Thursday, May 31, 2007

The good of “religion in general.”

Andrew Koppelman

In order to offer a coherent account of the religion clauses, I argued in an earlier post, it is necessary to define the Establishment Clause less abstractly than the Court has, in order to permit the special treatment of religion that is mandated by the Free Exercise Clause. I then argued that the answer is, as Justices Rehnquist, Scalia, and Thomas have suggested, that the state may promote “religion in general.” But, I argued, their solution needs modification, because their identification of religion with monotheism is naïve. Religion must be understood more abstractly than this. How ought this to be done?

Religion is a category that is hard to delimit. Most of the best treatments of the problem of defining “religion” for constitutional purposes have concluded that no dictionary definition will do, because no single feature unites all the things that are indisputably religions. Religions just have a “family resemblance” to one another. In doubtful cases, one can only ask how close the analogy is between a putative instance of religion and the indisputable instances.

Any solution to the free exercise/establishment dilemma that allows accommodations must permit the state, at some level of abstraction, to recognize the value of religion. Thus far Scalia is correct. In order to avoid the problem of sectarian preference, however, religion must be understood in a more abstract way than Scalia proposes. This difficulty can be handled in the following way.

Begin with an axiom: The Establishment Clause forbids the state from declaring religious truth. One principal reason why it is so forbidden is because it is incompetent to determine the nature of this truth. Madison wrote that the idea “that the Civil Magistrate is a competent Judge of Religious Truth” is “an arrogant pretension falsified by the contradictory opinions of Rulers in all ages.” The idea of state incompetence is reinforced by evidence that that state sponsorship tends to diminish respect for religion.

This incompetence entails that the state may not favor one religion over another. It also bars the state from taking a position on contested theological propositions, such as whether God exists. (There is an exception for ceremonial deism, confined to public rituals of long standing whose religious content is sufficiently bland, but in its nature this exception cannot permit any new instances.)

A second classic reason for barring the state from declaring religious truth is civil peace: In a pluralistic society, we cannot possibly agree on which religious propositions the state should endorse. The argument for government agnosticism is that, unlike government endorsement of any particular religious proposition, it is not in principle impossible for everyone to agree to it. Nonestablishment makes possible what John Rawls calls “civic friendship,” in which citizens share a conception of justice that all can reasonably be expected to accept, despite their widely differing moral, philosophical, and religious beliefs.

A final reason for getting the state out of the religion business is that the individual’s search for religious truth is hindered by state interference.

It is, however, possible for the state, without declaring religious truth, to favor religion at a very abstract level. The Court noticed this in Texas Monthly v. Bullock when it invalidated a law that granted a tax exemption to theistic publications, but not atheistic or agnostic publications. Justice Brennan’s plurality opinion thought that a targeted exemption would be appropriate for publications that “sought to promote reflection and discussion about questions of ultimate value and the contours of a good or meaningful life.” Justice Blackmun thought it permissible for the state to favor human activity that is specially concerned with “such matters of conscience as life and death, good and evil, being and nonbeing, right and wrong.” What is impermissible is for the state to decide that one set of answers to these questions is the correct set.

The precise character of the good being promoted is itself deliberately left vague, because the broad consensus on freedom of religion would surely collapse if we had to state with specificity the value promoted by religion. “Religion” denotes a cluster of goods, including salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists), responding to the fundamentally imperfect character of human life (if it is imperfect), courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps), a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps), contact with that which is awesome and indescribable (if awe is something you feel), and many others. The establishment clause permits the state to favor religion so long as “religion” is understood very broadly, forbidding any discrimination or preference among religions or religious propositions.

This understanding makes it possible to defend accommodations without running into the free exercise/establishment dilemma. The state is recognizing the value of religion, but it is making no claims about religious truth. It is the making of such claims that violates the establishment clause. But it is possible to use the term “religion” intelligibly without making such claims. We don’t have a precise definition because we don’t want one. The vagueness is deliberate, and it is wise.

No, Sam Brownback Doesn't Believe in Evolution


Sam Brownback's essay in today's New York Times is an op-ed written by a skillful politician, trying to make the reader believe that he is merely attacking the materialistic and deterministic emphasis in science without doubting evolutionary processes, when in fact the real problem is that he just doesn't believe in evolution at all. The key passage is here:

The question of evolution goes to the heart of this issue. If belief in evolution means simply assenting to microevolution, small changes over time within a species, I am happy to say, as I have in the past, that I believe it to be true. If, on the other hand, it means assenting to an exclusively materialistic, deterministic vision of the world that holds no place for a guiding intelligence, then I reject it.

Brownback is denying that humans have a common ancestor with other species, because he only agrees to small changes within a species. The rest of the discussion, about materialism and determinism distracts from this central point. It offers a false dichotomy. One might think that the hand of God is involved in evolution in some way and still believe that mankind evolved from previous forms of life. It is this latter point that Brownback wishes to deny, because he wants to insist that mankind is special. As a result, he is willing to acknowledge only that species might experience "microevolution," i.e., small changes, without evolving into new species.

Brownback's views are clever political sophistry, claiming to reject a false choice, but in fact offering his own false choice. He is not a defender of faith against science. He is a defender of ignorance.

A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," Part III


This is Part Three of my review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," 120 Harv. L. Rev. 1737 (2007), in which he revises his theory of constitutional moments. [You can read Part I here, Part II here, Part III here, and Part IV here.]

Previously I noted that Ackerman redescribes the political events leading up to the 1968 election to fit them into his five part schema of signaling event, constitutional proposal, triggering election, ratifying election and consolidation. The key move is to argue that the Democrats' loss and Richard Nixon's victory actually confirmed the Civil Rights Revolution, because George Wallace lost, and he wanted to undo that revolution. According to Ackerman's model, if either Nixon or Humphrey won, that would ratify that a significant constitutional transformation had occurred.

Ackerman does not make clear in his lectures whether the Civil Rights Revolution constitutes a regime change that initiates a Fourth Republic to follow the Third Republic of the New Deal. My understanding, however, is that this constitutional moment is merely a "constitutional solution." It is a little more important than the creation of legislative-executive agreements in the mid 1940's, but it is not a full scale change of constitutional regimes like what occurred during Reconstruction and the New Deal.

A second innovation in Ackerman's original argument is the idea of "media politics." Previously, Ackerman had insisted that constitutional revolutions are spearheaded by movement-parties, political parties that are taken over by social movements and that seek significant change. (p. 1760). Ackerman has distinguished his theory from Sandy Levinson's and my partisan entrenchment theory precisely on the grounds that we do not sufficiently recognize the decisive significance of movement parties in constitutional revolutions. (p. 1811 n. 223).

One reason why Sandy and I don't insist on movement parties in constitutional change is that some movements don't conform to a single party and some changes occur gradually as the result of cumulative partisan entrenchments. Moreover, we argue that We the People don't necessarily have to consciously understand these changes as the result of following Ackerman's five stage schema. We regard this as a distinct advantage of our theory. The Civil Rights era is a good example.

Ackerman's new account of the Civil Rights Movement now accepts our basic point that movement parties are not always necessary, although, puzzlingly, he continues to criticize us on this score. (p. 1811 n. 223). He recognizes that the Civil Rights revolution was not the work of a single movement party. The Presidential wing of the Democratic party and its liberal Democratic allies needed liberal and moderate Republicans to gain votes for the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Conservative Democrats in the South opposed both measures. (p. 1787).

Thus, in his new schema, Ackerman abandons the idea of a movement party as an explanation for constitutional change. He points out that the Civil Rights Movement, and particularly Dr. Martin Luther King, used "media politics" as an alternative to a "movement party" as an engine for higher law making. (p. 1787). This helped produce a bi-partisan coalition for the Civil Rights Act and the Voting Rights Act. Moreover, it explains why the election of a Republican, Richard Nixon, in 1968 (Nixon was a moderate on civil rights) could be a ratifying election.

The problem is that this move to "media politics" seems to emerge like a rabbit pulled out of a hat. First, it is not clear exactly what its contours are. Second, Ackerman has not yet connected it to other examples of constitutional transformation so that we can be sure that it isn’t merely an ad hoc solution to this particular historical situation. Ackerman needs to give a more developed account of why movement parties aren't essential, as they had been in all of his other historical examples of constitutional transformation. The answer he gives is just that history didn't turn out that way. We the People simply spoke differently in this time period. That may be true as a descriptive matter, but the exception is not yet well integrated into his system.

I think the best argument for Ackerman's new position is that Presidential leadership is more important than a movement-party in pushing for constitutional change. Even if a unified Democratic Party was not necessary, President Johnson's leadership was indispensable in pushing for the Civil Rights and Voting Rights Acts. Under this account, we must treat Reconstruction as the exceptional situation, not the Civil Rights Revolution. Reconstruction did not involve Presidential leadership because of Lincoln's assassination. In fact, during Reconstruction, Andrew Johnson was the conservative institution whose resistance produced a constitutional crisis; after his impeachment, Johnson backed down, leading to major constitutional change, in particular, the ratification of the Fourteenth Amendment. Thus, one might argue that constitutional change outside of Article V amendment requires Presidential leadership; failing that, such change might succeed in extraordinary circumstances through Congressional leadership with only a movement party. But of course, the Reconstruction Republicans succeeded only because they were able to purge Congress of Southern Senators and Representatives. It is unlikely that this solution will be easily repeated in the future.

There is another way in which the Civil Rights Revolution seems different than Ackerman's previous historical examples of constitutional transformation. In the case of Reconstruction and the New Deal Ackerman emphasized the importance of conservative resistance by one branch of the national government, either the President (during Reconstruction) or the Court (during the New Deal). Because of what Ackerman calls the "paradox of resistance," this conservative opposition raised the stakes for the movement party, brought matters to a head and helped generate a significant constitutional transformation. But in the Civil Rights Movement, nobody with any significant power seems to be holding back the tide. The closest substitute would be the Dixiecrats in the Democratic Party, who ultimately give way in 1964 and allow the Civil Rights Act to pass. George Wallace, who was a Dixiecrat, ran for the White House as an independent in 1968. He gained only 13.5 percent of the vote, so it's not clear why he played the same role as either the Supreme Court in 1937 or Andrew Johnson in 1868. If anything, Wallace seems to have posed a threat to (and ultimately spoiled) the Democrats’ victory. Nevertheless, after the Voting Rights Act, he was not a serious threat to the victory of the Civil Rights Revolution as a whole.

Ackerman’s best argument is that Wallace might have thrown the election into the House of Representatives. (pp. 1783-84). Then he might have cut a deal with Nixon offering him the Presidency in return for repeal of the Civil Rights and Voting Rights Acts. Yet Ackerman notes that Nixon did not try to attack the Civil Rights Acts or Brown to head off the threat from Wallace. One reason for that might be that Ackerman has mis-described what the 1968 election was about. The major issues in the 1968 campaign were not the Civil Rights Act but Vietnam, on which Wallace had far less to say; busing, on which Nixon and Wallace largely agreed; and law and order, on which Nixon and Wallace also largely agreed. Following Wallace’s selection of Curtis LeMay as a running mate in October 1968, his poll numbers dropped. Many voters viewed LeMay as a dangerous choice that reflected badly on Wallace; they saw Nixon as a better and safer alternative. In any case, Ackerman needs to say more about why Wallace was a genuine threat to derail the Civil Rights revolution in 1968 and whether and how the Dixiecrats "backed down" in the same way that the Court did in 1937 or Andrew Johnson did in 1868.

The Civil Rights Revolution does not appear to involve a scenario in which two branches were fighting against a third, but rather one where all three branches of government were moving in the same direction, what I have called the "constitutional trifecta." To generate a scenario closer to the New Deal, Ackerman imagines what would have happened if the Warren Court had struck down the Civil Rights Act. But it is hard to credit this counter-history. We are dealing, after all, with the Warren Court, one of the most liberal in American history. There was no one on the Court who thought that the Civil Rights Act was unconstitutional, in part because all of them were either New Dealers or had made peace with the New Deal. Moreover, once Goldberg replaced Frankfurter and White replaced Whittaker in 1962, there was a six person liberal majority for civil rights legislation (I should note, however, that one of the six, Hugo Black, dissented in South Carolina v. Katzenbach). Partisan entrenchment, and not the 1964 election, is probably the best explanation for why the Court upheld the Civil Rights and Voting Rights Acts. Given the personnel on the Court following Kennedy's two appointments in 1962-- Goldberg and White-- it was almost a foregone conclusion that Congress’s’ civil rights acts would be upheld.

In fact, partisan entrenchment offers a much better account in general of the entire Civil Rights Revolution, including the major changes in criminal procedure, first amendment, and equal protection doctrine. Even without the more moderate Byron White, there was still a solid five person majority for most of these changes. After 1967, when Thurgood Marshall replaces Tom Clark, there are six liberal votes on most issues with either Black or Warren sometimes switching their votes.). It is no surprise that the Warren Court produces a string of liberal decisions if you regard it as the judicial wing of Kennedy-Johnson liberalism with a solid liberal majority due to cumulative partisan entrenchments. This is the simplest explanation for what happened, and it lets you see the relationship between the decisions upholding Congress’s power to pass civil rights statutes and the decisions upholding individual rights against state governments.

Similarly, from the standpoint of the theory of partisan entrenchment, 1968 isn’t a great ratifying election. It’s the beginning of the end for the Democrats' constitutional trifecta and for Kennedy-Johnson liberalism. Democrats lose the liberal consensus in the country, in part because of Vietnam, in part because of urban rioting, and in part because of intra-party infighting. 1968 does not look like much of a “ratifying election” precisely because the country’s consensus seems to fracture at just this point. 1968 is the year in American history when things fall apart– it is the first great election of the culture wars, not an election featuring the endorsement of a unified American people. Ackerman’s theoretical schema– which treats the 1968 election as the ratification of a new consensus like the 1940 election-- forces history into a mold into which it does not really fit.

In short, partisan entrenchment offers a better explanation than Ackerman's new schema for the Supreme Court's eagerness to uphold the Civil Rights Act and the Voting Rights Act, and, indeed, for the Civil Rights Revolution construed more broadly. By 1962, everyone on the Court supported the New Deal settlement, and the Court was eager, as it normally is, to cooperate with the dominant national political coalition, which, in this case, was Kennedy Johnson liberalism. After the 1968 election, the Court still had six solid liberal votes, and it took four Nixon appointments to slow it down and bring it back into line with vector sum of forces in the country, which was slowly shifting back toward the right.

In the fourth and final installment, I'll talk about yet another important innovation in Ackerman's theory-- how Ackerman has changed the focus of his theory from a concern with amendments outside of the requirements of Article V to a new concern with the constitutional canon.

Wednesday, May 30, 2007

Zelikow on "Legal Policy for a Twilight War" and an Alleged New Bush "Paradigm"

Marty Lederman

As noted below, the Times today reported on a lecture last month delivered by Philip Zelikow, Executive Director of the 9/11 Commission and, until recently, a close advisor to the Secretary of State. The lecture, entitled "Legal Policy in a Twilight War," was delivered at the University of Houston Law Center on April 26th and can now be read here.

I don't have time right now to blog about the many issues raised in this important lecture, but for a couple of brief reactions:

-- At the end of the lecture, Zelikow claims that even before the Hamdan decision in June 2006, which clarified that the CIA program was unlawful, a "transition" in the U.S. approach to the war against Al Qaeda, and interrogation in particular, "was already well underway in 2005 and all the main options had been fully developed before the Supreme Court ruled." Accordingly to Zelikow, the Executive branch "has made a comprehensive adjustment in its approach to the conduct of the armed conflict and associated operations against violent Islamist extremist groups such as al Qaeda."

The "new paradigm" that Zelikow describes has at least nine specified elements. I have a feeling that this is a bit of wishful thinking -- that although the "new paradigm" Zelikow describes surely is the preferred plan of action favored by the State Department, it is not necessarily the one the President will adopt, largely because of intense opposition from the Vice President's Office.

Why do I say this? Well, for one thing, one of the elements Zelikow identifies is an alleged decision "that America does intend to close Guantanamo," at least once it decides "how to replace and improve the Guantanamo detention system." This was, to be sure, the proposal favored by Secretaries Gates and Rice. But if press reports are to be believed, the President rejected this view, on the advice of Cheney and Gonzales:
Mr. Gates’s arguments were rejected [by the President] after Attorney General Alberto R. Gonzales and some other government lawyers expressed strong objections to moving detainees to the United States, a stance that was backed by the office of Vice President Dick Cheney, administration officials said. . . . Some administration lawyers are deeply reluctant to move terrorism suspects to American soil because it could increase their constitutional and statutory rights — and invite an explosion of civil litigation. Guantánamo was chosen because it was an American military facility but not on American soil.

Also, Zelikow claims that another element of the new "paradigm" is to reserve military commission trials for the big fish directly involved in terrorist activities, against whom such trials have historically been used -- "for major war criminals and al Qaeda’s leaders, not Osama’s driver."

So much for that element of the "paradigm."

As for interrogation techniques in the alleged new paradigm, Zelikow refers to a decision "to transition such a special interrogation program so that it has different capabilities, different goals, and different methods. Guidelines for future treatment of such captives will be developed in consultation with Congress so that the Executive can sustain an important intelligence collection program for the future." He also claims that a decision has been made to put the CIA program "in a more durable legal framework" that will "reiterate[] America’s commitment against torture, but also accepts, as a minimum standard, that America will adhere to common Article III of the Geneva Conventions."

It remains to be seen whether the Administration will adhere to these aspirations. The imminence of the draft Executive Order reauthorizing CIA "enhanced" techniques that will almost certainly violate Common Article 3 is surely not an auspicious omen.

-- The principal thrust of Zelikow's lecture is that many of the decisions in this armed conflict, especially concenring interrogation methods, have been too dominated by legal determinations. In this respect, Zelikow is critical of both the Administration officials and its critics -- he strongly believes that far too much attention has been paid to questions of what is legal, and not remotely enough to questions of what is moral, and what the practical and long-term costs might be of adopting certain policies.

"[M]y argument," writes Zelikow, "is that the substitution of detailed legal formulations for detailed moral ones is a deflection of responsibility."

Surely that is correct. The fact that something is (arguably) legal does and should not come close to resolving the question of whether that course of action should be adopted. And all too often in this Administration, it has appeared as though once the lawyers developed a legal justification, it was all-systems-go, damn the consequences, with little regard for any moral calculus or a serious long-term view of the potential costs.

But it does not follow that the law is unimportant, or that critics of the Administration -- who have not been shy about relying on moral, pragmatic, diplomatic and strategic arguments, as well -- should abjure the resort to legal arguments. After all, if something is illegal -- such as the cruel treatment proscribed in Common Article 3 -- that ought to be the end of the discussion of whether to employ such a technique. The question of legality, in other words, does not, as Zelikow suggests, "obscure[] the core of the issue," any more than it displaces the "core" moral and pragmatic questions. Rather, it precedes those core questions, and might, as in this case, actually preclude the need to fight about such core issues in cases where there might be dissensus within the government.

-- Finally, some important excerpts:
These dilemmas are not new in American history. There is a long history of experience with questioning captives, both in law enforcement and in several recent American wars. I n World War II, for example, the United States had a special program for high-value captives; the British had a comparable program. The threats were very great; the fate of thousands of lives could hang in the balance in many ways and on many issues (from antisubmarine warfare to A-bomb research to campaign plans, etc.). There was much trickery and deception. But, as far as I know, neither government found it necessary to use methods analogous to those our government has more recently chosen. Some of these periods, like World War II, were hard and degrading. The moral climate was not quaint. Horrifying methods were authorized to win the war. But men like Henry Stimson or George Marshall – or Winston Churchill -- did not rely on lawyers to tell them what was right and wrong. It is difficult to imagine such men recommending analogous interrogation techniques for President Roosevelt, much less doing the clever work of developing and designing them.

Good intelligence can be gained by physically tormenting captives. Some critics argue that physical coercion is always worthless and elicits garbage. This goes too far. Various experiences have shown that these methods can have value in breaking captives, and in doing it more quickly. But the issue of how to obtain intelligence from questioning captives is a first-class intelligence collection problem. In every sense, it deserves the same professional attention that the United States devotes to its most important and powerful collection systems – like those we use for signals and imagery. . . . The Israelis and the British have considerable recent experience with all the pros and cons, much of it a process of painful trial and error. . . . It is not evident that those who developed such methods, mainly at the CIA, drew on the available evidence and applied adequate professional analysis to consider it. From the evidence available in the unclassified literature, in 2002 the CIA had little organizational capability or experience in the interrogation of hostile captives. The FBI and other law enforcement agencies had much more relevant experience. The Department of Defense had some. Everyone knows the scenario of the imminent terrorist operation that can be averted with desperately tough methods. But the ‘ticking time bomb’ scenario is mainly the invention of scriptwriters.

Intelligence is usually more of a patiently assembled mosaic, where many pieces are usually missing, and leads are pursued to find more pieces. And even broken captives can reveal much, while hiding a little. The administration cites examples of people who have been caught or operations that may have been stopped. It would be useful to have a professional, objective analysis of such successes in order to determine and illustrate the contributions of various forms of intelligence. In such an analysis, the elementary question would not be: Did you get information that proved useful? Instead it would be: Did you get information that could have been usefully gained only from these methods? --

[A] special intelligence program can actually derive its main added value from the readiness to devote a great deal of individualized time and expert attention to a high-value captive -- not from coercing him. No institution would benefit more from such an objective appraisal than the CIA itself. A reputation for relying on physical coercion can have some benefits, of course. But, over the long-run, it might be better for the institution if CIA was regarded as special for its willingness to apply patient, labor-intensive expertise, rather than a (largely false) reputation of having the opposite preference. Finally, once the gain from coercive techniques is better and more professionally understood, there is still the next step in the policy analysis, of balancing these gains against the moral stain and the political cost of relying, or appearing to rely, on physical torment.

Rationing Medical Care for the Poor

Guest Blogger

Anne Alstott

There is another sleazy game afoot in Washington, but this time both parties are complicit. The open secret is that Medicaid, the federal-state program that promises medical and dental care to poor children (among others), predictably fails to deliver promised services, because payment rates for providers are set at below-market levels.

I have a piece in Slate discussing the horrific case of Deamonte Driver, a twelve-year-old Maryland boy who died for lack of dental care. Medicaid dental care is just one example of a formal entitlement that is undercut by below-market pricing. Economics 101 teaches that setting a price below the market-clearing level will produce a shortage. In that sense, the shortage of Medicaid dental care is not accidental – it is engineered. The Medicaid law uses the language of entitlement, and indeed, Deamonte was formally covered by Medicaid. But there is a disconnect between the concept of entitlement and the use of a market mechanism for allocating services. Markets don't understand entitlements; they understand pricing.

My point isn't that rationing in any form should be condemned. Scarcity is omnipresent, and while I'd contend that redistributing resources to provide medical care to children is a social good, society has to fund other social goods as well. But hidden rationing permits political elites to engage in hypocrisy.

The cynical corollary, of course, is that hidden rationing is pervasive in social welfare programs precisely because it has advantages for politicians. My visiting colleague, David Super, has an excellent 2004 article on hidden rationing in TANF and related programs. As he points out, "[s]ystems that lead to procedural denials of substantively eligible claimants, that discourage claimants from seeking or continuing to receive benefits, or that give third parties influence over whether a claimant will receive benefits also have a rationing effect."

David's theme is that rationing in these ways shifts blame to individuals and makes their failure to access benefits a matter of personal choice: she didn't show up prepared for her fair hearing; he failed to submit his lease in triplicate by the first of the month; they refused to miss a day of work to wait in line all day to see a caseworker; and so on. Rationing in this way could in theory be benign, if the people who are filtered out are those for whom the benefits at stake are minimally valuable. But hidden rationing can also, perversely, screen out the most vulnerable – those unable to articulate their case at a hearing, or unable to understand complicated English paperwork, or frightened of being fired if they leave work for a day. In such cases it is the least advantaged who lose out.

As I discuss briefly in the Slate piece, there are a number of possible solutions to the Medicaid dental coverage issue, including (obviously) setting payment rates at market levels. But thinking more broadly, one of the contributing pathologies is that government budgeting takes a libertarian form. The budget for Medicaid, TANF, or any other government program focuses on the outflow of "taxpayers' dollars." Politicians on all sides struggle to minimize budgetary cost, with the focus squarely on dollars spent and taxes raised.

There is no reason to privilege the libertarian budget. An alternative form of budgeting might focus instead on services actually received by poor children in TANF or Medicaid. A services budget could reveal the level of care poor children actually receive (meals provided, trips to the doctor and dentist, and so on). To make the information intelligible, the measures might focus on gaps in the services received by poor children relative to a baseline of appropriate care. For instance, reading that fewer than a third of Medicaid children received any dental care at all in 2005 is a statistic that leaps out for any middle-class parent, who knows that their dentists expect to see every child twice a year. Today, this kind of information may or may not be available, but even when it is, it is left to advocacy groups to dig out the data and make their case.

I am not naïve enough to suppose that a services budget could magically transform the libertarianism that underlies American social policy. But an alternative presentation could help disclose the gaps between nominal entitlements and real services.

Religion isn’t that good

Andrew Koppelman

I argued in a previous post that, in order to offer a coherent account of the religious clauses, it is necessary to define the Establishment Clause less abstractly than the Court has, in order to permit the special treatment of religion that is mandated by the Free Exercise Clause.

Among the members of the Supreme Court, Justice Scalia has pursued this strategy most assiduously. The solution he and others have proposed is to read both clauses at a much lower level of abstraction than the Court has read them. Justice Scalia, Chief Justice Rehnquist, and Justice Clarence Thomas have all suggested that the Establishment Clause should be read only to prohibit favoritism among sects, while permitting states to favor religion over irreligion. Of this group, Justice Scalia has offered the clearest formulation of the alternative rule:

“[O]ur constitutional tradition . . . rule[s] out of order government-sponsored endorsement of religion . . . where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ).”

Justice Scalia’s logic is powerful. He reasons as follows: The Free Exercise Clause singles out religion as such for special benefit. Therefore, it is not possible to coherently read the Establishment Clause as prohibiting the singling out of religion as such for special benefit. “What a strange notion, that a Constitution which itself gives ‘religion in general’ preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general.” It must, then, be permissible for the government to favor religion as such. Accommodation, however, must not be sectarian; accommodations, if granted, must be extended evenhandedly to differing theisms. Thus Justice Scalia’s revision would free the Court’s reading of the religion clauses from self-contradiction.

More recently, in McCreary County v. ACLU, dissenting from a decision barring one ceremonial display of the Ten Commandments, he frankly acknowledged that ceremonial theism would entail “contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs.” The Commandments “are assuredly a religious symbol, but they are not so closely associated with a single religious belief that their display can reasonably be understood as preferring one religious sect over another. The Ten Commandments are recognized by Judaism, Christianity, and Islam alike as divinely given.” Justice Stevens noted that “[t]here are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance. Scalia (here joined by Rehnquist, Thomas, and Kennedy) retorted that “The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not).” Justice Scalia thus envisions a role for the Court in which it decides which articles of faith are sufficiently widely shared to be eligible for state endorsement (and in which judicial ignorance is a source of law!). Evidently, the state may endorse any religious proposition so long as that proposition is (or is believed by a judge unacquainted with doctrinal niceties to be) a matter of agreement between Judaism, Christianity, and Islam. It would, for instance, be permissible for the state to declare that Gabriel is the most important of the archangels. The interpretation of the establishment clause would then depend on the further development of the Moslem idea of the People of the Book – those who have received a revelation that is deemed (formerly by the Koran, now by the Supreme Court) to be reliably from God.

Scalia’s solution will not work, because it discriminates among religions. Chief Justice Rehnquist thought that the establishment clause forbids “asserting a preference for one religious denomination or sect over others.” Justice Scalia agrees: “I have always believed, and all my opinions are consistent with the view, that the Establishment Clause prohibits the favoring of one religion over others.” Not all religions involve a belief in “a benevolent, omnipotent Creator and Ruler of the world.” Scalia’s formulation does discriminate among religions. Christians, Jews, and Moslems are in; Hindus, Buddhists, and atheists are out. And the outs are a lot of people. Justice Scalia defended his approach by noting that the monotheistic religions “combined account for 97.7% of all believers.” But it is difficult to see how statistics support endorsement at just the level of abstraction he proposes: official Christianity isn’t permissible, but official monotheism is. In a nation of 300 million, there are only 5,764,000 Jews, and 4,657,000 Moslems. There are 1,144,000 Hindus, 1,424,000 atheists, and 2,721,000 Buddhists. Will the Establishment Clause change when the number of Hindus and Buddhists approaches the number of Jews and Moslems?

Scalia’s logical point, however, remains a sound one. If religious accommodation is to be permissible, then it must be possible to favor religion at some level of abstraction. How, then, can we define the “religion” that the state is permitted to promote? I’ll try to answer that in my next post.

"Cool, Carefully Considered, Methodical, Prolonged and Repeated Subjection of Captives to Physical Torment, and the Accompanying Psychological Terror"

Marty Lederman

That's the description of the CIA "enhanced interrogation" program by someone who has studied it -- Philip Zelikow, the Executive Director of the 9/11 Commission and, until recently, a close advisor to the Secretary of State. In what the New York Times describes as a "blistering lecture" delivered in April, Zelikow called the program "immoral."

The Times piece brings together at least three interesting stories. The first is the Zelikow lecture. Oddly, the Times story does not disclose where the lecture was delivered. Presumably it was this lecture, "Legal Policy in a Twilight War," delivered at the University of Houston Law Center on April 26th, but I have not been able to find the lecture itself online. (If anyone knows of it . . . .) [UPDATE: The lecture is here. I offer a couple of preliminary comments here.)

The second story is that the Bush Administration is "nearing completion" of a long-delayed executive order that will set the new rules for interrogations by the CIA. According to the story, "the order is expected to ban the harshest techniques used in the past, including the simulated drowning tactic known as waterboarding, but to authorize some methods that go beyond those allowed in the military by the Army Field Manual."

The article states that the Executive Order will be "secret." However, to the extent this order comprises or includes the President's interpretation of Common Article 3's prohibition on "cruel treatment and torture," as contemplated by the Military Commissions Act, section 6(a)((3)(B) of that Act requires that the Executive Order be "published in the Federal Register."

The third story is that the Intelligence Science Board Senior Advisory Group on Educing Information, which advises the Director of National Intelligence and secior leaders in the government inteliigence community, issued a 325-page report last December in which it argues that "the harsh techniques used since the 2001 terrorist attacks are outmoded, amateurish and unreliable":
The psychologists and other specialists, commissioned by the Intelligence Science Board, make the case that more than five years after the Sept. 11 attacks, the Bush administration has yet to create an elite corps of interrogators trained to glean secrets from terrorism suspects. While billions are spent each year to upgrade satellites and other high-tech spy machinery, the experts say, interrogation methods — possibly the most important source of information on groups like Al Qaeda — are a hodgepodge that date from the 1950s, or are modeled on old Soviet practices.

Some of the study participants argue that interrogation should be restructured using lessons from many fields, including the tricks of veteran homicide detectives, the persuasive techniques of sophisticated marketing and models from American history.

The science board critique comes as ethical concerns about harsh interrogations are being voiced by current and former government officials. The top commander in Iraq, Gen. David H. Petraeus, sent a letter to troops this month warning that “expedient methods” using force violated American values.

In a blistering lecture delivered last month, a former adviser to Secretary of State Condoleezza Rice called “immoral” some interrogation tactics used by the Central Intelligence Agency and the Pentagon.

But in meetings with intelligence officials and in a 325-page initial report completed in December, the researchers have pressed a more practical critique: there is little evidence, they say, that harsh methods produce the best intelligence.
The Report contains a wealth of valuable information, including with respect to the history of U.S. interrogation practices in previous armed conflicts, such as the program used against German captives in World War II.

It is well worth reading.

I should note, however, that it is not really breaking news. The Report was issued more than five months ago, and it was discussed a bit in January, such as in this story by Josh White of the Washington Post, and by the Federation of American Scientists and Andrew Sullivan. The Zelikow lecture and the possible imminence of the Executive Order are the real breaking stories, and yet for some reason the Times has downplayed them in its article.

A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," Part Two


This is Part Two of my review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," 120 Harv. L. Rev. 1737 (2007). It describes how Ackerman has made significant changes in his theory of constitutional moments in order to explain the Civil Rights Revolution. [You can read Part I here, Part II here, Part III here, and Part IV here.]

Yesterday I pointed out that Ackerman has abandoned his previous view that the Civil Rights Revolution was a "failed constitutional moment" because the Democrats lost in 1968 and 1972. He now argues that the revolution fits his five part schema for legitimate constitutional transformations. The 1954 decision in Brown v. Board of Education is the triggering event, the 1964 Civil Rights Act and its constitutionality is the proposal, Lyndon Johnson's landslide election victory in 1964 is the triggering election. Ackerman argues that the 1968 election, which the Democrats lost, ratified the Civil Rights Revolution. We left off by asking how that could be. After all, Hubert Humphrey, not Richard Nixon, was the great champion of civil rights. In fact, Nixon, who tried to court some of George Wallace's voters, ran against both busing and the Warren Court.

Ackerman's answer is that Nixon also supported the Civil Rights Revolution, including Brown, the Civil Rights Act and the Voting Rights Act, just not with the same fervor as Humphrey and the liberal Democrats did. (p. 1784) Ackerman's point is that Nixon's victory ended serious debate about whether the new civil rights statutes were constitutional, in the same way that the 1940 election settled the constitutionality of the New Deal. (In a sort of bankshot effect, legitimizing the Civil Rights Act also legitimized Brown). Nixon then consolidated the Civil Rights Revolution by supporting enforcement and institutionalization of the civil rights and voting rights acts, and creating new affirmative action programs. (pp. 1784-85). This is the final stage of the schema, akin to the creation of new superprecedents like United States v. Darby and Wickard v. Filburn following the 1940 election.

To show why Nixon's election is the ratifying event, Ackerman contrasts Nixon's position with George Wallace, who won about 13.5 percent of the vote in 1968. (p. 1784 n. 148). Wallace clearly wanted a rollback of the Civil Rights Revolution. The fact that he won only a fraction of the vote shows, Ackerman claims, that the public decisively rejected his challenge. However, because Nixon and not Humphrey won, this meant that the Civil Rights revolution that was ratified was more moderate than the Democrats wanted. It involved Brown and the civil rights statutes, but not busing, which Nixon ran against.

This last point raises a difficulty with Ackerman’s story. Busing continued during Nixon's presidency and thereafter; It was even recognized as a legitimate remedy in Swann in 1971 and extended during the 1970's. Busing was highly unpopular but it continued for many years. Congress passed laws limiting busing (which were never enforced), and the Court limited the effective reach of busing in 1974 in Milliken v. Bradley by greatly limiting the possibility of court-ordered remedies that combined the suburbs and the inner cities. But the federal courts continued to uphold and implement busing orders throughout the 1970s and even though the Reagan years. The real slow down on busing began years after Nixon left office. It's hard to see the civil rights revolution as it actually occurred tracking closely to Nixon's platform in the 1968 election.

Nixon also clearly ran against the Warren Court revolution in criminal procedure. Yet the criminal procedure revolution remains with us to this day. Finally, the Civil Rights Revolution did not stop with 1968. The Court read the equal protection clause to protect aliens, illegitimates, and later women. These don't seem to follow from the revolution that Nixon's election ratified. Nor does the expansion of first amendment doctrines or the revolution in establishment clause jurisprudence. If these doctrines are legitimate, it must be for other reasons. Ackerman could try to explain them as appropriate forms of intergenerational synthesis from other constitutional moments. However, to do this, he has to read the Civil Rights Revolution very narrowly. It was not about all these other rights. They were only accidentally connected in time. The Civil Rights Revolution was primarily about race and it was primarily about the constitutionality of statutes regulating private discrimination and guaranteeing the right to vote.

In this sense, Ackerman’s story not only offers a very limited vision of what the Civil Rights Revolution was, he also views it through the lens of what happened during the New Deal. The New Deal was primarily about judicial restraint and expanding federal power; it held constitutional laws that in a previous regime would have been considered unconstitutional. In Ackerman’s version of the Civil Rights Revolution, Congress now had the power to pass the Civil Rights Act and Voting Rights Act, whose constitutionality before the 1960's would have been doubtful. This is a very narrow view of the Civil Rights Revolution. It omits almost all of the so-called “liberal judicial activism” that people associate with the Warren Court. However, Ackerman’s reading does have one advantage: it foregrounds the administrative implementation of the Civil Rights Revolution in the administrative state, particularly by the Nixon Administration. And it also foregrounds that the Civil Rights Revolution was most successful in changing the workplace, places of public accommodation, and access to the ballot.

In the next installment, I'll discuss how Ackerman abandons the idea of a movement-party which was central to his previous version of the theory of constitutional moments, and moves to a new model of constitutional politics in order to explain the Civil Rights Movement.

Tuesday, May 29, 2007

Politicizing the Selection of Immigration Judges

Marty Lederman

Emma Schwartz and Jason McClure of Legal Times fill in most of the details, including about the civil lawsuit that prompted the Civil Division to object to the Bush DOJ view that the appointments were not protected by the civil service laws.

For more information on the legal question, see the UPDATE to this post.

One of Those Rare Instances in Which the Nazi Analogy is Unavoidable

Marty Lederman

Andrew Sullivan describes the uncanny and chilling correspondence between the Gestapo's "enhanced" (or "sharpened") interrogation techniques, and those that have been officially authorized and used by the United States over the past few years. Not only are the techniques, and the nomenclature, of a piece -- but so are the legal and ethical justifications offered in their defense.

In general, I'm a big believer in Godwin's Law. And the fact that what we're doing is eerily reminiscent of the Gestapo -- and of conduct that the United States has readily and uncontroversially deemed "torture" and war crimes when employed by repressive regimes (and U.S. forces) in the past -- should not be the final word, cutting off all further discussion. Of course, the fact that the Gestapo did something -- even something that was treated as a war crime -- does not necessarily mean that it is wrong or that we should condemn it.

But surely it ought to give one pause. And make one wonder about a major political party debate in which the candidates eagerly brag of their willingness to emulate the Gestapo -- and in which the audience lustily cheers them along.

Andrew Sullivan:
Critics will no doubt say I am accusing the Bush administration of being Hitler. I'm not. There is no comparison between the political system in Germany in 1937 and the U.S. in 2007. What I am reporting is a simple empirical fact: the interrogation methods approved and defended by this president are not new. Many have been used in the past. The very phrase used by the president to describe torture-that-isn't-somehow-torture - "enhanced interrogation techniques" - is a term originally coined by the Nazis. The techniques are indistinguishable. The methods were clearly understood in 1948 as war-crimes. The punishment for them was death.
One other thing, of a more legal nature:

As Andrew has argued repeatedly, and as Greg Djerejian has recently explained, some of these techniques do constitute "torture" under federal law, at least in some circumstances. Unfortunately, however, Congress imposed some limiting elements on the statutory definition of torture that are not found in international law, which makes the legal question in some cases more complicated than it ought to be; and, more importantly, OLC has gone even further, and come up with a reading of the torture statute under which even waterboarding would not be torture -- a reading that I've argued is plainly wrong.

Be that as it may, however, Andrew and Greg are asking the wrong question. Metaphysical and political debates about where, exactly, the line is between torture and quasi-torture may matter for purposes of criminal penalties. But such line-drawing is unnecessary if the primary question is, as it should be, whether the President can authorize the CIA to use these techniques going forward.

Even if some of these techniques are arguably short of legally defined "torture" in some cases, surely they are the sort of "cruel treatment" that the Geneva Conventions prohibit -- particularly when one recalls that those treaties were written largely with Germany's practices in mind. (The techniques might also, at least in many cases, violate the federal assault law and the McCain Amendment, as well.) And therefore the techniques are plainly unlawful -- and a President committed to faithful execution of the law would not authorize their use by the CIA -- whether or not they are subject to the criminal sanctions reserved for "torture" as such.

A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution", Part One


My colleague Bruce Ackerman's Holmes Lectures have now been published in the Harvard Law Review as "The Living Constitution," 120 Harv. L. Rev. 1737 (2007). In my view, this is scholarly innovation of the first rank, as important as any in this very distinguished series of lectures. As I describe the major themes in this review, you will instantly see that they raise a new agenda for discussion about constitutional law and constitutional theory. They are generative scholarship in the best sense.

In these lectures Ackerman substantially revises his theory of constitutional moments and makes some very interesting new theoretical moves. What follows is a review of the lectures and some criticisms, offered from the standpoint of Sandy Levinson's and my competing account of constitutional change, the theory of partisan entrenchment. (Partisan entrenchment argues that revolutions in constitutional doctrine come from cumulative judicial appointments by Presidents who seek to move doctrine in favored directions by stocking the courts with ideological allies.).

I'll divide the analysis of the changes in Ackerman's theory into four parts, spread out over the week. [You can read Part I here, Part II here, Part III here, and Part IV here.]

In my view Ackerman improves and enriches his original account of constitutional moments in important ways, but at the cost of complicating his system and creating many new theoretical problems. I will try to show that partisan entrenchment offers a simpler and more compelling explanation. Of course, Ackerman’s system is trying to do much more than Levinson’s and my theory. We are merely trying to show how doctrinal change occurs. He is trying to offer a theory that both describes and legitimates constitutional change as a act of popular sovereignty. In choosing between the two accounts, it is important first to decide what you want your theory of constitutional change to do. Levinson and I offer a much simpler theory-- with fewer moving parts– that assumes that not all great transformations are necessarily faithful to the Constitution, legitimate, wise or just. At best, partisan entrenchment produces results that are roughly but imperfectly democratic, because they tend to keep the courts in sync with the dominant national political coalition of the time. Ackerman’s theory has many more complications and assumptions, but he wants to legitimate constitutional transformations, not simply explain why they occur.

Ackerman wrote these lectures in part to come to terms with what some people had regarded as a serious flaw in his theory. He could not account for the significant changes in our constitutional values that came from the Civil Rights Revolution of the 1960's. In fact, in one of his earlier accounts, Ackerman described the 1968 election as a "failed constitutional moment." The reason is fairly obvious if you know the basic premise of his system of constitutional change: Constitutional revolutions occur when We the People keep returning a movement-party to power so that they ultimately overcome resistance by competing institutions who are defending the old order of constitutional understandings. Eventually, all three branches of government concur, and the new revolution is consolidated.

From this standpoint, it is easy to see why Ackerman originally did not think that the Civil Rights Revolution-- led mostly by liberal Democrats-- had succeeded in his terms. In 1960 the Democrats were not the party of civil rights. The Republicans had just as much of a claim, particularly on issues of race. Moreover, the Democrats were divided between a liberal wing centered in the Northeast and a conservative wing in the “solid” South. Although the Democrats won a landslide victory in 1964, based in part on Lyndon Johnson's liberal policies, they lost the White House in 1968, and the New Left, represented by George McGovern, lost again in a landslide in 1972. Thus, in the previous version of Ackerman's theory, he had no explanation of why the Civil Rights Revolution was so transformative and so lasting.

Ackerman's new account treats the civil rights revolution as a genuine constitutional transformation; if not a constitutional moment, then at least a constitutional solution. Under his theory, this requires that there must be a signaling event, a proposal, a triggering election, a ratifying election, and consolidation. (p. 1762). In Ackerman's new schema, Brown v. Board of Education is the institutional signal (p. 1763) alerting the country to the need for widespread deliberation. That creates a bit of a problem: the signal is ten years away from the next event-- the 1964 Civil Rights Act. This long temporal delay does not occur in any of Ackerman's other schemas-- Founding, Reconstruction and New Deal. In the case of the New Deal, for example, the 1932 election is the trigger, and the next event is the 1936 election.

In Ackerman's new schema, the proposal involves the constitutionality of the Civil Rights Act of 1964, which was passed in June before the Presidential election. The 1964 Presidential election is the triggering election, akin to the 1936 election. (p. 1773). It returned a liberal President and the most liberal Congress since the end of the New Deal. The 1964 election asks and answers the question whether the Civil Rights Act of 1964 is constitutional and whether Johnson should go forward with the Civil Rights Revolution. The Republican nominee for President, Barry Goldwater, argued that the Act was unconstitutional. The landslide for Johnson demonstrates that the public approves of the new Civil Rights Act and therefore supports its constitutionality. Shortly after the election the Supreme Court upholds the Act under a Commerce Clause theory. (p. 1779)

Although Ackerman regards the constitutionality of the 1964 Act as the proposal, he also seems to suggest that the proposal includes the Voting Rights Act, which passes after the triggering election, in 1965. (p. 1774). Perhaps he means that the proposal is whether the Constitution should be amended so that Congress could pass acts like the Civil Rights and Voting Rights Acts. What is perhaps more important is that his conception of the proposal– and thus the meaning of the Civil Rights Revolution– does not include many things that we normally associate with it. It does not include the Great Society (including New Property ideas of welfare entitlements), the Warren Court's criminal procedure revolution (including decisions like Miranda and Mapp v. Ohio) and the Court's revolution in First Amendment jurisprudence, in the areas of freedom of speech, freedom of religion and the establishment clause. This narrow definition of the Civil Rights Revolution is important to Ackerman's model, and I will return to it later.

In Ackerman’s new schema, the 1968 election is the ratifying election that demonstrates popular support for the Civil Rights Revolution. (pp. 1783-84) It also demonstrates popular support for Brown v. Board of Education. That might seem strange in two respects. First, the election was about Vietnam as much as it was about Civil Rights. Second the Republican, Richard Nixon, and not the liberal Democrat, Hubert Humphrey, won that election. Hubert Humphrey had supported civil rights throughout his political career. Few Democratic politicians were more identified with this particular cause. In 1968 Richard Nixon ran against busing, against the Warren Court's criminal procedure revolution, and for "law and order."

So how can this be a ratifying election for the Civil Rights Revolution? I'll offer the answer in tomorrow's installment.

Monday, May 28, 2007

Memorial Day Musings

Sandy Levinson

There are so many potential topics to write about on this Memorial Day. One of them is the subject of an excellent piece in Monday’s New York Times, by David Carr on the decreasing news coverage of the War (because of expense and danger), coupled with ever more authoritarian rules adopted by the military—one suspects at the behest of the civilian leadership in the Pentagon—with regard to pictures of the war that might, were they published in daily newspapers and shown on television, bring home the costs of this war to the people we profess to care about, both American and Iraqi. And even as George W. Bush pays yet another ostentatious visit to Arlington National Cemetery, he has obdurately refused to attend the funeral of a single fallen soldier over the past four years of his war (and, of course, the military continues to prohibit any photography of flag-draped coffins arriving in Dover, Delaware).

Everyone should also read Andrew Bacevich’s stunning piece in yesterday’s Washington Post, on the death of his son in a war that Prof. Bacevich’s has eloquently and courageously opposed from the beginning. Consider especially the following:

. . . . But I did nurse the hope that my voice might combine with those of others -- teachers, writers, activists and ordinary folks -- to educate the public about the folly of the course on which the nation has embarked. I hoped that those efforts might produce a political climate conducive to change. I genuinely believed that if the people spoke, our leaders in Washington would listen and respond.

This, I can now see, was an illusion.

The people have spoken, and nothing of substance has changed. The November 2006 midterm elections signified an unambiguous repudiation of the policies that landed us in our present predicament. But half a year later, the war continues, with no end in sight. Indeed, by sending more troops to Iraq (and by extending the tours of those, like my son, who were already there), Bush has signaled his complete disregard for what was once quaintly referred to as "the will of the people."

To be fair, responsibility for the war's continuation now rests no less with the Democrats who control Congress than with the president and his party. After my son's death, my state's senators, Edward M. Kennedy and John F. Kerry, telephoned to express their condolences. Stephen F. Lynch, our congressman, attended my son's wake. Kerry was present for the funeral Mass. My family and I greatly appreciated such gestures. But when I suggested to each of them the necessity of ending the war, I got the brushoff. More accurately, after ever so briefly pretending to listen, each treated me to a convoluted explanation that said in essence: Don't blame me.

To whom do Kennedy, Kerry and Lynch listen? We know the answer: to the same people who have the ear of George W. Bush and Karl Rove -- namely, wealthy individuals and institutions. [One is also well advised to read a story in Monday’s Times, aptly titled “Wealthy Enclave Offers Windfall for Candidates,” about the number of candidates, both Democratic and Republican, who have recently visited Greenwich, Connecticut in their quest for donations. As Alison Leigh Cowan writes, “With the mansions along its winding back roads now awash in hedge fund money, Greenwich has joined New York, Los Angeles and Silicon Valley as must stops on the presidential fund-raising tour.” One doubts that many of the attendees at such gatherings have sons or daughters in Iraq or Afghanistan.]

Money buys access and influence. Money greases the process that will yield us a new president in 2008. When it comes to Iraq, money ensures that the concerns of big business, big oil, bellicose evangelicals and Middle East allies gain a hearing. By comparison, the lives of U.S. soldiers figure as an afterthought….

Money maintains the Republican/Democratic duopoly of trivialized politics. It confines the debate over U.S. policy to well-hewn channels. It preserves intact the cliches of 1933-45 about isolationism, appeasement and the nation's call to "global leadership." It inhibits any serious accounting of exactly how much our misadventure in Iraq is costing. It ignores completely the question of who actually pays. It negates democracy, rendering free speech little more than a means of recording dissent.

This is not some great conspiracy. It's the way our system works.

These words, it should be emphasized, are written by a conservative former officer in the U.S. armed forces who served with distinction in Vietnam. One wonders how much they capture the perceptions of increasing numbers of Americans on both the “right” and “left,” assuming these terms are genuinely useful at the present moment. After all, it is the ostensibly “conservative” President who has flogging for all its worth the “world safe for democracy” rhetoric identified with Wilson, not to mention his equal willingness to use “human rights” arguments also more traditionally found on the left than on the right. It is the left these days that is more inclined to evoke “realist” arguments.

I respectfully disagree with Prof. Bacevich on only one point. Though I believe that Democrats do indeed bear some responsibility for the continuation of the war—and Tom Daschle, then the Senate Majority leader, especially should feel remorse every day of his life for his opportunistic decision in 2002 to grant Bush a blank check in Iraq in order to make domestic policy the primary issue in the elections of that year, a disastrous decision in every conceivable way—it is a mistake to say that “responsibility for the war's continuation now rests no less with the Democrats who control Congress than with the president and his party” (my emphasis). The reason is simple: The Constitution, wisely or not (readers of Balkinization know which is my own answer to the question), gives the President the power to veto any legislation that would in fact bring the war to some kind of conclusion, as has been amply demonstrated. It is true, of course, that there are enough Democrats, were they completely united, to refuse to pass any military funding bill at all, but, aside from crass political considerations that make this unwise, that is morally untenable insofar as it would indeed leave Americans stuck in Iraq without essential logistical support. Even Abraham Lincoln, who (correctly) opposed the Mexican-American War, voted for funds to “support the troops” because they, after all, were not at fault for the imperialist aggression of President James K. Polk.

“Our system,” to which Prof. Bacevich refers, creates something painfully close to an elective dictatorship in the realm of foreign and military policy. That Bush is a particularly awful exemplification of this fact should not blind us to the reality that it has been a feature of “our system” for many, many decades and through the administrations of many presidents, some of them deemed “great,” some of them not. It’s simply something we prefer not to speak of, lest we have to think about the actual operation (and adequacy) of our constitutional system. 604 days remain in the terms of George W. Bush and Dick Cheney, and, practically speaking, there is nothing that “We the People” can do about that. Indeed, one must hope that Bush remains in good health inasmuch as the almost unthinkable alternative would be the Vice President, also free of any real accountability to the American public. This is the reality of life in the “world’s greatest democracy” on Memorial Day 2007.

Is religion any good?

Andrew Koppelman

The recent exchange between Rick Garnett and Jack Balkin on state support for religion brings to mind a familiar puzzle. In what sense, if any, is it permissible for the state to treat religion as a good thing?

Let me focus the problem a bit more. The Supreme Court has declared that, under the Establishment Clause of the First Amendment, “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” The Establishment Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.

But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.” This generates a puzzle. It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as in tension with itself. Call this the free exercise/establishment dilemma.

The dilemma is pressing because religion is ubiquitously given special treatment. A classic case is Quakers’ and Mennonites’ objections to participation in war, which has been accommodated since Colonial times. But there are plenty of other cases. Persons whose religions place special value on the ritual consumption of peyote or marijuana (or wine, during Prohibition) seek exemption from drug laws. Landlords who have religious objections to renting to unmarried or homosexual couples want to be excused from antidiscrimination laws. Churches seeking to expand sometimes want exemption from zoning or landmark laws. The Catholic church wants to discriminate against women when ordaining priests. Jewish and Moslem prisoners ask for Kosher or halal food. These scruples have often been deferred to, and religious objectors have frequently been exempted from obligations that the law imposes on all others. (There is considerable dispute about whether the decision when to accommodate ought to be one for legislatures or courts, but that debate rests on the assumption, common to both sides, that someone should make such accommodations.)

The problem is clearly presented by Jack’s challenge to Rick to offer any state support for religion other than accommodations from generally applicable laws. Rick conceded the strength of the point, but notice how important accommodations are. Religious people are not entitled to any special treatment, except that they get exempted from laws that everybody else has to obey. The exception has a rule-swallowing tendency that shouldn’t go unnoticed.

The sentiment in favor of such accommodations is nearly unanimous in the United States. When Congress enacted the Religious Freedom Restoration Act, which attempted to require states to grant such exemptions, the bill passed unanimously in the House and drew only three opposing votes in the Senate. After the Supreme Court struck down the Act as exceeding Congress’s powers, many states passed their own laws to the same effect. Each of them raises the same dilemma. If government must be neutral toward religion, then how can this kind of special treatment be permissible?

One solution to the clash would be to say that the Free Exercise Clause states an exception to the Establishment Clause’s rule. Unless it is somehow bounded, this exception would, however, threaten to swallow the rule altogether. As Justice O’Connor has observed, “judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an ‘accommodation’ of free exercise rights.”

Another approach to reconciling the two clauses would be to define free exercise as minimally as possible. Even the narrowest definitions proposed would, however, forbid deliberate discrimination against religion. That in itself is a kind of special treatment. Most nonreligious beliefs do not and cannot receive such protection. The Free Exercise Clause simply cannot be redefined in a way that is consistent with the broadest possible reading of the Establishment Clause.

It is therefore necessary to revise our understanding of the scope of the Establishment Clause. The most promising approach is to define the Establishment Clause less abstractly than the Court has, in order to permit the special treatment of religion that is mandated by the Free Exercise Clause.

Is there a way to do this? I have offered an answer in some writings that can be found here and here, and I will try to summarize that answer in future postings. Today I just want to insist on the problem. Unless there is some sense in which it is consistent with the Establishment Clause for the state to treat religion as a valuable thing, the religion clauses are indeed incoherent.

Scientists prove that Adam Smith was right and that Dick Cheney is brain damaged


Take that, Immanuel Kant:

Grafman and others are using brain imaging and psychological experiments to study whether the brain has a built-in moral compass. The results -- many of them published just in recent months -- are showing, unexpectedly, that many aspects of morality appear to be hard-wired in the brain, most likely the result of evolutionary processes that began in other species.

No one can say whether giraffes and lions experience moral qualms in the same way people do because no one has been inside a giraffe's head, but it is known that animals can sacrifice their own interests: One experiment found that if each time a rat is given food, its neighbor receives an electric shock, the first rat will eventually forgo eating.

What the new research is showing is that morality has biological roots -- such as the reward center in the brain that lit up in Grafman's experiment -- that have been around for a very long time.

The more researchers learn, the more it appears that the foundation of morality is empathy. Being able to recognize -- even experience vicariously -- what another creature is going through was an important leap in the evolution of social behavior. And it is only a short step from this awareness to many human notions of right and wrong, says Jean Decety, a neuroscientist at the University of Chicago.

The research enterprise has been viewed with interest by philosophers and theologians, but already some worry that it raises troubling questions. Reducing morality and immorality to brain chemistry -- rather than free will -- might diminish the importance of personal responsibility. Even more important, some wonder whether the very idea of morality is somehow degraded if it turns out to be just another evolutionary tool that nature uses to help species survive and propagate.

Moral decisions can often feel like abstract intellectual challenges, but a number of experiments such as the one by Grafman have shown that emotions are central to moral thinking. In another experiment published in March, University of Southern California neuroscientist Antonio R. Damasio and his colleagues showed that patients with damage to an area of the brain known as the ventromedial prefrontal cortex lack the ability to feel their way to moral answers.

When confronted with moral dilemmas, the brain-damaged patients coldly came up with "end-justifies-the-means" answers. Damasio said the point was not that they reached immoral conclusions, but that when confronted by a difficult issue -- such as whether to shoot down a passenger plane hijacked by terrorists before it hits a major city -- these patients appear to reach decisions without the anguish that afflicts those with normally functioning brains.

Sunday, May 27, 2007

The Constitutional Crisis Within

Marty Lederman

After the White House Counsel and Chief of Staff had tried to shake down the sedated and ailing Attorney General in his hospital bed.

After those two officials did not so much as acknowledge the presence of the Acting Attorney General and the head of OLC, standing there in the hospital room.

After the President nevertheless overruled the AG and Acting AG and decided to plunge ahead with an unlawful program on the mere say-so of the Vice President's unorthodox view of the Constitution.

After all that -- what might the mood have been in the halls of the Justice Department, among the very conservative Bush loyalists who had just been railroaded because they had insisted upon some fidelity to the Rule of Law?

Solemn. And stunned. And prepared to do something virtually unprecedented in our Nation's history -- something that would make the Saturday Night Massacre seem like a tea party.

According to a new article by Michael Isikoff and Evan Thomas (which nicely summarizes all that we've learned so far):
"This was a showdown," says a former senior Justice Department official who was there. "Everybody understood the choice they were making and the gravity of the situation. Everybody knew what the stakes were." A different source estimated that as many as 30 top DOJ officials would have resigned.
And remember: These were anything but civil libertarians or closet Democrats. They are not officials who were standing on ceremony. They were officials zealously devoted to the prosecution of the war against Al Qaeda, and willing to stretch the law quite considerably to give the President the tools he thought he needed: "This was not ideological," recalled a former Ashcroft aide. "This was about the difference between pushing the limits to the edge of the line and crossing the line." (On the constitutional question of whether it's acceptable to even go "up to the line," see here.) To their great credit, these officials insisted that the line not be crossed -- and in order to make sure that it wasn't, they were willing to take a stand by doing something that would have not only blown the lid on the President's secret surveillance program, but that likely would have precipiated a constitutional crisis, and threatened the Bush Presidency itself, in the middle of an armed conflict when the public had no inkling whatsoever that any of this was occurring.

Is there anything remotely like it in U.S. history?

This is not your everyday occurrence. As I've been trying to emphasize, this internal DOJ showdown -- and, more broadly, the role of the Vice President's office in pushing a constitutional vision so extreme that the entire upper echelon of the Ashcroft Justice Department was ready to resign over it -- is a very big deal, what you might fairly call a huge story.

Indeed, other than the tragedy of Iraq (which, not coincidentally, is also the result of the President permitting the government to be controlled by a small coterie of like-minded extremists who were committed to ignoring all professional and expert perspectives inconsistent with their world view), this is probably the most important story of Bush Administration.

And there is a ton of information that we do not yet know about this story. Yet there appears to be very little interest in the story from the mainstream press. In part, this is a result of the fact that there is far, far too much focus on Alberto Gonzales in current press and congressional investigations. Just as he was merely a rubber stamp for Rove, et al. in the U.S. Attorney and related scandals, so, too, in these much more significant constitutional crises, he is "merely" an apparatchik, a hired gun of sorts. The real action here has always been in the Vice President's Office -- and on the intrigung question of why the President has repeatedly allowed the Vice President's idiosyncratic views to determine state policy -- and that's where the smoke and fire will be if and when the media and Congress ever get to the bottom of it.

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