A couple of observations on next Tuesday

Sandy Levinson

1) If the Republicans keep the Senate, it will not be because a majority of American voters prefer a Republican Senate. It will, instead, be because of two of the hard-wired stuctural aspects of the Constitution: a) The absurd overrepresentation of small states. It continues to appear likely, for example, that Democrats will win seats in two large states, Pennsylvania and Ohio, and even 3-4% victories will add up re the absolute vote totals. And, to be sure, Democrats will probably pick up seats in two small states, Montana and Rhode Island and and retain a seat in another small state, Vermont. But recall that over the last three election cycles Democratic candidates for the Senate have collectively won 3 million more votes than their Republican opponents. The advantage that Republicans have in the Senate is entirely a function of small state overrpresentation. If I had a ranch, I'd bet on a Democratic victory in the overall popular vote total, even if the Iowa prediction market turns out to be correct re continued Republican control of the Senate. b) The fact that only 1/3 of the Senate is up in any given election. This means, almost by definition, that the impact of electoral "tsunamis" is limited re the Senate. I have no doubt that a lot of Republican senators are absolutely delighted not to be running for re-election this year. It remains to be seen whether 2008 will be a more attractive year for them.

2) Brian suggests that not much will change with a Democratic victory. He's right, but not only for the reasons he gives. What will be important about a change of control will be some awful legislation that is now sure not to pass, which is no small matter, and the ability to engage in some real oversight. But there is no possibility of any significant legislation being passed by a Democratic Congress, again for two reasons: a) the filibuster in the Senate, which the Republicans will use shamelessly (and shamefully) to block any innovate legislation; and b) the presidential veto. The best one can hope for is a variety of votes on symbolic issues, such as the minimum wage. But one cannot seriously hope that there will be a real attack on the harmful things done by this Administration. If it takes legislation, it can be easily fended off by the Republicans. And if it takes reversal of administrative regulations, it takes electing a president, which is still extremely dicey so far as Democrats are concerned.

This won't lessen my jubilation if the Democrats win next Tuesday. It should simply be kept in perspective.
Posted 10:14 PM by Sandy Levinson [link] (20) comments

A liberal manifesto

Ian Ayres

Bruce Ackerman and Todd Gitlin have written a manifesto for liberals that has just been published in The American Prospect.

Here is the manifesto in its entirety:


-- Bruce Ackerman and Todd Gitlin

I was proud to add my name to the list of signatories. And you can too by
e-mailing this address.

Posted 10:02 PM by Ian Ayres [link] (5) comments

Can the Republicans Gain a Lasting Majority?

JB

The key sentence in this premature requiem for Karl Rove's political influence in the Republican Party is the last one, in which Rove states matter of factly that the fate of the conservative movement does not stand or fall on the results of the 2006 elections: "1938 was a huge wipeout for the Democrats -- do you think that was the end of the New Deal?"

The comparison speaks volumes about what Rove and Bush are attempting: a fundamental realignment of American politics that will create a conservative Republican majority for a generation. In this analogy, 2000 is to 1932 as 2004 is to 1936, and as 2006 might be to 1938. But there is one important difference between the two time periods. Democrats won by landslides in 1932 and 1936, racking up sizeable majorities in the House and the Senate. They lost some ground in 1938-- in part due to unpopularity over court packing, in part due to a deteriorating economy-- but they did not lose control of either house of Congress. And in 1940 Roosevelt was elected to an unprecedented third term, while maintaining sizeable Democratic majorities in both houses of Congress. Similarly, during the heyday of Lyndon Johnson's Great Society, the Democrats not only controlled all the branches of government, they also controlled both houses of Congress by decisive margins.

To make the lasting kinds of changes that Bush and Rove seek, the Republicans need to gain a significant majority of American voters over a sustained period. They have not managed to do that yet.

There have been no Republican landslides for the Presidency since the 1980s, or for Congress since 1994. Since 1994 they have never had more than 232 seats in the House, or 55 seats in the Senate. (After the 1964 elections, the Democratic numbers were 295 and 68, respectively; after the 1936 election they were an astonishing 334 and 76-- with a smaller House and Senate!)

Even in the current six years of one party government, the Republicans have never enjoyed the sheer power that liberal Democrats had when they transformed American society during the New Deal and the Civil Rights Revolution. (Indeed, to put it another way, even after their losses in 1938 the Democrats had larger majorities in both the House and the Senate than the Republicans have ever had in their most *successful* years since 1994: 262 seats in the House, 69 seats in the Senate. Rove may call that a "huge wipeout" for the Democrats, but I'll bet he'd be delighted to have Republican majorities that large.) In the 1980s, Ronald Reagan was checked by a Democratic-controlled Congress. When the Republicans tried to dominate American politics after the 1994 elections (with considerably smaller majorities than the Democrats enjoyed during the New Deal and the Civil Rights Revolution), they were beaten back by Clinton in the government shutdown showdown. When they sought to impeach Clinton, they failed to remove him and even lost seats in the 1998 elections.

Repeatedly the conservative movement has tried to achieve the hegemonic status that the Democratic Party enjoyed during the 1930s and then briefly during the 1960s-- significantly altering assumptions of government and constitutionalism. Each time they have come close, they have either been stopped or have stumbled due to self-inflicted wounds.

Rove may have hoped that the 2000 and 2004 elections would be the beginnings of a fundamental transformation like the New Deal and the Civil Rights Revolution. But 2000 wasn't a landslide-- Bush didn't even win a popular majority, and 2004 was a moderately close contest. And things haven't turned out exactly as Rove hoped since the 2004 election. Even so, Rove is correct that what happens in 2006 won't necessarily settle things once and for all. If Bush had been turned out of office in 2004, that would tell a very different story. But a loss in mid-year elections in 2006 doesn't necessarily spell the end of the Republican Revolution.

Much depends on whether the Republicans can successfully recreate a National Security/Values Coalition, find a movement conservative to win the Presidency decisively in 2008, regain Congress by significant margins, and grow those margins over time, just as the Democrats did in the 1930's. If they can do all of these things, then Rove's plan will be vindicated. But that means that we won't know whether Rove's plan succeeds for many years.

Rove may know something about the 2006 elections that everyone else doesn't. Or he may be counting on 2008 to provide the landslide victory that will cement a Republican majority for a generation. If Iraq continues the way it has been, this does not seem likely. But politics has a way of changing very quickly in a very short period of time. On September 10th, 2001, the Bush Presidency seemed stalled. A day later, it had new life and a new set of political goals-- fighting the War on Terror-- that it had every reason to believe would unite the Republican Party and finally carry it to a permanent majority.

Posted 5:42 PM by JB [link] (16) comments

Another Sign of a Likely Democratic Party Victory on November 7, and that Little Will Change

Brian Tamanaha

Among the many polls and other indications of the likely Congressional gains by the Democratic Party on November 7th, one of the most compelling signs is this report in the New York Times about a flurry of late giving to Democrats by corporate groups. For example, from January of this year through September, Pfizer had given 67 percent of its donations to Republicans, but it gave 59 percent to Democrats in October; similarly, Lockheed gave 70 percent to Republicans through September, but 60 percent to Democrats in October.

Clearly, the smart money is now betting on Democrats. The article reports that this is the "first double-digit October switch since 1994," when the Republicans seized control of Congress.

Democratic operatives can barely contain their glee at the sudden flow of money and attention they are now receiving from corporate lobbyists. "People are excited," said the Executive Director of the party's Congressional committee, after a recent party briefing attended by more than 100 lobbyists. Pausing to dab the drool off her chin, she continued, "It was, by far, the best attended one ever." (Okay, I made up that drool part.)

The article describes one Democratic candidate, who "has already been telephoning some members of the Washington business lobby, offering an opportunity to begin a good relationship if he wins election." "Many of these meet and greet sessions will have a dual purpose: political action committees will offer contributions to help candidates wipe away debt their campaigns accrued during the race."

That says a lot about the prospects that a Democratic controlled Congress will enact meaningful lobbying reforms.

Centrist Democratic Representative Adam Smith said, "I hope that the new Democratic majority will take a more open and cooperative approach. I hope there won't be a sense of, 'Oh, you gave too much money to Republicans, so we're not going to talk to you.'"

There is nothing wrong with "talking" to corporate interests, of course. The problem is that these corporate interests funnel and withhold huge sums of money--$2.6 billion in this mid-term election--that inevitably has an impact on the decision making of legislators. Corporations would not be investing that kind of money without getting a real return. Yet legislators from both parties piously insist that these contributions have no impact.

The situation reminds me a bit of a study I read about a decade ago of pervasive corruption in the Indonesian Court system. Judges were routinely given money by litigants in the cases before them. Since they were given money by both sides in the case, however, they insisted that the contributions did not improperly sway their decisions.

Using the same kind of reasoning, corporations are not buying the favors of one political party or the other, because they give tons of money to both. Of course, the difference with the Indonesian situation is that corporate money is not matched or balanced on the other side (please don't say labor unions, environmental groups, and plaintiff's lawyers give lots too--it is a piddling amount by comparison). Corporate interests don't need to pick one party over the other when they can effectively buy special consideration from both parties. Republicans might be more friendly to corporate interests, but Democrats want to be friends as well.

What is more cynical: corporations using big money to sway the decisions of legislators, or legislators eagerly seeking corporate money, suggesting that it will be money well spent?

Corporations can at least justify their conduct as consistent with maximizing profits, which is their purpose (though some would say that corporations also have duties to their community). However, how do legislators justify their aggressive solicitation of money from private interests--that expect something in return--when their duty is to the public good?

Here's the answer: "That's the way the system works, Tamanaha, so stop being naive."
Posted 3:19 PM by Brian Tamanaha [link] (16) comments

Commodifying Commitment

Ian Ayres

One of the critiques of commodification is that putting prices on certain activities may drain all the joy out of life. But in this Forbes column, Barry Nalebuff and I suggest that in certain contexts this kind of commodification effect might be a good thing. Commitment contracts might help people lose weight or quit smoking. Instead of paying $500 a year to use Weight Watchers, you might be better off to pay $1000 at the beginning of the year and then have Weight Watchers pay you $10 every week that you show up to be weighed.

Commitment contracts could even promise to pay very substantial interest rates IF you promise to lose and keep weight off.

The commitment idea could also help people be better eco-warriors. Environmentalists tell us to get off our butts and go across the room to turn off the unused light, because the electric company doesn't charge the true social cost of wasted electricity. But the electric company could pay you $1000 at the beginning of the year, if you promised to pay more for kilowatt hours. Now you'll go across the room because it really will cost you a lot for extra electricity.

Instead of GM buying down the price of gasoline to $1 per gallon if you pay it up front by buying a car, Toyota or Ford (or even GM) should offer to pay you if you'll agree to increase the price per gallon that your willing to pay for gas.

Friends and family members have been helping each other with commitment contracts for a long time. The cursing jar, and private weight loss bets are just the tip of the iceberg. But there's no good reason why entrepreneurs or non-profits shouldn't mass-market commitment contracts to help us be what we want to be.
Posted 12:18 PM by Ian Ayres [link] (10) comments

Yes, It's a No-Brainer: Waterboarding Is Torture

Marty Lederman

Following up on Jack's post, I would emphasize again that despite its constant pleas that it cannot publicly discuss the legality of particular interrogation techniques -- an argument that ultimately depends on the notion that the rule of law is incompatible with fighting wars, because it is inapprorpiate to inform the enemy of what one's legal limits might be -- the Administration is more than happy to enumerate, in significant detail, which techniques are not legally available. As I wrote last month:

In his speech today, the President once again insisted that we "cannot describe the specific methods used -- I think you understand why -- if I did, it would help the terrorists learn how to resist questioning." In other words, if the detainees know what our legal limits are, they will know precisely which techniques they must resist in order to avoid revealing valuable information.

But this argument is no longer tenable (if it ever was), because we are now obviously very willing to disclose all sorts of limits beyond which we cannot go. The Administration's own bill today lists 27 specific forms of conduct that we ourselves will consider "war crimes" triable by military commission (pages 65-76). The Administration's draft amendment to the War Crimes Act (pages 79-84) contains nine categories of meticulously described conduct that could be punished as war crimes in the civilian criminal justice system. And, as noted above, the Army Field Manual released today goes into great and specific detail about what the military can, and cannot do, to its detainees. After all of these highly specific provisions are in the public record specifying what can and cannot be done within the law, it's no longer very persuasive to assert that the CIA's techniques cannot likewise be codified. It's no secret that the CIA has used waterboarding, hypothermia and threats to detainees' families. Knowing that such techniques are legal would not make it any easier for detainees to resist them.

In other words, if, in the Administration's view, waterboarding were clearly unlawful, it would say so publicly. The fact that it is unwilling to do so means that it is leaving open the possibility that the CIA may legally employ waterboarding.

How can that possibly be? I understand how the Vice President might think it is a "no brainer" that waterboarding can be used, because he and his staff do not think that the law binds the Executive branch at all. [It really says something about the state of our Nation, doesn't it, that the Administration's ludicrous defense of the Vice President's remarks is that he was referring not to waterboarding but instead to dunking detainees in water? As if that torture technique -- you know, the one used to test suspected witches -- is more acceptable conduct for the greatest democracy on Earth in the 21st Century? As I've said before, the term "shameless" doesn't even begin to describe . . . .]

But let's put aside the Vice President. How could the Office of Legal Counsel possibly conclude that waterboarding is legal? The short answer is that if OLC were performing its role properly -- i.e., assisting the President's faithful execution of the law -- it couldn't ever have signed off on such a technique. Even if waterboarding were not "torture," as defined in the law, it would still violate at least three other legal prohibitions, even when conducted by the CIA (which is subject to fewer laws than the military). For example, waterboarding violates:

(i) The federal assault statute, 18 U.S.C. 113, which provides that simple assaults, or assaults by striking or beating, are misdemeanors if they occur "within the special maritime and territorial jurisdiction of the United States" (which includes "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership").

(ii) Common Article 3's prohibition on all "cruel treatment and torture."

and

(iii) The McCain Amendment's prohibition on cruel, inhuman and degrading treatment, which prohibits all conduct that would "shock the conscience" assuming the Due Process Clause applied. According to Justice Kennedy (almost certainly the dispositive vote as of now), this includes at the very least "torture or its close equivalents."

But one need not resort to these other legal constraints in this case, because waterboarding obviously is torture prohibited by the federal torture statute, 18 USC 2340-2340A. OLC apparently advised otherwise -- but how could that be? After all, waterboarding is perhaps the classic, paradigmatic technique of acknowledge torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge. And as Human Rights Watch explains, the U.S. itself "has long considered waterboarding to be torture and a war crime.":

As early as 1901, a U.S. court martial sentenced Major Edwin Glenn to 10 years of hard labor for subjecting a suspected insurgent in the Philippines to the 'water cure.' After World War II, U.S. military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A U.S. army officer was court-martialed in February 1968 for helping to waterboard a prisoner in Vietnam.

And plainly, if our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such a technique is a form of torture. It is hard to imagine how OLC could possibly have concluded otherwise.

But I think I've figured out what OLC's "reasoning" was. The key is found in the replacement torture memo, the one issued in December 2004 to supersede the notorious August 2002 torture memo.

In one of my first posts here, I praised that 2004 memo, which is in numerous respects an enormous improvement over, and rebuke of, the horrifying memo that it superseded. But I continued to be bothered and befuddled by footnote 8 of the memo, which stated that notwithstanding the "various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." If, as reported, those OLC conclusions in 2002 included that waterboarding could be legal, how could the new memo's more reasonable legal analysis of the torture statute not affect what the CIA had been authorized to do?

Part of the answer is in the narrow way that Congress has defined torture. The Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture as a condition of its ratification of that treaty -- restrictive terms that Congress itself adopted in the torture statute. The criminal statute thus defines torture as an act "committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control"; and the statute in turn defines "severe mental pain or suffering" to require "prolonged mental harm."

Ans so, perhaps OLC concluded that when it comes to waterboarding, the mental pain and suffering is intermittent and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes or less, and is not intended to result in any lasting mental suffering. (Let's put to the side here the rather problematic point that severe long-term mental suffering is foreseeable in many cases.)

OK, but even if we assume that analysis is plausible (which is a stretch), and even assuming further that waterboarding does not result in physical pain, what about the prohibition on intended severe physical suffering? After all, the very purpose of waterboarding is to inflict a form of intense physical suffering that results in severe terror for one's life -- a terror that not even the most hardened criminals are said to be able to resist. According to one account reportedly promulgated by the CIA itself, "[u]navoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."

The whole point of waterboarding is to induce severe physical suffering. Therefore it is torture, even under the limited definition in U.S. law.

It ought to be as simple as that, right? Indeed, the idea that Congress would not have considered the acute suffering caused by waterboarding to be "torture" (particularly in light of the historical consensus that it is a paradigm case of torture) is so utterly implausible that it is hard to imagine the Office of Legal Counsel even considering, let alone adopting, any interpretation of the statute that would exclude such a technique from its ambit. Under a reasonable mode of statutory construction, one could start with the understanding that waterboarding is torture, and work outward from that truism to see what it reveals about the meaning of the statute for other techniques.

Ah, but take a look at the runover paragraph at the top of page 12 of the 2004 OLC memo -- a passage that I unfortunately overlooked when I first analyzed the memo. In that paragraph, OLC concludes that in order to constitute "torture," "severe physical suffering "would have to be a condition of some extended duration or persistence as well as intensity." The category is, OLC reasoned, "reserved for distress that is 'severe' considering its intensity and duration or persistence, rather than merely mild or transitory."

This legal "analysis" is simply made of whole cloth. Well, not even. There's no cloth there at all. It is completely unsupported by, and contrary to, the plain words and structure of the statute -- which require that severe mental suffering be "prolonged" in order to constitute "torture," but that conspicuously fail to include a similar duration requirement for severe physical suffering. Nor is OLC's "duration" requirement supported by any other evidence or rule of statutory construction. OLC doesn't cite anything in support of its conclusion -- nothing worthy of mention in serious conversation, anyway. (In a footnote, OLC canvasses some dictionary definitions of the word "suffering." Suffice it to say that the footnote is so desperate, half-hearted and unconvincing -- indeed, it undermines OLC's interpretation of the statutory phrase -- that the less said about it the better, for the sake of OLC's long-term reputation. That those dictionary definitions were the best -- indeed, the only -- authorities OLC could come up with speaks volumes about its attempt to intepret the phrase "severe physical suffering" so as not to cover profound but "transitory" physical suffering, such as that resulting from waterboarding.)

Once I focused on it, it became obvious that OLC wrote that particular paragraph of the 2004 OLC Opinion not in order to provide any legitimate legal advice about the meaning of the phrase "severe physical suffering," but instead precisely with waterboarding in mind (since the whole point of waterboarding is that the suffering it induces is so severe and acute that it doesn't take long to "work"), and for the specific purpose of being able to conclude that OLC's former absurd advice -- that waterboarding is not "torture" -- was not affected by the new 2004 analysis of the statute. It is a desperate, horrifying piece of legal analysis -- as craven and unconvincing as (almost) anything in the 2002 memo.

It pains me to say that, not only because I think the 2004 memo is otherwise such a needed and welcome improvement over what came before, but also because I am a proud alum of the Office with great respect for the role OLC had traditionally played in our constitutional system. But OLC's analysis of the phrase "severe physical suffering" -- a disingenous bit of ipse dixit evidently ginned up merely in order that the Office would not have to condemn waterboarding as illegal -- is an unfortunate example of the Office at its nadir, acting not in its proper role as honest and faithful interpreter of law, but instead as apologist for the torturer, who, as the Court has noted, "has become--like the pirate and slave trader before him--hostis humani generis, an enemy of all mankind."
Posted 11:07 AM by Marty Lederman [link] (82) comments

A Dunk in the Water for Clarity

JB

Dick Cheney has now stated publicly that when, on talk radio, he endorsed
"a dunk in the water" for detainees as a "no-brainer," he did not mean to endorse waterboarding.

Well, I'm glad we cleared that up.

But what the Vice-President did not say, and what the Administration has refused to say, is whether the Administration considers waterboarding to be torture, or if not torture, then the cruel inhuman and degrading treatment that is equally prohibited by the McCain Amendment.

Administration spokesman Tony Snow has offered a mantra: The Administration doesn't torture, it doesn't violate the law-- whether U.S. or international law-- and it doesn't discuss specific interrogation techniques.

There are two reasons why the Administration doesn't want to discuss specific techniques. One is that it doesn't want terrorists training to withstand them, and another is that it wants them to think that the U.S. might do anything to them.

But these reasons are in some tension with the Administration's purported justification for the Military Commissions Act: to clarify what interrogators can do and cannot do legally. If the MCA clears things up for interrogators, why doesn't it clear things up for future detainees? And if certain things are out of bounds under the MCA (and the McCain Amendment), why can't detainees rely on the fact that the Administration won't break the law?

The Administration's logic leads inevitably to the conclusion that it wants to send the message to detainees that it *won't* abide by the Military Commissions Act that the Administration lobbied so hard for.

In fact, the Administration is probably not entirely serious about its refusal to discuss specific techniques. If reporters asked, they would readily find out that the Administration will state publicly that it won't cut off detainees' limbs with a chain saw or apply electric shocks to detainees' genitals. That is, I assume that the Administration would be wiling to state that: for if it won't, then it would really be in trouble.

But if the Administration is willing to say that it won't do some things, why it won't state that it doesn't waterboard?

And if the Administration insists that its techniques are fully legally under the MCA,the McCain Amendment (and Geneva Common Article 3, which is still law after the MCA), why won't it say whether it thinks that waterboarding complies with the law?

These are the sorts of questions that reporters should be asking if they want a bit more clarity about the meaning of "a dunk in the water."

Posted 9:15 AM by JB [link] (19) comments

DOJ Comes to Its Senses on Faith-Based Prison Program

Marty Lederman

Several months ago, I argued here that the Department of Justice's proposed "residential multi-faith restorative justice program" entitled Life Connections was "manifestly unconstitutional in several respects." I wondered how the Office of Legal Counsel could possibly have signed off on this program.

Well, it appears that someone -- probably in OLC -- has thankfully had some sober second thoughts. On Thursday, DOJ cancelled the program "in its entirety."

[NOTE: This blatantly unconstitutional federal program did have the virtue of raising one very interesting and important constitutional question: Whether the state may ever attempt to promote religious faith or transformation, even (or especially) as a means of advancing secular ends (e.g., rehabilitation, cessation of alcohol dependence, etc.) that the state suspects to be correlated with faith.

I discussed that question with Rick Garnett and Doug Laycock here -- with links to additional thoughts from Steve Shiffrin and Rob Vischer.]
Posted 8:45 AM by Marty Lederman [link] (16) comments

Cultural Software now available in HTML format

JB

Earlier this year, Yale University Press allowed me to release an online version of my 1998 book, Cultural Software: A Theory of Ideology, under a Noncommercial Sharealike Creative Commons license. I'm very greatful to the Press for engaging in this experiment in online publishing.

As promised, I now have produced HTML files of the book to go with the larger PDF files, to make it easier to read and use the book online. You'll find them (and the PDF versions) here.

Posted 7:50 AM by JB [link] (12) comments

The New Jersey Supreme Court Goes the Way of Vermont, Not Massachusetts

JB

The most important feature of today's New Jersey Supreme Court decision is that although it insisted that same sex couples have rights to equal benefits and equal status with opposite sex couples, it did not immediately order that same sex couples have the right to marry. Instead, it left the issue of how to guarantee equal rights and equal status to the New Jersey Legislature. This is similar to what the Vermont Supreme Court did in Baker v. State. That ultimately led to the nation's first civil unions law. Although many gay couples are probably disappointed that the New Jersey courts did not immediately give them what they sought, the court's approach-- which now hands the controversy to the legislature-- is probably the best one for the long run.

Same-sex marriage is an especially divisive issue at this point in our country's history. It is far better for courts to attempt to engage democratically elected legislatures in the task of designing appropriate remedies. That does not mean that courts should abdicate judicial review of what legislatures come up with. Rather, it means that in responding to challenges to marriage laws by same sex couples, courts should explain what the key constitutional principles are that must be satisfied and then leave it to legislatures to make the political compromises necessary to satisfy them. This will result in all of the branches of state government agreeing on how to resolve the question, and therefore it will greatly enhance the democratic legitimacy of the ultimate result.

Although the Vermont decision in Baker v. State initially caused a significant uproar in Vermont, it ultimately led to a solution that is no longer controversial in that state. perhaps equally important, the Vermont decision did not create anywhere near the same degree of backlash as the Massachusetts decision in Goodridge, which became a rallying cry in the 2004 election. In both cases the courts held that traditional definitions of marriage violated the state constitution. But in the Vermont case, as opposed to the Massachusetts case, the court gave the legislature a stake in how the issue was ultimately resolved. In fact, the Massachusetts Supreme Judicial Court refused to let the Massachusetts legislature do anything other than amend its marriage laws to include same sex couples. In essence, it locked the legislature out of the reform process. The result was much more likely to lead to complaints that unelected judges were hijacking the democratic process.

It's important to understand that the Vermont Court in Baker exercised judicial review ever bit as much as the court in Massachusetts; it did not simply leave the issue of same-sex marriage up to the legislature; rather, it forced the issue. But in so doing, it produced a solution that many different people in Vermont could live with.

In addition, one should not confuse what the Vermont court did with judicial "minimalism." The Court made very strong substantive claims about what rights same-sex couples had and what it would take for the Vermont legislature to produce a constitutional bill. That substantive discussion was quite important. If courts simply hide the ball in a minimalist opinion and strike down laws without explaining what constitutional principles are at stake and how they can be vindicated, legislatures will not be able to respond effectively. If courts then strike down a series of legislative responses, that will be far more likely to anger the public and cause backlash. For the strategy to work, courts have to be upfront about what the constitutional concerns are but they also need to give legislatures room to debate the issues. In doing so, they invite legislatures to be partners in constitutional interpretation and implementation.

Posted 4:23 PM by JB [link] (98) comments

Bush Administration Authorizes Separate but Equal Schools

JB

Yes, you heard that right. No, the Administration is not asking to overrule Brown v. Board of Education and bring back the days of Plessy v. Ferguson. Instead, it's issued new regulations that will allow local school districts to have separate classes for boys and girls, and even separate schools.

Two years in the making, the new rules, announced Tuesday by the Education Department, will allow districts to create single-sex schools and classes as long as enrollment is voluntary. School districts that go that route must also make coeducational schools and classes of "substantially equal" quality available for members of the excluded sex.

The federal action is likely to accelerate efforts by public school systems to experiment with single-sex education, particularly among charter schools. Across the nation, the number of public schools exclusively for boys or girls has risen from 3 in 1995 to 241 today, said Leonard Sax, executive director of the National Association for Single Sex Public Education. That is a tiny fraction of the approximately 93,000 public schools across the country.

"You're going to see a proliferation of these," said Paul Vallas, chief of schools in Philadelphia, where there are four single-sex schools and plans to open two more. "There's a lot of support for this type of school model in Philadelphia."

It's worth noting that Philadelphia has a long history on this particular issue. In Vorcheimer v. School District of Philadelphia, 532 F. 2d 880 (3d Cir. 1975), aff'd 430 U.S. 703 (1977), the Supreme Court upheld, by an equally divided vote, a decision rejecting a girl's application to attend Philadelphia's all-male academic high school, Central High School. Because the Justices split 4-4, there was no opinion and the affirmance is not a precedent. In 1983, in Newberg v. Board of Public Education, 26 Pa. D.& C. 3rd 682 (1983), a state court ordered integration of Philadelphia's all-male high school on the grounds that the all-female high school and the all-male high school were "materially unequal" in facilities and education opportunities. In essence, the court found that the promise of separate but equal facilities for girls and boys was not genuine.

Since the 1970's there have been two major arguments for separate but equal schools dividing the sexes. The first wave of arguments was that single sex education actually benefited girls; the argument was that what benefits women at elite single sex private colleges like Wellesley or Smith also could benefit girls at public elementary and secondary schools. The second wave of arguments was that single sex education benefited boys, who were often emotionally behind girls of the same age and increasingly in need of educational discipline. That argument hasn't flown as well, in part because it requires that girls' educational interests be sacrificed to boys' interests, which, of course, reminds people of pretty standard forms of sex inequality practiced over the centuries. (One federal district court held a plan for single sex education for African-American boys in Detroit unconstitutional on this ground.). Hence the current argument made by advocates of single-sex education is that it benefits both girls and boys. (One also assumes the argument is that it benefits them equally.)

It's important to note that if these arguments were made for the constitutionality of educating whites and blacks separately, they would almost certainly fail. It's also important to note that the issue presented here is different from affirmative action programs, which courts have sometimes upheld under a strict scrutiny analysis. Affirmative action does not separate the races, it integrates them by including more minorities in majority white schools; the constitutional problem with affirmative action is that it employs overtly racial criteria to achieve this goal. Sometimes courts hold that this is constitutional, other times they hold that it is not. A school policy that required blacks and whites to attend separate schools, even based on purported educational benefits, would bear a very heavy burden of proof, and if there were any way to improve test scores without employing separate but equal, the program would fail.

Under current law, sex discriminations must be based on an exceedingly persuasive justification to survive a constitutional challenge. Assuming that improving test scores is a sufficiently important interest, state run or supported schools must show that they could not achieve these benefits without the separation.

Back in 2002 I wrote an short essay on an earlier version of these regulations for the Journal of Blacks in Higher Education. They wanted to know about the consequences of such a policy for African-American children, and whether single sex education might lead to single-race education. The essay is shaped with those concerns in mind. But I hope that it also gives you some insight into what the constitutional issues are and why Americans have viewed separating the sexes differently from separating the races. The focus of the essay is also important because many of the arguments for single-sex education are now being made not for the benefit of suburban schools but for charter schools in inner city areas, so questions of sex, race, and class are inevitably combined.

The key issue, as I explain below, is whether single-sex education revives old stereotypes about women's roles, whether single sex education sacrifices girls' interests to benefit boys, and finally, whether single-sex education is a cheap fix that does little to solve longer term issues of quality education in inner-city schools. These are key questions to consider in assessing whether the new Bush Administration regulations are constitutional.

* * * * * * * * *

Balkin, Jack M. "Is There a Slippery Slope From Single-Sex Education to Single-Race Education?" The Journal of Blacks in Higher Education (August 2002).

The Bush Administration has recently issued regulations permitting school districts to experiment with same-sex classes for elementary and secondary schools, arguing that in some cases separation of the sexes might help the educational process. The announcement of this experimental program has been greeted with only mild controversy in the daily papers. This in itself says a great deal about how the law of equality has developed in the United States in the past half century. The Bush Administration did not dare suggest the possibility that students might benefit from single-race schools, or from schools solely for Latino youth. After all, the canonical event in American civil rights law is the decision in Brown v. Board of Education, which held that schoolchildren could not be deliberately separated on the basis of their race. Yet single-sex education continues to exist in this country; and the U.S. Supreme Court has never squarely held that single-sex education in elementary and secondary schools is forbidden.

The Bush Administration's recent proposal suggests two related questions: First, why isn't single-sex education as troublesome as single-race education? Second, if single sex-classes could have genuine educational benefits, why wouldn't single-race classes for African-American children?

To answer these questions, we need to understand how race discrimination differs from sex discrimination. But more importantly, we must understand how these two forms of inequality have interacted with each other and with inequalities of class--in American history. That is because one cannot evaluate calls for single-sex education or single-race education for that matter-- without paying attention to the economic inequalities they tend to obscure.

The primary methods of unjust subordination of blacks in American history have been degradation and separation; for women they have been paternalism and role differentiation, emphasizing women's special responsibilities as caretakers. So whites-only policies always meant something different from men-only policies. Separation of blacks signaled their social inferiority and their enforced separation from white society. By contrast, separation of women actually reinforced their connection to men and their roles as men's wives, mothers, and daughters. While gender discrimination presumed that women would play a subordinate role within families headed by men, race discrimination was premised on keeping black and white families separate, so that they would not be social equals.

For these reasons single-sex education has never carried the same social meanings as single-race education. Moreover, as University of Chicago legal historian Jill Hasday has pointed out, single-sex education has always possessed a more benign connotation precisely because of the ways that it intersected with and reinforced class and race discrimination.

When we think of single-race schools, we think of dilapidated schoolhouses for blacks in the Jim Crow era; when we think of single-sex schools, we think of Wellesley. This is no accident. Single-sex education for women was an instrument of class inequality: it was originally reserved for elites, particularly in the East, in order to prepare women for life in society, and this led to its contemporary image as being largely innocuous, genteel, and even beneficial for women. Single-sex education for women, particularly at the university level, was a sign of class position, given that lower class women often received little education at all. This contrasts markedly with racially segregated education: Rich and poor whites alike were segregated from blacks because racial segregation confirmed and established white superiority and white solidarity, which was particularly important for lower class whites.

In fact, sex segregation in public schooling was connected in important ways to race segregation; especially after the decision in Brown v. Board of Education. Separating the sexes prevented mixing white women with black men. In the Jim Crow era, schools for blacks were usually not segregated by sex, because legislatures did not care much about the possible corruption of black women.

A recurring theme in calls for sex-segregated education has been the need to keep boys from being distracted by girls. Put another way, women were often seen as a cause of men's lack of success, so that it was necessary to separate them in order to ensure that men thrived. In the case of private religious schooling-- to which some poor and middle class parents might aspire-- single-sex education was a symbol of moral rectitude, suggesting the ability of school officials to instill proper ( i.e. traditional) values in their charges. Only much later did the notion gain credence that sex segregation allowed women to develop self-esteem so that they could effectively compete with men.

These historical facts tend to suggest why single-sex education carries very different freight than single-race education. Single-sex education, especially in private schools, was a symbol of economic status for women, not a symbol of material deprivation. That made it easier to for it to survive the second wave of American feminism in the 1960's and 1970's. Its elitist origins allowed it to be reinterpreted as an educational device that helped women become leaders and that even poor and middle class girls could aspire to and benefit from. Conversely, coeducation often did not guarantee an end to gender steering in programs and instruction, an end to separate facilities and programs for men and women, or equal opportunities for women, as one can witness from the continuing struggles over Title IX and women's athletics.

Today, when we think about proposals for single-sex schooling, we should keep in mind that both elements of race and class will inevitably be involved. One should have no illusions that simply because single-sex education seems benign in schools like Wellesley or Smith that it necessarily is so when it is transposed out of the paradigm of elite women's education and placed in the setting of inner-city schools In the urban setting, single-sex education tempts school administrators to focus on the interests of black boys to the detriment of black girls. It repeats in racialized form the familiar idea that girls are the cause of boys' lack of educational success and that boys must be kept free of distraction. Single-sex education may seem to serve the goals of class equality and upward mobility because it gives poor families something that only rich families were once able to afford, as well as offering the promise of discipline and moral rectitude. Yet it can also unwittingly become a method of preserving traditional gender roles for women. Perhaps most importantly, it can be embraced as a relatively cheap solution to educational problems in urban schools that diverts attention from severe long term problems of inequality and lack of educational opportunity in public education. Given a fixed educational budget, dollars could better be spent on improving general educational quality than on creating single-sex schools and classrooms.

As for the possibility that single-race schools might improve educational opportunity, the answer is quite simple: America already has plenty of single-race schools. They have been produced by the de facto segregation that reigns in this country fifty years after Brown v. Board of Education. A recent study by the Civil Rights Project at Harvard's John F. Kennedy School of Government estimates that more than a third of the nation's black schoolchildren currently attend schools with a minority enrollment of 90- 100%, and the percentage of black schoolchildren who attend such schools has been rising since the mid 1980's. There is no evidence that this de facto segregation has worked to the advantage of black and Latino children. If it has worked to the advantage of white children in suburban school districts, it is because those schools generally have vastly superior resources. Given these facts, it is highly unlikely that moving from de facto to de jure separation of the races will improve the lot of African-American or Latino children.

Separation of the races, like separation of the sexes, is a diversion from the real issue: educational equality in funding, resources, and attention.

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. His latest book is "What Brown v. Board of Education Should Have Said" (N.Y.U. Press 2001).

Posted 9:04 AM by JB [link] (14) comments

Parallel Tracks in the National Surveillance State

JB

This MSNBC story tells how the treatment of Guantanamo detainees sparked a struggle between intelligence and law enforcement personnel.

[T]he struggle over U.S. interrogation techniques began much earlier than previously known, with separate teams of law enforcement and intelligence interrogators battling over the best way to accomplish two missions: prevent future attacks and punish the terrorists.

The story exemplifies a key problem in the emerging National Surveillance State. To promote security, the government creates a parallel system of interdiction, detention, and interrogation outside the traditional procedures and restraints of the criminal process (or, in this case, the military justice system of courts martial). However, by doing so, the state makes it difficult if not impossible to use the fruits of the parallel system in the traditional system:

In extensive interviews with MSNBC.com, former leaders of the Defense Department’s Criminal Investigation Task Force said they repeatedly warned senior Pentagon officials beginning in early 2002 that the harsh interrogation techniques used by a separate intelligence team would not produce reliable information, could constitute war crimes, and would embarrass the nation when they became public knowledge.

The investigators say their warnings began almost from the moment their agents got involved at the Guantanamo prison camp, in January 2002. When they could not prevent the harsh interrogations and humiliation of detainees at Guantanamo, they say, they tried in 2003 to stop the spread of those tactics to Iraq, where abuses at Abu Ghraib prison triggered worldwide outrage with the publishing of graphic photos in April 2004.

Their account, confirmed by the Navy's former general counsel, outlines a fierce debate within the Defense Department over the competing goals of justice and security in the war on terror. President Bush has said repeatedly that the detentions at Guantanamo were intended not only to secure intelligence information to prevent al-Qaida attacks, but also to "bring to justice" the terrorists.

As a result, a dual structure of intelligence gathering and criminal investigation, with two arms of the U.S. military, with overlapping missions, interrogating the same prisoners, continues today.

The law enforcement agents, who were building criminal cases against the detainees, also say that military prosecutors told them that abusive interrogations at Guantanamo compromised the chance to bring some suspected terrorists to trial. Among them, the agents say, is Mohammed al-Qahtani, a Saudi whom the Pentagon has described as the intended 20th hijacker in the Sept. 11, 2001, terror attacks.

"We were told by the Office of Military Commissions, based on what was done to him, it made his case unprosecutable," said Mark Fallon, the deputy commander and special agent in charge of the Criminal Investigation Task Force from 2002 to 2004. "It would taint any confession if obtained under coercion. They were unwilling to move forward with any prosecution of al-Qahtani."

A Pentagon spokesman on Friday dismissed this as "speculation," but would not say whether al-Qahtani would be tried. He is not among the 10 detainees who have been approved for a military trial.
It was two years before the photos emerged from Abu Ghraib, the Pentagon cops said, when they began arguing that coercive or abusive interrogations would not serve war-fighting or justice.

"No. 1, it’s not going to work," said Col. Brittain P. Mallow, the commander of the task force from 2002 to 2005.

"No. 2, if it does work, it’s not reliable. No. 3, it may not be legal, ethical or moral. No. 4, it’s going to hurt you when you have to prosecute these guys. No. 5, sooner or later, all of this stuff is going to come to light, and you’re going to be embarrassed."

As I've discussed previously, the national surveillance state creates twin dangers. The first danger is that the parallel system will increasingly displace the traditional system of criminal punishment, with its various procedures and safeguards. The second danger is that the state, eager to avoid the limitations of the existing criminal justice system, will try to make the criminal justice system more like the parallel track.

The Administration's recent attempts to amend FISA to settle legal qualms about its NSA domestic surveillance program is an example of the second solution-- change the rules of criminal procedure to make it more like the parallel system of foreign intelligence surveillance. The Administration's detainee policies are an example of the first solution-- attempting to sweep up more and more into the parallel track. The recently passed Military Commissions Act of 2006 essentially creates a Congressional imprimatur for a parallel system of detention and interrogation.

However, in the case of the MCA, the President is also adopting the second solution: he is trying to modify the existing system of military justice to allow for prosecution and punishment of detainees through a special system of military commissions with relaxed rules of evidence, which will allow the admission of some secret evidence and some evidence obtained by coercion. That is, he is making the existing military justice system more like the parallel system that gives him greater freedom from legal restraints.

For example, although section 948r of the MCA bars the introduction of evidence produced through torture, it permits evidence obtained through cruel, inhuman and degrading treatment if the statement was obtained before December 30, 2005, when the McCain Amendment was passed. In essence, this provision lets the Administration use the fruits of its previous parallel system of interrogations in the new military tribunals. This bridges the gap created by the use of the parallel system. It does so, however, at the cost of seriously compromising and perverting the existing system of military justice.

Posted 3:46 PM by JB [link] (29) comments

Law and the Humanities: An Uneasy Relationship

JB

Sandy Levinson and I have just published a new article, Law and the Humanities: An Uneasy Relationship, in the Yale Journal of Law and the Humanities. This is a longer version of a paper we originally published for a symposium in Daedalus on the future of the humanities in the 21st century. Here is the abstract:

In 1930 legal professionals like Judge Learned Hand assumed that law was either part of the humanities or deeply connected to them. By the early twenty-first century, this view no longer seems accurate, despite the fact that legal scholarship has become increasingly interdisciplinary. Instead law has moved closer to the social sciences. This essay discusses why this is so, and why the humanities exist in an uneasy relationship with law and contemporary legal scholarship.

No matter how often the legal academy embraces skills and knowledges external to law, law's professional orientation-- and the fact that law is taught in professional schools where most students will not become academics-- continually pulls legal scholarship back toward an internal attitude toward law and recourse to traditional legal materials. As a result, law remains far more like a divinity school-- devoted to the preservation of the faith-- than a department of religion-- which studies various religions from multiple perspectives. To the extent that the contemporary disciplines of the humanities view law externally or in ways inconsistent with its professional orientation, they are merely tolerated in law schools rather than central to legal study. More generally, because law is a professional field, it resists colonization by other disciplines that view law externally. Instead, law co-opts the insights of other disciplines and turns them to its own uses.

Ironically, law's thoroughly rhetorical nature, which strongly connects it to the traditions of the humanities, places the contemporary disciplines of the humanities at a relative disadvantage. Law uses rhetoric to establish its authority and to legitimate particular acts of political and legal power. Law's professional orientation pushes legal scholars toward prescriptivism-- the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.

Posted 8:35 AM by JB [link] (14) comments

A Loophole in Contribution Law?

Ian Ayres

The New York Times reports today:

Mrs. Clinton has raised nearly $50 million and spent about $35 million; both the
infrastructure she has built and whatever money is left at the end can be
transferred into a presidential race if she decides to run.

This raises an interesting possibility. Imagine that a presidential candidate wants to allow people to contribute more to her campaign than is currently allowed under Federal campaign law. She could sign up to run in the off year election for the House and the Senate (and maybe have her relatives run for House and Senate in the same state). Supporters of the presidential campaign make maximum contributions to the House and Senate campaigns. To be extreme, imagine that these are sham candidacies and that she and her relatives spend almost none of the money contributed so as to maximize the amount that can be transfered post defeat to the real presidential campaign. The supporters who maxed out in making contributions to the sham campaigns can also max out in giving to the presidential campaign. And voila you have neat/scary way to end run the contribution limits.

Should we require candidates to give back excess funds to their donors? Or should we at least require some kind of attribution rule so that contributors can't effectively double dip? As it stands 30 cents of every dollar give to the Clinton Senate race is likely to support the Clinton presidential race.
Posted 11:10 AM by Ian Ayres [link] (20) comments

Carl Schmitt, the Dolchstoßlegende and the Law of Armed Conflict

Scott Horton

A scholar reading Carl Schmitt's writings on international law topics today is overcome with a sense of a brilliant but fundamentally flawed mind that undergoes some radical mood shifts. There is the post-World War II Schmitt, carefully offering up cautious, traditional conservative understandings of international public law. There is the Schmitt of the 1930's with his astonishingly adventurous, and downright chilling interpretations in which the totality of international law is consumed, reprocessed and extruded so as to meet the short-term political objectives of the National Socialist Reich. Then there are the works of political theory, starting with Der Begriff des Politischen and developing in Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (1950), which offer a take on international law which, it seems to me, is often difficult to distinguish from the international relations theory approach of Hans Morgenthau. This latter segment in particular helps to explain why Schmitt often seems so uncannily similar to current day Neoconservative writers like John Yoo, Jack Goldsmith and Eric Posner whose analysis is clearly indebted to Morgenthau. It often seems very difficult to reconcile these different manifestations of Schmitt other than by suggesting something very human: that careerist expedience plays a powerful role in the process. This is most evident of his writings in the core period of his advocacy of the interests of the National Socialist state, 1933-37.

A recent study by Prof. Dirk Blasius (University of Duisburg-Essen) makes an important contribution to the understanding of Schmitt's posture on international law issues in general, and his attitude towards the law of armed conflict in particular. In "Carl Schmitt und der 'Heereskonflikt' des Dritten Reiches 1934" (Carl Schmitt and the Third Reich's Army Conflict of 1934), Blasius pulls together a number of powerful texts from the period between the wars that put Schmitt's attitudes in a new light. The article is published in Germany's leading historical journal, Historische Zeitschrift, vol. 281, p. 659 (2005). The works that Blasius covers includes diary entries and archival manuscripts, the significant tract on the restructuring of the legal profession, Staat, Volk, Bewegung of 1933 (discussed in my last post), and the fairly obscure Staatsgefüge und Zusammenbruch des zweiten Reiches – Der Sieg des Bürgers über den Soldaten (State Structure and the Collapse of the Second Reich – the Victory of the Bourgeoisie over the Soldiers)(1934). These documents taken together reveal a crude and generally ahistorical take on Germany in the period between the war of 1866 and the founding of the Weimar Republic. At the same time they provide a key to understanding political views that drive Schmitt's legal posture, particularly on law of armed conflict issues.

The Frederican Military State
Schmitt is a Westphalian Catholic with notorious and even racist disdain for Prussia, a curious background for a Prussian State Councillor. In his diary he writes that Prussia constituted a "victory of the Slavs over Germans, because the Germans Germanized the area to the east of the River Elbe, and the Slavs who lived there were incorporated into the Germans, with the product being called Prussians." (Blasius 661) Nevertheless, he views the modern Sparta, Prussia, as the core of Germany, and its state structures as imbued with essential characteristics of the German Volk in a sense that combines Herder and Hegel. Frederick the Great "has become a symbol for the unity of state and army, of governance and the conduct of war. His life and his state contain examples for all situations in which the problem of state, army and economy can be portrayed" (from a lecture at the University of Berlin, Jan. 24, 1934). This state concept maximized potential from both economic and military perspectives. "The revolutionary significance of this total reform is not reduced, but rather strengthened by its hierarchical and authoritarian structure. At this time, in 1807, the indivisible unity of state, army and economy was strongly impressed upon the consciousness not only of the great fomenters, the Barons von Stein [sic: probably intended to refer to Heinrich Friedrich Karl vom Stein], Scharnhorst, Boyen – but also their opponents." For Schmitt, this is a silver age of efficient and enlightened authoritarianism, which laid the foundations for the creation of the modern German state.

The Encroachments of the Liberal Bourgeoisie
The silver age ends, however, with the arrival of a new middle class with liberal-democratic aspirations. "For Prussia, the leading German state, this period means an open or latent conflict between government and parliament, state and popular representation, and indeed a period of military and budgetary conflict."(Blasius 667) The second half of the nineteenth century presents a gradual process of accumulation of power by the bourgeoisie and extension of its political and economic rights. "The idea of a liberal democratic constitutional state gradually triumphed in domestic politics over the spirit of the German Volk, and then they triumphed militarily and in foreign policy through the disarming of the battling army."(Blasius 669)

The Dolchstoßlegende
The key to Schmitt's narrative lies in the Dolchstoßlegende – the suggestion that the German Army was "stabbed in the back," i.e., betrayed, by liberal democratic forces in the waning days of the Second Reich. The Dolchstoßlegende suggests that limitations imposed by the civilian authorities in the course of the Great War led inexorably to the failure of the Germany Army. This in turn led to the abdication of the Emperor Wilhelm, the termination of the Second Reich, and the creation of the Weimar Republic. The argument is preposterous – in fact Germany was in the last days of the Great War little short of a military dictatorship. Nevertheless, conservative nationalists in Germany used the Dolchstoßlegende as their principle political weapon in their struggle with the forces of liberal democracy. Given the demonstrated potency of this rhetorical device following a military defeat, it has made numerous repeat performances in other societies. As Kevin Baker argued in the June 2006 issue of Harper's, key figures in the present Bush administration are linked to efforts to argue that the failure of the United States in Vietnam during the Nixon and Ford Administrations is attributable to a "sell out" by forces in the United States which opposed the war; Baker cites several other uses of this line of argument in American politics in the end of World War II and during the Korean War. The Schmitt edition of the Dolchstoßlegende involves an interesting permutation. "During the Great War," Schmitt writes, "every deterioration of the military or foreign policy situation would work to the domestic benefit of the opponent, that is, the Parliament, with nearly mathematical precision; it would also furnish constitutional arguments for its claims to power." (Staatsgefüge, 39). However, Schmitt comes to a focus not on the end phase of the war, but rather on its outset: the decision to avoid a focus of the combat on the fortified Franco-German frontier by swinging quickly through neutral Belgium. "On August 4, 1914, the German Chancellor [Bethmann Hollweg] declared the German invasion of Belgium to be an 'injustice,' for which compensation would be necessary. A childish notion of law governing emergencies, combined with a servile fear of the appearance of this act in the eyes of foreigners, produced this shameful capitulation, and betrayed Germany's popular army to the constitutional ideals and legal concepts of its foreign and domestic enemies." (Staatsgefüge, 41-42)

This is an audacious characterization in light of what Bethmann Hollweg actually said in this address in 1914. The Chancellor in fact acceded to the proposal of the General Staff that the neutrality of Belgium be violated. Indeed, he did so reciting the Bismarckian mantra "Not kennt kein Gebot!" (Necessity knows of no limitation). His sole bow to the requirements of international law was a vague promise that some accommodation would be offered the Belgians after Germany had obtained its military goals.(Blasius 672)

The invasion of a neutral state by Germany at the outset of the Great War was a clear violation of international law principles, and German actions afterwards raised a slew of issues under the Hague Conventions and Geneva Conventions. Schmitt's ostensible position is that Germany should have taken these steps with no remorse. His analysis seems completely driven by the concept of Kriegsraison, the view that military expediency alone can drive the action, and that no effective legal constraints existed. This reasoning seems very close to that of Carl Lüder, a well known German law of armed conflicts expert of this era, who argued for robust military action that was unfettered by concern for international law.

Schmitt's ahistorical analysis suggests a dismissive attitude towards basic law of armed conflict rules and a will to be driven by his best assessment of the short-term political interests of his state. As I noted previously, this is the attitude which ultimately drove internal analysis in the Oberkommando der Wehrmacht, not the more conservative and traditional analysis of the post-World War II Schmitt.
Posted 3:15 AM by Scott Horton [link] (14) comments

Back to the Good Old Populist Days of Kicking Court Butt

Brian Tamanaha

What stands out most in John Yoo's WSJ Op-Ed on the Military Commissions Act is not his legal analysis, but the triumphalist populist posture he strikes against the court. "The new law is, after all, a stinging rebuke to the Supreme Court." "This time," Yoo editorializes, "Congress and the president did not take the court's power grab lying down." Yee hah, that'll show the uppity SCOTUS.

The pending South Dakota initiative to amend the constitution to remove protections from judges--ominously entitled "The J.A.I.L. Amendment"--is redolent of the same attitude. It creates a Special Grand Jury comprised of citizens to hear challenges to court decisions. The judge's immunity may be removed for any of a long list of violations, including "delibertate disregard of material facts, judicial acts without jurisdiction, blocking the lawful conclusion of a case..." The Grand Jury is also empowered to indict the judge on criminal charges, and it operates retroactively (applying to past judicial decisions).

It has a number of deliciously nasty provisions. Funding for the Grand Jury--whose members are to be paid at a pro-rated amount equal to that of Circuit Court Judges--is to be provided by "deducting one and nine-tenths percent from the gross judicial salaries of all judges." Another provision says that "No judge complained against, or sued civilly by a complainant pursuant to this Amendment, shall be defended at public expense or by any elected or appointed public counsel, nor shall any judge be reimbursed from public funds for any losses sustained under this Amenment."

In other words, the judges will in effect be funding the tribunal against them, but none of their expenses incurred in defending against a complaint--even when the judge prevails!--can be paid out of public funds.

Here's an especially fun provision. Judges are generously given an opportunity to appear before the Special Grand Jury to respond to a complaint. But the proposed Amendment explicitly adds:

All allegations in the complaint shall be liberally construed in favor of the complainant. The Jurors shall keep in mind, in making their decisions, that they are entrusted by the People of the State with the duty of restoring judicial accountability and a perception of justice, and are not to be swayed by artful presentation by the judge.

Beware those tricky artful presenters. The judiciary is full of them! Current polls suggest that the amendment will likely pass on Nov. 7th--representing another victory for the People against the judiciary.

Kicking court butt is a time-honored, populist national sport. Who can forget the good old days of the impeachment threats and physical threats against the Warren Court. This American tradition goes way back.

Consider one especially creative attack. In 1824, angry at several decisions of the high court, the Kentucky legislature passed a law abolishing the old court, and set up a new one with the same name, then appointed all new judges. Both courts refused to recognize the other, and both proceeded to hear cases and render decisions. Lower courts and litigants were in a state of uncertainty until the matter was finally resolved several years later. (For anyone interested, Simeon Baldwin recounts this event in The American Judiciary (1905), p. 114-16).

You gotta love the good old populist American sport of kicking court butt, nowhere done with more creativity and righteous enthusiasm than in this great country committed to the rule of law. Societies that don't respect the rule of law shoot, imprison, disappear, buy off, summarily replace, or use some other illegal method to take care of judges perceived as problematic.

But we respect the rule of law, so we take care of judges perceived as a problematic legally, by removing their jurisdiction, or by abolishing them, or by making them subject to oversight bodies. And because it's done by legal means, it's of course legal, and that's what the rule of law is all about, right?

Now let's go out and kick some more court butt, legally of course.
Posted 11:26 AM by Brian Tamanaha [link] (17) comments

John Yoo on Court-Stripping

Marty Lederman

In today's Wall Street Journal [thanks to Howard Bashman for the link], John Yoo correctly emphasizes that the primary impact of the Military Commissions Act is, as Jack has explained, to attempt to eliminate any judicial checks on the Executive's conduct of the conflict against Al Qaeda:

Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court's habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. . . . Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

Good to see that John Yoo and Jack Balkin are, for once, on the same page!

Eliminating the checks and balances of judicial oversight has been the primary goal of the Administration all along, as John's own memos and other writings quite forthrightly reveal. In his new book, John describes how in the weeks after September 11th, an interagency task force of lawyers was convened to study the wide array of legal issues related to the detention and trial of suspected Al Qaeda personnel. Presumably there were many difficult questions that the task force debated. But there was, as John recounts, "one thing we all agreed on" -- namely, "that any detention facility should be located outside the United States."

Why was this the one point of absolute consensus within the Administration? Isn't that odd -- that the easy point of unanimous agreement was to keep our detention operations outside of our own nation, above all else? It's not as if these captured persons were all detained where they were found. No -- they were shipped halfway around the world; but instead of, say, detaining them at a military brig in South Carolina, which would have been the logical plan, the planes and ships made a sharp left turn at the last moment so that these folks would disembark in Cuba, which is less than 100 miles from the Florida coast.

The reason, of course, for such a resolute determination to keep the detainees offshore, was (as John quite candidly writes) because the lawyers assumed GTMO was a law-free zone -- a location impervious to any judicial oversight. And of course, in light of what we were doing to these detainees, there was damn good reason to keep our operations out the plain sight of any courts, lest they have the temerity to insist that the Administration follow the law.

The Supreme Court rejected this gambit in the Rasul case, and John is correct that the MCA attempts, in effect, to reverse Rasul and to render the President's conduct nonreviewable.

John unabashedly celebrates this move. But he doesn't give much of a justification for it, except that he does not like the idea of the courts reviewing the legality of the Executive's actions in wartime. There is a certain irony in this, given the source: This is, after all, the lawyer who has most aggressively promoted the view that notwithstanding all of its war-related article I powers, Congress is entirely disabled from regulating the Executive's wartime decisions. And yet he not only thinks that Congress can strip the courts of their constitutional functions in wartime -- he positively revels in it.

Presumably, John would agree that if these detainees were being held a few hundred miles away, in Florida or in South Carolina, they not only would have had traditional habeas rights, but also would enjoy substantive constitutional rights of due process with respect to their treatment in detention and their ability to challenge their detention. OK, but then doesn't that cast a cold light on his gleeful defense of the MCA? Is there any good, persuasive reason why those constitutional rights should suddenly disappear -- and that we should encourage Congress to eliminate the cognate statutory rights -- simply because we chose to turn left at Florida rather than to turn right?

Of course there isn't. The reason John and his colleagues are so spooked by the prospect of judicial review is that they want the President to be able to act in accord with very radical and questionable legal interpretations, without any risk that anyone will ever call them on it. If this Administration had not chosen to take such a cavalier and dismissive attitude toward the substantive legal norms (of statute, treaty and laws of armed conflict) that govern the conduct of war, it would have nothing to fear from judicial review. The only reason they are desperate to shut the courts out is that their conduct is of such dubious legality.

For what it's worth, although John gets the big picture of the MCA right, there are several inaccurate statements in John's Op/Ed, including these:

1. "The writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis)."

Wrong. As I've previously written:

[The habeas-stripping provision of the MCA] would appear to overrule not only the recent Rasul decision, which recognized habeas rights for detainees at Guantanamo, but also the holdings in the World War II cases of Quirin and Yamashita, which dealt with alien detainees in the U.S. and in an occupied insular possession, respectively. In each case, the Court rejected the President's assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings(and detention) by writ of habeas corpus. See Quirin, 317 U.S. 1, 25 (1942) ("neither the [President's] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission"); Yamashita, 327 U.S. 1, 8-9 (1946) ("The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. . . . [Congress] has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.").

If [the MCA] had been in place in 1942 and 1946, and if such a withdrawal of habeas rights were constitutional -- which remains an unresolved question -- the Court would never have been able to address the merits of the questions presented in Quirin and Yamashita. Thus, this habeas-stripping provision would be a much more dramatic repudiation of traditional, longstanding habeas rights than has been commonly acknowledged.

2. "[T]he traditional understanding [pre-Hamdan was] that Geneva does not cover terrorists, who are not signatories nor 'combatants' in an internal civil war under Article 3."

Also mistaken. As Justice Stevens rightly explained, the much more common "understanding" was that such detainees receive the baseline, minimum rights established by Common Article 3, which is all that the Hamdan Court held. See my discussion of Myths Nos. 4, 5 and 8, here.

3. "Most of the press and the professional punditry missed the big story," namely, that the MCA attempts to cut off judicial review.

This is, of course, absurd, as any rudimentary search of the blogosphere, the New York Times, the Washington Post, etc., would readily demonstrate.
Posted 9:24 AM by Marty Lederman [link] (31) comments

What Chance Do the Republicans Have of Maintaining Control of the House

Ian Ayres

Lots of pundits and polls spill ink on this, but prediction markets are the best summary statistic.
If you're becoming obsessed about knowing where we stand, you can find out the current odds for Republican control the house by clicking here (currently about 35%) and Republican control of the Senate by clicking here (currently about 65%). These links are constantly updated, so bookmark them and checkback often.

Here's a graph showing the price/probability for republican control of the house. Notice how it decisively dipped below the 50% probability in wake of the Foley scandal:



Slate's summary makes it seem like the Senate control is really a toss up. But the smart money suggests that Republicans have at the moment about a 2-1 chance of retaining control.
Posted 6:25 AM by Ian Ayres [link] (14) comments