Monday, June 30, 2008

Through the Looking Glass: Indefinite Detention and the Parhat Case

Marty Lederman

Can the President indefinitely detain someone who has no connection to Al Qaeda and who has not engaged in any belligerent acts against the United States?

Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush Administration had not established a sufficient foundation for its indefinite military detention of Huzaifa Parhat, who has been imprisoned at Guantanamo for more than six years. Much of the evidence that the court considered is classified, and therefore the court decided that it would publicly release only a redacted version of its opinion. The court released that redacted version today.

Even in its redacted form, this extraordinarily careful and detailed opinion, authored by Judge Garland and joined in full by both of his more conservative colleagues, offers a stark depiction of the most significant problems with the Bush Administration’s detention policy—namely, that the military has relied upon a breathtakingly broad standard of who can be detained, and then has made particular detention decisions based on very speculative and thin evidence, even under that broad standard. The detention policy in practice, in other words, has been much more indiscriminate than any authority Congress afforded the President in the conflict against al Qaeda.

Within a week after the attacks of September 11th, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The Administration argues that this Authorization for Use of Military Force (AUMF) authorizes the indefinite detention of Parhat, and several similarly situated detainees, at Guantanamo.

Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that "planned, authorized, committed, or aided" those attacks. In particular, it is undisputed that he is not a member of al Qaeda or of the Taliban. Indeed, the Pentagon’s Combatant Status Review Tribunal (CSRT) did not even find him to be "an individual who was part of or supporting Taliban or al Qaida forces." And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).

So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced “weegur”). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to “oppression and torture” by the Chinese Government, including “harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas.” In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone -- not the United States -- as his enemy.

In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and seventeen other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained imprisoned for more than six years.

In light of all this -– and the utter lack of any connection between Parhat and any hostilities against the United States (let alone the 9/11 attacks) -- what is the possible theory under which the Pentagon has purported to detain Parhat for the better half of a decade (with no end in sight)?

As today’s opinion demonstrates, the government relies on the following, fairly astounding chain of reasoning:

1. The Taliban aided al Qaeda in committing the terrorist attacks of September 11th, and/or “harbored” al Qaeda.

2. Military force against the Taliban would “prevent future acts of international terrorism against the United States” by al Qaeda.

3. Thus, the AUMF authorizes “necessary and appropriate military force” against the Taliban.

4. A longstanding incident of the use of such force is the authority to indefinitely detain those who fight on behalf of, and under the command of, the entity (the Taliban and al Qaeda) against whom the use military force has been authorized.

[Up to this point, the argument is fairly unobjectionable, and supported by the Hamdi decision.]

5. In the AUMF, the government argues, Congress authorized force against not only the Taliban and al Qaeda, but also any entity that, subsequent to September 2001, has become so closely associated with al Qaeda or the Taliban that it is effectively “part of the same organization,” and thus covered by the AUMF (even if it would not have been so covered when the AUMF was enacted)—or, at the very least, such a subsequently affiliated organization is covered by the AUMF if it is “effectively part of” al Qaeda or the Taliban and the entity has also “engaged in hostilities against the United States and its coalition partners.” (The DOD definition requires both showings.)

6. A Uighur independence group known as the East Turkistan Islamic Movement (ETIM) is “associated” with the Taliban in the sense that it is “effectively part of” the Taliban.

7. Moreover, the ETIM is engaged in hostilities against the United States and its coalition partners.

8. Therefore, the AUMF authorizes the indefinite detention of anyone who is part of the ETIM, whether or not that person has any connections directly to the Taliban or al Qaeda, and whether or not that person has ever engaged in, planned or supported hostilities against the United States or its coalition partners.

9. Indeed, the AUMF authorizes the indefinite detention of anyone who has merely “supported” the ETIM, even if that person has not joined (and is not otherwise "part of") the ETIM, has no connections directly to the Taliban or al Qaeda, and has never engaged in, planned or supported hostilities against the United States or its coalition partners.

10. Although there was no evidence that Parhat joined, became a member of, or in any direct sense “supported” the ETIM, he did seek and receive training on the use of a rifle and pistol at the Uighur camp in Afghanistan, which he intended to use solely for resistance against the Chinese government (not a part of the U.S. coalition).

11. One leader of that Uighur camp was a man named Hassan Maksum.

12. According to the government, Maksum is also a “leader” of ETIM, although there is no evidence that Parhat knew anything about any al Qaeda or Taliban association with Uighur camps. (It’s not clear from the unredacted portions of the opinion whether there was any evidence that Parhat knew Maksum was affiliated with ETIM.)

13. Ergo, because Parhat received training at a camp led by an alleged ETIM leader, Parhat “supported” ETIM.

14. Accordingly, the military can indefinitely detain Parhat (and similarly situated Uighur detainees) at Guantanamo.

* * * *
That’s a fairly astounding chain of “logic”—one that explains why the Pentagon has detained so many persons who have not engaged in hostilities and who have little or no obvious connection to al Qaeda.

In its Parhat decision, the court of appeals does not reach the most fundamental, most important question: whether the Pentagon’s expansive theory of AUMF detention authority -- the 14-step logic described above -- is valid. That is to say, the court does not decide whether Parhat could be detained, even without any connections directly to the Taliban or al Qaeda, and absent evidence that Parhat has ever engaged in, planned or supported hostilities against the United States or its coalition partners, merely upon proof that (i) he had “supported” the ETIM; (ii) the ETIM had become “effectively part of the Taliban” after September 11th; and (iii) the ETIM had engaged in hostilities against the United States and its coalition partners. It assumes for purposes of argument that this would be a valid interpretation of Congress's statute, and holds that even so, the Pentagon has not established a basis for detaining Parhat, because the evidence on which it relied was not credible.

The court, admirably seeking to rely on the narrowest possible ground for decision, does not address whether Parhat’s training at the Uighur camp would suffice to demonstrate that he has “supported” the ETIM (let alone the Taliban) -- again, assuming the validity of the government's theory of detention authority.

Instead, what the court held was “merely” that the military had failed to demonstrate points Nos. 6 and 7, above: Even assuming the validity of DOD's own definition of who is detainable, the court reasoned, the evidence presented to the CSRT and to the court was insufficient to demonstrate, by a preponderance of the evidence, two things that are, by the Pentagon’s own admission, essential minimum prerequisites for detention of the Uighur detainees: (i) that the ETIM is "associated with" the Taliban, in the (required) sense of being "effectively part of the same organization”; and (ii) that the ETIM has engaged in hostilities against the US or its coalition partners.

As to these two failings in the Pentagon’s proof, the court had this to say:
The Tribunal’s findings regarding the Uighur group rest, in key respects, on statements in classified State and Defense Department documents that provide no information regarding the sources of the reporting upon which the statements are based, and otherwise lack sufficient indicia of the statements’ reliability. . . . The grounds for the charges that ETIM was “associated” with al Qaida and the Taliban, and that it is engaged in hostilities against the United States or its coalition partners, were statements in classified documents that do not state (or, in most instances, even describe) the sources or rationales for those statements. . . .

The principal evidence against Parhat regarding the second and third elements of DOD’s definition of enemy combatant consists of four government intelligence documents. The documents make assertions -- often in haec verba -- about activities undertaken by ETIM, and about that
organization’s relationship to al Qaida and the Taliban. The documents repeatedly describe those activities and relationships as having “reportedly” occurred, as being “said to” or “reported to” have happened, and as things that “may” be true or are
“suspected of” having taken place. But in virtually every instance, the documents do not say who “reported” or “said” or “suspected” those things. Nor do they provide any of the underlying reporting upon which the documents’ bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions, the [CSRT] could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that Parhat is an enemy combatant.
DOJ argued that the documents in question were in fact reliable, and probative of the ETIM’s affiliation and operations, for two reasons. But the court, citing Lewis Carroll, rejected those two arguments, and for good reason:
First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions.

Second, the government insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case . This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the departments regard the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are “reported” or “said” or “suspected” to have occurred suggests at least some skepticism. Nor do we know whether the departments rely on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.
As for the remedy, I'll turn it over to Lyle Denniston's excellent summary over on SCOTUSblog:

Having found that designation flawed on the basis of the evidence the CSRT considered, the Circuit Court then turned to the issue of remedy. It said it would not itself order his immediate release from confinement or his transfer out of Guantanamo to a country other than China. The government, it said, might have other evidence beyond what it submitted to the CSRT, and thus the Pentagon might want to try again before a new CSRT.

Still, it stressed, it would not “countenance the ‘endless “do-overs”' that Parhat fears.” While not deciding whether it has the direct authority to order him released, it said it was satisfied that it at least has the power to decide whether the government has proved that a detainee is an enemy combatant. So, it said, it would not accept a role of merely issuing an endless series of opinions on the quality of evidence put before each new round before a CSRT -- an indication that, at some point, it would order release.

The Court stressed that, if Parhat prefers, he was free to pursue immediately in U.S. District Court a plea for his release, by filing a habeas petition under the Supreme Court’s June 12 decision in Boumediene v. Bush (06-1195). In such a proceeding, it said, he would have more rights than in a review by the Circuit Court of a CSRT decision. And, he could use this new opinion, it said, to challenge the CSRT in the habeas case. “Most important,” it said, “in that proceeding there is no question but that the court will have the power to order him released.”

Should people be denounced for telling the truth?

Sandy Levinson

The U.S. News and World Report has asked, with regard to Charles Black's comment that John McCain would benefit from a terrorist attack, whether it was "a flub or the quiet truth." He was certainly quickly denounced for stating what almost everyone, I am confident, believes to be a truth, quiet or not. (Does anyone believe that it would help Obama or even be a wash in terms of impact on the election?)

Similarly, former Gen. Wesley Clark, an Obama supporter, has been castigated for telling CBS that "I don’t think riding in a fighter plane and getting shot down is a qualification to be president." I think that one should ask the identical question posed by the US News and World Report. One might say, as has Sen. Obama (repeatedly) that John McCain displayed literally incredible valor in responding to many years of torture in Vietnam; I would also add my admiration for McCain's refusing to bear grudges against those who had been anti-War during the 1960s. But why would any person believe that "getting shot down" (which is precisely what happened to McCain) and then being tortured has anything to do with qualifying one to be President of the United States as against, say, receiving an award for displaying incredible grace under maximum pressure? And, incidentally, is it relevant that McCain graduated well down in his Annapolis class? Isn't it worth thinking about the fact that the three senators who in fact saw ground combat in Vietnam--James Webb, Chuck Hagel, and John Kerry--are all dedicated opponents of the Iraq War? I know that McCain has a son serving in Iraq, but, again, so does Webb. One might also consider Eisenhower's generally prudent policies during his presidency--including his apt decision not to join the French in Vietnam--as against the far more inexperienced Kennedy's decision to follow many of his militarily inexperienced advisers into that morass. (Kennedy, of course, made it to the White House in part because his boat was destroyed and he had the good fortune to survive. He, too, never saw any ground combat.)

I was severely chastised last year for suggesting that there is good reason to mistrust people whose sole experience of war is from planes high above the ground. They have rarely, if ever, whether in this country or others (such as Israel), been sources of wisdom on the conduct of international and military affairs (which, of course, are intertwined). They notoriously believe in the ability of airpower to "shock and awe" and win quick and easy victories, as did McCain prior to the invasion of Iraq. I intend no disrespect for the pilots who risked their lives and, on many occasions, genuinely served the highest interests of the United States. But that's a logically different question from asking what constitutes the best experience to serve as President. If military service is relevant at all, which is itself debatable, then surely we can debate what kind of service is most relevant. (Would any sane person believe that George W. Bush's "service" in the air force reserve gave him any relevant experience fitting him to become president?) None of this has anything to do with challenging patriotism. I assume that McCain (and, for that matter, George W. Bush) get A's in "patriotism." What we're talking about is what is relevant to becoming president and taking on the powers of our "constitutional dictatorship" with regard to the power of life and death in military conflict

Both Black and Clark were probably dumb to say what they did. (And, for Clark, I assume that this torpedoes his possibility of becoming Vice President.) But is this anything more than an illustration of Jack Nicholson's point (I forget the name of the character he was playing), "You can't bear the truth"? (Note well, I have no reason to believe that amending our dysfunctional Constitution would change anything in this regard. We are talking about political culture, not about legal institutions.)

Are Campaign-Finance Laws Inherently Incumbent Protecting? Are All Election Laws?

Rick Pildes

Over at the Volokh Conspiracy blog, Ilya Somin has an interesting response to my posts here on the Supreme Court’s decision last week holding unconstitutional the so-called “Millionaire’s Amendment” to the nation’s campaign-finance laws. I argued that despite the noble-sounding egalitarian justification for this provision, many close observers recognized this provision to be, in purpose and effect, designed to protect incumbents against serious competition. That included Sen. McCain, who supported the provision, and Sen. Dodd, who opposed it, along with many academic experts in the campaign-finance laws.

Somin agrees about this provision, but wants to generalize the point. He suggests that all campaign-finance laws are likely to be pro-incumbent. There are two different reasons this might be so. One is that it is inherent in campaign-finance regulation that it will necessarily favor incumbents; on this view, a laissez-faire, privately-financed system is inherently the kind of regime that will enable challengers to be most effective in competing against incumbents. The other possible reason is that, as a matter of realpolitick, the only kind of campaign-finance regime incumbents are likely to enact will be one that favors incumbents, that is, themselves. Somin seems to be making the second argument more than the first, which is an argument about the political economy of these laws. So that’s the argument I want to address.

The problem is both more complicated and even broader than Somin’s post suggests. More complicated, because it’s important to avoid the action/inaction fallacy here. It might well be that the failure to enact campaign-finance laws of one sort or another is incumbent protecting. As a matter of political economy, there’s no reason to assume that the baseline before any recent piece of legislation provided an optimal state of a competitive electoral structure. Indeed, far from it: because all sitting legislators were elected under that prior status quo, one might better start from the presumption that their self-interest favors leaving in place the rules under which they were elected (this is overly simplified, but sound enough to get the general point across). We have plenty of examples. The classic malapportionment problem that the Court finally addressed in the 1960s is the most obvious: in many states, legislators had designed election districts at the start of the 20th century and then refused to redraw those districts for the next 60 years, even as massive migration from rural to urban areas led election districts to have wildly disproportionate numbers of people in them in ways that grossly underepresented urban areas. But of course, the legislators elected under the existing regime had do interest in changing those districts and “updating” them to reflect these demographic changes – until outside intervention, in the form of the Supreme Court’s one-vote, one-person cases forced them to do so. Moreover, in areas in which there is considerable uncertainty about predicting the effects of any legislative change to election rules, incumbents are likely to be all the more resistant to change. Legislators are quite risk averse, not surprisingly, when it comes changing the rules involving their own seats. When it comes to major changes with as complex-to-predict effects as something like the McCain-Feingold law, for example, most legislators were certainly not chomping at the bit to enact these changes.

The problem is also even broader. As a matter of political economy, there is no reason to single out campaign-finance laws for this skepticism. Anytime existing legislators regulate (or fail to regulate) the election process, there is always the risk that they will do so not for public-regarding reasons, but for self-interested ones. In fact, this is one of the hidden costs of the rise of the secret ballot, believe it or not: once the ballot became secret, that meant the State took over the function of printing ballots. And that meant the State began to regulate the ballot, including what kinds of pre-conditions candidates had to meet to get on the ballot. That, in turn, raised the risk – and sometimes the reality – that incumbent legislators would regulate access to the ballot not for genuine public-regarding reasons, but in ways designed to insulate themselves as much as possible from challengers. Or take the current controversies over voter ID laws: are these laws enacted for genuine public-regarding purposes? Or are they self-interested devices by which those in power seek to entrench themselves and their partisan allies even more deeply in power?

Here’s what I think follows. First, it is indeed true that as long as sitting legislators have the power to shape the groundrules of democratic elections, there is always the risk that they will do so for self-interested reasons. This is a serious problem, not to be underestimated, which is why I posted initially on the Millionaire’s Amendment and why I appreciate Somin’s raising of this issue. Second, this risk is just as true from legislative inaction as action. Thus, it is much too simple to proclaim that, if a legislature enacted any particular law – such as a campaign-finance law – it must be the case that the law is incumbent protecting. Third, despite the risks, we are inevitably going to have to have election laws: elections are structured processes. That is why the title of this post is intentionally provocative. Finally, all this means that to decide which election laws are incumbent protecting and which are, instead, appropriate, we inevitably need substantive analysis that distinguishes one law from another. That substantive analysis is extremely difficult and interesting, both as a matter of policy and constitutional law. I can’t begin to provide any of it here. But in response to Somin, yes, suspicion is a good starting point, but it cannot be an endpoint. It is not sufficient to proclaim all campaign-finance laws – or the McCain-Feingold law in particular – or all election laws incumbent protecting merely because incumbents enacted them. If we are to be convinced that any particular noble-sounding election law is, in fact, a device to protect incumbents, we are going to need a more substantive story about the particular law at issue.

Sunday, June 29, 2008

Reviewed: Holland on Mugabe and Akpan's African Stories

Mary L. Dudziak

With Zimbabwe in the news this week, two new books on Africa are reviewed in the weekend newspapers. The first is Dinner with Mugabe: The Untold Story of a Freedom Fighter Who Became a Tyrant by Heidi Holland (Penguin Global), reviewed by Karl Maier for the Chicago Tribune. Crossposted from the Legal History Blog.

According to Maier, the author

peels back the layers of Mugabe's character through a series of interviews with people who know him best: former guerrillas, relatives, Catholic priests and the president himself in a rare encounter. The result is the best attempt yet to understand the mind of Mugabe. Step by step, Holland shows how one of Zimbabwe's most erudite Africans became a paranoid tyrant who has bankrupted his country and brutalized a generation....

Holland shows how Mugabe's childhood taste for revenge has colored his journey from the village of Kutama to the pinnacle of power in Zimbabwe. When leaders from the minority Ndebele tribe challenged his authority in the 1980s, Mugabe sent in North Korean-trained troops, killing tens of thousands in Matabeleland. When some whites backed the opposition in the late 1990s, he let mobs drive them from their farms, sparking economic catastrophe.

"Our present state of mind is that you are now enemies because you really have behaved as enemies of Zimbabwe," Mugabe chillingly told white farmers in a 2000 TV address to mark the 20th anniversary of the country's independence.
Continue reading here.

Also reviewed is a collection of short stories, SAY YOU'RE ONE OF THEM by Uwem Akpan. Susan Straight writes in the Washington Post that "these five stories -- set in Nigeria, Kenya, Rwanda, Ethiopia and Benin -- are all about children and their perilous, confusing lives, their searches for bits of grace and transcendence along with food, family and survival. This link allows a huge, perplexing continent to be known in intimate ways." The author's "incredible talent as a writer prevents" the most tragic of the stories "from becoming a polemic, diatribe or object lesson." The rest is here. Read an excerpt here.


Money talks, but is it speech?

Guest Blogger

Deborah Hellman

Justice Stevens, in the parts of his opinion in Davis v. FEC (decided Thursday) in which he writes alone (Parts I and III), argues for a reexamination of the part of First Amendment doctrine which treats restrictions on campaign expenditures as direct restrictions on speech. Instead, Justice Stevens argues, restrictions on the spending of money are restrictions on conduct that has incidental effects on speech – like time, place and manner restrictions – and are thus subject to more lenient review. The so-called “millionaire’s amendment” at issue in Davis highlights the absurdity of the Court’s current approach. Justice Alito’s majority holds that raising the contribution limits applicable to the opponents of self-funded candidates burdens the self-funder’s right to spend money (in that it becomes less advantageous to do so) and thus constitutes an unconstitutional restriction on speech.

If spending money really is close enough to speech to warrant strict First Amendment scrutiny, this chain of reasoning makes sense. But it is rather attenuated logic to suppose that raising the contribution limits on his opponent actually constitutes a violation of the millionaire’s right to speak. So, let’s take up Justice Stevens’ invitation and go back to first principles.

Why think a restriction on spending money is a direct restriction on speech? Spending money is obviously not speech itself (no one doubts that). But it is a vehicle, indeed an important vehicle for speech. If one cannot spend money to speak, how would one purchase an advertisement, print a campaign brochure, etc. Moreover, as Eugene Volokh has argued, the right to spend money is crucial to the protection of other Constitutional rights. The right to counsel, for example, would not be worth much without the attendant right to pay for a lawyer.

But the important point to remember is that money is useful to all sorts of ends – both constitutionally significant and insignificant. Does the usefulness of money mean that spending money in connection with a constitutionally protected right is always as aspect of that right, deserving of special protection by the Court? Sometimes spending money in connection with a constitutional right is correctly considered an aspect of that right (as in the right to counsel case) but not always. Following Lawrence, Eisenstadt, and Griswold, one might say there is a constitutionally protected right to sexual intimacy . But this articulation of the right at issue need not imply that one has a right to spend one’s money achieve it (prostitution). One has a constitutionally protected right to a jury trial but this right does not include within its ambit the right to spend one’s money to bribe the judge or jury. Spending money helps one to achieve all sorts of ends, including some constitutionally protected rights. In order to decide if the right at issue includes the right to spend money to achieve it, further inquiry is required. So my first point is that current doctrine is flawed in failing to provide an argument for why spending money is an aspect of the constitutionally protected right.

What principles should guide this inquiry? I think it would be helpful to look at the sorts of transactions that we remove from the market economy – “blocked exchanges,” in Michael Walzer’s terms. Buying and selling of babies, organs, sex, parental rights and more are forbidden. So too buying political favors and legal outcomes (bribery of public officials, judges, jurors). In times of military draft, buying a substitute is no longer allowed. And there are others. There are at lest two different types of concerns in play here. First, sometimes we worry about how buying and selling of the good changes the way we value it (so-called “commodification”). Second, the buying and selling of something sometimes violates some other important value (democracy, equality, justice, etc.). We might then compare the list of rights in which we protect the spending of money to achieve them (right to counsel) with those that we don’t (jury trial). I take it that we think that buying a high priced lawyer won’t corrupt justice in the way that paying off the judge will. Fair enough.

So now what of money spending and speech? Is money-spending a part of speech? Of political speech? We can now see why restricting the spending of money to publish a book, for example, is different from campaign finance restrictions. In the case of the first restriction, there is no other important competing value. However, restrictions on campaign expenditures are different. Spending money (on one’s own campaign or the campaign of others) may facilitate one’s expressive activity but ought not be seen as an integral part of it because other important values (here democracy and equality) suggest reasons for limiting the reach of the market to this domain. Stevens makes precisely this sort of argument, quoting a passage from an article by Cass Sunstein: “It seems uncontroversial that ‘there is no good reason to allow disparities in wealth to be translated into disparities in political power. A well-functioning democracy distinguishes between market processes of purchase and sale on the one hand and political processes of voting and reason-giving on the other.’” (citing Sunstein, Political Equality and Unintended Consequences, 94 Colum. L. Rev. 1390, (1994))

There are clearly arguments one could make for the claim that campaign spending is more like buying a lawyer than bribing the judge. The key point is that this is the right question to ask. The Court too quickly concludes that restrictions on spending money must be treated as direct restrictions on speech because the ability to spend money is often how a person gets her message out. Because spending money is useful toward almost any aim, this is not a relevant observation. Rather one must articulate a theory of when constitutional rights must include the right to spend money to achieve them and when not. Once we note that sometimes facilitation is protected and sometimes not, we realize that an argument is needed to determine whether spending money to achieve the right is an aspect of that right. Where a good argument can be made for blocking a particular transaction (like prostitution), it is likely that spending money in connection with that right will not be constitutionally protected. Campaign finance may be enough like voting and serving in the army to suggest that a commitment to democracy here provides a reason to see spending money as not within the scope of the constitutionally protected right to speak.

This argument is presented in more detail in my “What Money Can and Cannot Buy”. I am working on a more complete account currently.

So will Tom Friedman ever connect the dots?

Sandy Levinson

[In his New York Times column, Tom Friedman writes as follows:

My fellow Americans: We are a country in debt and in decline — not terminal, not irreversible, but in decline. Our political system seems incapable of producing long-range answers to big problems or big opportunities. We are the ones who need a better-functioning democracy — more than the Iraqis and Afghans. We are the ones in need of nation-building. It is our political system that is not working. ....

“America and its political leaders, after two decades of failing to come together to solve big problems, seem to have lost faith in their ability to do so,” Wall Street Journal columnist Gerald Seib noted last week. “A political system that expects failure doesn’t try very hard to produce anything else.”

We used to try harder and do better. After Sputnik, we came together as a nation and responded with a technology, infrastructure and education surge, notes Robert Hormats, vice chairman of Goldman Sachs International.. . . “But today,” added Hormats, “the political system seems incapable of producing a critical mass to support any kind of serious long-term reform.”

I won't bother going through my now standard-form argument, but how much longer will the punditry bewail the failures of our political system without paying even the slightest attention to the features of our Constitution that contribute to them?

Saturday, June 28, 2008

Originalism and Guns Redux

Mark Graber

The constitutionality of gun control regulations raises two questions about the original understanding or meaning of the Second Amendment. The first, amply surveyed in this blog and elsewhere, is whether the Second Amendment in 1791 protected an individual right independent of the right to be a member of the local militia (Saul Cornell’s wonderful book points out that the Second Amendment might both protect an individual right and be tied to militia service). The second, less discussed, is the standard of review. Justice Scalia, without surveying history all that much, jumped from the conclusion that the Second Amendment protected an individual right to the conclusion that gun control regulations would have to scrutinized carefully to pass constitutional muster. The history is more complicated.

Antebellum Americans did not regard laws aimed at safeguarding the public welfare, health, safety, or morals as violating fundamental rights. In their view, government officials did not limit liberty when they forbade actions thought to threaten harm to others or self. The emphasis was on legislative ends, not on legislative means. As Howard Gillman perceptively notes, pre-New Deal “jurisprudence . . . focused on the character of the legislation rather than the importance of the restricted liberty.” [Interested Readers should take a long look at Howard Gillman, Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence, 47 Pol. Res. Q. 623 (1994) and Gillman, THE CONSTITUTION BESIEGED. ] In short, rights at the time of the framing limited government purposes. Having a right was not an immunity against legislation in the general interest. If government was motivated by the desire to preserve public safety, and the regulation was plainly directed against the public safety, then government could restrict property rights, speech rights, and presumably gun rights. Whether the Alien and Sedition Acts were unconstitutional depended on whether they were good faith efforts to promote national security (a legitimate purpose) or bad faith means for silencing political opposition (an illegitimate purpose).

Heller is a stunningly easy case when considered in light of what rights meant in 1791. Whatever else may be said of the DC regulation, the restrictions on handguns were clearly an attempt to promote public safety and prevent crimes, both very legitimate public purposes in the eighteenth and nineteenth centuries. No issue of class legislation arises, because the prohibition applied across the board and, unlike wage and price laws, could not be considered a means for benefitting one class or citizens at the expense of another.

Rights have another meaning in 2008. To claim a right is to claim that your liberty cannot be restricted even if doing so has a clear relationship to the public welfare. Much contemporary civil rights law favored by both the left and right is rooted in contemporary understandings about the relationship between rights and the public welfare. I think that is entirely appropriate, that constitutional interpretation is the interpretation of a constitutional tradition. But I was under the impression that everyone in Heller was talking about the original meaning of constitutional provisions, not their Dworkian reinterpretation. The next time opponents of gun control regulation talk about original meanings, we should insist they discuss the original meaning of “right” as well as the original meaning of “to keep and bear arms.”

Roe and Partisan Entrenchment


David, far be it from me to suggest that elections don't matter a great deal for constitutional development. That they do is the central claim of Sandy Levinson's and my theory of partisan entrenchment. It's nice to know we have a fan. But there is still the question of why Roe v. Wade survived in the face of a series of Republican Supreme Court appointments, a question that, at first glance, the partisan entrenchment theory would seem not to answer very well. Since I'm one of the advocates of the theory, it has fallen to me to deal with the problem.

Your explanation to this quandary appears to be-- just dumb luck. Well, dumb luck does explain some things, but I would prefer to push the question a little further. That is because Roe is not just any decision that happened to survive. It's one of the most important decisions in contemporary American politics, and the Republican Party's platform has, since 1980, been devoted to overturning it.

So if Roe has survived five Republican appointments since the failure of the Bork nomination, it's worth asking whether the cause is just dumb luck. Are the Republicans just that incompetent on this key issue?

Hence I've tried to offer an account that explains, based on incentive structures, why a president might choose more moderate nominees on a key issue of his time than he would otherwise choose. The reason I've offered is that presidents will do this if they believe that this will help them preserve a coalition.

Mark Graber of this blog, in a famous political science article back in 1993, argued that one of the Supreme Court's functions is to keep political coalitions together by taking the heat for particular hot button issues that would split the dominant coalition apart if it had to confront them directly. He suggested that abortion was such an issue for the Republicans. If that's so, then presidents would probably take this fact into account in making Supreme Court nominations. Hence the reverse litmus test.

This account also meshes with the idea that Presidents tend to temper their appointments when they face a hostile Senate. A president who appointed a outspoken opponent of Roe would lose votes at the margin that might be sufficient to deny confirmation. Some of those votes at the margin would be Republican Senators bucking their President's choice. (Think of someone like Arlen Specter, for example.) Choosing a nominee who will only hollow out Roe increases the chances that Senate Republicans will vote more or less as a block.

You are correct that this account doesn't explain the nomination of Clarence Thomas, a strong opponent of Roe. That nomination would seem to have made absolutely no sense given that the Democrats controlled the Senate in 1992. All other things being equal, the President should have appointed some one far more moderate on abortion rights to get past the Democrats in the Senate. So why did President George H.W. Bush nominate Thomas? The answer is obvious. President Bush felt fairly strong pressure from all sides to appoint an African-American to replace Thurgood Marshall. Thomas was the obvious (perhaps the only) high profile conservative to fill that slot, and Bush calculated that the Democrats (and moderate Republicans) wouldn't dare turn down an African-American nominee. He was correct. My assumption is that Bush nominated Thomas not because of his views on Roe v. Wade but because Thomas was both conservative and black. Those considerations were paramount in his calculations.

Since Presidents have a short to medium-term time horizon, and since political calculations are always changing, we can't assume that Republican Presidents will follow the strategy of hollow-out- but-don't-overturn indefinitely. (For example, it would make no sense if the country as a whole eventually became markedly pro-life.) But it does help explain why Roe is still in place, especially in the crucial period between 1987 and the appointment of Ruth Bader Ginsburg in 1994. During that period the Republicans had made three straight appointments to a Court that was already thought to be on the verge of overturning Roe v. Wade. What emerged was Casey, which limited Roe in several respects, but did not formally overturn it. Casey is the classic example of the hollow-out-but-don't-overrule strategy.

I'm perfectly willing to consider other accounts that are broadly consistent with the basic assumption of partisan entrenchment theory-- that elections matter. The one I've offered, which tries to understand why Presidents make certain appointments and not others, seems to me the best one. Another account would argue that the Justices themselves are motivated to keep their party's coalition together. I think this is not consistent with judicial role understandings. But if you want to resuscitate that account, or if you have another one besides dumb luck, I'd be delighted to hear it.

Friday, June 27, 2008

Thoughts on Heller from a "Real Historian"

Guest Blogger

Jack Rakove

Picking up on Sandy Levinson's and Mark Tushnet’s recent postings, and drawing on my own working life as a “real historian” with more than a passing interest in originalism, I asked the other Jack to add a posting of my own on Heller. Many readers will know that I do not come to this question lightly, having written both a long review piece on The Second Amendent: The Highest Stage of Originalism for the Chicago-Kent symposium and, more recently, the historians’ brief supporting the D.C. position in the case itself.

I agree with Mark that neither of the two main opinions in Heller would pass muster as serious historical writing, but I would disagree with Sandy that the two opinions are equally incompetent.

The basis of that disagreement goes beyond the obvious fact that the dissent of Stevens tracks (and even cites) my historians’ brief to the interesting analytical or methodological differences between the two opinions. On some of these differences I am certain readers of this list are more au courant than I can claim to be, and I welcome comment and enlightenment.

As Tom Friedman likes to say, let me explain. The pivot of my disagreement lies in weighing the merits of Scalia’s approach, which basically says that the actual history of how the Second Amendment made its way into the text of the Constitution is irrelevant, against Stevens’ more focused reliance on what was actually in dispute in 1787-1789 (if there were any serious contemporary commentary post-Sept. 1789, one could say 1787-1791, but since there does not seem to have been, the narrow date range works for me).

When I embarked on the project that became Original Meanings many years ago, my genuine purpose was to develop a historically-grounded way of thinking about what the document originally meant. It supposed that there were four categories of evidence (broadly defined) that one could bring to bear: (1) the intentions of the framers, (2) the understandings of the ratifiers, (3) the intellectual legacy (which I think would include prior legal doctrine and understandings) on which both could draw, and (4) what I call the lessons of experience, meaning the inferences we can draw particularly about (1) and (2) from knowing something about the political history of the Revolutionary era proper and the way in which that affected and altered received understandings. As a “real historian” my inclination would be to give greater preference to (1) and (4) but the larger point was to think about the value of all four categories.

In writing a brief for Heller (and before that, Hamdan and Vieth) I tried to adhere to this methodology, and in reading the opinions in the first, with their avowed originalist emphases, I have kept the same strictures in mind. And that is why I am troubled by the idea that they are equally illustrative examples of law office history.

The Scalia opinion seems materially defective to me for several reasons. The most important, as noted earlier, is its explicit disdain for the legislative history of the Amendment, whether that is described in terms of the Convention’s framing of the Militia Clause, the public exchanges and ratification convention debates it sparked, or what we know of the progress of the Amendment itself through Congress. I understand that this position correlates with Scalia’s general skepticism about legislative history in statutory construction, but that does not alleviate my concern. Why? As a “real historian,” I think that all of the following points are relevant to any kind of serious originalism.

First, as opposed to Scalia’s reliance on the “normal meaning” of a “pre-existing” definition of militia, one point that the Convention debates of August 1787 and any of a number of secondary historical works establishes is that the definition of the militia was precisely what was at issue. This does not rule out the idea that there was a previous “normal” or “public” meaning available to ordinary citizens, but it also reminds us that nearly all of the key concepts of political life (e.g., the definition of “executive power”) came under a great deal of stress in the decade after 1776, making it essential to recover their meaning not merely from the best dictionaries available but also from the context in which they were used. Scalia’s version of originalism/textualism, as applied in this opinion, seems oblivious to the most important findings that historians from Edmund Morgan (writing on the Stamp Act) on through Bailyn, Wood, myself, and others have argued over the last half-century: that this was a deeply creative era in constitutionalism and political thought, and the idea that static definitions will capture the dynamism of what was going on cannot possibly be true. Next to bigger concepts like “constitution” or “executive power” or “rights,” fussing about the meaning of militia might seem small potatoes. But the point holds equally well.

(There is a deeper issue here that I also wonder whether the “public meaning” school has considered, much less addressed, relating to the 18th-century’s preoccupation with the plasticity of language itself. This is famously alluded to in Madison’s well-known but brief observations about language in Federalist 37, but one might wish to consult the broader discussion in Hannah Dawson, Locke, Language and Early-Modern Philosophy [Cambridge U. P., 2007]. It would be a great irony if the legal scholars’ emphasis on public meaning failed to take account of the skepticism of the period under study on this very point.)

Second, Scalia’s professed disdain for what was actually being debated allows him to avoid asking what became of those statements of 1787-1788 that seem to be most suggestive of the idea that the Second Amendment was conceived to cover private purposes of gun ownership. He makes passing mention of three usual suspects: the Dissent of the minority Antifederalists in the Pennsylvania convention; the lone recommendation against individual disarmament emanating from the NH convention; and Samuel Adams’s similar reference in the Massachusetts Convention. The most telling of these, as I argued in the brief, is the first (a) because it was published relatively early in the ratification campaign, and could thus have become a rallying point for anyone at all concerned with the security of a private right; (b) because it quickly became an object of Federalist ridicule, lying there ideologically inert; and (c) because that in turn meant that the ensuing debate really was about the militia as an institution, not an individual right that no one in 1789 understood to be on the table.

I see that I am myself lapsing into advocacy at this point, so I will yield the floor with this concluding observation: there are two quite different modes of originalist analysis at play in the two opinions, and clear choices therefore (beyond the outcomes) in asking which one delivers more analytically. From the vantage point of a “real historian” (or a “working historian,” to cite an important early essay of Bailyn’s), Stevens’ approach appears superior, not only because of result, but because it rests less on theoretical pronouncements that are difficult if not impossible to test and focuses more tightly on a salient “legislative history” of the provision in question.

A Note on Heller and Party Politics


David Barron raises the interesting question of whether conservative Justices "mak[e] decisions in ways that create political debates sure to help Republicans." (And whether liberal Justices similarly decide cases in ways that are likely to mobilize Democrats.) If so, then the five person conservative majority missed a chance in Heller: deciding for D.C. would probably have motivated the conservative base, while deciding for Heller probably fails to mobilize them very much. David doubts that such considerations actually motivate the Justices. Similarly, David asks whether the smart move by Republican-appointed Justices really is to hollow out Roe and Casey instead of overturning them.

Let me repeat what I have said before. We should not confuse the motivations of Presidents and party leaders in nominating certain Justices with the motivations of the Justices themselves.

A Republican President might well consider the likely effects on the party's political prospects if he nominates a Justice who will vote to overturn Roe as opposed to merely hollowing it out. In fact I think that since the failure of the Bork nomination, Republican Presidents have considered this as a factor. It is what I call the Republicans' reverse litmus test on Roe.

Once the Justice is appointed, however, that Justice will not engage in the same sort of calculations as the President who appointed him or her. The Justice will decide the cases according to the Justice's considered views about the Constitution. The Justice might vote to go slow or decide a question narrowly to avoid backlash. But that is different, I think, from voting against one's views about the best interpretation of the Constitution in order to help your party win the next election.

So it is very unlikely that Justices deliberately decide cases in ways they think are wrong in order to help their party's prospects in future elections. It is far more likely that Presidents make calculations of what a Justice's decisions are likely to do for the party's political interests when they decide whom to appoint.

Justices are most likely to take partisan considerations into account when they are in dissent and they are deciding how to write their dissents to mobilize support for their views. I have always thought that some of Justice Scalia's more over the top dissents are written to mobilize the conservative base. They often feature angry denunciations that are sure to be quoted in the newspapers. Certainly Scalia's recent dissent in Boumediene (The majority has the blood of American soldiers on its hands!), and his dissent in Lawrence (watch out, gay marriage is coming!) were fairly transparent attempts to create campaign issues for the 2008 and 2004 elections, respectively. But that is quite different from saying that Justice Scalia would cast his vote in order to get the Republican base fired up.

In the case of Heller, it's very unlikely that motivating the Republican base was a factor in any of the Justices' decisions. It is also very unlikely that it played a role in the Court's recent abortion decision, Carhart II. Rather, it is likely that the Justices voted the way they did because of their substantive views on the Second Amendment and the right to abortion.

Parallel universes about what counts as "scholarly analysis"

Sandy Levinson

David Bernstein notes his agreement, in a Volokh Conspiracy post entitled "The Scholarly Nature of Heller," with Jim Lindgren that "the opinions in Heller are very scholarly, especially with reference to historical sources." He goes on to say that this is a vast improvement over the use of historical materials by earlier courts, citing Justice Douglas's opinion in Gray v. Sanders (1963), where he
wrote, without further elaboration, that the political philosophy of 'the Gettysburg Address, Declaration of Independence, 15th, 17th, and 19th Amendments 'can mean only one thing–one person, one vote.' One can level many criticisms at the modern Court, especially its self-aggrandizing tendency to think that it is not only the last word, but the only word, on constitutional interpretation. But the scholarly quality of the opinions has never been higher.

Among other things, this may demonstrate that there are parallel universes with regard to identifying something as manifesting "scholarly" quality.

My question is this, perhaps directed especially to legal academics: If a student had submitted either the Scalia or the Stevens opinion, or, even more to the point, if a job applicant had submitted as a writing sample either of the opinions, what would your reaction be? Would you possibly regard either one as an example of "scholarly quality" rather than tendentious brief writing? I would not, and I find it literally amazing that a competent scholar, as Prof. Bernstein most certainly is, would issue such praise for the handiwork of the Court (even if one agrees, as I do, with his critique of Justice Douglas's ridiculous "only one thing" assertion).

Self-defense, the Second Amendment, and the Ninth Amendment

Sandy Levinson

One of the valuable points made in Saul Cornell's book on the Second Amendment is that self-defense was treated as a "common-law" right and not a "constitutional right" at the time of the Framing. So, as a matter of sheer historical accuracy, Scalia was probably wrong in suggesting that the Second Amendment had anything to do with safeguarding a right of self-defense. But, of course, there are other amendments to the Constitution, including the Ninth Amendment, which reminds us that there are rights beyond the ones enumerated in the first eight amendments. I strongly suspect that ordinary Americans in the late 18th century (and today) would believe that there is indeed a "natural right" to engage in self-defense, by any means necessary, against those who present threats to one's own life (to take the easiest case). It would never have occurred to them that a government founded on liberal principles (whether drawn from Hobbes or Locke) could limit this right.

As Cornell also shows, by the mid-19th century, most people had simply assimilated the traditional common-law right of self-defense into the Second Amendment, just as, today, "freedom of expression" under the First Amendment includes all sorts of speech, including blasphemy, that almost no one thought was protected in 1789. In any event, it is this assimilation that explains Charles Sumner's assumption that anti-slavery settlers in Kansas had a constitutionally protected right to weapons that they could use to defend themselves.

Unfortunately, Scalia is in the grips of an unusually limited form of originalism, unlike Randy Barnett's (and Jack's) far more sophisticated variety, and he is unwilling to recognize the legitimacy of judicially enforceable "fundamental values" (such as self-defense and the concomitant right to possess firearms in the home that are useful for self-defense). So we get an utterly tendentious reading of the history of the Second Amendment , which is, as I wrote yesterday, matched by an equally tendentious history by Justice Stevens.

And, incidentally, there is also the "privileges or immunities" clause of the Fourteenth Amendment to support the proposition that by 1868 the creators of the Second American Republic fully recognized an individual right to bear arms. Again, since Scalia basically doesn't want to recognize the relevance of the War and its transformative import, he prefers to ignore its legal consequences. It is sad that supporters of gun rights are stuck with Scalia's opinion instead of one that truly engages with the materials of American constitutionial history and theory and provides a much more plausible backing for the decision.

Update: I have, in paragraph three, changed the word "stupid" to "limited," which is more accurate and, I hope, less needlessly insulting. Also, to the extent that Randy Barnett, someone I like and respect a great deal, adopts a notion that the constitution has a fixed meaning based on original public expectations, I think it, too, is unduly limited; I much prefer Jack's more "dynamic" form of originalism, though I continue to reject the normative importance of originalism. I would, incidentally, think that barnett, who almost singlehandedly revived the ninth amendment as a serious subject of inquiry, would find attractive the possibility of lodging a "right to self-defense" (and to possession of requisite weapons, at least in one's home) in that amendment.

More on Heller

Mark Tushnet

I want to make two points about Heller. The first elaborates on a point Sandy Levinson made. Both Justice Scalia’s opinion for the Court and Justice Stevens’s dissent devote a great deal of attention to the original understanding – or, as it turns out, understandings – of the Second Amendment’s terms. Both opinions look as if they are interested in history. Both, though, demonstrate why lawyers and judges shouldn’t play historian. In their capacity as judges, the justices have to award a decision to one or the other side. They share the natural human tendency to exaggerate the case that can be made for the side they ultimately favor. So, both Justice Scalia and Justice Stevens assert – laughably to a real historian – that the Second Amendment had only one meaning at the framing, and that that meaning was for all practical purposes universally shared. Even more, Justice Scalia asserts that that meaning was preserved unchanged from 1791 through the late nineteenth century.

Real historians are comfortable with complexity and with the co-existence at any one time of contradictory understandings of constitutional concepts, and the real lesson of the dueling opinions in the Heller case is that there simply wasn’t a single, universally shared understanding of the Second Amendment’s meaning in 1791: There were at least two widely shared meanings, and what we deserve, but didn’t get, is some explanation of why one rather than the other should guide our interpretation today. And the idea that constitutional understandings are so stable that what people in the 1860s thought the Second Amendment meant can help us figure out what (other) people thought seventy years earlier is belied by something we really do know – that within a decade after the adoption of the First Amendment the general understanding of what it meant changed dramatically (roughly, but adequate for present purposes, from a ban only on prior restraints on publication with no implications for punishment after the event, to a ban on some substantive regulations such as prohibitions of criticism of the government). If the understanding of the First Amendment’s meaning changed so rapidly, why not the same for the Second, over an even longer period?

Finally, the exchange between the majority and Justice Breyer, speaking for four dissenters, reveals an interesting and persistent disagreement between the justices. Three years ago, writing to uphold the display of the Ten Commandments on the state house grounds in Texas, Justice Breyer argued that constitutional analysis required that judges exercise “legal judgment.” He reiterated that point in his opinion in the Medellin case earlier this Term, and once again in his dissent in Heller. In Medellin and Heller his colleagues in the majority derided his argument as a “judge empowering” method of unguided interest-balancing. This isn’t the place to engage in a long analysis of what Justice Breyer might mean by “legal judgment,” but I think it’s reasonable to think that he has something else in mind. (I hope to develop the longer analysis in an article to be published next year.)

For now, it may be worth observing the rhetorical difference between Justice Breyer’s description of his job as one requiring him to exercise “legal judgment,” and Chief Justice Roberts’s description of the job as that of an umpire calling balls and strikes. As to the latter – and with implications for the question of judicial empowerment – it seems to me striking, so to speak, that, as one might put it, when Chief Justice Roberts calls the balls and strikes, it turns out that the home team’s pitchers have a truly amazing capacity to get the ball in the strike zone while the visitors’ pitchers quite frequently throw wildly. And, we really should try to figure why exactly it’s a bad thing for people we call judges to exercise judgment.

"This Decision Will Cost American Lives": A Note on Heller and the Living Constitution


In the Boumediene decision a few weeks back, Justice Scalia argued that the majority's decision giving Guantanamo detainees a right to a judicial hearing would cost American lives. One could probably say the same thing of Justice Scalia's majority opinion in Heller. After all, if you lift the ban on handguns in the District of Columbia, it's entirely possible that some additional people will be killed as a result.

Indeed, there are passages in Justice Stevens' and Justice Breyer's dissents that come pretty close to making that accusation: Both argue that the Court is mucking around where it doesn't belong. Both argue that we face a difficult social policy issue where lives are at stake; and the Supreme Court is keeping elected representatives from adopting policies that might save lives. Yet in both Heller and Boumediene, the majorities (one conservative, the other liberal) blithely disregard stern warnings from the dissent that know-it-all elitist judges will cost American lives.

Now it's worth noting that I actually think that both Boumediene and Heller are correct on the merits. But its also worth noting that only one Justice on the Court agrees with me: Anthony Kennedy. (I confess I'm not entirely sure how I should feel about this fact. Am I turning libertarian? Am I a "swinger"? Or have I merely concluded that the D.C. City Council can sometimes act just as unconstitutionally as the Bush Administration?)

But whether or not my views on the merits of these cases are correct, the results in Boumediene and Heller demonstrate something important about the Supreme Court: No matter how much the arguments in Boumediene and Heller are dressed up in originalist garb, they show us that that living constitutionalism is alive and well. In each case the Supreme Court revises existing law to match changes in public opinion.

Boumediene reflected the public's increasing disgust with the Bush Administration's detention policies. In Heller, the Court changed existing law dramatically to adopt a new interpretation of the Second Amendment that is actually fairly close to the center of public opinion. It struck down one of the most restrictive gun control laws in the country and it recognized Americans' right to use handguns to defend their home.

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans' minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.

Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.

Welcome to the living Constitution, Justice Scalia. We couldn't have done it without you.

Thursday, June 26, 2008

Some preliminary reflections on Heller

Sandy Levinson

There are many things that one can say about today’s today’s decision in the Heller case from both “external” political perspectives or from a more “internal” legal one. No doubt I (and others) will have more to say about Heller in coming days. But I begin with the following.

I begin with some “external” considerations. My own hope, spelled out in some prior Balkinization posts, was that the Supreme Court would unanimously accept the very well-written and -argued brief by the Solicitor General, in behalf of the Bush Administration, which argued both that the Second Amendment indeed protected an individual right to “keep and bear arms” and disagreed with the particularly rigorous test that the Court of Appeals for the District of Columbia had applied to the D.C. ordinance. Thus, according to the Solicitor General, the Court should remand the case back to the court below for reconsideration under a proper, somewhat looser, standard that would still have easily supported invalidating the ordinance.

The reason I so strongly supported the Solicitor General’s brief was certainly as much political as legal. Unanimous acceptance of his sensible view might have helped to diminish at least some of the culture war that has been waged now for at least four decades between advocates of “gun rights” and “gun control,” who have their own interests in demonizing their opponents. My hopes, of course, were spectacularly unrealized. Instead, the Court fractured along an all-too-predictable 5-4 axis, with the five conservatives supporting the rights of gun owners and the four liberals (or, more accurately, “moderates”) seemingly supporting the most extreme version of gun “control,” which is outright prohibition. But the Solicitor General also offered a way for the Court to make sure that gun control would not become a key issue in this year’s presidential race. As a partisan Democrat, I confess to being relieved that the dissenters did not prevail, for the upholding of the D.C. ordinance would, in effect, have served as a massive in-kind campaign contribution to John McCain.

Just imagine what might happen if Justice Kennedy had joined his more moderate colleagues, as he did just the day before in providing the all-important fifth vote to invalidate the death penalty for rapists of children. One sudders at the prospect of Sen. McCain, or some 527group, saying the current Court both wants to protect child rapists and prevent parents from possessing handguns to defend themselves and their children against such marauders. Now all that Sen. McCain can say is that “only one vote” stands between the protection of gun rights and the ability of the state to “take away your guns.” I have no doubt that Sen. Obama, who has been eager to express his respect for the Second Amendment—and who quickly distanced himself from yesterday’s Louisiana decision—will try to reassure gun owners that he would certainly not appoint anyone who did not share his respect for the Amendment.

Perhaps Heller will play a role in the presidential debates, but I’d be more than a bit surprised if it really had significant effect. Justice Scalia’s opinion, if one cuts through some of the bluster, is really quite moderate—he goes out of his way to support the legitimacy of much current federal regulation—and could easily be endorsed by Sen. Obama without political cost, save for those who wish him to continue down the politically fatal path of endorsing extremely restrictive gun control.

Then there are the “internal” features of the opinions. I confess that I am equally dismayed by the Scalia and Stevens opinions (though, if absolutely forced to choose, I’d go with the Scalia opinion). One of the most remarkable features of Justice Scalia’s majority opinion (joined, of course, by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito) and Justice Stevens’s dissent (joined by Justices Ginsburg, Breyer, and Souter) is the view that the Second Amendment means only what it meant at the time of its proposal and ratification in 1789-91. Justice Scalia, of course, has long been identified with “originalism,” even though some of his critics, both liberal and conservative, note that he has been a most inconsistent one. But Justice Stevens has certainly not embraced originalism. Yet they spend a total of 110 pages debating arcane aspects of the purported original meaning of the Amendment.

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia. There is no serious discussion, for example, of Saul Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, but many other examples could be offered, from various sides of the ideological spectrum.

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues. The late Victoria Geng once wrote a marvelous parody of Supreme Court decisions in which, among other things, the Court announced that “nature is more important than nurture.” We wouldn’t take such a declaration seriously. It is not clear why we should take much more seriously the kinds of over-confident declarations as to historical meaning that both Scalia and Stevens indulge in.

What is especially ironic is that the strongest support for Scalia’s position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been “dynamically” interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias—and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge—there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship. One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so. Thus, in effect, they could not be citizens. Charles Sumner, who, unlike Taney is quoted by Scalia, strongly endorsed the rights of anti-slavery settlers in Kansas to have guns to protect themselves against their pro-slavery opponents. If one reads only Scalia and Stevens, one would believe that there is no dynamism to the Constitution, which is both stupid as a theory of interpretation and, more to the point, completely misleading as a way of understanding the American constitutional tradition.

The Worst Thing You Can Do to a Child Short of Murder

Andrew Koppelman

There are a number of puzzling aspects of the Supreme Court’s decision yesterday in Kennedy v. Louisiana invalidating the death penalty for child rape, not least that, as Eric Posner observes, it appears to bar states from innovating in this area. I’m not going to offer any opinion here about the soundness of the result that the Court reached. What puzzles me particularly is the view reflected in these statutes, that the most heinous thing one can do to a child short of murder – an act that uniquely deserves a punishment equivalent to that for murder - is to rape him or her. That is a very strange idea.

I have three kids of my own, and I obsess about dangers to children as much as any parent does. So I hope it’s not misinterpreted as callousness to children when I say that the logic of the Louisiana law seems to me to reflect misplaced priorities.

The Louisiana Supreme Court, in a sentence quoted in the U.S. Supreme Court decision, declared that “short of first-degree murder, we can think of no other non-homicide crime more deserving [of capital punishment].” To find worse crimes, even in the narrow area of child abuse, it’s not necessary to look beyond the U.S. Reports. DeShaney v. Winnebago County is a 1989 case in which a father beat his four-year-old son, Joshua, so severely that the boy suffered severe brain damage and remains profoundly retarded. His father received a sentence of two to four years in prison. He is now out of jail, while Joshua lives, partly paralyzed, in an adult care facility, which he will never leave. Wouldn’t it have been better for young Joshua if he had been raped? By what logic is the harm in the Kennedy case (which concededly is pretty awful) worse than that in DeShaney?

I suspect that what’s going on here is the familiar American obsession with the purity of children, particularly in relation to matters involving sex. Sex is perceived as contaminating to children in a particularly horrible way. That’s why we tolerate children’s exposure to remarkably violent entertainment, while shrinking from exposing them to anything sexual. This obsession with sex produces pathologies that I’ve discussed before, here and here. The peculiar priorities of the Louisiana law are another example.

Who Thinks the Millionaire’s Amendment Was Incumbent Protecting? Those Who Voted For It.

Guest Blogger

Rick Pildes

In response to my last post, one commentor, Jeff, quite fairly asks why the Millionaire’s Amendment (MA) should be seen as an incumbent-protecting provision smuggled into the McCain-Feingold law. After all, don’t challengers running against wealthy, self-financed incumbents have just as much a right to the higher contribution limits as do incumbents running against wealthy, self-financed challengers?

There are lots of ways to try to show this. As another commentor, Jack White Jr., points out, one could look to the process by which the MA made it into law: the provision was added in a low-visibility floor debate and was not part of the general campaign-finance legislation that was the focus of national attention. But better yet, let’s look at a few comments from the Senators themselves. It was Senator McCain himself who directly expressed the point my post made, although the Senator did not seem to recognize how much his comment undermined the provision. When the MA was pending, McCain said: "Everyone is scared to death of waking up in the morning and reading in the newspaper that some Fortune 500 CEO or some heir or heiress is gonna run against them and spend $15 million of their own money."

And other Senators, otherwise supportive of the McCain-Feingold Act, themselves called the MA incumbent protection. Here is what Sen. Dodd said on the floor: "[T]his is what I would call incumbency protection... I understand the concern my colleagues ... have about facing the wealthy opponent. But ... it looks to me as though all we are doing is trying to protect ourselves rather than to level that playing field."

Even wealthy incumbents do not have to do much self-financing once they are in office. They have access to plenty of donors. Moreover, under parts of the MA the Court did not talk about directly, the formula used counts at almost zero those funds raised in prior election cycles. Thus, the plaintiff Davis's opponent, Tom Reynolds, could have spent another $1.4 million even though he outspent Davis by over $3 million, and he'd entered the election with $1.15 million in warchest from prior cycles.). I could add more, but for now I hope that’s enough to respond to Jeff’s good question. My thanks to Professor Roy Schotland, who provided some of the specifics here through a post to an election law discussion list.

When Do Campaign Finance Laws Become A Way to Protect Incumbents?

Guest Blogger

Rick Pildes

Whenever the Court divides 5-4 in high-profile cases along lines conventionally considered ideological, as in today’s campaign-finance decision that holds unconstitutional the “Millionaire’s Amendment” provision of the McCain-Feingold law, the temptation is to process the decision in those same ideological terms: the decision must be a victory for politically “conservative” views of campaign-finance regulation and a defeat for “liberal” ones. But today’s decision is more interesting and complex than that. I want to suggest why campaign-finance reformers ought to be more accepting of today’s decision than most are likely to be.

A fundamental risk with all laws that regulate politics is that they will be devices for incumbents and their allies to protect themselves against genuine competition. And a key aspect to this case is only hinted at in the Court's opinion but nonetheless undoubtedly shapes the decision: the enormous risk that this provision - and others like it Congress might adopt - is a way for incumbents to manipulate election laws so as to make it even harder for challengers to take them on. Even those who generally support campaign-finance regulation must recognize the risk that the power to regulate in this area, as with voter ID laws, gerrymandering, or any other law that regulates the election process, will become a power to entrench current powers in place. This particular provision reeks of that possibility (as I noted in my 2004 Harvard Law Review Supreme Court Foreword, in which I criticized this provision while endorsing the Court's decision upholding the McCain-Feingold law in general). Every incumbent's nightmare is to wake up and discover that an extremely wealthy challenger has decided to take him or her on. So when Congress says we must make it easier to compete and raise large amounts of money against wealthy self-financed candidates, there is surely reason to be, at the least, suspicious. This provision also makes Congress' purported concerns about corruption and the appearance of corruption seem self-serving. Apparently, those concerns disappear for Congress when a wealthy candidate runs, since now the opponent is free to raise money in amounts that otherwise are considered corrupting.

The specter of incumbent self-entrenchment is central to today’s decision, in my view. That shadow emerges most clearly when the majority expresses concerns about laws that impose different rules for candidates competing in the same race (Slip op, at 11). But it is also hard within conventional constitutional doctrine to find a way for the law to reach the risk that election rules are self-entrenchment mechanisms. The reason is that laws like this pose a risk to a structural value the Constitution secures, but not to any kind of conventional individual right. The structural value is that elections be open, competitive, and not rigged through groundrules incumbents have adopted that insulate themselves from robust challenges. That the Court has acted to protect that structural value cannot be doubted: the best example is the famous one-vote, one-person cases, which held unconstitutional self-entrenching malapportionment schemes of the 1960s in the famous line of cases that begin with Baker v. Carr. But the Court has always been on shaky ground in enforcing the structural value of open democratic competition in elections, because nothing in the Constitution directly and expressly gives the Court the power to protect the process of democratic elections per se – to ensure that anti-competitive rules are not enacted – as opposed to protecting the specific, enumerated, individual rights the Constitution guarantees.

These issues are the axes around which the debate between majority and dissent revolves. And it is a legitimate debate, given the structure of constitutional doctrine. Applying conventional tools of analysis, the dissent argues there is nothing unconstitutional in the Millionaire’s Amendment because that provision violates no individual right. In a conventional sense, that is true: it is hard to see how a candidate’s individual right is violated when he or she remains free to spend as much money as they want. But notice that the dissent, unlike the majority, stops at the individual-rights side of the analysis and essentially ignores the larger, more structural concern of whether this provision is a way for incumbents to entrench themselves (a value all incumbents agree on, which is why legislating to do so is one area where bipartisan agreement flourishes). Indeed, the dissent simply declares this provision a "good-faith attempt by Congress to regulate." In my view, that is much too naïve. At the very least, before proclaiming the virtue of such a provision, the dissent should have explored the possibility that this is not true and actually demonstrated that the law is not an incumbent-entrenchment device. To accept Congress at face value when it regulates in such a politically self-interested arena, with a provision like this one involved, is far too credulous.

What we see in the case, as in many others in this area, is the Court groping for a way to police against the genuine risk that legislators will regulate in self-interested ways when it comes to politics. The Constitution does not directly provide an easy means for courts to address that concern, but nonetheless, the Court has found ways since the 1960s to try to guard against that risk. In my own view, the Court should be more aggressive than it has been in recognizing this risk and addressing it. But since reformers of the political process are concerned about corruption of that process, they should certainly be concerned about the kind of corruption that involves legislative self-entrenchment. The more often the Court finds ways to get at that problem, the better. And that, in my view, is why today’s decision should be seen in a richer light than those who simply look at the headlines are likely to see it.

John Yoo Testimony

Marty Lederman

Here are John Yoo's prepared remarks for the hearing before the House Judiciary Committee this morning. (I don't believe David Addington is submitting a prepared statement.) CSPAN covering it live here.

I'm out of town and don't have time just now to blog in detail about this statement, except for a handful of very quick reactions:

1. John claims that the 2004 Levin torture memo, which superseded his 2002 OLC opinion, concluded that all interrogation methods OLC had previously approved as legal "were still legal." We now know that that's dead wrong. As Levin testified before this same committee last week, the footnote in question, which Attorney General Gonzales insisted that OLC include, merely indicated that the writers of the 2002 memos -- i.e., John Yoo -- would not have changed their bottom line, even if they had employed Levin's analysis. Levin himself, however, was uncertain about the legality of some of the CIA techniques, and was in the process of reviewing them when he was effectively removed from OLC.

2. John is testifying that his torture memos could have had no bearing on the abuse that took place in Iraq, because "the Geneva Conventions provided the relevant rules for the war in Iraq." There are several problems with this statement.

Most important is that OLC itself, when John was there, had advised the Pentagon that the Fourth Geneva Convention did not protect "unlawful combatants," which includes most if not all of the insurgents in Iraq. (See page 4 of the April 2003 DOD Working Group Report.) As Jack Goldsmith reports in his book, the very first thing he decided when he arrived at OLC in October 2003 was that the Fourth Geneva Convention did protect Iraqi civilians -- a decision that hocked and dismayed the White House. It is fairly clear (as reflected in the Working Group Report) that until that time, the Administration, based presumably on John's own advice, was acting on the assumption that the insurgents in Iraq were not protected by the Geneva Conventions.

This explains why, according to several reports (most importantly those of Sy Hersh and Jane Mayer), the Pentagon and CIA placed Special Forces and CIA operatives in Iraq in 2001 or 2002, whose basic instructions were that there was no law -- certainly not Geneva -- that protected detainees, and that the "gloves were off" and that they could engage in widespread, wanton abuse and cruelty. Which they did. (And as the Fay, Jones and Schlesinger Reports found, and many accounts attest, the conspicuous abuse by CIA and Special Forces in Iraq was an important contributing factor to the breakdown of ordinary norms among the regular military forces, as well.) The Pentagon and CIA would not have given these forces the green light to abuse prisoners if OLC had not previously advised that neither the Geneva Conventions nor any relevant statutes stood in the way of such abuse.

Finally, John's broad Commander-in-Chief override theory, which was a prominent part of the DOD Working Group Report, and which was briefed to General Miller on his way to "GTMOize" Iraq, obviously conveyed the message that the President could ignore any applicable statutes and treaties, even if they would otherwise apply.

John's legal advice, then, was a fairly direct cause -- certainly a necessary cause -- of the abuse in Iraq in 2002 and 2003.

3. John stresses, as he has in the past, that he was without much guidance in interpreting the federal torture statute, since there had not been any prosecutions under it, or any court cases construing it. But the virtually identical definition of "torture" is included in statutes governing removal of aliens and asylum applications, and that definition had received extensive treatment from courts under those statutes (which were also enacted in order to implement the Convention Against Torture). The INS and the State Department, therefore, had very extensive knowledge and expertise on the question. And yet those experts were cut out of the loop -- they were not consulted on the OLC opinion. Indeed, John's testimony states that the NSC ordered OLC not to discuss its work with the State Department! -- something that is in itself fairly scandalous.

4. John states that his 2002 torture opinion was "reviewed, edited and re-written by the assistant attorney general in charge of the office at the time [Jay Bybee], as is the case with all opinions that issue from OLC." John is correct that virtually all written OLC opinions -- certainly those of great importance or dispute -- are at the very least reviewed by the AAG. How, then, does he explain the fact that two of the most momentous OLC opinions has ever issued -- the September 25, 2001 Opinion on the President's war powers and the March 14, 2003 opinion informing DOD (over the vociferous objections of numerous DOD lawyers) that its interrogators had virtual carte blanche to ignore federal statutes -- were signed by John Yoo himself (a mere deputy), rather than by the head of OLC (Dan Koffsky in 2001; Jay Bybee in 2003)?

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