JB

Secretary of Defense Donald Rumsfeld has recently grumbled to reporters that criticism of the Administration's war policies can encourage terrorists and make America's war on terrorism more difficult, Newsday reports.

Many, I assume, will accuse Rumsfeld of trying to stifle dissent. My objection is somewhat different. I think Rumsfeld does not properly recognize the reason why dissent about the war can be important to the success of American foreign policy, even if it does complicate the Administration's efforts.

Rumsfeld and other members of the Administration have shown a decided penchant for disdaining the views of people who disagree with them. They were supremely confident about how easy it would be to topple Saddam and install a friendly democratic state in Iraq. We would be greeted as liberators, we were told, and our victory would smooth the Israeli-Palestinian peace process. How naive these assertions now sound in light of recent events.

The Administration also refused to disclose how much its Iraq adventure would cost, and how long American troops would have to stay. Rumsfeld was determined to show that a war of preemption could be performed on the cheap, with minimal forces, and without dragging the U.S. into a quagmire. He and others in the Administration wanted to show that preemption was a viable policy for the future, and that we could act without very much international cooperation.

The Administration's critics protested repeatedly that the Administration was underestimating the dangers of a preemptive attack on Iraq, that even if victory would be swift, stabilizing the country would take many years and great expense, and that an unacceptable number of American lives would be lost in the process. Critics also argued that the Administration's overconfidence, its refusal to level with the American people about how much the war woud cost and how long it would take, and its thumbing its nose at nations that disagreed with its policies would come back to haunt it someday.

Almost all of these warnings of critics have come to pass. The President has given up the triumphalist tone of his May 1st strut around the deck of the U.S.S. Abraham Lincoln, in which he asserted "Mission Accomplished." He now has somberly informed the American public that he will need 87 billion dollars to stabilize the country, an astonishing sum if you consider that it is more than the cost of the 1991 Persian Gulf War. He has grudgingly come to agree that international assistance will be necessary, although he cannot yet bring himself to request help. Instead he simply notes that other countries "should" help the United States.

This brings me to the value of dissent. If the President and his Administration had listened to the dissenters in this country and throughout the world, and taken their arguments seriously, he might well have chosen a wiser path, even if he did not follow their advice in all respects. He might have prepared more thoroughly for the occupation. He might have spent more time working out the details of how to search for weapons of mass destruction in the chaos of war. He might have waited until October and picked up the support of more countries, or even gotten the U.N.'s blessing.

The President and his advisors did not listen to dissenters before, dismissing them as pessimists and mere impediments to the realization of his grand plan. They proved to be much more able and prescient than he was willing to believe. He has now grudgingly come to see the value in much of what they said.

Given this lesson, perhaps the President might try listening more closely to those who disagree with him and consider their objections and concerns more seriously. Dissent provides a crucial counterweight to wishful thinking. If the Administration simply dismisses the dissenter today, as it did in the past, it risks making the same mistakes it made in the past two years-- the mistakes of hubris, the mistakes of overconfidence, the mistakes of a naive belief that the truth and good and righteousness lie only on your side, and that all those who disagree with you are either fools or knaves.

The Administration has made those mistakes once before, and now is beginning to see the consequences of its arrogance and its blindness. Isn't it time for it to gain a bit of humility, and begin recognizing the practical value of dissent?

UPDATE In my original posting, I posted to a Washington Post story at the following location that had the same quotes as the Newsday story. (A version of that story from Reuters, by Tabassum Zakaria, is here.) However, a day later, a different story by Dana Milbank, which omitted all of Rumsfeld's quotes about dissent, had replaced the original story. Does anyone know why this would be the case?

JB

Although the number of soldiers killed in Iraq has been widely reported, the number of wounded is far larger. The Pentagon, however, has treated the exact number of soldiers wounded as classifed, as Bill Berkowitz reports. The Florida Sun Sentinel reports that around 10 soliders a day are wounded in action, although the news of these injuries is not routinely covered by the media:

The number of those wounded in action, which totals 1,124 since the war began in March, has grown so large, and attacks have become so commonplace, that U.S. Central Command usually issues news releases listing injuries only when the attacks kill one or more troops. The result is that many injuries go unreported.

The rising number and quickening pace of soldiers being wounded on the battlefield have been overshadowed by the number of troops killed since President Bush declared an end to major combat operations May 1. But alongside those Americans killed in action, an even greater toll of battlefield wounded continues unabated, with an increasing number being injured through small-arms fire, rocket-propelled grenades, remote-controlled mines and what the Pentagon refers to as "improvised explosive devices."

Indeed, the number of troops wounded in action in Iraq is now more than twice that of the Persian Gulf War in 1991. The total increased more than 35 percent in August -- with an average of almost 10 troops a day injured last month.

Fifty-five Americans were wounded in action last week alone, pushing the number of troops wounded in action since May 1 beyond the number wounded during peak fighting. From March 19 to April 30, 550 U.S. troops were wounded in action in Iraq. Since May 1, the number totals 574. The number of troops killed in Iraq since the beginning of May already has surpassed the total killed during the height of the war.

Pentagon officials point to advances in military medicine as one of the reasons behind the large number of wounded soldiers; many lives are being saved on the battlefield that in past conflicts would have been lost. But the rising number of casualties also reflects the resistance that U.S. forces continue to meet nearly five months after Hussein was ousted from power.

With no fanfare and almost no public notice, giant C-17 transport jets arrive virtually every night at Andrews Air Force Base outside Washington, on medical evacuation missions. Since the war began, more than 6,000 service members have been flown back to the United States. The number includes the 1,124 wounded in action, 301 who received non-hostile injuries in vehicle accidents and other mishaps, and thousands who became physically or mentally ill.

At Walter Reed Army Medical Center in Washington, a half-hour drive from Andrews, Maj. Gen. Kevin C. Kiley, the hospital's commanding general, said there were only two days in July and four in August that the hospital did not admit soldiers injured in Iraq.

JB

According to a classified report, obtained by the Washington Times.

A secret report for the Joint Chiefs of Staff lays the blame for setbacks in Iraq on a flawed and rushed war-planning process that "limited the focus" for preparing for post-Saddam Hussein operations.

The report, prepared last month, said the search for weapons of mass destruction was planned so late in the game that it was impossible for U.S. Central Command to carry out the mission effectively. . . .

The report also shows that President Bush approved the overall war strategy for Iraq in August last year. That was eight months before the first bomb was dropped and six months before he asked the U.N. Security Council for a war mandate that he never received.

Senior U.S. officials, including Deputy Defense Secretary Paul Wolfowitz and Deputy Secretary of State Richard Armitage, conceded in recent weeks that the Bush administration failed to predict the guerrilla war against American troops in Iraq. Saddam loyalists and foreign fighters have killed more than 60 soldiers since May 1, mostly with roadside bombs and rocket-propelled grenades.

The Congressional Budget Office projected yesterday that the demands of troop rotations globally will leave the Pentagon without any fresh Army units for Iraq in 2004 unless tours are extended beyond one year.

The Joint Chiefs report reveals deficiencies in the planning process. It says planners were not given enough time to put together the best blueprint for what is called Phase IV — the ongoing reconstruction of Iraq.

JB

In his Sunday speech to the nation, President Bush once again artfully attempted to suggest a connection between deposing Saddam Hussein and the war on terror that began with the September 11th attacks:

And for America, there will be no going back to the era before September the 11th, 2001, to false comfort in a dangerous world. We have learned that terrorist attacks are not caused by the use of strength. They are invited by the perception of weakness. And the surest way to avoid attacks on our own people is to engage the enemy where he lives and plans. We are fighting that enemy in Iraq and Afghanistan today so that we do not meet him again on our own streets, in our own cities.

This is cleverly done, but in fact, there is still no evidence that Iraq was behind the 9/11 attacks. Nor does there seem to be any evidence that the Administration's policy in Iraq has made Americans safer at home, or successfully deterred future attacks on American soil. Indeed, the evidence points to the opposite conclusion. By attacking Iraq, we diverted resources from Afghanistan, which has fallen into increasing political chaos, and from needed expenditures on homeland security. As a result of our attack, terrorist groups and Islamic fundamentalists who have no love for the U.S. have been pouring into Iraq to assist with the guerilla war now being conducted against our troops. That war, and the cost of rebuilding the country, have sapped American resources even more. And, as I have repeatedly suggested in this blog, there is also the very unsettling possibility that if weapons of mass destruction, or materials used to construct them, did exist before the war (a prospect that seems increasingly less likely, see the post below), were spirited out of the country as a result of the chaos produced by our attack on Iraq, and are now in the hands of terrorist groups.

Our show of strength, as the President puts it, has had exactly the opposite effect that the President claims it would have. Instead it seems that President Bush is the one offering the nation "false comfort" when he suggests that his Iraq policy and his refusal to fund homeland security at proper levels has made Americans safer.

JB

The Iraq Survey Report, which took over the task of finding weapons of mass destruction from the U.S. Army, is due to issue an interim report in the next week. The Survey headed by David Kay, has been especially tight lipped about its findings. The New Zealand News reports, however, that recent statements by British and U.S. officials suggest that they believe that the report will state that no weapons have been found, and that, at best, the Iraqi weapons programs were in a state of what is has been called "suspended animation;" i.e., preserving a coterie of scientists who would make it possible for Iraq to develop these weapons some day.

If so, this cannot be heartwarming news to either the Administration or to Tony Blair's government, which asserted repeatedly that Saddam actually possessed weapons of mass destruction and offered this as grounds for war. Indeed, in his Sunday night speech to the nation, President Bush said nothing about the hunt for Saddam or Osama bin Laden, nor the search for the missing weapons of mass destruction.

JB

And they're gonna be trouble, or so says this report from Reuters about the rapidly deteriorating situation in Afghanistan.

You remember Afghanistan; it was our first victory-- excuse me, I meant, our first "end to major military operations."

The problem is that we already have our hands full in Iraq.

Well, at least it's a good thing the Bush Administration didn't stretch our resources thin by running huge deficits.

Oh wait, I think it did.

JB

The New York Times reports that Ashcroft is getting entirely predictable flak, but with an interesting twist:

Representative John Conyers Jr. of Michigan, the ranking Democrat on the House Judiciary Committee, told Mr. Ashcroft in a letter that he should either "desist from further speaking engagements" or explain why they do not violate restrictions on political activities by government officials.

Mr. Conyers said that the speeches in defense of the USA Patriot Act, as the antiterrorism law is known, appeared to conflict with Congressional restrictions preventing the use of Justice Department money for "publicity or propaganda purposes not authorized by Congress." He said they might also violate the Anti-Lobbying Act and its restrictions on grass-roots lobbying on legislative matters.

Lawyers with the American Civil Liberties Union raised similar concerns about Mr. Ashcroft's speaking tour, which began this week in Washington, Detroit, Philadelphia, Cleveland and Des Moines and will continue over the next three weeks. The message in all the speeches has been that despite rising criticism the Patriot Act has proved an essential tool in fighting terrorism.

Barbara Comstock, the Justice Department spokeswoman, said Mr. Ashcroft's speaking tour had been thoroughly reviewed by department lawyers and was "entirely appropriate" under federal law.

The proper criticism of Ashcroft is that the Patriot Act is a bad law and that he has overreached in using it, not that he is violating federal law for defending it. I think what Conyers and the ACLU are doing in these accusations is misguided and counter-productive. I, for one, would not interpret the Anti-Lobbying law [18 USC section 1913] to reach this sort of activity. It should not apply to speeches by the President or Cabinet members to drum up support for legislation through public speeches or personal appearances. What it should apply to-- at most-- are surreptitious attempts by lower-level government bureaucrats (i.e. those who are not appointed by the President and confirmed by the Senate) to induce private citizens to lobby Congress or write their Congressmen and Senators. It's possible that Ashcroft might fall afoul of other language designed to keep government servants from spending money to engage in self-aggrandizement or puffing of their achievements, but these laws really shouldn't apply to this case. Ashcroft is not going on a frolic and detour trying to puff himself up. He is doing Bush's bidding-- going on the stump on issues that Bush doesn't particularly want to face the public on.

I think there is some irony in the ACLU trying to keep John Ashcroft from speaking.

JB

Both Phil Carter and The Rittenhouse Review, among others, have been discussing Attorney General John Ashcroft's traveling road show defending the Patriot Act.

What is the point of this public relations tour? I asked my Yale Law School colleage Michael Levine recently. His theory was intriguing. He suggested that the Administration wants to figure out how well its civil liberities policies are selling by sending out their most visible symbol and seeing how the public reacts to him. If Ashcroft can sway the public, then it will be more of the same, including the submission of the Patriot Act II, either before the election or shortly thereafter. But if Ashcroft's publicty tour doesn't sell well, then the Bush Administration will change its public face with respect to civil liberties (as opposed to its practices), in order not to lose moderate support in the upcoming election. Indeed, if Ashcroft does particularly poorly he may even be replaced in the next Bush administration.

In short, Ashcroft is being sent out as a miner's canary, in order to gauge the political consequences of Bush's civil liberties policies. The Bushies are worried that lots of communities have passed anti-Patriot Act resolutions and that the bill has generally gotten a bad press. It's one thing if it's just Beltway grumbling and objections by liberals and members of the chattering classes. It's quite another if it could actually cost them votes among independents and moderate voters.

Why is Ashcroft in particular being sent out? Well, for one thing, he's expendable. He's not a long-time Bush loyalist, and so not so much loyalty is owed to him. It's true that he's an important liason to the Christian Right, but it's my sense that George Bush himself is now seen as a major political figure in (or major political ally of) much of the Christian Right, so Ashcroft is not as necessary as he once was. And there are many other people who could replace him as Attorney General, and thus put a kinder, gentler face on the Administration's policies.

It's not a good sign, however, that Ashcroft has been speaking mostly in front of friendly audiences of law enforcement officials and conservative groups. The real test of Ashcroft's publicity tour will come when he faces the sort of voters who might ditch the Republican Party in 2004.

JB

Atrios raises an interesting point when he suggests that it's important that Chief Justice Moore is a judge rather than a legislator. He says

one thing [Balkin] doesn't address (note he's the really smart lawyer and I am not) is that even if one thinks, as [Alan] Keyes does, that states do still have the right [to establish religion], that would seem to be the job of the state legislature and not a lone judge.

But one thing that's been overlooked in the Chief Justice Moore Controversy is that when Moore put up his monument he was not acting in his capacity as a judge. He was acting in his capacity as chief administrator of the Alabama courts. Moore has decided no case that says that he has the right to put up the Ten Commandments in the state court house. He could not do so anyway, because as a party to the controversy he would have to recuse himself from deciding it. Rather, he is acting as an administrative functionary, like a member of an administrative agency. And administrative agencies do make policy. They make it all the time. (It's also true but irrelevant that Chief Justice Moore is an elected official; although judges are elected in Alabama, they are elected to be judges. The important point is that as Chief Justice, Moore has the additional responsibilities of maintaining the courthouse and administering the Alabama judicial system.)

That's important for two reasons. First it is precisely because Moore is acting in his capacity as administrator that his actions can be considered by a *lower federal court.* Decisions of state supreme courts are appealed to the Supreme Court, not the lower federal courts, and in most cases (except for federal habeas corpus proceedings), lower federal courts have no power to review decisions by state courts. So the only reason that Judge Thompson could order Moore to move the monument is because Moore is not acting as a judge but as an administrator.

Second, even though Moore is not acting as a judge, but as an administrator, he still has an independent obligation to interpret and obey the U.S. Constitution. That is true of legislatures, members of the executive branch, and judges. All of them are sworn to uphold the U.S. Constitution as required by Article VI. So whenever a legislature or an administrative agency makes a decision concerning religion, they must independently assess whether what they are doing violates the Establishment Clause. They should not simply leave it up to the courts to decide. Often legislatures don't do this (no matter what portion of the Constitution is involved), because they are pandering to their constituents. They think that it is ok to let the courts take the heat instead of voting against popular legislation or engaging in executive action that they know (or should know) is unconstitutional. When they do so, they are violating their obligations under the Constitution and their oaths of office.

Chief Justice Moore, in this case, *is* engaging in independent constitutional interpretation. His interpretation is wrong, but at least he is making a claim about what the Constitution really means. Having made his interpretation, and having had it rejected by the courts, he should bow to their decision. This is not a case where the Court says that Moore may do something and in his heart he knows that the best interpretation of the Constitution means that he should not. In that case he may disregard the Court's more lenient interpretation and refuse to violate the Constitution as he interprets it. Rather, this is a case in which a court has told Moore that a specific action he has taken violates the Constitution, regardless of his interpretation to the contrary. In that situation, after having had his day in court, he should follow a direct order by the courts.

UPDATE: The administrative nature of Chief Justice Moore's action is clear from the order issued by the other members of the Alabama Supreme Court, ordering that the Building Manager of the Alabama Judicial Building remove the monument. (Link via Howard Bashman via Findlaw)

JB

At a rally in support of Judge Roy Moore's installation of a 5,300 pound granite copy of the Ten Commandments, former Republican presidential candidate Alan Keyes endorsed the idea of allowing states to establish their own religions, and impose religious tests for office as long as they did not otherwise violate "the fundamental rights of individuals":

Contrary to popular belief, state-sanctioned churches and religious tests are not unconstitutional and do not run counter to what the nation's founders believed, former presidential candidate Alan Keyes said at a rally Aug. 16.

Arguing for a radical shift in constitution interpretation, Keyes said that the founders wanted states to make their own laws in matters concerning religion. Keyes, a Catholic, was speaking at a rally supporting Alabama Chief Justice Roy Moore, who has placed a 5300-pound granite monument of the Ten Commandments inside the state judicial building. . . .

If religious tests and established churches were unconstitutional, Keyes said, then they would have been abolished prior to the First Amendment's passage. Such a state-sanctioned church would be sanctioned not by the federal government but instead by an individual state, he said.

With such a change in American thought, there would be no controversy over a Ten Commandments monument in Alabama, Keyes said. Of course, that would mean that people of a particular faith might decide to avoid living in certain parts of the country. For instance, a Baptist might decide not to live in Mormon-dominated Utah, which logically could have Mormon-controlled schools. . . .

The founders believed that local people "in their states and localities have the right to live under institutions they would put together to govern themselves according to their faith," he added.

Federal courts today, Keyes said, are "imposing a uniform national regime of disbelief and atheism on the people of this country." . . .

In the civil rights movement in the 1960s government officials were defying federal court orders in an attempt to violate the individual rights of blacks, Keyes said.

"[But] today it is the courts that are seeking to violate that basic principle, and the people of Alabama are demanding that it be respected," he said.

That's all well and good, but what Keyes omits is the subsequent history of the country, and in particular the effect of the Fourteenth Amendment. The states abandoned their established churches before the Civil War, and because territories of the United States could not have an established church, when new states entered the Union they did not have established churches either. Eventually, courts recognized that an important function of the Fourteenth Amendment was to apply basic liberties in the Bill of Rights to state governments. One lesson of the civil war was that states could violate people's liberty and equality every bit as much if not more than the national government could. The Fourteenth Amendment was passed to prevent states from infringing on basic liberties, and those liberties included many of the provisions of the Bill of Rights. (In fact the modern doctrine of incorporation should have been unnecessary but for the Supreme Court's misinterpretation of the Fourteenth Amendment in the Slaughterhouse Cases, but I'll leave that story to another day).

Once the First Amendment was applied to the states through the Fourteenth Amendment, the interpretation of the Establishment Clause as merely a federalism provision made no sense. To apply the First Amendment-- including the Establishment Clause-- to the states meant that the same principles of non-establishment that bound the federal government must also apply to state governments. And the substantive values that the Establishment Clause protects-- preserving religious equality and preventing non believers or members of minority religions from being treated as second class citizens-- had to apply to the states as well as to the federal government.

So what Keyes is arguing for is what we might call disincorporation-- holding that portions of the Bill of Rights no longer apply to state governments. In particular he is arguing that the Establishment Clause should be disincorporated and should no longer apply to state governments. Quite apart from the fact that this position has been rejected by federal courts, I think it is a particularly bad idea. There is good reason to think that religious factions will be more oppressive to non-believers and people of other religions at the state level than they will be at the national level: This is just another version of Madison's famous argument in Federalist 10. At the national level, religious groups need to form coalitions with people of other religions to get things done, and this will tend to temper their excesses; at the state and local level they will be less restrained and therefore will be more likely to overreach.

The supporters of Judge Moore's monument, who are encouraging his defiance of a federal court order, should not, I think, be equated with George Wallace, who resisted federal civil rights law in order to maintain a racist regime. I'm not particularly in favor of having the government promote religious values or religion in general, but limited recognition of religion in public life is not particularly harmful to the body politic and may actually do considerable good. However, that is an argument about the proper scope of the Establishment Clause, not an argument that the Establishment Clause should be completely disregarded by state governments. The latter argument is quite troubling, and would cause all sorts of mischief.

The reason I believe this is that I take the concerns of Judge Moore's most vocal supporters quite seriously. Many of these supporters are people who are very much devoted to their cause. One can see this from the sincere passion with which they state their demand that God and God's laws be returned to government, and the genuine anger with which they denounce the federal courts' enforcement of the principle of non-establishment. They are quite sure that they are right and that other people with different views are wrong-- so wrong, in fact, that those who disagree with them are leading the country down the path to perdition. God must be returned to a prominent role in government if the country is not to be lost. Thus, for Judge Moore's supporters something quite serious is at stake and it is something quite important to fight for and to impose by law even on those who are misguided and unwilling. Thus, their version of religious establishment is unlikely to be the rather modest and toothless version we find in some European countries, like Great Britain, where the established church is unable to generate very much religious fervor. Rather, it is likely to be much pronounced and thus much more intrusive on the ordinary citizen's liberty and equality. Even though Keyes insists that fundamental rights of religious minorities and non-believers would be protected under his theory of state establishments, I think that there is a strong possibility that they would not be in practice.

JB

10. Governor Gray Davis wanted to show that California's mess wasn't really his fault: see, there were blackouts on the East Coast too!

9. Overstressed computers in West Coast attempting to tabulate all the candidates for California Governor.

8. Osama bin Laden and his compatriots check into a motel in New Jersey and turn up the air conditioning *really* high.

7. All innocent persons on death row in Texas prison system electrocuted at once.

6. Justice Antonin Scalia seeks return to original conditions when Constitution was written.

5. Department of Homeland Security seeks to confuse terrorists by hiding location of New York City.

4. Liberal paranoia comes true as country is returned to Dark Ages.

3. Latest new excuse by Bill Clinton to explain to Hillary why he can't make it home for dinner.

2. President Bush attempts to divert electricity from middle class to the wealthiest 1 percent.

1. Fox News sues Con Edison for trademark infringement for using the word "con."

UPDATE: As a former member of the U.T. Austin law faculty, I am of course, aware that Texas uses lethal injection instead of electrocution. Texas formally switched over (pardon the pun) around 1977, but didn't execute anyone that way until 1982, I believe. But please remember that Top Ten Lists are not supposed to be taken seriously as statements of fact, as opposed to, say, Fox News. Well, ok, maybe I should have picked a better example....

JB

The complaint in the case appears here (via Talk Left). Floyd Abrams will represent Franken's publisher, Penguin Books, suggesting that a first amendment defense is likely. The complaint argues that the book cover might mislead consumers into thinking that Franken is associated with Fox News (not very plausible) or that the book cover might tarnish Fox's mark and its good will (more plausible).

JB

John Jenkins wants to know whether I believe that a trademark suit by CNN against Ann Coulter claiming that Coulter's new book "Treason" infringed or diluted a CNN trademarked slogan would raise the same first amendment issues and whether I would also criticize CNN for suing Coulter to suppress her book. Well, of course it would raise the same issues, John, and of course I would also criticize CNN, who, like Fox News, should know better. I don't much like prior restraints against books, period, whether they are conservative books or liberal books. My point has been that mass media corportations, whether tilting to the left or to the right, simply have taken intellectual property rights much too far, and in the process, they have infringed on basic liberties of freedom of expression. The growing conflict between intellectual property and free speech is not (as far as I am aware) a left/right issue, and it is an issue about which many liberals and libertarian conservatives alike are quite concerned.

JB

"The unpredictability of our liability system means that even frivolous cases, even what we call junk lawsuits, carry the risk of enormous verdicts." Bush told a crowd in Greensboro, N.C.

Oh, wait, I have been informed that this was a speech about misusing the legal system to harass doctors, not misusing the legal system to harass critics of conservative news organizations.

Balkinization apologizes for the error.

No, wait, the White House did come out in favor of legislation that "would help prevent abuse of the legal system and help curb the growing problem of frivolous lawsuits in the United States.''

Ooops, no, it turns out that was a bill to prevent abuse of the legal system to shut down gun manufacturers, not abuse of the legal system to shut down critics of conservative news organizations.

Once again, Balkinzation apologizes for the error.

JB

Fox News is suing Al Franken in the New York courts, attempting to enjoin sales of his forthcoming book, "Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right." Fox claims that Franken may not use the expression "Fair and Balanced" because it has been trademarked by Fox News. According to the New York Times' report of the case, the court papers are particularly colorful, describing Franken as a "parasite," "shrill and unstable," and a person whose "views lack any serious depth or insight." It also accuses him of being either "intoxicated or deranged" at a press correspondents' dinner in April 2003.

Because Franken's obvious purpose is political parody, and, in particular, parody of Fox News itself, among others, Fox's lawsuit should not succeed. That is true even if Franken is selling his book to make money. Fox may well argue that the parody tarnishes its business and its mark, but the whole purpose of political parody is to poke fun at people one disagrees with. If Franken may not use the expression "fair and balanced" in a book to accuse Fox News of failing to be "fair and balanced," there is something seriously wrong with trademark law under our First Amendment. And if Fox can get an injunction preventing the sale of the book, we can be sure that the expansion of intellectual property rights has gone too far.

The most troubling aspect of the lawsuit politically is its attempt to harass a political opponent through the use of intellectual property laws. Fox News v. Franken is merely one episode in a much larger conflict between freedom of speech and intellectual property. Trademark, like copyright, has now become a general purpose device for private parties to use the state to suppress speech they do not like. And they can suppress the speech of others not merely to protect their legitimate economic interests but because of aesthetic and political disagreements as well. This is a misuse of trademark, which is designed to protect ongoing commercial interests, and it is a misuse of copyright, which is designed to promote progress in ideas, not inhibit robust debate about ideas.

We can only hope that Fox receives the bad publicity it deserves for filing this lawsuit; first, for being on the wrong side of this free speech controversy, and second, for trying to suppress people who disagree with its coverage of the news. It is particularly upsetting for a news organization to try to use the courts to suppress the speech of its political critics.

In 1964, at the height of the civil rights movement, an Alabama commissioner, L.B. Sullivan, tried to use the state's libel laws to shut down the New York Times for its publication of an advertisement that criticized racial discrimination in the South. The Supreme Court wisely decided that the interest in reputation had to yield to the promotion of "uninhibited, robust, and wide-open" debate in a democracy. Its decision in New York Times v. Sullivan established that free speech is protected even if it includes "vehement, caustic, and sometimes unpleasantly sharp attacks." Now Fox News is trying to circumvent that rule by claiming not that Franken is defaming it but that Franken is stealing and misusing the words "fair and balanced" that Fox News claims to own. But no one should own the words necessary to engage in public protest. It is high time for the courts to consider whether trademark law, like defamation law before it, needs greater constitutional boundaries to protect robust debate about public issues from those who would abuse their rights in intellectual property.

JB

I have been spending two very pleasant days in Auckland, New Zealand, and am about to travel to Sydney, Australia, where I'm going to give a lecture on Democratic Culture and Digital Speech on Thursday.

The basic idea is that the Internet makes particularly salient features of freedom of speech that must now be central to any robust theory of freedom of expression.

Freedom of speech is interactive and appropriative; it involves continuous exchange and influence between people and it builds on cultural materials that lay to hand. Even dissent builds on what it critiques.

Freedom of speech is important and valuable because it promotes a democratic culture, which is the fair ability of everyone to participate in the processes of meaning making and cultural production that, in turn, help shape and constitute them as individuals.

The focus on democratic culture is far broader than a concern with democratic governance or democratic deliberation-- the most prominent free speech theories of the twentieth century. And it emphasizes liberty, popular culture, and popular participation in culture far more than theories of democratic deliberation tend to do.

More about this in the days ahead.

JB

The Washington Post reports that the Bush Administration was warned in October that attacking Saddam might make the country less safe, not more. Although Saddam was unlikely to give chemical or biological weapons to terrorists unprovoked, he might do so if attacked by the United States:

[D]eclassified portions of a still-secret National Intelligence Estimate (NIE) . . . which began circulating Oct. 2, shows the intelligence services were much more worried that Hussein might give weapons to al Qaeda terrorists if he were facing death or capture and his government was collapsing after a military attack by the United States.

"Saddam, if sufficiently desperate, might decide that only an organization such as al Qaeda, . . . already engaged in a life-or-death struggle against the United States, could perpetrate the type of terrorist attack that he would hope to conduct," one key judgment of the estimate said.

It went on to say that Hussein might decide to take the "extreme step" of assisting al Qaeda in a terrorist attack against the United States if it "would be his last chance to exact vengeance by taking a large number of victims with him."

The declassified sections of the NIE were offered by the White House to rebut allegations that the administration had twisted prewar intelligence on Iraq's nuclear weapons program. The result, however, could be to raise more questions about whether the administration misrepresented the judgments of the intelligence services on another basis for going to war: the threat posed by Hussein as a source of weapons for terrorists.

The NIE's findings also raise concerns about the dangers posed by Hussein, who is believed to be in hiding, and the failure to find any of his alleged stocks of chemical and biological weapons. If such stocks exist, a hotly debated proposition, this is precisely the kind of dangerous situation the CIA and other intelligence services warned about last fall, administration officials said. A senior administration official said yesterday that the U.S. intelligence community does not know either "the extent to which Saddam Hussein has access or control" over the groups that are attacking U.S. forces, or the location of any possible hidden chemical or biological agents or weapons. Asked whether the former Iraqi leader would today use any chemical or biological weapons if he controlled them, the senior official said, "We would not put that past him to do whatever makes our lives miserable."

The official said the judgment of last fall's intelligence estimate -- that a desperate Hussein, in hiding and with U.S. troops searching for him in Iraq, could turn to al Qaeda -- "had not been supplanted."

It speaks volumes that in order to rebut charges that it deliberately misled the public about the use of intelligence, the Administration must make public documents (which it released this Friday) that suggest that members of the Administration had tunnel vision. Again and again we have seen the Administration refusing to admit unpleasant facts about its little adventure in Iraq: the cost of the war, the number of troops necessary to secure the peace, and the length of the subsequent occupation. We now discover that it also refused to consider secret intelligence warning that the war would actually undermine the War on Terror by leading to the proliferation of weapons of mass destruction and their distribution into the hands of terrorists.

The question that emerges most strikingly is this: Did the members of this Administation deceive the American people about the war or were they simply incompetent to run the Nation's foreign policy?

JB

Terry Neal's column in the Washington Post describes the contortions that pro-War Democrats like Kerry, Edwards, and Gephardt have been going through as the country becomes more and more fed up with the Administration's misleading justifications for the war, the failure to find weapons of mass destruction, the mounting costs of occupation and the prospect of fighting what looks to be a protracted guerrilla war:

Simply put, with anger among the party's base off the charts about the basis for going to war, the pro- war candidates can't afford to not challenge the president.

Many grass-roots Democrats were questioning the administration's assertions about the threat posed by Iraq long before the White House acknowledged last week that it should not have included the Iraq nuclear assertion in the president's State of the Union speech. War opponents questioned the administration's claims about Hussein's links to al Qaeda, Iraq's ability to launch a quick strike against U.S. allies in the region and the Iraqi government's alleged attempts to purchase high-strength aluminum tubes to be used as centrifuges for enrich uranium. . . .

But the pro-war Democrats can't backtrack too far. In choosing to support Bush last fall, the four candidates decided to accept the administration's reasoning over the doubts of many in the party. To switch gears now would be to acknowledge that they should not have done so.

With Vermont Gov. Howard Dean surging, it's clear that he is being rewarded at least in part for his consistent stance against the war. In forums in Iowa and New Hampshire, the war issue has become an even hotter topic in recent weeks, with voters pressing some of the pro-war candidates to reconcile the growing doubts about a key reason for going to war with their votes on the matter.

Therefore any Democrat (and indeed any Republican) who voted for the war on the President's assurances that Iraq was a threat should be given the opportunity to say: I was wrong and the President misled the country. There is no shame in having been deceived by a bad leader. There is only shame in refusing to admit your mistake and failing to have the courage to denounce bad leadership that is harming the country.

Nevertheless, we did invade Iraq, and we have taken over the country, and so Democrats who supported the war and Democrats who opposed it must stand for a just solution in Iraq. That means spending the money necessary to put the country back on its feet. It also means coming out strongly for a multilateral approach to the reconstruction of Iraq. And thus, it also means going to the United Nations and securing a resolution that allows countries who opposed us on the war to help us in cleaning up the mess that the Administration has created. We will have to swallow our pride a little bit, but not very much. For once Bush and company are out of the White House, I suspect that for most countries in the world-- and particularly France and Germany-- it will be back to business as usual. They can distinguish between a foolish Administration and the United States of America. Bush has lost credibility around the world, but members of a party not tainted with his dishonesty can repair the mess he has created.

So the Democratic position can be stated clearly and simply:

(1) Bush is a bad leader who got us into an unnecessary war, deceived the public, and is mangling the occupation.

(2) We are in Iraq for the long haul and let's make the best of it. We cannot abandon the Iraqi people and we should try to live up to our own ideals.

(3) We need the support of the international community to succeed.

(4) As long as Bush is in the White House, things will only get worse, because the rest of the world does not trust him or his Administration, and he has lost credibility with the very people we need most.

(5) Only the Democrats have the credibility with the rest of the world to succeed in Iraq. They have a long history of support for internationalism. They are the party best suited to succeed given our current position.

Finally, the Democrats should point out that the war in Iraq has proved to be a distraction from the War on Terrorism, and, indeed, if the weapons of mass destruction are now missing because they were looted and fell into the hands of terrorists, then the war has been not only a distraction but a serious setback. The United States should recommit itself to winning the war on terror, by making necessary investments in homeland security (which were actually left out of Bush's budget), by increasing support for military personnel (also, amazingly cut out of Bush's budget). The more the American people learn about how little the Administration really has invested in combatting terrorism, the better the Democrats should look; Democrats have a long history of supporting investments in infrastructure necessary for government to achieve its goals; they can and should argue in the spirit of that tradition of wise government investment that we need to spend the money necessary to make our country safe.

If Kerry and the other pro-war Democrats would simply admit that they made a mistake, they would actually have a much stronger position on foreign policy than the Administration does. They would be standing for something-- internationalism, a just solution in Iraq, and a renewed recommitment to winning the War on Terrorism-- rather than simply complaining.

JB

The New York Times reports that members of the Bush Administration, realizing they badly underestimated the costs of securing the peace, are now reaching out to the U.N. for assistance in stabilizing and rebuilding Iraq.

With the costs of stabilizing Iraq hovering at $4 billion a month and with American troops being killed at a steady rate, administration officials acknowledge that they are rethinking their strategy and may seek a United Nations resolution for help that would placate other nations, like India, France and Germany.

Administration officials contend that they are being practical, but within their ranks are policy makers sharply critical of the United Nations and those who would consider it humiliating to seek its mantle after risking American lives in the invasion that ousted Mr. Hussein. . . .

The discussions reflect a growing sense that the reconstruction of Iraq will require a new international alliance. For all their rapid success in the military phase, the American-led forces are struggling to establish stability and normalcy in Iraq. A Pentagon advisory panel that just returned from Iraq reported a pressing need for international assistance.

Even supporters of the administration's policy say its efforts are in jeopardy, and minute military planning gave way to disarray once the major combat ended.

"It's increasingly clear there was really some underestimation of the number of people who would be required after the regime fell, and the length of time required to stay there," said Paul Saunders, director of the Nixon Center, a nonpartisan research organization whose honorary chairman is Henry A. Kissinger.

Why didn't the Administration listen? It is a combination of hubris and arrogance on the one hand, and on the other, an almost visceral hatred and contempt for international organizations like the United Nations, which were seen as hindering American ambitions and undermining American sovereignty.

It is time to put those prejudices aside. Having taken over Iraq, we cannot now abandon it. We must do what it takes to secure a stable regime that will not become a hot bed of terrorism or a continuing rebuke to American foreign policy. The war on Iraq did not make America safer, but having started the war, we must now make the best of it. We will need the U.N.'s help.

JB

It's official, the war is not over. It has turned into what Gen. John P. Abizaid, commander of allied forces in Iraq, calls "a classical guerrilla-type campaign" whose fighters, drawn from Saddam Hussein's most unyielding loyalists and foreign terrorist groups, are increasingly organized. The United States will have to keep a large number of troops in the country for the foreseeable future, at the cost of billions of dollars. In case you are wondering, the Bush Administration also revealed yesterday that the deficit is predicted to be 455 billion dollars, by far the largest in the country's history. And with a weak economy, and continuing military obligations in Iraq and Afghanistan, matters are not likely to improve anytime soon.

I was a war skeptic, and one of the reasons for my skepticism was that I thought that winning the peace would be more difficult than winning the war. Let me repeat what I said in January:

But before going to war, you must ask: How many casualties are likely to your people and to the other side, and what collateral consequences will occur? How will this affect your strategic situation, five, ten, twenty years from now? While the war with one enemy is going on, what will your other enemies do in response while you are preoccupied? If you do manage to win, how long will you have to occupy your former enemy’s country? How much will the occupation cost? What new wars and conflicts will your occupation provoke? If you don’t ask these sorts of questions, you are just being foolish. This is exactly what the great military strategist Sun Tzu said two thousand years ago. He who reduces uncertainty before going into battle wins, he who embraces uncertaintly loses. That is what I meant by my previous post. The problem is that right now we are not reducing uncertainty. We are embracing it.

There is some evidence that the war with Iraq will not be as painless or quick as the President hopes, but put that aside. Even if the war is painless and quick, as I hope it will be, there is good reason to think that the occupation following the war will be particularly difficult and complicated. Jim Fallows has offered a good summary of the problems, and I recommend it to Gary and to anyone else who is interested. I don’t think one can make a decision about going to war without taking these issues into account. I fear that the Bush Administration is not being sufficiently realistic about these issues. I think there is a lot of wishful thinking going on about about American invulnerability, and about America's ability to remake Iraq any way it wants.

The Administration has been boastful, arrogant, and reckless. It has been reckless with the American economy, through its dogmatic insistence on greater and greater tax cuts. It has been reckess with foreign policy, by refusing to swerve from its policy of attacking Iraq, exaggerating the nature of the threat, dissembling about the real reasons for war, and refusing to explain in any honest fashion how long the war would cost and how long the occupation of the country would last. Now its recklessness in the latter arena is compounding its recklessness in the former. For the Administration is well on its way to seriously compromising both the domestic economy and its foreign policy goals.

In both cases, the Administration's strategy has to been to entangle the country in a policy that, once begun, will be difficult to undo. The tax cuts are politically difficult to undo, for any attempt to restore fiscal discipline will be met with outraged cries that the government is raising taxes, whether that accusation truly makes sense, given the strange way the tax cuts were actually structured. Perhaps equally important, by invading Iraq and taking it over, we have made it very difficult, if not impossible for ourselves to leave soon. For if there is chaos now, there is sure to be even more chaos if we abruptly depart.

What is most galling, I think, is that although the Administration's tough talk was designed to make Americans feel that they were being made safe in the wake of 9-11, it is clear that the Administration's policies have not made the country safer. The economy is sliding downhill. Insufficient funds have been appropriated for homeland security. The failure to find weapons of mass destruction may demonstrate not that the weapons were never there, but that they were smuggled out of the country and into the hands of terrorist groups during the chaos that came with the war. This is, of course, something that the Administration was repeatedly warned about, but which it dismissed, just as it dismissed the costs of the war, and the length of the occupation that would inevitably follow it. But wishful thinking of this sort does not make Americans safer from the threat posed by 9-11 or the war on terror in which we now find ourselves.

Being a decisive leader is not the same thing as being a good leader. Decisive action may make a person appear tough and principled, but it may just be a cover for recklessness, stubbornness and the refusal to listen to reason. These are characteristics that leaders can do without. For that sort of leadership, willfully blind to consequences, engaged in wishful thinking, and disgusing its real motives, may cause enormous problems for the country down the road. I have long believed that this President, and this Administration, are not providing strong leadership, but rather reckless leadership. That recklessness is becoming more apparent every day, as the economy worsens, the deficits soar, and more and more Americans die in a war that the President stated was officially over as he strutted like a popinjay up and down the deck of the U.S.S. Abraham Lincoln. Good government is not a crap shoot, nor is it best achieved through bluffing. It is a sign of the President's failure of leadership that all he has to offer now is what he has always offered-- tough talk, vague generalities, and attempts to change the subject. Such forced machismo rings increasingly hollow as the casualties mount, the predicted duration of occupation lengthens, the forces necessary to our self-defense are stretched to the breaking point, and the long term economic health of the nation is endangered by a massive redistirbution to the wealthy and the powerful.

America deserves a better government than this.

JB

There has been considerable discussion about Justice Scalia's accusation that the Lawrence majority had signed on to "the so-called homosexual agenda." I believe what has irked some people is that the expression "the homosexual agenda" has a history. It is a form of code often used by Jesse Helms and other social conservative politicians to whip up resentment against moderates and liberals who support gay rights. The use of the term "homosexual agenda" has been a shrewd way of intimating without overtly stating that people who supported gay rights were somehow disloyal to the country (like the hidden communist agenda) because they were assisting in the destruction of America by destroying its moral fibre, or extremist, because they supported a deeper, hidden agenda whose real goals cannot be openly announced and are instead disguised in the plausible sounding garb of equal rights.

Here's a representative quote from Sen. Helms in support of a bill he introduced to roll back President Clinton's executive order prohibiting discrimination against gays in federal employment:

Mr. President, for many years the homosexual community has engaged in a well-organized, concerted campaign to force Americans to accept, and even legitimize, an immoral lifestyle. This bill is designed to prevent President Clinton from advancing the homosexual agenda at the expense of both the proper legislative role and the free speech rights of Federal workers.

From the standpoint of constitutional theory, what is interesting here is the extent to which such rhetorical appeals have any place in a Supreme Court decision. If Justice Scalia began speaking in code in a case involving race relations, one assumes he would be roundly condemned. But the social movement for gay rights has not won out in the same way that the Civil Rights Movement has. (As Trent Lott recently learned. Remember that Lott also said that gays were mentally ill like kleptomaniacs, and he wasn't thrown out of the Senate Majority Leader's position for saying *that.*).

If, as I suspect, in the long run, homosexuals are going to gain legal protection by legislatures and courts from most forms of discrimination, Scalia's accusation that the Court is marching to the tune of the homosexual agenda and Lott's equation of homosexuality with kleptomania will take on a very different cast for future generations. In the meantime, however, my prediction is that we are going to see a lot more code talk about gay rights in the future precisely because gays are gradually winning the battle for equal rights, and so the most overt forms of name calling and hate mongering won't be permitted. It will no longer be permissible to call Barney Frank "Barney Fag," as former House Majority Leader Dick Armey once did. Rather politicians will have to say that Representative Frank has worked all his life to promote the radical homosexual agenda that is slowly destroying America from the inside.

Finally, although many people are quite annoyed at Scalia's reference, my own view of what Scalia was doing is that he was simultaneously using this form of code and distancing himself from it through irony. He is well aware of what the words "homosexual agenda" mean when they are invoked by social conservatives. That is why I think he used the prefix "so-called."

JB

Will Baude, who runs Baudesblog, asks how far back the practice of federal courts citing to international authorities runs. Is it just a new idea beginning with Atkins v. Virginia and Lawrence v. Texas, or does it go further back?

The answer is that the practice of American courts, and in particular the Supreme Court, citing to "the law of nations" goes back to the very beginnings of the country's history. If you think about it, you can see why this would have to be the case. When the country was first founded, it had very little law of its own, and, moreover, it was also a naval power continually engaged in international commerce. Go to Lexis and/or Westlaw and plug in "law of nations" and date pre 1900 in the Supreme Court library. You'll get scores (actually hundreds) of Supreme Court decisions referring to international law. Following World War II there was also an increasing number of international organizations, and thus more international law, which the Court also refers to.

Here, for example, is an early discussion of the law of nations by Chief Justice John Marshall in 30 Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cranch.) 191, 198 (1815):

The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a s[e]ries of judicial decisions. The decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the Courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this.

Thus, for those who think that citation to international sources is somehow inconsistent with the genius of the American Constitution, the hallowed practices of the founding generation, or the authority of the American Constitution and our country's devotion to the Rule of Law, I say, take it up with John Marshall.

And for those of you who are interested in further legal niceties, there is currently an interesting debate in the legal academy about the extent to which customary international law should be recognized as part of federal common law, in which two very fine scholars, Curtis Bradley and Jack Goldsmith have criticized the standard view that customary international law forms part of federal law. See Curtis A. Bradley and Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997). I am concerned here only with the more narrow question of whether the Supreme Court may look to international law and to the decisions of foreign courts as persuasive authority, rather than as part of federal law. Even if Bradley and Goldsmith are correct that some elements of customary international law should not be regarded as part of federal common law, the practices by federal courts and the Supreme Court for well over two centuries of looking to foreign decisions, international law, and treatises on international law as persuasive authority would not be affected.

JB

In a column at NRO online, Quin Hillyer bitterly denounces Justice Kennedy's citation of a 1981 decision by the European Court of Human Rights, Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981), in his majority opinion in Lawrence v. Texas:

There you have it: The values of Europe, and the decision of its (misnamed, borderline anti- Semitic) Court of Human Rights, are deemed somehow relevant for American constitutional jurisprudence.

On one level, Anthony Kennedy's line of reasoning should be familiar to American youngsters and parents nationwide. It's not much more than a gussied up version of "Johnny's mommy lets him do it, so why can't I?" (Or, more precisely, if Johnny can do it, shouldn't Billy's mom let him do it too — and by extension, if Billy's mom lets him do X, shouldn't I be able to do Y?)

But on a deeper level, the citation borders on the subversive. If the authority of extra-national courts is held to be even partially dispositive in the United States (especially without a formal treaty yielding a specific measure of American sovereignty on a particular issue), then the same foreign authority cited in supposed defense of liberty could be cited to take an American individual's liberty away. . . Unable to find clear authority in the U.S. Constitution for its raw exercise of judicial will, the Kennedy majority looked to a foreign source for justification. But any American with native intelligence can see that down that road lies alienation from our country's rule of law.

I don't find Hillyer's fears or his objections very plausible. There's nothing in American constitutional jurisprudence that prevents American courts from looking to the decisions of other courts, any more than they are prevented from citing treatises, or law review articles, or, for that matter, learned books written in foreign languages. American courts, including the Supreme Court, have done this from the country's inception. No loss of sovereignty is involved in citing such cases, because the cases are what lawyers call persuasive authority rather than controlling authority.

Within our federal system, state courts routinely cite decisions of other state courts on common law issues (or interpretations of uniform acts or statutes that are roughly similar between states). They well understand that these decisions are not controlling. State A's common law is not binding on State B's. More to the point, interpretations of State A's statute are not binding on interpretations of State B's similar statute. Within the federal judiciary, decisions of one circuit are not binding on those of other circuits. Nevertheless, courts look to what other courts have decided for guidance, even if they ultimately reject those decisions. Why? Because there is some advantage to considering how other judges in similar positions facing similar problems have handled a particular issue. It helps to know what they have decided, and often equally important, why they decided it that way.

Yet, one might object, what if courts in Europe take positions that are at odds with cherished American liberties? For example, many countries around the world have restrictions on free speech that are inconsistent with American free speech law. What is to stop American courts from citing those decisions? Well, nothing prevents an American court from citing such decisions, but citing such a decision does not make it convincing to other judges, nor, more to the point, does it make the decision controlling legal authority. Judges often cite law review articles or treatises for positions inconsistent with existing doctrines, (and other judges cite contrary law review articles and treatises) but that doesn't mean that judges have to follow what the law reviews or treatises say unless the judges are convinced by their reasoning. In like fashion, judges are free to reject or completely ignore the decisions of foreign courts if they think that they are irrelevant or unconvincing. That is precisely what circuit courts do with decisions by other circuit courts they disagree with, and state courts do with decisions by other state courts they think are wrong. That's what it means for authority to be merely persuasive rather than controlling authority. (Perhaps Hillyer is worried that American judges will read these foreign court opinions and become convinced by them. If that's his real worry, I think there is a long list of law reviews and treatises he should keep out of their hands as well, not to mention books, movies and television shows.).

Hillyer might resent judges using foreign court decisions to support liberal causes he thinks are inconsistent with the best interpretation of the Constitution. But there is no reason why Justice Scalia or other conservative jurists couldn't cite other constitutional courts as support for positions they happen to admire. And, in the long, run, I suspect that this is exactly what will happen, once people get over the shock of seeing foreign court opinions cited: Decisions by various foreign courts will be cherry picked and cited by both sides of a dispute selectively to make their points, just as law review articles and treatises are cited.

I strongly suspect that the reason why Justice Kennedy picked the European Court of Human Rights is because it agreed with a position he otherwise supported, and because he regarded it as a respected court. It is very doubtful that he would cite with approval a court that he didn't agree with, or one that he thought was from a country with a long history of human rights abuses, because that would undermine the citation's persuasive authority. Here again, citiation of foreign court decisions seems to me very much like the way that judges currently cite law reviews or treatises. They cite them if they agree with them, or to underscore particular points in an argument they are making. They do not, and cannot cite them as controlling authority.

Presumably Hillyer accepts the practice of cross citation between American courts, and the use of treatise and law review articles as persuasive authority. Nevertheless, he insists that there is something insidious, or as he puts it, "subversive," about looking to the decisions or the reasoning of a foreign court. Unless he is merely engaged in a xenophobic rant against all things not truly "American," I cannot see why this should be so. Countries outside the United States also have laws and constitutions. They also have judges, many of whom were trained in or have familiarity with common law modes of argument. Many many others have been deeply influenced by American constitutionalism, which is one of our most lasting legacies to the world. American constitutional ideas shaped the formation of post-World War II constitutions around the world, which, in turn, innovated on American models and synthesized them with parliamentary ideas. It is hardly surprising that American lawyers might be curious about the forms of constitutional argument that have grown up in the past half century. We planted seeds years ago in many other lands that have now borne fruit. Americans can hardly take credit for all of these innovations: The Canadians and South Africans, to name only two, would surely disagree. But America played an important role in inspiring much of the constitution making that followed the Second World War, and we should not disdain the experiences that might be gleaned from it.

Indeed, it is quite commonplace these days for constitutional courts around the world to cite the decisions of other constitutional courts, including the American Supreme Court, as persuasive rather than as controlling authority. Nobody believes that these citiations somehow deny these countries their sovereignty or undermine their constitutional systems. (Hillyer does not explain why frequent citation of American Supreme Court decisions by other counties' constitutional courts has not destroyed their constitutions and made them mere appendages of America). For the past half century, constitutional courts in Canada, Europe, Asia, Africa, and Australia have looked at what other constitutional courts around the world are doing in an effort to learn from each other as well as to avoid each other's mistakes. They have created a rich conversation about constitutions and constitution making. Here too they were not original; for the American Framers-- particularly James Madison-- undertook a deep study of the constitutions of the past and present when they began their deliberations in Philadelphia. That sort of interest in what other people are doing is not loss of sovereignty. It is wisdom and common sense.

The citation in Lawrence is quite modest when you compare it to what other constitutional courts are doing. All that Kennedy wanted to establish is a minor point: If Bowers is premised on the idea that homosexuality is inconsistent with Western values, (Chief Justice Burger's claim), or on the notion that any argument for homosexual rights "is, at best facetious," (Justice White's claim) we might look to see what other Western countries and constitutional courts have done. They are not American courts, to be sure, but they give some evidence of what Western values are and what is a reasonable as opposed to a facetious claim about liberty, just as decisions by state courts in the United States give some evidence.

What is remarkable is the degree of upset this modest citation has produced, of which Hillyer's op-ed is only one example. I wonder whether this upset is about something other than a desire to protect American sovereignty, for, as I have pointed out, that sovereignty is in no danger from the use of persuasive authority by foreign sources, any more than it is endangered by the citation to law reviews and learned treatises. What I think is going on is a certain visceral fear of something un-American creeping into the discourse of American constitutionalism. This is hardly the first time such xenophobia and No-nothingism have arisen in American history. Nor is it the first time that the purity of the American Constitution and American sovereignty have been defended by sanctimonious self-appointed champions against the poisonous ideas and tendencies of dreaded foreigners. It arises everytime people feel confronted with change. They strike out at that change by blaming it on something un-American.

The irony, of course, is that the American constitutional and legal system has never been so pure as its defenders believe. We have assimilated many different ideas into American law in the course of our history (many from Europe, I might add), and we remain a proud and free people. Indeed, Americans' ability to draw on ideas from all around the world, synthesize them and integrate them into our lives and our institutions is one of the abiding features of American ingenuity and one of the abiding strengths of American law. Something tells we that we will survive the occasional citation of a European court.

JB

Brad Delong reprints the famous memo that William Rehnquist wrote when he was a clerk for Justice Robert Jackson in 1952. The Court was considering Brown v. Board of Education and related cases (which were carried over to the next Term). Rehnquist argued that states should be permitted to retain Jim Crow laws, and argued against overturning Plessy v. Ferguson, which he contended was correctly decided. At his confirmation hearings, Rehnquist stated that the memo reflected Justice Jackson's views, not his own, but the weight of the evidence seems fairly strongly against this. That suggests that Rehnquist may have given false testimony before the Senate in 1971, but hey, why should that matter?

In any case, Delong finds a number of statements in the memo puzzling. Here is one of them:

To the argument made by Thurgood Marshall [in Brown v. Board of Education] that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are. One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind--whether those of business, slaveholders, or Jehovah's Witnesses--have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men.

In fact, Rehnquist is competely right that majorities determine the constitutional rights of minorities. They do so through Article V amendments, through the passage of civil rights bills, and, equally importantly, they do so through their influence on the Supreme Court. As political scientist Robert Dahl pointed out many years ago, the Supreme Court is part of the national political coallition, it does not sit outside it; and it is heavily influenced by national political forces. Both what we call judicial restraint and judicial activism can and do serve the purposes of national elites and the dominant political coallition in the country. What Rehnquist did not understand is that although majorities do determine what rights minorities have, it does not follow that the Supreme Court should not protect minority rights, because it is part of the majority that runs the country.

Scot Powe's recent history of the Warren Court shows, I think, rather convincingly, that the Warren Court was neither the fearless judicial hero of liberal mythology or the judicial bogeyman of conservative mythology, a lone actor single handledly remaking American according to its own sense of justice. Instead, the Warren Court was working hand in hand with the dominant political forces of its time-- in the 1960's' the Cold War Liberalism of the Kennedy and Johnson Administrations. The Warren Court imposed national political values on Southern states, followed Congress's lead in civil rights policy, and (with a few exceptions) generally deferred to Congress. For example, although Brown was decided in 1954, the Supreme Court doesn't really get serious about desegregation of the South until after Congress passed Title VI of the Civil Rights Act of 1964, threatening to withdraw federal funding from southern school districts that did not desegregate. Much of the Court's work on protecting the poor either follows or is contemporaneous with Johnson's War on Poverty. And, as the dominant forces of politics changed following the 1968 election, the Supreme Court began, slowly at first, and then with greater rapidity to shift to the right. It did so both because of Presidential appointments, and because of the Court's role as part of the national governing coallition.

We can see the decisions in the most recent Supreme Court Term as reflecting these features of American politics. Here let me quote my friend and long time co-author Sandy Levinson, writing in Village Voice:

So what might explain last week's spate of "liberal" decisions? They are best understood in terms of how the court—and especially Justice O'Connor—perceives the current American center of gravity on such matters. With regard to affirmative action, the court—which is, after all, only permitting affirmative action rather than requiring it—is basically vindicating a national majority, especially among elites, that accepts relatively "soft" and opaque affirmative action—but not "quotas" or the use of ham-fisted point systems that are too transparent in the weight given to race or ethnicity. (And if local majorities, as has happened in California or Washington, ban affirmative action completely, that will clearly raise no constitutional problems.) Two crucial briefs were submitted in the Michigan law school case, one by 65 major American corporations, the other by a plethora of military leaders. Both testified to the importance of affirmative action in providing businesses and the military with minority executives and officers. One can be certain that most of the corporate CEOs and retired military officers who signed the briefs are Republicans, and that is just the point.

With regard to the second issue, gay and lesbian rights, the court realizes that 2003 is already far distant from 1986, when the court in Bowers v. Hardwick upheld Georgia's anti-sodomy law. The homophobia exemplified by such statutes is increasingly disdained by most Americans. (In his dissent, Clarence Thomas indicated that he would vote against such laws were he a legislator.) In 1986, after all, 24 states had anti-sodomy laws. By now the number is down to 13, and enforcement is rare. Even the 13, including Texas, are more complicated than one might think. Austin, the state's capital, several times elected a gay representative to the state legislature, and its elected sheriff is lesbian.

So the Lawrence sodomy decision fits the Warren Court model of actively protecting the rights of a minority once it has demonstrated it is not generally reviled, but is well on its way to general acceptance and integration. After all, the lesbian daughter of the vice president of the United States is herself a member of the Bush administration. It is no coincidence, moreover, that Justice Kennedy cited criticisms of Bowers by libertarian Republicans Charles Fried, Ronald Reagan's solicitor general, and Judge Richard Posner of the Seventh Circuit Court of Appeals.

What Rehnquist did not understand in 1952 is that even then his views on race were retrograde, and that lots of people in the United States had moved past his petty and parochial view that Jim Crow was perfectly constitutional and that Plessy v. Ferguson was correctly decided. He thought that if the Supreme Court stood up for racial equality, it would "see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men." How wrong he was-- and for such a intelligent man, how narrow his vision not to have understood the forces changing around him in politics and in society. In like fashion, the older Rehnquist has been unable to wrap his mind around the fact that the country's views about homosexuality have changed. What Rehnquist did not understand in 1952 is that the Court is part of the American political system, not outside it, that judicial independence and decision of cases according to legal argument is not inconsistent with its role as part of the national governing coallition but is rather the way that it properly performs its function of contributing to the continuing development of America's higher law.

JB

Of course they can.

Andrew Sullivan, relying on a Wired Magazine story about a recent Ninth Circuit decision, engages in a little wishful thinking: "Libel laws may not apply to bloggers," he says hopefully.

What the 9th Circuit held (and what the 4th Circuit also held before them) is that section 230 of the 1996 Telecom Act protects people who run websites from being sued for republishing the libels of another person. Section 230 states that " no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

This does not mean that bloggers are immune from libels they themselves write. It means that they are immune from (for example) libels published in their comments section (if they have one) because these comments are written by other people and the blogger is merely providing a space for them to be published. Congress wanted to treat operators of chatrooms and other interactive computer services differently from letters to the editor columns in a local newspaper.

So if bloggers defame somebody, they can still be sued for what they say, just not for what someone else who publishes on the blogger's site says. The Ninth Circuit extends this immunity to people who run e-mail lists and republish the e-mails they receive to the list, even if they edit the e-mails a bit or do not republish every e-mail they receive. That is different from the rules that apply to print journalism. A newspaper is responsible for defamation in letters to the editor or op-ed columns that are published in the newspaper.

Linking is a more interesting question, still unsettled in the courts. My view is that if a blogger links to defamatory content, the blogger should ordinarily not be held liable for defamation; there might be an exception if the blogger is specifically vouching for the truth of what the blogger is linking to, thus incorporating the claims by reference. (Merely providing a link with approving commentary should not be enough to subject you to liability.) If the blogger redescribes the content in his or her own words, that redescription can be the basis of a libel suit.

Of course, much of what "pundit" bloggers write about concerns public figures, so the public figure would have to show actual malice (reckless disregard for truth or knowledge of falsity) in what the blogger said.

Finally, one of the great things about the blogging community is that people are always checking each other's work. (Indeed, I fully expect I will get some responses checking this post!). And bloggers often print retractions or modifications of previous postings, with links to the previous post so that the reader can see what has been modified. So the blogosphere has a few built in safeguards that other interactive computer services often don't. That doesn't mean that the blogosphere should be fully immune from defamation, and it isn't. But it does mean that this form of journalism serves a very valuable public function; not only do bloggers check each other's work, they can often help print journalists check their facts and do their jobs a little better. That improves the quality of public discourse, which, after all, is one of the purposes of defamation laws.

JB

There appears to be some confusion about what the Supreme Court's recent decision in Lawrence v. Texas actually holds. The confusion has been encouraged by Justice Scalia's dissenting opinion, which, I think, systematically misreads Justice Kennedy's majority opinion.

For the record, Lawrence extends the fundamental right of privacy to same-sex intimate relationships. It does not strike down Texas' sodomy law on the ground that it fails the test of rationality, as Justice Scalia seems to assume. Nor does it hold that appeals to morality cannot be a legitimate government interest under the rational basis test for ordinary social and economic legislation. Rather, it holds only that when a fundamental right or interest is involved moral disapproval is not a sufficient interest to overcome the fundamental right.

In Lawrence, Justice Kennedy argues that Eisenstadt, Carey, and Roe each extended the rights of intimate association and decisional privacy protected by Griswold beyond married adults. He then argues that homosexuals have similar rights to form intimate associations, which are more than mere sexual conduct. Finally, he endorses the reasoning of Justice Stevens’ dissent in Bowers. All of this suggests that, Lawrence holds that the right to form same-sex intimate relations is part of the fundamental right of privacy. Note, moreover, that only after arguing for the importance of the ability to form intimate relations does Kennedy quote Stevens' dissent in Bowers, suggesting that Stevens' argument about morality applies only to fundamental constitutional interests like the right of privacy.

We can also see that Justice Scalia’s characterization cannot be correct by changing the justification for Texas's law: Suppose that Texas repassed its statute arguing that same-sex relations are harmful to public health. Or suppose that Texas argued that there is some evidence that homosexuality is a mental disorder (a position once taken but now long abandoned by the psychiatric profession) and that allowing same-sex sodomy might tend to exacerbate this mental disorder, while banning it would give marginal incentives for homosexuals to experiment with heterosexual relationships. Neither of these justifications is merely a claim of moral disapproval. Both are concerned with questions of harm and public health. But there is no doubt that neither justification would be sufficient to overcome the right of intimate association recognized in Lawrence. All this suggests that Lawrence is not, in fact, an application of the rational basis test.

The notion that mere moral disapproval is not sufficient to overcome a fundamental right is not a new idea. It follows directly from Griswold v. Connecticut, Roe v. Wade and Stenberg v. Carhart (the partial birth abortion case). Mere moral disapproval of contraception, abortion, or even of partial birth abortion is not sufficient to overcome a married couple's fundamental right to engage in family planning through use and purchase of contraceptives, a woman's fundamental right to chose (in Roe) or her right to choose the safest available method of abortion (in Stenberg). Thus, on this question, Lawrence makes no new law. (Scalia, of course, has long sought to overturn Roe and dissented in both Casey and Stenberg. He does not believe that abortion is a fundamental right and therefore moral disapproval would be sufficient to outlaw both abortion and partial birth abortion.)

Why, then, didn’t Justice Kennedy simply say that there is a fundamental right to engage in same-sex sodomy? The most likely reason is that he objected to this characterization of the right, because it demeaned homosexuals by reducing their intimacy to a sex act in a way that would never be done to heterosexual couples. The right to privacy, Justice Kennedy argues, is the right to form personal and intimate relationships of which sex is only a part. Justice Kennedy’s view, in short, is that there is more to a relationship than just sex.

The question that Lawrence leaves unanswered is how far the right of intimate association extends. Kennedy seemed to suggest that the right applies to noncommercial sexual relations. He also argued that the right of intimate association “should counsel [as a general rule] against attempts by the State, or a court, to define the meaning of [a personal intimate] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Note that this language does not explain the scope of the right; rather it explains what kinds of justifications the state might make when it wants to regulate conduct which falls within the scope of the right.

So after Lawrence, we have two questions.

First, is a certain practice within the scope of the right of intimate association/sexual autonomy/reproductive autonomy?

If not, then regulation of the practice is subject to the ordinary rational basis test and the state may invoke morality as a reason for regulating the practice or even prohibiting it completely.

Second, if the practice falls within the scope of the right of intimate association/sexual autonomy/reproductive autonomy, then the State may not regulate the relationship absent a showing of harm or in order to protect the abuse of an institution the law protects. Examples of the latter would be marriage, parent child relations, or family relations generally. Mere moral disapproval of the practice is not sufficient; although it is clear that what constitutes abuse of the marital relationship, parent-child relations, or family relations will be heavily affected by moral considerations.

Lawrence leaves open many issues, including the question whether states may limit marriage to opposite sex partners. It does seem to foreclose the argument that the state may criminalize opposite-sex sexual relations between unrelated persons who are not married (fornication) and, if there was any doubt about this, masturbation. (Why Justice Scalia thought it important to assert the state's right to regulate masturbation on the basis that it is immoral is beyond me. I leave this very interesting question to your imagination.).

Finally, what about consensual incest between adults where there is no danger of pregnancy? The answer to this much more complicated question depends on how we understand the nature of the liberty protected by the Due Process Clause. Let me offer my views on what fundamental rights adjudication should be about.

My view is that a practice should be recognized as a fundamental right under the Due Process Clause only when social movement contestation has changed people's attitudes about a practice sufficiently so that it has become effectively normalized and large numbers of people feel that to criminalize the conduct intereferes with people's basic liberties and with their equal citizenship. Put another way, the scope of fundamental rights under the Due Process Clauses of the Constitution should be and usually is worked out through politics and culture, from the bottom up, not the top down. What courts usually do (and should do) is ratify large scale changes about beliefs in society that have long since occured. Then they recognize as part of American's basic law what most Americans themselves have already accepted as their basic law. I often explain to my students that once Jackie Robinson entered the major leagues in 1947, and Truman desegregated the Armed Forces, something like Brown v. Board was a foregone conclusion. Similarly, once Will and Grace becomes a Top Ten show in the Nielsen ratings, we may assume that gays have achieved a basic degree of acceptance in American society, even if they are not treated equally in all respects. What courts do in these fundamental rights cases is reflect changing social mores that are worked out in political struggles about basic values and then translated into constitutional doctrine. After recognizing these rights, what courts then do is work out the logical consequences of the shift in popular views about basic liberties. This is as true with respect to enumerated rights as unenumerated rights. After all, changing views about sexuality have also affected the scope of freedom of speech.

Note, by the way, that when I speak of a change in social mores, I am not claiming that the majority of Americans now think that homosexuality is morally unproblematic or that it is just as good as heterosexuality. Rather, I am claiming a more modest shift: the position that most Americans have adopted is that these matters are none of the government's business. A basic level of tolerance for gays has been achieved, and is still growing, full social acceptance for gays is still years away.

My view about the constitutional status of incest is fairly straightforward: There has been no sustained social movement in favor of incest between adults, arguing that it is moral and appropriate and that it's none of the government's business persecuting people who simply have a different lifestyle and who are genuinely in love with their brothers or sisters, or their sons and daughters (or their uncles and aunts). Large numbers of states have not decriminalized incest and it is unlikely that they will do so any time soon. There has been no constitutional law making from the ground up on this question. For this reason, courts should not extend the reasoning of Lawrence to cover incest. When there is a top ten sitcom on NBC called "Grace and her Father," about a father-daughter affair, then we can have a conversation about whether the right of intimate association should be extended to include consensual incest. Until that point, it should be subject to state regulation.