological origins of some groups’ views about risk doesn’t tell us anything about whether those views are sound or unsound!

But knowing that peoples’ risk perceptions are rooted in cultural cognition does tell us something important about the prospects for communication of sound risk information. It probably doesn’t make sense, in particular, to assume that the “truth” will win out in the market place of ideas when it comes to political debates over risk. The natural tendency of persons (all persons, of all worldviews and demographic characteristics) to protect the status of their cultural group operates as a distorting influence on in the public’s processing of sound information.

Overcoming this biasing effect of cultural cognition should thus be a critical objective of policymakers and -analysts. Not merely the tone of our public discourse, but the safety or our society, depends on devising a culturally pluralistic idiom for discussing contentious issues like global warming, guns, and other contentious risk issues.


Friday, August 19, 2005

A Bully Using Threats About Money is Still a Bully

Brian Tamanaha

The United States proudly holds itself up as a country that abides by the rule of law. And of course this country is against genocide and other crimes against humanity. You would think, therefore, that the United States supports the International Criminal Court. The Clinton Administration did, but not the Bush Administration. Correct that: the Bush Administion is not against the ICC as such, only against the possibility that it might be used to prosecute Americans.

The objection is not quite that Americans would never engage in such reprehensible acts (recent war-prison events would make that claim a tough sell right now). Rather the objection is that other countries might use ICC proceedings against Americans for political retribution. Administration officials admit that the risk is small, especially since the threshold for ICC jurisdiction is high (the conduct has to be beyond awful), and would not kick in unless the home country refuses to prosecute.

Notwithstanding our objections, the ICC was established--now up and running at the Hague--with the agreement of 139 countries. To avoid the ICC, the US has pressured other countries to sign bilateral agreements in which they promise to not cooperate in any ICC prosecutions involving Americans. According to a NY Times report, about 100 countries have signed, some more willingly than others. For the less than willing, our main "encouragement" has been to withhold US aid from countries that refuse to sign such agreements. This bargaining tactic is most effective with poor countries, a number of which have caved owing to their need for the money. Others still hold out, refusing to sign, suffering the consequences, insisting that supporting the ICC is worth the pain visited by losing the aid.

One can be sympathetic to the Bush Admistration's desire to protect American citizens (no matter how small the risk), but still find our tactics, well...embarassing, unworthy of a great nation, poor form, just plain bullying. It's our money, and the're not entitled to it (as an unapologetic Congressman astutely pointed out), but this is just too underhanded of a means to our end. Worst of all, it sends a clear message about how money and power can be used in cynical ways to evade the law.

Thursday, August 18, 2005

Proposals Considered in 1936 on How to Curb Judicial Review

Brian Tamanaha

Debates on what to do about judicial review are as old as the Constitution. Looking back helps gives us some perspective on this issue. Max Lerner published an essay in The Nation in March of 1936 that ran through the different options being discussed at the time. He mentioned and dismissed three proposals as unrealistic or insufficient solutions: pick better Presidents, who would then select better judges; set up a system in which the justices issue preemptive advisory opinions on legislation (reducing uncertainty about what would survive challenge); and find judges who will practice "self-limitation."

Lerner moved on consider more drastic measures, the first of which was to "pack" the Court (almost a year before Roosevelt tried to do just that). Lerner backed off of this proposal owing to the impending election campaign. Then he wrote:

The most frequent suggestion for a judicial curb is to regulate not the numbers on the court but the manner of their voting. It would provide that a majority of the justices were not enough to invalidate an act of Congress. Some number such as seven or eight or more than two thirds of the court is usually suggested. The obvious answer is of course that, granted the existence of the judicial power, this would leave the decision on constitutionality in the hands of one or two justices. The answer to that answer is that just such an event is intended, that since you can usually count on one or two justices who will vote on the side of Congress, this leaves the decision on economic issues where it belongs--with Congress and the President. Another device, intended to have somewhat the same effect, would be to provide that unfavorable court decisions could be overruled by a two thirds vote of Congress...

Lerner went on to also consider a Congressional act that abolishes the court's power to invalidate legislation, or removes the jurisdiction of the Court to hear cases with respect to certain types of legislation.

He pointed out the irony of the fact that all of these proposals would be subject to constitutional challenge, which the Court would then decide. "And it is very unlikely that, given the present temper of the court and the present tension of the country, the court would be willing to sign its own death warrant."

Questions about constitutionality aside (and surely they could be accomplished by amendment), Lerner's proposals merit consideration. In particular, going a step further than Lerner, what about requiring a unanimous vote for any decision that strikes legislation? This keeps alive the possibility of judicial review, but limits it to rare situations that earn complete agreement. That Brown was unanimous has often be pointed out in its favor, arguably providing it more legitimation than any of the reasons given in the opinion. The grandeur of unanimity has a standing and credibility all its own.

Yes, that allows a single obstructionist justice to keep on the books a statute that eight others think should be struck; but this can be turned around and looked at instead as taking away veto power of legislation from five justices who disagree with the other political institutions. Which of these two prospects seems more objectionable from the standpoint of political theory and constitutional practice?

Lerner's other proposal, allowing Congressional override by a two thirds vote, also has merit. It's main flaw is that it turns a constitutional question into a matter of pulling together enough political votes, albeit at a higher threshold. To those who believe that all Constitutional questions are ultimately political questions this is not objectionable. But for those who believe that some Constitutional questions, like questions about rights, are about legal principles that cannot be overcome by a vote (even a super majorty vote), requiring a unanimous decision by justices is superior because it keeps the question a legal one (at least in theory).

It seems highly unlikely that judicial review will be abolished, and doing so raises worrisome questions. Both of these proposals have the merit of retaining it while limiting it. Given that both the Right and the Left are currently unhappy about judicial review, this is a propitious moment to consider proposals of this type. We had better take this up quickly, however, before Roberts (or the next appointee) gets on the Court, and after a few favorable decisions the Right starts to like judicial review again. Then we'll have to wait for the next round of these perennial debates on what to do about judicial review.

Hoax or Real? "Intelligent Falling"

Brian Tamanaha

The Onion reports that "Evangelical Scientists Refute Gravity With New 'Intelligent Falling' Theory" (thanks to Leiter Reports for pointer). Here are excerpts:

KANSAS CITY, KS—As the debate over the teaching of evolution in public schools continues, a new controversy over the science curriculum arose Monday in this embattled Midwestern state. Scientists from the Evangelical Center For Faith-Based Reasoning are now asserting that the long-held "theory of gravity" is flawed, and they have responded to it with a new theory of Intelligent Falling.

Rev. Gabriel Burdett (left) explains Intelligent Falling.
"Things fall not because they are acted upon by some gravitational force, but because a higher intelligence, 'God' if you will, is pushing them down," said Gabriel Burdett, who holds degrees in education, applied Scripture, and physics from Oral Roberts University.

....

The ECFR, in conjunction with the Christian Coalition and other Christian conservative action groups, is calling for public-school curriculums to give equal time to the Intelligent Falling theory. They insist they are not asking that the theory of gravity be banned from schools, but only that students be offered both sides of the issue "so they can make an informed decision."

...

Proponents of Intelligent Falling assert that the different theories used by secular physicists to explain gravity are not internally consistent. Even critics of Intelligent Falling admit that Einstein's ideas about gravity are mathematically irreconcilable with quantum mechanics. This fact, Intelligent Falling proponents say, proves that gravity is a theory in crisis.

...

"Traditional scientists admit that they cannot explain how gravitation is supposed to work," Carson said. "What the gravity-agenda scientists need to realize is that 'gravity waves' and 'gravitons' are just secular words for 'God can do whatever He wants.'"

...

Ha! Ha! Ha! Great hoax, Onion...this is a hoax, right?

The scary thing about this hoax is that many people (especially folks who don't know what Onion is about) won't recognize it as such. It works as a hoax because this is the same reasoning operating in the challenge to Darwinism.

Cultural conservatives harp ad nauseam on the decline of our culture (sex, drugs, and rap and hip hop). The're right, but are obsessing on the wrong things. We are witnessing the decline of knowledge, in this weary late modern age. It's not just that our kids learn less in schools (as report after report confirm). In more and more contexts--from our political leaders to our school boards--our culture has become soft and fuzzy on the idea that factual, verifiable truths exist and matter (see Jack's earlier post on rejecting Enlightenment values).

The Left bears a good deal of the blame for this. Interpretivism, social constructionism, holism, pragmatism, postmodernism and all those other leftist academic ideas (pardon my irresistable sarcasm), have been taken (wrongly) to suggest that science is just another point of view with no priority or particular authority over any other. Into this wide open door come striding religious fundamentalists who insist they know the ultimate truths.

The next thing you know, they will be coming up with some idea like gravity is an illusion and it's really God micro-managing intelligent falling. And no doubt many people will believe them. Gravity can't explain how angels can fly, so it must be wrong.

All of the above "isms" are sound, in my view, but none of them in the least undermine the validity and importance of science in the way casual interpreters seem to believe. We had better starting emphasizing this. The Left has always lacked the resources of the Right. It's most effective weapon has been--to put it in a 60's kind of way--speaking truth to power.

There's More Than One Kind of Judicial Review

JB

Following up on Mark's post, it's important to recognize that there are many different versions of judicial review. There can be judicial review of Congress, judicial review of the Executive, and judicial review of state and local government action. The most important form of judicial review in a democracy may be judicial review of executive and administrative action. Many countries whose courts lack the power to strike down legislation as unconstitutional have nevertheless developed judicial doctrines limiting what the Executive and bureaucrats can do. The fact that so many countries have developed judicial review of administrative action without a written constitution or with only limited review of legislation suggests that reining in executive discretion and executive overreaching is the most important job of a judiciary in a democracy.

In countries with a federal system, judicial review of conflicts between the national government and the states, or between the states themselves, can also be particularly valuable for the health of a democracy, because it is sometimes necessary to have a national referee for these sorts of conflicts. This may be more important in countries that are barely holding together than it is for the contemporary United States, but it is also possible that the presence of judicial review of federal state conflicts may have helped stabilize the American federal system given the repeated disruptions of economics and demographic shifts. Moreover, this sort of review does not always require striking down laws; it may involve judicial construction of legislation to harmonize apparent conflicts.

The least important form of judicial review is probably the one that people spend the most time worrying about: judicial review of individual rights violations by the national government and by states and local governments. As between the two, the latter violations by states and localities are more important to police than the former, because multiplying the number of state and local governments multiplies the number of opportunities for violating individual rights. On the other hand, one way to keep a federal union together is to let different localities enforce individual rights guarantees in different ways. Since the Civil War the American constitutional system has settled on the idea of a uniform floor for civil rights protection set at the national level, but that's clearly not the only way to do it.

I should point out that nothing I have said in these remarks is premised on what would be good or bad for the left or the right. Indeed, I have come to the conclusion that this is not a helpful inquiry. That is because judicial review, like federalism and separation of powers, is a structural feature of constitutions. It is characteristic of structural features that they alternatively please and annoy different factions at different points in history, and that because their purpose is not the enhancement or furtherance of a particular political program or ideology (narrowly conceived), but rather the promotion of a stable democracy that forces political compromise as an ongoing project. Some structural provisions do this better than others, and some are complete failures, with all sorts of bad effects, but that judgment should not be confused with whether a particular structural provision is good or bad for the left or for the right. My study of the constitutional claims of political ideologies in the United States has led me to conclude that whatever the left (or the right) wants in terms of constitutional structure at a particular moment in history, there is a good chance that it will want the opposite some years later. We can always ask what is good for the left or the right at this present moment in politics, but there is no guarantee that our perspective will be the same even five years hence. So it may be more useful to ask different questions about constitutional design.


Tuesday, August 16, 2005

"The Left's Judicial Review Debate"

Mark Tushnet

That's the title of a post this morning at American Prospect. It mentions my recent exchange in Dissent magazine with Laurence Tribe and Jeremy Waldron. I don't want to re-hash the argument itself, but pick up instead on this comment: "this debate is rather perversely detached from any sense of realistic political possibility in this country, so it’s probably wise not to spend too much time dwelling on it. At the same time, the Roberts nomination offers the rare occasion for a fairly high-profile discussion of the ideal role of the courts in the United States and of the tricky dynamics and pitfalls of judicial politics. Liberals’ engagement with these issues can only be enriched by an understanding of the progressive case against judicial review."

The question I'd pose is why the debate is "detached from any sense of realisitc political possibility"? I'd suggest two answers. The snarky one is that it is detached, etc., because bloggers like Matt Yglesias and Sam Rosenfeld simply assert that it's detached, etc., thereby contributing to making it so. A less snarky way of putting the point is that what is a realistic political possibility is defined in part by what politically attuned people say is realistic. (In an earlier era a related position was properly derided as "crack-pot realism" -- that is, taking the limits of political discussion to be defined by what was politically "realistic" without recognizing the very limits within which the discussion thereby took place.) Yglesias says that he's an opponent of judicial review. So, perhaps he might actually engage a proposal like mine (a constitutional amendment that would, in effect, require Congress to specifiy that it wanted judicial review with respect to a particular statute, a class of statutes, or all legislation unless otherwise exempted from judicial review), and start working out the details.

The second answer is more directly political. It is that important constituencies of the Democratic Party believe (in my view erroneously) that their interests are advanced by the institution of judicial review as it now exists, and they have sufficient power within the Party to transform their sectoral claim into a broader claim that the political interests of progressives generally are advanced by the institution of judicial review as it now exists. Now, I'd be the first to acknowledge that figuring out the net contribution of the present institution of judicial review to progressive politics requires an extremely compliex calculation -- both with respect to the net contribution of actual instances of judicial review to progressive interests (the subject of a great article by Wojciech Sadurski in the Oxford Journal of Legal Studies), and with respect to the way the existence of judicial review functions in electoral politics. (As to that, my initial contribution to the Dissent dialogue argued that judicial review functioned as a stalking horse for the electoral mobilization of cultural conservatives against political liberals.)

As I've said, the political calculations and analysis are difficult and contestable. What's dismaying about the (non)-discussion of the left case against judicial review is that progressive proponents of judicial review mostly (a) hearken back to the glory days of the Warren Court, (b) point to decisions like Romer v. Evans and Lawrence v. Texas, without working through claims -- maybe mistaken -- about the impact of such decisions on progressive prospects in electoral politics (and therefore without working through the calculations about the net contribution of judicial review to progressive politics), (c) say that without judicial review the right to choose with respect to abortion would be threatened (without acknowledging the extent to which that right has already been eroded -- except by pointing out how limited access to abortions is today [and then failing to observe that the limited access that exists under the regime of Roe v. Wade is hardly a strong argument for the importance of judicial review in preserving access]), and, finally, (d) reverting to a basically religious belief that judicial review must be good for progressives.

Babies on the No Fly List

Daniel Solove

According to the AP:

Infants have been stopped from boarding planes at airports throughout the United States because their names are the same as or similar to those of possible terrorists on the government's "no-fly list."

It sounds like a joke, but it's not funny to parents who miss flights while scrambling to have babies' passports and other documents faxed.

Ingrid Sanden's 1-year-old daughter was stopped in Phoenix, Arizona, before boarding a flight home to Washington at Thanksgiving.

"I completely understand the war on terrorism, and I completely understand people wanting to be safe when they fly," Sanden said. "But focusing the target a little bit is probably a better use of resources."

The government's lists of people who are either barred from flying or require extra scrutiny before being allowed to board airplanes grew markedly since the September 11, 2001, attacks.

Critics including the American Civil Liberties Union say the government doesn't provide enough information about the people on the lists, so innocent passengers can be caught up in the security sweep if they happen to have the same name as someone on the lists. . . .

But for now, airlines still have the duty to check passengers' names against those supplied by the government.

That job has become more difficult -- since the 2001 attacks the lists have swelled from a dozen or so names to more than 100,000 names, according to people in the aviation industry who are familiar with the issue. They asked not to be identified by name because the exact number is restricted information.
It would be nice to see some sanity in TSA's security procedures. Who exactly are the 100,000 people who can't fly? Can these people be arrested? If a person is so dangerous to fly yet not dangerous enough to be arrested, what's going on?

I have no objection to a list of known suspects that should be arrested if they are caught. But when information about wanted suspects is handed out to authorities, it is typically more detailed to prevent wrongful arrests. Instead, the TSA's system denies people the ability to fly based simply upon their name appearing on some blacklist. It does not appear to be designed to locate and arrest dangerous suspects -- just to stop people from flying.

Often, debates pit privacy against security. One of the biggest problems that is overlooked is that those planning and carrying out security measures can be quite dumb and lack common sense. That's because they often escape from scrutiny by simply crying: "We need this! It helps security!" The debate shifts to whether we can tolerate the privacy and civil liberties costs -- or how to address privacy and civil liberties given that these security measures must be undertaken. It's time to really look hard at the security measures themselves and see if they really are well-designed and thoughtful -- or just some silly poorly-planned and poorly-executed undertaking.

UPDATE: There's an extensive discussion about this post over at PrawfsBlawg.

E Pluribus Pluribus

JB

Why didn't the Iraqi delegates agree on a constitution on time? The answer is simple. The deadline imposed on them was an artificial one imposed from without rather than by the political necessities of Iraq itself.

It is no surprise that regional autonomy has become a sticking point. It is difficult to get very different regions to join together unless they believe they have a common interest in doing so. The former American colonies agreed to the 1787 Constitution because they believed that a stronger national government was necessary to their continued survival. They were worried, among other things, that foreign powers would divide them and pick them off one by one.

The problem today is that the Shia, Sunni, and Kurds are not as convinced that they need each other, much less that they need a strong central government. Instead of foreign powers threatening to pick them apart, one foreign power, the United States, which is occupying the country with its army, is insisting that they belong together because it is in American interests to do so. (Meanwhile another power, Iran, is no doubt hoping for greater Shia autonomy).

The U.S. is certainly right that allowing the three groups to split apart would be dangerous for the stability of the region. But that doesn't necessarily mean that the Shia, Kurds, and Sunnis have the same sense of urgency. The Shia and Kurds in particular are more interested in pushing for as much autonomy as they can get. And if the Sunni's wont go along, they may try to push a very weak constitution on the Sunnis, who may have the greatest interests in staying together, gambling that the Sunnis won't be able to veto it in the upcoming referendum.

The Iraqi delegates may get a draft done eventually. But given the internal incentives of the various regions (as opposed to the incentives of the Americans), it should surprise no one that they are taking so long.


Monday, August 15, 2005

Don't Dis the Enlightenment

JB

Chris Mooney notes that the Bush Administration's tendency to play fast and loose with science is a far greater threat to science than fashionable academic arguments about social construction. If anything, the recent political attacks on science have been a wakeup call for the humanities, far more important, I would argue, that Alan Sokal's famous practical joke at the expense of Social Text. The humanities, Mooney argues, have come to understand that they and the sciences are engaged in a common pursuit of reason. It's about time.

When I was writing about postmodernism in law early in my career, it always struck me as somewhat ridiculous that one would oppose either postmodernism or deconstruction to reason and reasoned argument. What in the world was one doing as an academic, I thought, if not trying to promote enlightenment and understanding through the best available arguments? The academy is a learned profession, after all. If academics aren't interested in the pursuit of truth, in the increase of knowledge, and in the development of expertise, they are in the wrong profession. And despite the bad press that academics regularly receive in the popular press, most academics I know understand themselves to be devoted to truth, enlightenment and the spread of knowledge. That's why they got into this business in the first place. They disagree heatedly about what the truth is; they also disagree about the effects the truth has; but that's not the same thing as being opposed to it.


Sunday, August 14, 2005

Lowered Expectations

JB

The Administration is now preparing the American public for a very different result in the Iraq war than it grandly predicted in March of 2003, the Washington Post reports:
The Bush administration is significantly lowering expectations of what can be achieved in Iraq, recognizing that the United States will have to settle for far less progress than originally envisioned during the transition due to end in four months, according to U.S. officials in Washington and Baghdad.

The United States no longer expects to see a model new democracy, a self-supporting oil industry or a society in which the majority of people are free from serious security or economic challenges, U.S. officials say.

"What we expected to achieve was never realistic given the timetable or what unfolded on the ground," said a senior official involved in policy since the 2003 invasion. "We are in a process of absorbing the factors of the situation we're in and shedding the unreality that dominated at the beginning."
. . .
"We set out to establish a democracy, but we're slowly realizing we will have some form of Islamic republic," said another U.S. official familiar with policymaking from the beginning, who like some others interviewed would speak candidly only on the condition of anonymity. "That process is being repeated all over."
. . .
Washington now does not expect to fully defeat the insurgency before departing, but instead to diminish it, officials and analysts said. There is also growing talk of turning over security responsibilities to the Iraqi forces even if they are not fully up to original U.S. expectations, in part because they have local legitimacy that U.S. troops often do not.
. . .

Pressed by the cost of fighting an escalating insurgency, U.S. expectations for rebuilding Iraq -- and its $20 billion investment -- have fallen the farthest, current and former officials say.

Pentagon officials originally envisioned Iraq's oil revenue paying many post-invasion expenses. But Iraq, ranked among world leaders behind Saudi Arabia in proven oil reserves, is incapable of producing enough refined fuel amid a car-buying boom that has put an estimated 1 million more vehicles on the road after the invasion. Lines for subsidized cheap gas stretch for miles every day in Baghdad.

Oil production is estimated at 2.22 million barrels a day, short of the goal of 2.5 million. Iraq's pre-war high was 2.67 million barrels a day.

The United States had high hopes of quick, big-budget fixes for the electrical power system that would show Iraqis tangible benefits from the ouster of Hussein. But inadequate training for Iraqi staff, regional rivalries restricting the power flow to Baghdad, inadequate fuel for electrical generators and attacks on the infrastructure have contributed to the worst summer of electrical shortages in the capital.

Water is also a "tough, tough" situation in a desert country, said a U.S. official in Baghdad familiar with reconstruction issues. Pumping stations depend on electricity, and engineers now say the system has hundreds of thousands of leaks.

"The most thoroughly dashed expectation was the ability to build a robust self-sustaining economy. We're nowhere near that. State industries, electricity are all below what they were before we got there," said Wayne White, former head of the State Department's Iraq intelligence team who is now at the Middle East Institute. "The administration says Saddam ran down the country. But most damage was from looting [after the invasion], which took down state industries, large private manufacturing, the national electric" system.

Ironically, White said, the initial ambitions may have complicated the U.S. mission: "In order to get out earlier, expectations are going to have to be lower, even much lower. The higher your expectation, the longer you have to stay. Getting out is going to be a more important consideration than the original goals were. They were unrealistic."


When expectations are lowered to this degree, the question arises whether we have actually made the situation worse off by invading. For some time most Americans have assumed that both the Iraqi people and American interests are better off than they were when Saddam ruled the country with his ruthless totalitarian dictatorship. If, however, our withdrawal leaves the country falling into civil war and produces a new strongman with no respect for human rights, or splits the country into rival fiefdoms run by Sunni, Shia, and Kurdish dictators, it is not clear that either our interests or those of the Iraqi people will have been served by our invasion. We will have entered with the best of motives and produced the worst of outcomes.

The problem with using war to reshape the world is that war is uncontrollable. Once war is unleashed, events often spin out of control, coming back to haunt the more powerful country who began the attack. Throughout history many wars have undone countries confident of their superior power. We must hope that this war is at most a temporary setback for America and not a disaster with long term consequences for our ability to safeguard our legitimate interests at home and promote democracy and human rights abroad.


Saturday, August 13, 2005

Invasion produces WMD's

JB

In one of the ironies of history, it now turns out that although U.S. troops found no biological and chemical weapons in Iraq when we overthrew Saddam in March 2003, there is evidence that insurgent groups began production of chemical and biological weapons after the invasion to attack U.S. forces there. Thus, we may have inadvertently chosen a policy that led to the production of the very WMD's we fought the war to destroy. The Washington Post reports:
U.S. troops raiding a warehouse in the northern city of Mosul uncovered a suspected chemical-weapons factory containing 1,500 gallons of chemicals believed destined for attacks on U.S. and Iraqi forces and civilians, military officials said Saturday. . . .

The operation was the biggest suspected chemical-weapon lab found so far in Iraq, Boylan said. A lab discovered last year in the insurgent stronghold of Fallujah contained a how-to book for chemical weapons and an unspecified amount of chemicals.

The spokesman said the operation was new, not dating from before the U.S.-led invasion. The Bush administration used allegations that Hussein's government was manufacturing weapons of mass destruction as the main justification for the invasion. No such weapons or factories were found.


If these reports are true, it would not be the only bitter irony of this ill-advised war.


Thursday, August 11, 2005

Liberal vs. Conservative Cities

Daniel Solove

Over at PrawfsBlawg, my co-blogger Kaimi Wenger links to a study's results of the Top 25 most liberal U.S. Cities and the Top 25 most conservative ones based on voting patterns.

On the liberal side, the list begins: (1) Detroit, MI; (2) Gary, IN; (3) Berkeley, CA; (4) Washington, DC; (5) Oakland, CA; (6) Inglewood, CA; (7) Newark, NJ; (8) Cambridge, MA; (9) San Francisco, CA; and (10) Flint, MI. Chicago, New York, Boston, New Haven, Seattle, and St. Louis all are in the Top 25.

On the conservative side, the list begins: (1) Provo, UT; (2) Lubbock, TX; (3) Abilene, TX; (4) Hialeah, FL; (5) Plano, TX; (6) Colorado Springs, CO; (7) Glibert, AZ; (8) Bakersfield, CA; (9) Lafayette, LA; (10) Orange, CA. Among the more well-known other cities in the list are Anchorage and Oklahoma City.

What strikes me is how significantly more culturally and economically prominent the list of liberal cities is compared to the conservative ones. The liberal cities are generally much larger, are more widely known as major tourist destinations, and are more major economic centers than the conservative ones. My goal is not to start a nasty liberal vs. conservative debate, and not to encourage "my-political-party's-cities-are-better-than-yours" braggadocio. But I wonder if there are any explanations for the stark differences in the nature of these two lists of cities.

Early Substantive Due Process

Mark Graber

Some support and some modifications of Jack's post on substantive due process before the Civil War. I believe it is becoming the consensus view of legal historians that due process (or the equivalent "law of the land" provision) had a substantive component. Significantly, this view is shared by scholars on the left (Howard Gillman, see his wonderful The Constitution Besieged), on the right (James Ely's work on property), and those whose constitutional politics are unknown to me (i.e., Charles McCurdy). As Alfred Hill wrote, "Taney’s . . . unsupported assertions in . . . Dred Scott of a substantive scope for the due process clause are less plausibly explained by an assumption of uncharacteristic slovenliness on so important an issue, than by his probable awareness that, on the state level, such a scope for the clause . . . in protection of ‘vested rights’ had long been taken for granted."
The antebellum Republican party championed substantive due process. The antislavery Fifth Amendment, in their view, forbade federal laws permitting human bondage in the territories. "[T]he [due process] clause," Salmon Chase and other prominent abolitionists asserted, "prohibits the General Government from sanctioning slaveholding, and renders the continuance of slavery, as a legal relation, in any place of exclusive national jurisdiction, impossible." The Republican Party Platforms of 1856 and 1860 declared that federal laws establishing slavery in the territories deprived enslaved blacks of their liberty without due process of law. This is well known, and again, uncontroversial among legal historians
What is less well known is that, contrary to Curtis, most Republicans believed the due process clause protected the right to bring property into the territories. "[T]he slaveholder [would have] the same right to take his negroes to Kansas that a freeman has to take his hogs or his horses," Abraham Lincoln declared, "if negroes were property in the same sense that hogs and horses are." Justice McLean's dissent agreed as did the Republican justices deciding the Insular cases almost a half a century later. The issue that divided Republicans from Taney concerned whether slavery enjoyed the same form of protection.
In short, substantive due process is as old as the Republican. At the end of the day, almost every political movement has insisted that due process or some other clause protects what have become mislabeled as "unenumerated rights." The real issue is what is the best reading of those rights, not whether they exist.

Dred Scott and Kelo

JB

The closest analogy to the substantive due process argument in Dred Scott v. Sandford isn't Roe v. Wade. It's the dissenters' position in Kelo v New London.

Have I got your attention? Good, because it's time for a little lesson on the history of substantive due process.

Dred Scott is often cited as the Supreme Court's earliest flirtation with the idea that the Due Process Clause places substantive as well as procedural limitations on government, often known as the doctrine of substantive due process. Because Roe v. Wade also relies on the idea of substantive due process, critics of Roe often invoke Dred Scott to show why Roe was such a bad idea.

There is a second comparison between Dred Scott and Roe that is sometimes run together with the first: In Roe the Supreme Court held that fetuses are not persons; in Dred Scott the Supreme Court held that blacks are not citizens. These are not substantive due process arguments; they are arguments about the original understanding of the constitutional text. One of these two arguments is based on sound history and the other is not. Guess which one? It turns out that it's Roe. In 1868 the word "person" in the Fourteenth Amendment was not generally understood to include persons who were not yet born, in part because, at common law, abortion was not a felony before quickening. Dred Scott's argument about the original understanding of citizenship, however, is not sound. Taney's originalist argument that blacks were not expected ever to be citizens is not supported by history, as Justice Curtis's dissent shows: there were in fact free black citizens in various states at the time of the founding.

But, today, as I said, I'm interested in substantive due process. Many people think that substantive due process is inconsistent with the original understanding and that the doctrine began with Dred Scott as a means of defending slavery. Therefore Dred Scott is doubly bad. This is incorrect. Taney's argument in Dred Scott comes from the same source as the argument of the dissenters in Kelo, and it has the same pedigree in thought of the founding era.

Now, in fact Taney applies the substantive due process argument incorrectly, as Justice Curtis ably shows in his dissent in Dred Scott. But the key point is that Taney's argument in Dred Scott is not the originator of the idea of substantive due process; the idea goes back to the founding (and before in the history of the English common law), and the same argument lives on in the dissenters' views in Kelo. Indeed, as I shall explain later, it lives in even on the majority's opinion and in Justice Kennedy's concurrence. Substantive due process, I must report, is as American as apple pie, and even the people who publicly disdain it actually invoke it. Kelo is just the latest example.

This doesn't show that Roe or any other substantive due process case is right or wrong; My point is simply that the "substantive due process is evil because it appeared in Dred Scott" meme is stupid and shows an ignorance of history. Moreover, once you understand that history, you will see the closest analogue to Taney's argument in Dred Scott is not Roe v. Wade; it is the dissenters' position in Kelo. And that doesn't make their position necessarily wrong either.

Hoping that I've tantalized you enough with my comparison of Dred Scott and Kelo, let me try to explain what Dred Scott's substantive due process argument was actually about. Remember, this is *not* the infamous argument that blacks can't be citizens-- that's the argument from original intention. (Are you listening, Justice Scalia?) Rather, Taney's due process argument is the claim that Congress could not, through the Missouri Compromise, ban slavery in the territories north of the compromise line, because the Federal Government must abide by constitutional civil liberties guarantees in territories it controls. Thus, Taney argues:

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.


And there it is. But before getting to the substantive due process argument, note the context in which it appears. Taney is arguing that if as long as the United States holds territory, the Constitution and the civil rights the Constitution guarantees bind the government there. Does this sound familiar? Yes, it's the same issue at stake in the litigation over interrogation practices at Guantanamo Bay. The Bush Administration put detainees there so that it would not be bound by American constitutional norms, arguing that the Constitution does not follow the flag. But Chief Justice Taney says that won't work. You can't deny people basic constitutional rights just because a piece of land you control isn't part of the mother country. The United States was once a colony, too, and the British Empire didn't protect the colonists' rights. When we became a nation, we promised we would do better. Thus Taney says, "citizens of the United States who migrate to a Territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Government, and to be governed by any laws it may think proper to impose." Take that, King George.

So Taney is making an anticolonial argument: If the United States holds a piece of property as its territory, it cannot escape guaranteeing constitutional rights. Of course the rights he was thinking about were the property rights of slaveholders, and the rights the Guantanamo Bay detainees are arguing for are the right to a hearing and the right not to be tortured or subjected to cruel, inhuman and degrading treatment. But this would not be the first time that constitutional law made strange bedfellows.

You can distinguish the Guantanamo case in two ways. First, Guantanamo Bay is held by a perpetual lease, not owned outright, and second the detainees are aliens, not citizens. But in Rasul v. Bush, Justice Kennedy's concurrence pointed out that this was a formalist ruse. The United States holds Gitmo quite securely; it exercises sovereignty over it in all practical terms. If you buy Taney's argument that we should do better than the British Empire did, the idea that the U.S. can escape its constitutional obligations through the formality of a leasehold argument rings quite hollow. And although Taney spoke of the rights of citizens, the Bill of Rights does not make distinctions between aliens and citizens, particularly not the Due Process Clause, which protects "persons," not citizens.

In any case, Taney's anticolonial argument was rejected by the Supreme Court in a series of decisions in the early 1900's collectively referred to as the Insular Cases. The Supreme Court held that Puerto Rico and other possessions gained through the Spanish-American war were, unlike Louisiana and California, "unincorporated" territories, and so the Bill of Rights (and the Constitution generally) did not apply there. At most, the federal government was required to respect only the most fundamental rights applied. One of those rights, however, was due process of law.

The irony of Dred Scott and the Insular Cases is that today we think of Dred Scott as the very antithesis of a human rights decision. But in fact Dred Scott actually offered a theory of the Constitution that was far more protective of human rights in U.S. possessions (and territories under America's effective control, like Guantanamo Bay) than the doctrines the Court subsequently created to justify the United States' imperial ambitious following the Spanish-American War. But of course, the irony makes perfect sense if you understand that Taney wanted to protect the property rights of white southerners who owned slaves, while the Supreme Court in the Insular Cases didn't want to extent full constitutional rights to the native peoples in Puerto Rico, the Philippines, and elsewhere. Like the Court in the Insular Cases, Taney wanted to protect civil rights only for the people he cared about most; he didn't think that blacks had any "rights which the white man was bound to respect." But if one takes his argument beyond the despicable context of the property rights of slaveholders and applies it, as Taney himself understood it, to the legal obligations of an imperial power to protect basic human rights, it has surprising resonance.

And that brings me to the main event, Taney's substantive due process argument. As you will recall, Taney argued that the federal government couldn't ban slavery in the Territories because that would mean that when the slaveholder crossed into free territory, he would lose his property rights in his slaves; his slaves would become free and own their own labor. Taney argued that "an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law."

What Taney is referring to in this passage had a long and honored history in the United States, and before it, in England. It is the doctrine of vested rights, the idea that the legislature may not take away vested rights of property. The roots of the idea go back to Magna Carta, and its reference to "the law of the land" On the eve of the American revolution, William Blackstone, who generally supported parliamentary supremacy, nevertheless explained that taking private property either for public use without the payment of compensation, or without the owner's consent, would violate the "law of the land." That means A to B transfers without the owner's consent violate the "law of the land." Thus, in 1798, in Calder v. Bull, Justice Chase insisted that "An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Justice Chase's argument in Calder is the first Supreme Court appearance of the doctrine of unenumerated rights. Legislatures may not destroy vested rights.

The idea of taking property vested in A and giving it to B, along with the prohibition on a person being a judge in his or her own case, were the most obvious examples of a violation of the law of the land, or of due process of law. And so it appeared to people at the Founding when they wrote the due process clause of the Fifth Amendment. It was generally assumed at the time, and by federal and state courts in subsequent decisions, that the idea of "due process of law" was synonymous with the protections of the "law of the land." And both phrases were generally understood to prevent governments from engaging in simple "naked" transfers-- taking from A and giving to B. Indeed, in 1829 in Wilkinson v. Leland, Justice Story suggested that principle apparently held whether or not a state had a law of the land or due process clause in its constitution: "We know of no case, in which a legislative act to transfer the property of A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the union."

If you look at the language of the Fifth Amendment, you will see that it has not one, but two limitations on eminent domain. The second one is the Public Use Clause, which says that private property shall not be taken for public use without just compensation. The Public Use Clause regulates private to public transfers for public use, but note that it says nothing about takings for private use. That is because this category is already dealt with in the first limitation on eminent domain, the Due Process Clause, which prohibits private to private transfers. The two clauses appear after each other in the text, first the due process clause, prohibiting A to B transfers, then the public use clause, regulating the conditions under which takings can occur for public use.

And that brings us back to Taney and Dred Scott. Understood against this long historical background, Taney was not making things up out of whole cloth in Dred Scott when he said that the effect of the Missouri Compromise was inconsistent with due process of law. He was adverting to the basic doctrine of vested rights; the idea that government cannot take vested rights from A and give them to B. That, he claimed is precisely what the Federal Government had done when it applied the Missouri Compromise to southerners bringing their property into free territories. It was taking their property and giving it to the slave.

The problem with Dred Scott, you see, was not that Taney was using the idea of substantive due process. For the idea he invoked, that the government could not take away vested rights, was among the most hallowed ideas around at the Founding. And there was nothing particularly evil about the idea of protecting vested rights in property. What was evil was that the United States allowed some people to hold property in other human beings.

The problem with Taney's argument is an incorrect application of the vested rights principle. The appropriate rejoinder is Justice Curtis's in his dissent in Dred Scott. Justice Curtis, it should be noted, *agreed* with Taney that taking vested rights of property violates the Due Process Clause: "this restriction on the legislative power is not peculiar to the Constitution of the United States; it was borrowed from Magna Charta; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of the great charter." However, Curtis explained, people do not have vested rights in property when they voluntarily enter into jurisdictions that do not recognize that species of property. For in the second jurisdiction the rights are not vested; indeed, they do not even exist. This point doesn't arise with estates in land because they are not movable, so they can't cross jurisdictions, but it does apply to chattels that can be moved from place to place.

If you've been paying attention to the Supreme Court's recent docket, you may find all this talk about taking from A and giving to B familiar. It's what was at issue in Kelo v. New London, in which the Supreme Court held that taking property as part of a comprehensive scheme to stimulate economic development was a public use, and did not violate the Constitution as long as just compensation was given. Justice O'Connor began her dissent by quoting the passage from Calder v. Bull I cited above, which as we have seen, is the original citation for the doctrine of unenumerated rights. What New London was doing, she argued was nothing less than taking property from individual homeowners and giving it to other private parties.

Nobody accused Justice O'Connor of engaging in substantive due process, and amusingly, Justices Scalia and Thomas, who don't usually recognize unenumerated rights, joined her opinion. Of course, the reason was that her argument was nominally premised on the text of the Public Use Clause. But as I noted above, the Public Use Clause doesn't actually say that property can't be taken for private use. It says only that "private property [shall not] be taken for public use, without just compensation." That leaves out takings for private use without just compensation and takings for private use with just compensation. O'Connor is reading into the text of the Public Use Clause things that are not actually there. The prohibition is in the Fifth Amendment to be sure, but not in the Public Use Clause.

So where *do* we get the principle banning takings for purely private use that was at stake in Kelo? We get it from the basic idea of substantive due process, which prohibits A to B transfers and protects vested rights from being destroyed by government. Justice Thomas tries to avoid recognizing this in his dissenting opinion, arguing that despite its language the Public Use clause cannot apply merely to public uses; otherwise, it would allow takings for private use without compensation, which would "contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation." He artfully elides the question of what textual provision in the Constitution prevents takings for private use with compensation. We know the answer-- it's the Due Process Clause. That's what most people at the Founding thought, and that's why the Fifth Amendment is written that way.

But, wait, that would mean that in Kelo Thomas is actually making an argument from (shudder) substantive due process. And it would be the same sort of argument that Chief Justice Taney made in Dred Scott. But we all know that Justices Thomas and Scalia don't believe in substantive due process. And they certainly don't agree with anything that awful Chief Justice Taney said in Dred Scott.

Or do they?

And that's not all: Let me point out that the majority and Justice Kennedy agreed that at least some private to private transfers also violate the Constitution. So they too buy into the substantive due process argument, at least where the government deliberately takes land for the purpose of benefiting a private party. (That is to say, they limit the restriction on private use to purely private purposes. This is, roughly speaking, the post-New Deal conception: The legislature can take from A and give to B for a public purpose (and if the legislative act constitutes a taking, it must pay just compensation), but it may not do so for a purely private purpose.)

Let me summarize: Critics of Kelo (including the dissenting Justices) are making a very old kind of argument from substantive due process, indeed the *original* argument from substantive due process, and the very sort of argument that Chief Justice Taney made in Dred Scott. Does that undermine their arguments or make them bad people? No, it does not. And here's the moral of the story: Just because an argument appears in Dred Scott doesn't mean that the idea is bad. The idea that the Constitution follows the flag is not bad, and substantive due process is not bad.

Slavery is bad.


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