Balkinization
an unanticipated consequence of
Jack M. Balkin
E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today's Times indicates the possibility that President Obama is willing to sacrifice "universal coverage" for a "bi-partisan bill" that can gain Republican support. But doesn't he realize that it is simply not in the interest of the Republican Party to given him a scintilla of support for any kind of major health bill. Consider, from the Times story, "Republicans showed no new signs of willingness to work with the Democrats. Asked what he would be willing to work on with majority, the Senate Republican leader, Mitch McConnell of Kentucky, offered meek praise for Mr. Obama’s strategy in Afghanistan but did not offer a single example on domestic policy."
Teddy Kennedy, after all, helped to elect George W. Bush in 2004 by virtue of having provided key support for No Child Left Behind and then the Prescription Drug Bill. Both reassured some "independents" that George W. Bush really was a "uniter and not a divider," etc., and Democrats were left to languish for another four years. So why should Republicans give Obama any kind of victory at all? I suppose the argument is that they'd be afraid to go to the country having simply stopped medical reform in its tracks, but that's a calculation.
I am dismayed at Obama's apparent perception that the Republican Party can be "worked with." David Broder might believe that, but that's because Broder is hopelessly deluded about contemporary American politics. I expected far more from Obama, who is clearly one of the smartest people we've ever had as President. But whom is he thinking of as potential collaborators? Why won't that person justifiably fear being challenged in the next Republican Primary by a mad-dog Tea Partier precisely for collaborating with the enemy, i.e., the Democratic President of the United States. If he thinks he's got a genuinely good (or even defensible) bill, let him insist on bringing to a vote in the Senate and then challenge Susan Collins and Olympia Snowe (or George Voinovich, who used to be a reasonably decent governor of Ohio and who doesn't have to fear a primary challenge because he's retiring) to be the senators responsible for failing to bring succor to the literally increasing numbers of Americans who are losing health insurance and/or are one illness away from bankruptcy.
Generally speaking, I don't like to criticize Obama, not only because I'm still so happy he's President instead of his 2008 opponents, but also because my repeatedly argued view is that our defective Constitution is far more important in explaining our governmental breakdown than deficiencies in leadership or even Republican partisanship, which is wholly rational given the logic of a two-party system in the modern era. But, here, I'm absolutely dismayed. I try to imagine what FDR or Harry Truman would do in similar situations, and it sure as hell isn't rolling over and playing dead. (One could say the same, incidentally, about George W. Bush or Margaret Thatcher, so such stubbornness is obviously not always a "good thing." It depends on one's own politics.)
Is Obama really constitutionally (pun intended) incapable of feeling or expressing anger? What kind of community organizer isn't able to whip up the audience by attacking an opposition? It's clear that we were sold a bill of goods about "change we can believe in," but, then, I think the Constitution comes close to making such change impossible. But even within the limits of our defective Constitution, he could be doing far, far more to take advantage of the "bully pulpit" and (re-)organizing a mass movement capable to taking on the Tea Party.
UPDATE: Timothy Egan has a marvelous posting well worth reading. It concludes as follows:
"If Democrats were to waste this majority, and have nothing to show for it but bailouts of the biggest banks, auto companies and insurers, they deserve to be returned to minority status in the fall.
Who are they governing for? They can cowboy up, pass health care that helps right the major wrongs of the system and then explain what they’re doing. One way to start is to point to the bottom line, the market, and ask who gets rich when nothing changes."
When Development Aid Requires Deaths For Scientific Confirmation
Brian Tamanaha
The field of development economics is in a period of tumultuous self-examination, on full display in a new collection by leading scholars, What Works in Development? This is the latest of a host of recent books that have questioned the value of decades and billions of dollars of development assistance. As William Easterly and Jessica Cohen put it in the Introduction, “there is no consensus on ‘what works’ for growth and development.” With the collapse of the Washington Consensus, “thinking big” is now “in crisis.” The current shift is toward small projects, experimentation, see what works: try micro-financing, pass out insecticide-treated mosquito nets (free or for a small fee), give kids school uniforms, educate parents, and so forth.
There is an ongoing battle within the field over what counts as valid knowledge and how to acquire it. Pushing the issue is a group of scholars, apparently gaining momentum, who insist that randomized evaluations—using control groups to expose differences that follow from the implementation of reform programs—are the most reliable source of “hard” evidence about the effects of development projects.
That makes sense.
But this method can have troubling implications, evident in the following passage. The authors, Peter Boone and Simon Johnson, criticize the Millennium Villages Project (of Jeffrey Sachs)--which involves the implementation of a broad package of reforms--for not providing any way to test success. Here is their proposal for a better way:
To this end [testing], we have partnered with medical statisticians at the London School of Hygiene and Tropical medicine along with local health professionals to design and implement projects to reduce child mortality in Africa and India. Although these are aid projects, they are designed as randomized controlled trials identical to a drug approval trial and are testing whether a comprehensive package of interventions, including intensive provision of community health education and contracted-out clinical services, will be sufficient to rapidly reduce child deaths. The trials are being implemented in 600 villages and cover a total population of 500,000. It will take three years to accumulate sufficient events (child deaths) to credibly determine the impact on overall child mortality for each trial.
The bottom line of this human experiment is that excess (possibly preventable) child deaths in the control groups (assuming the intervention packages have some success) are the price to be paid for determining—to the satisfaction of social scientists—whether or which reform packages effectively reduce child mortality.
The rationale for doing this is understandable, but…
Would we engage in such trials in our own society? Perhaps I am mistaken, but my understanding is that drug tests in the United States that begin to show real mortality differences are called off, giving the control group access to the helpful drug. Perhaps the authors have a similar plan in place for their intervention package, although they don't mention it on the website describing the plan. Pulling the plug early might compromise the scientific validity (or strength of the findings) of the randomized evaluation.
Has Chicago Gone Too Far In Defending Its Gun Laws?
Guest Blogger
Elizabeth Wydra
The question of whether and to what extent state and local gun regulations are constitutionally permissible is a question of the highest importance for both gun control advocates and gun rights supporters—and one that is about to be decided by the Supreme Court. In McDonald v. Chicago, the city of Chicago is defending its gun control measures against a challenge by petitioners who argue that the city’s handgun ban violates their right to keep and bear arms—a right, these petitioners argue, that is protected against state and local government infringement by the Constitution’s 14th Amendment. However one feels about guns, anyone who cares about fundamental rights protection should be wary of the argument the city makes in its brief.
In the city’s attempt to preserve its weapons ban, it proves too much, essentially urging the Supreme Court to find that protection of the Bill of Rights and other fundamental liberties against state infringement has no basis in constitutional text or history, and is instead achieved solely by judicial implication. To make matters worse, Chicago’s brief makes common cause with precedent that has been properly labeled by civil rights leaders as “among the most misdirected in the history of the Court” and celebrates a post-Civil War Court that looked the other way while Jim Crow perpetuated decades of discrimination and violent rights suppression. Accordingly, even gun-control advocates, who might otherwise support the city’s argument in this case, should think twice about selling out substantive rights protection in order to protect gun laws (especially when strong arguments, like those made by the Brady Center and others, can be made in support of most gun restrictions without undercutting the 14th Amendment).
The city’s troubling argument is made in response to the claim that the Privileges or Immunities Clause of the 14th Amendment incorporates against the states the individual right to keep and bear arms that the Supreme Court applied against the federal government in Heller v. District of Columbia. The McDonald petitioners, as well as a number of amici curiae (including a group of ideologically diverse law professors represented by the author and Constitutional Accountability Center), have urged the Court to recognize that the Privileges or Immunities Clause protects substantive fundamental rights, including those enumerated in the Bill of Rights. With respect to the issue of the right to keep and bear arms, our brief argues that the framers of the 14th Amendment sought to constitutionally protect such a right against state infringement in large part because they wanted the newly freed slaves to have the means to protect themselves, their families and their property against well-armed former rebels.
The city resists the force of the privileges or immunities argument by presenting a vision of the 14th Amendment that is dangerously out of step with the Amendment’s text, purpose, and history. In its efforts to present a historical record against incorporation, Chicago portrays section 1 of the Amendment as securing only equality or nondiscrimination by the states, rendering both the Privileges or Immunities Clause and the Due Process Clause dead letters. If true, Chicago’s argument would mean that the Court’s protection of substantive rights under the 14th Amendment (both enumerated and unenumerated) has no basis in constitutional text or history, but is rather is achieved wholly by judicial implication.
This vision of section 1 of the 14th Amendment is not only troubling—it is also entirely incorrect. At the time of ratification, leading proponents and opponents alike of the 14th Amendment understood it to protect substantive, fundamental rights. As scholars such as Akhil Amar and Michael Kent Curtis have shown, the framers of the Amendment acted against a historical backdrop that required them to protect at least the fundamental liberties of the Bill of Rights: they were keenly aware that southern states had been suppressing some of the most precious constitutional rights of both freed slaves and Unionists. Senator Jacob Howard, speaking on behalf of the Joint Committee on Reconstruction, expressly stated that, in addition to certain unenumerated rights, the privileges and immunities of citizenship included “the personal rights guarantied [sic] and secured by the first eight amendments of the Constitution.” (Cong. Globe, 39th Cong., 1st Sess. 2765 (1866)). Because the words “privileges” and “immunities” had been used since the Founding to describe rights and liberties—for example, James Madison referred to “freedom of the press” and “rights of conscience” as the “choicest privileges of the people”—the text of the Privileges or Immunities Clause was a natural way to accomplish substantive rights protection. Even if the Privileges or Immunities Clause continued to be erroneously relegated to the status of constitutional inkblot—courtesy of the Supreme Court’s 1873 Slaughter-House Cases—certainly the 14th Amendment protects substantive liberty in some manner. While the Privileges or Immunities Clause is the most textually and historically accurate source of substantive rights protection, substantive liberty has also been located in the broad sweep of the words of the Due Process Clause (as in Lawrence) as well as in the Citizenship Clause (as in Justice Ginsburg’s dissent in Carhart). There is no suggestion from the modern Court that it views section 1 of the 14th Amendment as a mere non-discrimination provision.
Which is why, perhaps, the city’s brief turns to some of the most thoroughly discredited cases in Supreme Court history: Slaughter-House and Cruikshank. In the Slaughter-House Cases (1873), the Court interpreted the Privileges or Immunities Clause to provide no protection against state or local infringement of constitutional rights, but, as Akhil Amar has noted, “[v]irtually no serious modern scholar—left, right, and center—thinks that this is a plausible reading of the Amendment.” In United States v. Cruikshank (1875), the Court held that the federal government had no power under the 14th Amendment to protect against violations of First and Second Amendment rights in the states, and invalidated the federal criminal convictions of white insurgents who massacred over sixty African Americans who sought to defend against the overthrow of their parish government in Louisiana. The NAACP’s brief filed in support of neither party in McDonald correctly describes these cases as “part of a dreadful chapter in the history of this nation.” Chicago’s repeated deference to these decisions of the post-Civil War Court—beyond merely respecting them as precedent, the city’s brief calls them a “venerated” line of decisions—is disconcerting. As the NAACP points out, in the line of cases initiated by Slaughter-House, “the Court enunciated principles far broader than were necessary to decide the matters at hand, and it too readily struck down Congressional legislation designed to combat discrimination against African Americans after the Civil War, including both the Ku Klux Klan’s reign of terror and the establishment of a reconfigured caste system in the form of the Black Codes and Jim Crow.” (NAACP Br. at 13). In addition, while Chicago asserts that the “Reconstruction-era Court that decided Slaughter-House, Cruikshank, and Edwards was in a uniquely advantageous position to discern the meaning of the Privileges or Immunities Clause,” (Resp. Br. at 60) it overlooks the fact that justices on that Court had sharply differing views on the Clause’s meaning and the project of Reconstruction. Justice Swayne’s dissent in Slaughter-House rebukes Justice Miller’s interpretation of the 14th Amendment, writing that it turned “what was meant for bread into stone” by refusing to accept that the Reconstruction Amendments “trench directly upon the power of the States” and protect against rights-suppression by the States.
Moreover, the justices’ personal experience with the Civil War and the Reconstruction Amendments does not necessarily render their views more perfect, as the city suggests—this personal experience could, indeed, make their views less reliable. Justice Miller, for example, did not support ratification of the Privileges or Immunities Clause and instead supported an alternative version of the 14th Amendment, pressed by President Andrew Johnson, that excluded the privileges or immunities language. See Richard L. Aynes, Constricting the Law of Freedom: Justice Miller, The Fourteenth Amendment, and the Slaughterhouse Cases, 70 Chi.-Kent L. Rev. 627 (1994). While Chicago views 140 years’ distance from these events to be a disadvantage, sometimes the “cold historical record” is preferable to the passions and prejudices of the moment.
Perhaps the city and its lawyers are simply presenting a cramped construction of section 1 of the 14th Amendment and making a deal with the devil on old precedent because they think it is their best shot at winning the privileges or immunities argument. Certainly, that is their prerogative as litigants zealously defending their position. But suggesting that the 14th Amendment was not intended to protect fundamental substantive rights—for example, under the city’s reading of the text and history of the Amendment, states and localities could infringe free speech or free exercise rights so long as they infringed everyone’s rights equally—would seem to undermine the city’s credibility, not help its cause. And those who might otherwise want to support Chicago’s gun control laws should think twice about embracing a particular argument that denies the textual and historical bases for substantive rights protection in the states and joins with post-Civil War decisions whose fatal flaws are illuminated by the light of history and scholarship.
Elizabeth B. Wydra is Chief Counsel of the Constitutional Accountability Center and the co-author of an amicus brief in McDonald v. City of Chicago in support of petitioners. Posted
3:35 PM
by Guest Blogger [link]
The Matrix: Democracy and Free Expression (in Three Dimensions)
Guest Blogger
Stephen M. Feldman
Does democracy require the protection of free expression? Ever since Alexander Meiklejohn published Free Speech: And its Relation to Self-Government in 1948, a steady stream of jurists, constitutional scholars, and political theorists have reiterated the maxim that free expression is a precondition for democracy. The people must be able to discuss political issues openly, without fear of governmental punishment, or democracy cannot exist. Yet, throughout American history, numerous presidents, congressional members, Supreme Court justices, and state and local officials have endorsed suppression, particularly of political speech and writing. If the connection between free expression and democracy were so obvious, so necessary, why would so many governmental leaders act in such a manner?
Consider flag desecration. In 1904, Nebraska convicted Nicholas Halter and Harry Hayward for violating a state statute proscribing desecration; they had sold bottled beer affixed with labels bearing the American flag. Although the defendants argued that the law violated their constitutional right to “personal liberty,” encompassing free expression, the U.S. Supreme Court upheld the convictions in Halter v. Nebraska, decided in 1907. The Court emphasized the expressive nature of the flag: “[T]o every true American the flag is the symbol of the nation’s power,—the emblem of freedom in its truest, best sense.” Exactly for that reason, Nebraska had enacted its law, which resembled those in two-thirds of the then-45 states. The state statute, the Court reasoned, promoted the common good by nurturing patriotism. “[A] duty rests upon each state … to encourage its people to love the Union with which the state is indissolubly connected.” But in 1989, the Supreme Court concluded contrariwise. Texas v. Johnson held that the state violated the first amendment when it convicted Gregory Johnson for burning an American flag in political protest during the 1984 Republican National Convention. Like in Halter, the Court emphasized the expressive quality of the flag. Also, like in Halter, the Court recognized that the state enacted the law precisely because of the flag’s symbolism: the state argued that the anti-desecration statute would further its “interest in preserving the flag as a symbol of nationhood and national unity.” In Johnson, though, the Court found this very purpose problematic: the government’s desire to promote patriotism by protecting an emblem, the flag, could not withstand first-amendment scrutiny. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” What can explain these seemingly inconsistent cases? Did the Halter justices betray our hallowed principle of free expression?—even though the majority included Oliver Wendell Holmes, Jr., renowned as perhaps the greatest Supreme Court guardian of free expression in history. Did the Johnson justices sully our flag and debase the value of patriotism?—even though the majority included Antonin Scalia, one of our most conservative justices.
Free Expression and Democracy in America: A History (University of Chicago Press, 2008) answers these questions. The free expression of the early-twentieth century, when the Court decided Halter, differed from that of the late-twentieth century, when the Court decided Johnson. And at the root of this change in free expression lay democracy. As Meiklejohn and other first-amendment theorists have posited, free expression and democracy are integrally bound together. American democracy, however, has not remained static. During the 1920s and 1930s, cultural, social, and economic pressures caused the nation to transform from a republican democracy into a pluralist democracy. Under the republican regime, virtuous citizens and officials ostensibly pursued the common good. Free expression therefore always remained subordinate to the overarching communal goal of the common good—as Halter suggested. Under the pluralist regime, democratic processes structured supposedly fair and open political battles in which citizens sought to satisfy self-interest. Free expression became a crucial component of the pluralist processes and thus developed into a constitutional “lodestar”—as Johnson emphasized.
Many scholars equate free expression with the first-amendment legal doctrine emanating from the Supreme Court. If the Court pronounces that the government cannot punish political speech unless necessary to achieve a compelling purpose, then the court, it appears, affords free speech an importance commensurate with the highest pantheon of constitutional rights. But Supreme Court legal doctrine tells only part of the story of free expression in the United States. Other institutions, particularly Congress, contribute to the formation and interpretation of legal doctrine. Equally important, one must go beyond legal doctrine, regardless of its sources, to appreciate the relevance of two competing traditions: dissent and suppression. The tradition of dissent recognizes an American ethos of speaking one’s mind without fear of punishment. In the politically turbulent 1790s, the courts had not yet developed strong doctrinal protections for expression, but Americans generally enjoyed a robust de facto liberty. Yet, alongside this American tradition of dissent, a countervailing tradition of suppression has always remained powerful. Whereas many Americans have reasonably expected to speak their minds without penalty, many (and often the same) Americans have simultaneously suppressed political outsiders, whether based on race, religion, or otherwise. Both traditions can be manifested officially—through a congressional statute, for instance—or unofficially—through nongovernmental actors. Mob violence, tar-and-feathering, and chasing outsiders from town have been common means for unofficially suppressing those who diverged too far from the mainstream. During the regime of republican democracy, legal doctrine harmonized more closely with the tradition of suppression, while during the pluralist regime, doctrine has shifted closer to the tradition of dissent. Even so, both traditions have persisted throughout the course of American history and have contributed to the experience and understanding of free expression.
One might envision legal doctrine, the tradition of dissent, and the tradition of suppression as three intersecting axes that together determine the degree of free expression at any particular time in history. Each axis represents a variable that specifies a component of free speech and writing. Consequently, for the year 1800, one can discuss the courts’ doctrinal approaches to free expression, how strongly Americans manifested the tradition of dissent, and how strongly they manifested the tradition of suppression. The same could be done for 1850, for 1950, or for any other year (or for various eras). The three axes together provide a relatively complete picture of free expression. Despite this mathematical metaphor, though, I do not propose to identify in Free Expression and Democracy in America: A History a precise ‘quantity’ of free expression for any point in time, as if one merely needed to identify the proper coordinates on a graph. Instead, I depict with something akin to a three-dimensional picture the American experience and understanding of free expression during different historical periods. Legal doctrine is important here, but it is not everything.
Doctrine, dissent, and suppression are not independent of each other. Intense governmental suppression implemented through statutory laws might, for example, spark strong dissent. Likewise, expressions of dissent sometimes provoke in reaction both official and unofficial suppression. And judicial applications of apparently well-established legal doctrines can vary in accordance with the current magnitudes of the competing traditions. If, at a particular time, public opinion strongly supports suppression, then the Supreme Court justices will probably uphold governmental acts punishing unpopular speech and writing. Much depends on the contemporary political and cultural alignments. In recent years, we commonly hear talk of the “culture wars,” but American culture wars are as old as the nation itself. Cultural battles, played out on the shifting fields of democracy, have been endemic to American history. During the framing era, Americans constructed republican democratic governments grounded on the assumed existence of a common good for a homogeneous people. But how did these Americans maintain homogeneity? By excluding other Americans from belonging to and participating in the polity. Yet, early outsiders—including women, indigents, African Americans, and Native Americans—and new ones in subsequent eras, have fought to expand the political community so that they too might belong. During many of those battles, free expression has been a tool, sometimes a sword and sometimes a shield, as individuals and groups maneuvered for advantage. In the crucible of these cultural and political clashes, often literally fought to the death, Americans have forged democracy and free expression.
Most important, doctrine, dissent, and suppression all interrelate not only with each other but also with democracy. In the courts, for instance, republican democracy engendered a methodology of judicial review: courts ensured that governmental actions promoted the common good rather than partial or private interests. Following from this general methodology, specific legal doctrines governing free-expression issues subordinated speech and writing to the pursuit of the common good. The transition from republican to pluralist democracy, however, generated a concomitant change in judicial review. Instead of emphasizing a supposed distinction between the common good and partial or private interests, courts typically sought to police the functioning of pluralist democratic processes. Consequently, as a crucial component of those pluralist processes, free expression transmuted into a preeminent constitutional right. Yet, regardless of the niceties of legal doctrine—whether under republican or pluralist democracy—Americans have manifested the countervailing traditions of dissent and suppression. To take one illustration, during the pre-Civil War nineteenth century, elite white Southerners relied on republican democratic principles to justify both slavery and the suppression of abolitionist speech and writing. These white Southerners insisted that African Americans lacked the virtue requisite for liberty and free government and that abolitionist expression therefore contravened the common good. In response, abolitionists consistently proclaimed a traditional liberty to speak their minds, especially on an issue so central to free (republican) government. In the slavery-abolition battle as well as in other disputes through American history, democracy provides the fundamental context for understanding the intertwined operations of doctrine, dissent, and suppression.
One of the respondents to my previous post points out, altogether accurately, that it has become customary for one member of the Cabinet to refrain from attending the State of the Union address so that there will be someone available to take over the reins of government should a catastrophe wipe out most of the highest level of the Executive Branch. He cites a very helpful Wikipedia entry on "designated survivors.) (This comment was provoked by the revelation that Robert Gates was in a secret location during President Obama's inauguration so that he could take over if Obama, Biden, Pelosi, and Robert Byrd were all killed, Clinton and Geithner being unavailable to serve because neither had ben confirmed, unlike Gates, a carryover from the Bush Administration.)
But isn't this a perfect illustration of a limited--dare one even call it "stupid"--response to what may or may not be a real problem? For what if we truly believe that there is some finite chance of such a catastrophe taking place? Consider that recent absentees have included the Presidents pro Tem, whom no sane person would wish to take over (Stevens, and Byrd) , the Secretary of Veterans Affairs (2001), or, most recently, the Secretary of Energy. (The whole list is at the Wikipedia article.)
Would any sane person be reassured by knowing that the Secretary of Veterans Affairs or Commerce (or even Attorney General, as with Gonzales and Holder) was secreted away somewhere, ready to take over? Might not most of us even prefer a (temporary) military takeover to a government headed by the Commerce Secretary (whose name I do not know and who was, I am confident, not picked for any skills relevant to leading the nation after a catastrophic event)? It's like our stupid (and possibly unconstitutional) Succession in Office Act, something that makes no sense under close analysis but is supposed to reassure us that our world is in fact safer and more manageable than it may be. (Like taking off one's shoes at the airport?) And, of course, our Congress can't be bothered to take seriously the proposed Continuity in Government Amendment suggested by a joint commission of the Brookings Institution and the American Enterprise Institute because there's no political traction in it. One would actually have to address serious issues of governance instead of grandstanding to the base. (Once again, incidentally, I comment Texas Republican Sen. John Cornyn, with whom I rarely agree, for sponsoring the proposed amendment.)
The main question hanging over the country is how much of our everyday behavior will be changed because of what we are constantly told is a "war" with terrorism. If we really do believe that there is, say, a 1% probability that a successful attack will take place on the Capitol when everyone gathers for the State of the Union address, that's a good reason either to revert to an earlier tradition, when Presidents delivered written messages, or, at the very least, telling most of the Cabinet and Justices, for starters, that they can, like the rest of us, watch it on TV. (I note that Dick Cheney did not attend the immediate post-Sept. 11 address to Congress, but did seemingly attend all of the States of the Union address thereafter. But why? I ask this as a fully serious, and not cheap-shot, question.)
Indeed, why shouldn't members of Congreess also simply watch the address on TV, given that no one takes it seriously as a "conversation" between the President and Congress. The only function of members of Congress is to engage in applause (or sit sullenly on their hands). Ironically, a successful attack would presumably take out the person next in line to the VP, i.e., the Speaker of the House, who, of course, sits behind the President (along with the VP).
I don't know myself how serious I am with regard to such suggestions. But what I am deadly serious about is that the country is almost frivolous with regard to asking serious questions about what is, and is not, required by the particular dangers posed by terrorists (and, of course, whether they're really more danerous than other kinds of risks that we seem blithely to minimize or out-and-out ignore, beginning with climate change).
"Obama's War over Terror": Some exegetical reflections
Sandy Levinson
Today's NYTimes magazine has a very interesting article by Peter Baker on "Obama's War Over Terror," which sets out the various alternatives with which the President is wrestling. Jack and I have been arguing that the "national surveillance state" is now part of our permanent reality, and there is certainly much in the article that supports that thesis. But that is not the point of this posting. Rather, there are a number of almost off-hand statements that are worth some elaboration, in terms of understanding the basic structure of our government and its strengths and weaknesses. So, consider: 1. One of the central subjects of the article is John Brennan, described as "the top White House counterterrorism adviser." Brennan was apparently Obama's initial choice as CIA director, but he was dissuaded from the appointment by critics from the left of Brennan's service as part of the Bush Administration. More to the point, perhaps, the Administration didn't want to nominate someone for whom Senate confirmation might be dicey, or, at the very least, provoke the kind of confrontation that Obama clearly didn't want. So, instead, he was given a plum position within the White House itself. Nothing wrong with that, I suppose. Presidents have always had non-confirmed (or confirmable) advisers. (I've just finished a superb book by Jeff Shesol on Roosevelt's Court-packing plan, which will be coming out later this year, and he mentions Louis Howe, who actually basically lived in the White House and was an almost literally uniquely important adviser to FDR.) But there can also be no doubt there are an ever-increasing number of such unconfirmed officials, paid for by taxpayers, who may well on occasion be considerably more important than the confirmed Cabinet secretaries and, most certainly, deputies and assistant secretaries. There was a panel at the recent AALS convention in New Orleans, organized by Boston College law professor Richard Albert, on the constitutional statuts of "czars." And, of course, it's not only confirmation (or lack of same). There's also the issue of oversight, since presidential advisers often claim, with presidential support, an immunity from having to testify before Congress. Perhaps, when all is said and done, we benefit from this, but it should be clear, say, that Henry Kissinger, most notably, was far more important than the Nixonian Secretaries of State, and one might say the same thing about Brzezinski vis-a-vis Cyrus Vance during the Carter Administration. Is this something to be concerned about, or is it simply way too late (even if we think that there are serious questions about the wisdom of this devopment)?
2. The article also notes that Secretary of Defense Robert Gates did not attend the inauguration. Instead, he was at a secret location. "With no other member confirmed by te Senate, Gates,an incumbent cabinet officer who also had the imprimatur of the newly elected commander in chief--was the most logical person in the line of succession to take over the presidency should the worst happen." So what's the problem here? First of all, whether he was the "most logical person" or not, there's the little matter of the Succession in Office Act of 1947, which places sucession, following the Vice President, in the Speaker of the House and then the President pro Tem of the Senate (currently Robert Byrd). So one first has to imagine that both Obama and Biden had been assassinated during the inauguration. Unless the attack had taken out Pelosi and Byrd as well, there is no way that the Republican Gates becomes President of the United States. It is true, incidentally, that Akhil and Vikram Amar have written a wonderful article plausibly arguing that the Succession in Office Act is unconstitutional, and I believe that it is perhaps even worse than unconstitutional, i.e., monumentally stupid. But I am more than a bit surprised that the Times let this sentence go by without noting its problems. (Incidentally, Bart Gellman in his superb book Angler, on Dick Cheney, notes that Cheney simply left the Speaker and President pro Tem out of any "practice sessions" re responding to a terrorist attack that made such issues of continuity in government relevant. It wasn't clear whether Cheney had read the Amars' essay and agreed with it or whether he was simply exhibiting his fascistic tendencies and utter contempt for elected public officials beyond himself and his puppet George W. Bush. But I digress...)
Moreover, this aside makes it clear how irresponsible it is that we have no mechanism to confirm high-ranking members of the cabinet before the moment of inauguration. As it happens, I believe that Hillary Clinton, who precedes Robert Gates--as does, I believe, the Secretary of the Treasury--was confirmed the afternoon of the inauguration. So under Baker's notion of "logical" succession, even if we put Pelosi and Byrd to one side, would Gates serve only for a couple of hours, until the almost infinitely more legitimate Secretary of State Clinton would have taken the reins of office, or would all of Obama's nominations have been moot, so that President Gates would choose a new cabinet, etc.
3. Apparently--surprise, surprise--the CIA and other intelligence officials were appalled by suggestions that anyone be held accountable for misdeeds during the Bush Administration. Michael Hayden, the last of Bush's CIA directors "recalled warning Jim Jones, Obama's national security adviser, last spring not to alienate the C.I.A. by dreding up the past. 'You're about to spend the next 46 months without a clandestine service,' Hayden recalled saying. 'If these guys don't think you have their back, they're not going to be very adventurous.'" Translation: If intelligence officials don't believe they are absolutely immune from any kind of legal or political accountability--sometimes known, quaintly, as "the rule of law"--then all America will suffer. This may put in further context the quote attributed to Obama,"The C.I.A. gets what it needs," regarding the use of drones for what are, after all, targetted assassinations in a country (Pakistan) with which we are not at war. But what it "needs" are not only planes and money, but also the assurance that there will be no accountability. And that, alas, seems to be the policy adopted by the Obama Administration.
If you want just the highlights, here is the core of the argument that the individual mandate is a constitutional tax:
The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country. This test is easily satisfied. The new health care reform bill insures more people and prevents them from being denied insurance coverage because of preexisting conditions. Successful reform requires that uninsured persons — most of whom are younger and healthier than average — join the national risk pool; this will help to lower the costs of health insurance premiums nationally. Taxing uninsured people helps to pay for the costs of the new regulations. The tax gives uninsured people a choice. If they stay out of the risk pool, they effectively raise other people’s insurance costs, and Congress taxes them to recoup some of the costs. If they join the risk pool, they do not have to pay the tax. A good analogy would be a tax on polluters who fail to install pollution-control equipment: they can pay the tax or install the equipment.
The individual mandate is not a direct tax [which must be apportioned by state population]. The House’s version is a tax on income. Under the Sixteenth Amendment, income taxes do not have to be apportioned, regardless of the source of the income. The Senate’s version is an excise or penalty tax. [Under Supreme Court precedents, it is not direct because] [i]t is neither a tax on real estate nor a general tax on individuals. It is a tax on events: individuals who are not exempted are taxed for each month they do not pay premiums to a qualified plan.
And here is the core of the argument that the tax is a constitutional exercise of the commerce power:
The individual mandate taxes people who do not buy health insurance. Critics charge that these people are not engaged in any activity that Congress might regulate; they are simply doing nothing. This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce. Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation — in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won’t succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective.
I assume that as soon as the health reform bill is passed, people will challenge the individual mandate in court. I doubt these challenges will succeed. But stranger things have happened in constitutional law, and I've seen some of them in the past twenty-five years I have been teaching in this area. I will, however, say this: The Supreme Court would have to significantly alter its post-New Deal doctrines to strike this tax down. It could not just apply the law as it currently exists; it would have to change the law markedly. At present, I do not think the votes are there for such a constitutional revolution.
I recently attended my third Renaissance Weekend in Charleston, where among the normal cornucopia of ideas and fellowship, Sam Horn was incredibly generous in helping me sharpen my elevator pitch for a new project.
Horn literally wrote the book on the subject: Pop! Create the Perfect Pitch, Title, and Tagline for Anything. I just finished the book and I like its incredibly concrete “do this, then do this” advice. It attends to the often-overlooked question of prosody. And it provides a rich set (literally hundreds) of examples of what to do. For example, here’s what she says about the genius of the Freakonomics cover:
The cover of the brilliant book Freakonomics proves that a picture can indeed be worth a thousand words. This book by Steven D. Levitt and Stephen J. Dubner not only won the 2005 Quills Book Awards for Business, I’m nominating it for the POP! Hall of Fame for the following reasons.
1. The pithy one-word title is a compelling example of how you can alphabetize a core word (economics) to coin a new term and a one-of-a-kind brand name that belongs only to you. (This technique is introduced in Chapter 3.)
2. The sub-title, “A Rogue Economist Explains the Hidden Side of Everything,” is purposeful in that it promises to reveal secrets which favorably positions the book with its target audience of executives and business book buyers who have “seen it all.” (Chapter 2)
3. Their ads feature a marvelous “Valley Girl” endorsement from the Wall Street Journal that says, “If Indiana Jones were an economist, he’d be Steven D. Levitt.” That comparison linking the professor/author to movie actor/celebrity Harrison Ford broadens the topic’s appeal, turning it into a cross-over book that’s attracted mainstream readers who wouldn’t normally be interested in this subject. (Chapter 5)
4. The authors pose such fascinating “POP the Question” inquiries as “How is a beauty pageant like a crack dealer? What do school teachers and sumo wrestlers have in common?” Aren’t you intrigued? Phrasing these unexpected comparisons into questions engages our curiosity. (Chapter 13)
5. The book cover “AFLACs” its premise, “Things are often different than they appear,” by showing a crisp green apple with a slice cut out and you clearly see the inside of the apple is a juicy … orange. This made their abstract concept concrete. This startling image has become an identifiable visual brand that is now associated with their work.
6. Furthermore, this visual contradiction is an excellent example of Contra-brand (Chapter 10) in which they challenge a common assumption, in this case, the belief that you can’t compare apples and oranges. They just did! Kudos.
Horn practices what she preaches. Here’s the pitch she made for her book Tongue Fu! at the 2005 Maui Writers Conference:
My name is Sam Horn. (Pause).
I’ve written a book on how to deal with difficult people — without becoming one yourself. (Pause.)
It’s called … Tongue Fu! (Big smile.)
Tongue Fu! is … martial arts for the mouth. (Point to mouth.)
Some of the chapters include:
Fun fu! — how to handle hassles with humor instead of harsh words.
Tongue Sue! — Tongue Fu! for lawyers.
And Run Fu! — for when Tongue Fu! doesn’t work.
I’ve written about the Lulu title scorer which is a fun (if slightly frivolous statistical) way to predict the success of a book title. But Sam Horn’s take on the subject should probably be in the back drawer of a lot of book publishers (and agents and publicists).
My Two Harry Reid Moments: Racist, Insensitive, or Realistic?
Brian Tamanaha
About a dozen years ago, I delivered a paper on the impact of skin color at a Critical Race Theory conference at Yale. Drawing upon social scientific studies, I surveyed a variety of contexts around the world in which people with darker skin color apparently suffered certain disadvantages compared to people with lighter skin. My point was that the standard legal framework for dealing with racial discrimination fails to capture this phenomenon.
When the floor was opened for questions, a law professor in the audience angrily declared, “That was most racist presentation I have ever heard.” I was aghast and embarrassed at having the “racist” label thrown at me. When she was done, I weakly protested that I was merely pointing out—not endorsing—a pattern of color-based disadvantage documented by social scientists.
Too late. The big “R” was burning on my forehead. Upon returning home, I buried the paper at the bottom of the drawer, never picking it up again.
That was my first Harry Reid moment.
My second Harry Reid moment came years later, following a talk by a person seeking to become a law professor. The talk was smart and interesting. Unfortunately, I thought, the speaker’s diction was distractingly non-standard—not the way law professors talk—too ethnic, too much of the neighborhood and community the person was raised in (I’ll leave out the particulars).
Why was I concerned about this? I was raised in Hawaii, speaking heavy pidgin like everyone else. It’s a beautiful sing-song language unto itself, which routinely violates standard rules of grammar. (Example: “Us go stoa” means “Let’s go to the store.”) When I moved to the mainland I realized, following multiple snide comments about my manner of speaking, that my diction gave the impression that I was ignorant or uncouth. People who grow up in mainstream America never think about how they sound because they are the norm.
Wanting to help, I later gently (awkwardly) warned the aspiring law professor (a personal acquaintance) that, although the talk was impressive, his/her manner of speaking might lead some listeners to discount the substance of the talk. I urged him/her to pay more attention to this. The person politely thanked me for the feedback, but might have been insulted by my comments. I don’t know.
Harry Reid suggested that Obama would benefit in politics because he was light skinned and was able to speak like white folks. My comments were along similar lines. Does that make us racist? insensitive? or realistic?
Liberals and conservatives united against the filibuster
Andrew Koppelman
As the Democrats contemplate the likely loss of a few Senate and House seats in the next election, the prospect of an ungovernable country becomes more salient than ever. This has prompted smart people on the left, including some contributors to this blog (and Thomas Geoghegan, in yesterday’s New York Times) to think about getting rid of the Senate filibuster, which makes it impossible to pass any legislation by a simple majority. (The Democrats are unlikely to lose their majorities in either house.) But there are also principled conservatives who oppose the filibuster on formalist, textualist grounds. It’s time to think about possible allies across political lines. Only a few years ago, many Republicans were critical of the filibuster when it was used to block George W. Bush’s judicial nominees, such as Miguel Estrada and Priscilla Owen. Now that the shoe is on the other foot, some of the people who made those arguments will become staunch defenders of the filibuster, with the alacrity of American Communists shifting their positions the day after the Hitler-Stalin pact. But not all Republicans are political hacks of this kind. Some of them have principled views and are likely to stick to their guns.
Submitted for your inspection, the testimony of my Northwestern Law colleague Steven Calabresi, before the Senate Judiciary Committee Hearing on Judicial Nominations and Filibusters, May 6, 2003:
Thank you Senator Cornyn. I very much appreciate the opportunity to appear before the committee today. The people of the United States have just won a great victory in the war to bring democracy and majority rule to Iraq. Now it's time to bring democracy and majority rule to the Senate's confirmation process. A determined minority of senators has announced a policy of filibustering indefinitely highly capable judicial nominees such as Miguel Estrada and Priscilla Owen. By doing this, these senators are wrongfully trying to change two centuries of American constitutional history by establishing a requirement that judicial nominees must receive a three-fifths vote of the Senate instead of a simple majority to win confirmation.
The U.S. Constitution was written to establish majority rule. The historical reasons for this are clear. A major defect with the Constitution's precursor, the Articles of Confederation, was that it required super majorities for making many important decisions. The Framers deliberately set out to remedy this defect by empowering Congress to make most decisions by a simple majority. The only exceptions to this principle are in seven express situations where a two-thirds vote is required. Each house of Congress does have the power by majority vote to establish the rules of its proceedings but there's no evidence this clause was originally meant to authorize filibusters. From 1789 to 1806, the Senate's rules allowed for cutting off debate by moving the previous question, a motion which required only a simple majority to pass.
The filibuster of legislation did not originate until 1841, when it was employed by Senator John C. Calhoun to defend slavery and an extreme vision of minority rights. Calhoun was called a filibusterer from a Dutch word for pirate, or as we would say today terrorist, because he was subverting majority rule. From 1841 to the present, the principle use of the filibuster has been to defend Jim Crow laws oppressing African Americans. Now for the first time in 214 years a minority of senators are seeking to extend filibustering from legislation to the whole new area of judicial nominees -- nominees who they know enjoy the support of a majority of the Senate.
This is a bad idea for three reasons. First, such filibusters weaken the power of the president, who is one of only two officers of government who is elected to represent all of the American people. Second, filibusters of judges undermine judicial independence by giving a minority of senators led by special interest groups a veto over who can become a judge. It's already hard enough for talented and capable individuals to be appointed judges without a minority of senators opposing a litmus test. Third, the filibuster of legislation can at least be defended on the ground that federal legislation ought to be considered with extraordinary care. In contrast, the confirmation of one out of one hundred and seventy-five appellate judges is a much less momentous matter. This is especially so since a Judge Estrada or a Judge Owen would be only one judge on a panel of three sitting on a court with twelve to fifteen judges.
The Senate can always change its rules by majority vote. To the extent that Senate Rule Twenty-Two purports to require a two-thirds majority for rules changes, Rule Twenty-Two is unconstitutional. It is an ancient principle of Anglo-American constitutional law that one legislature cannot bind a succeeding legislature. This principle goes back to the great William Blackstone, who said in his commentaries "Acts of Parliament derogatory from the power of subsequent parliaments be naught." Three Vice Presidents of the United States presiding over the Senate, Richard Nixon, Hubert Humphrey, and Nelson Rockefeller, have all ruled that the Senate rules can be changed by a simple majority of the Senate. Lloyd Cutler, White House Counsel to Presidents Jimmy Carter and Bill Clinton, has written in the "Washington Post" that Senate Rule Twenty-Two is plainly unconstitutional. The Senate can and should now amend Rule Twenty-Two by simple majority vote to ban filibusters of judicial nominations.
Calabresi’s proposal was limited to the banning of filibusters of judicial nominations, but its logic applies to the filibuster generally. The text of the Constitution provides for a two-thirds majority for: 1) the passage of constitutional amendments by both the House and the Senate; 2) the over-riding of a presidential veto by both the House and the Senate; 3) the ratification of a treaty by the Senate only; 4) the conviction of an official by the Senate only when that official has been impeached by a majority of the House of Representatives; 5) the expulsion of a Member either of the Senate or of the House of Representatives; 6) the lifting by either House of the ineligibility to serve in that House of an individual who having previously taken an oath to uphold the Constitution “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof;” and 7) the two Houses acting together to remove a President from office who is disabled when the Vice President and a majority of the Cabinet have petitioned Congress to do so.
In ALL other instances, the presumption seems to be a presumption of majority rule. This is the case for law-making pursuant to Article I, Section 7, for admitting new states to the union pursuant to Article IV, Section 3, and even for calling a new constitutional convention pursuant to Article V.
The political case for abolishing the filibuster is clear. Without it, the Democrats have a reasonable chance of passing effective legislation for at least two more years, even if they lose a few seats in the midterm election. They might even be able to amend the health care bill to add a public option. But the case is not only political. There is a powerful formalist case for getting rid of the filibuster.
(Thanks to Steve Calabresi for sharing his Senate testimony with me. I make no representations here about his present views, about the filibuster or anything else.)
Much constitutional theory over the past decade has emphasized a distinction between constitutional interpretation and construction. This distinction seems to have first appeared in the common law. Judges in the early nineteenth century distinguished between interpreting and constructing a contract. The distinction partly migrated to constitutional law, most notably in the writings of Francis Leiber. Most Supreme Court justices at the time, however, did not rely rigorously on the interpretation/construction distinction. More recently, Keith Whittington’s seminal studies of constitutional theory revived the interpretation/construction distinction. That distinction now plays a role in the work of such important scholars as Lawrence Solum and Randy Barnett.
The interpretation/construction distinction is of sufficient importance to merit a panel at the most recent American Association of Law Schools meeting. On the one hand, the panel was excellent. My complements to Professors Lawrence Solum, Rod Hills, Mitch Berman, John McGuiness, Ian Batrum, and Laura Cisneros. Constitutional Commentary will soon have a fascinating issue. On the other hand, I was left wondering whether the panelists were actually talking too each other. A large number of any interpretation/construction distinctions exist. Commentators easily slip from one to another. Below are a few that I spotted either during the panel or when doing independent reading.
The interpretation/construction distinction is about certainty.
Version 1: Interpretation takes place when the meaning of the constitution is clear (by any broadly accepted theory of constitutional interpretation). Construction takes place when the meaning of the constitution is contested.
Version 2: Interpretation takes place when persons claim that they have discovered the objective right answer to what the constitution or a constitutional provision means, however difficult the investigation may have been. People construe the constitution when they admit that their answer is not objectively correct.
Version 3: People who believe that right answers exist to hard constitutional questions (think Ronald Dworkin) engage in interpretation, even if they admit that cannot presently demonstrate to all rational minds that their present answers are correct. People who deny right answers exist to hard constitutional questions engage in construction.
The interpretation/construction distinction is about meaning or methods.
Version 4: Interpretation takes place when we look for the original meaning of the constitution. All other forms of constitutional analysis engage in construction
Version 5: Originalists engage in interpretation, even when they focus on original intentions, expectations or methods. All other forms of constitutional analysis engage in construction.
Version 6: Persons concerned with the linguistic meaning of the constitution engage in interpretation. Persons concerned with other kinds of meaning engage in construction.
The interpretation/construction distinction is tied to institutions.
Version 7: Courts as a matter of history have engaged in interpretation. Non-judicial officials as a matter of history have engaged in construction.
Version 8: Courts may only interpret the constitution. Elected officials are free to construe the constitution.
Version 9: By definition, courts interpret and elected officials construe.
The interpretation/construction distinction is about the difference between meaning and implementation
Version 10: Interpretation takes place when we look for the meaning of the constitution. Construction takes place when we try to operationalize that meaning into principles of constitutional law.
Most versions of the distinction combine different versions, so altogether about 50 practical versions of interpretation/construction probably exist. Rather confusing, given that the different versions of distinction are aimed at different problems. The best solution I can offer is that we might do better starting with the problems (what is the role of courts in a constitutional democracy; how should we read constitutional language, etc) than with first making the distinction between construction and interpretation and then determining what problems that distinction might solve.
Paul Light has an outstanding column in today's Washinton Post on "the real crisis in government," which has to do with defects in the contemporary bureaucracy, for reasons ranging from the ridiculous vetting required of anyone who answers the call for public service to the grandstanding of senators like Jim DeMint and his "hold" on a vital appointment to the Homeland Security Administration because of his (DeMint's) rabid anti-unionism. The point I draw from the column is that all the people who attack the Obama Administration for its failure to "connect the dots" re the Christmas almost-bombing are themselves unable to "connect the dots" about significant failures in the entire governmental structure that increase the likelihood of future disasters ranging from tainted meat in our food supply to economic collapse to terrorist incidents.
Given my repeated criticism of various pundits, including Nobel Prize winners like Paul Krugman, to "connect the dots" with regard to our Constitution's independent contributions to the dysfunctionality of American politics, it occurs to me that all of us are probably defective in "connecting the dots." The reason is plain: Facts do not "speak for themselves," and much "dot-connecting"--consider the constellations of the stars--is obviously without a true "scientific" basis, but is useful for our own human needs, such as a mixture of navigation aids and the desire to believe that the Universe is "meaningful" rather than irretrievably arbitrary. All of us are constantly "connecting dots"; the problem is that they are usually different dots, for reasons ranging from ideology--I, of course, believe that a central example is our ridiculous "veneration" for a patently defective Constitution--to intellectual laziness to fear of the consequences of connecting certain dots--how many relationships depend on a willingness not to connect certain dots?--and so on. And many of the dots, of course, are only probabalistically connected: There is an X% chance that doing A will lead to B, but, by definition, there is a 1-X probability that it won't. (After all, the bomber was in fact not successful, so in some theoretical sense, it "didn't matter" that our intelligence systems failed to connect the dots. It's like "safe" drunken driving, where one gets home without in fact getting into an accident.) We can always be certain that the interconnectability of the dots seems "obvious" after some event changes things: the heart attack occurs, the terrorist incident happens, the state is indeed unable to pass a budget and basic services are eliminated, etc., etc., etc. But even then, of course, we do not agree on what particular dots should have been connected or what particular weight should be given any particular dot. Posted
10:49 AM
by Sandy Levinson [link]
(18) comments
Friday, January 08, 2010
Senate Democrats in November and January
Mark Tushnet
There's been a lot of discussion this week about the possibility that after the November elections the Democrats will hold fewer than sixty seats in the Senate and that -- therefore, it is assumed -- they will find it impossible to assemble the votes needed to constitute an effective governing majority. But is that right, even assuming -- as I do -- that the political predications about what's going to happen in November are correct?
Not necessarily. The sixty-vote "requirement" results from the present Senate rules. When a new Senate assembles in January, it has the opportunity to amend its rules. (The Standing Rules of the Senate treat the Senate as a continuing body whose rules remain in effect until they are amended. I could be wrong, but my understanding is that formal amendments to the Standing Rules, which include the filibuster rule, can be made at any time, but usually occur at or near the beginning of a new session.)
The Senate Democrats might conclude that they are operating in a political world where a formal change in the rules is needed. That world, I suggest, is one in which the opportunities for cross-party cooperation on major legislation -- and on much else -- is extremely limited. In such a world the Democrats might ask themselves, "What set of rules would we have to have for us to be an effective governing majority?" There's a lot that might have to be changed -- not just the filibuster rule, but the informal practice of "holds" on nominations by a single Senator, the widespread use of unanimous consent to move the Senate's business, and more. I'm not a specialist in parliamentary procedure, but it seems to me that Democratic politicians and liberal-leaning pundits ought to be putting on the table the possibility of a comprehensive revision of the Senate's rules to accommodate the new political reality.
I'm also not a specialist in political analysis, but I would guess that this possibility isn't going to go far. One reason is that revising the Senate rules -- I suspect, even revising only the filibuster rule -- would destroy whatever slim possibilities there are for cross-party cooperation, and that some Democrats still hold out hope for such cooperation at least occasionally. Another reason is that changing one rule wouldn't be enough; in particular, leaving the current unanimous-consent practice untouched would just shift the location of deadlock from the point of filibustering to many more earlier points. (The standard story is that filibusters have proliferated because the Senate requires cross-party cooperation to get its work done, and that the parties want to get at least some work done, which makes the filibuster threat a serious one.) But, I think, the primary reason is that the Democratic Party in the Senate isn't unified enough to push a comprehensive revision through. The Republican Party has become quite homogeneous, and, although the Democratic Party has less internal variance than it used to, it remains less unified than the Republicans. What that may mean is that a Senate with 57 Democrats might not have a majority to amend the Senate rules in a way that would allow that majority (or a majority of 51) to become an effective governing majority.
But, to return to the beginning, what I find most striking is the punditry's assumption that the Senate rules are somehow set in stone.
I forgot to add in my previous post that two other Balkinization contributors, David Gans and Doug Kendall, along with Elizabeth Wydra, were honored by the Green Bag for Exemplary Writing for their amicus brief, Brief of Professors as Amici Curiae in Support of Reversal, McDonald v. City of Chicago (7th Cir. 2009). (Full disclosure: I signed this brief, but this fact should not detract from its quality).
The new year starts with no shortage of Gitmo-related matters to blog about, starting with today’s important decision from a panel of the D.C. Circuit Court of Appeals ruling (for the first time) on the merits of one of the few dozen decided Gitmo habeas petitions. The ruling, affirming the lower court’s decision to deny habeas to a Yemeni detainee, is here.
There is a host of interesting holdings here – both on the question of who may be detained under the 2001 Authorization for the Use of Military Force (AUMF), and to what procedures they are entitled in determining their status. But the panel’s ruling on how to interpret the AUMF – namely, that the meaning of the AUMF is not constrained or apparently informed by the international law of war (IHL) – is one of the most troubling highlights.
The panel majority writes: “The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.” While “the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks …, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”
Not entirely clear exactly what this means, but let’s start with what this says about the state of judicial deference to executive interpretations of international law. The Obama Administration, after all, had squarely taken the position in briefing the Gitmo cases that IHL directly informs the interpretation of the AUMF. (The Administration also just succeeded in persuading Congress to delete from the latest version of the Military Commissions Act language from the Act’s 2006 version that prohibited so much as the invocation of the Geneva Conventions as a source of law in any U.S. court.) Given how much time courts – especially the D.C. Circuit – have devoted historically to explaining how the President is entitled to deference by the courts on matters of foreign affairs and national security, curious at least that the Administration’s view of this particular question evidently merited no such attention.
Then there’s the matter of the accuracy of the panel’s sweeping – and unnecessary-to-the-ruling – statement that the international laws of war are not a source of authority for U.S. courts. Set aside the fact that the executive disagrees. And the fact that a majority of the Supreme Court justices in Hamdi also thought international law informed the AUMF’s interpretation. Even the Supreme Court’s recent Medellin decision – with its suspect and starkly limited understanding of the effect of treaties in federal court – seemed to understand that whether or not a treaty is “self-executing” or not (i.e. whether it is a source of authority in U.S. courts) depends not only on the particular treaty but also on the particular provision within the treaty. The D.C. Circuit panel doesn’t pretend to undertake any such analysis. Rather, it finds simply “no occasion… to quibble over the intricate application of vague treaty provisions and amorphous customary principles.” It may be true that IHL ultimately provides inconclusive guidance in settling the legality of detention in a particular case. But the panel here reached out far beyond that in waving aside the Geneva Conventions – and any other source of international law – in their entirety. Poorly done. And rich fodder for appeal.
Like Sandy, I too agree with just about all of Mark's post, except for the essential point he neglected to mention. The pertinent passage is his closing:
I myself don't find these arguments particularly strong, but that -- on the CLS view -- doesn't mean anything about what constitutional law on this matter "really" is. If, as Holmes said and as CLS reiterated, what the law "is" is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.
Or, put another way, remember Bush v. Gore?
By almost all accounts, Bush v. Gore was an embarrassing failure of legal analysis, a historic stain on the court to the enduing shame of the five who signed on. This consensus view confirms that much more is involved than getting to five. Although Mark cites Holmes, the favorite authority for skeptical assertions, Holmes also wrote, "It has given me great pleasure to sustain the constitutionality of laws that I believe to be as bad as possible because I helped thereby to mark the difference between what I would forbid and what the Constitution prohibits."
CLS was correct that the law is whatever the court decides, but this does not mean that whatever it decides is legitimate or proper. The crucial mistake of CLS was its failure to emphasize that, while legal analysis is frequently capacious enough to support any outcome (especially at the level of Supreme Court cases), nonetheless, usually certain arguments are legally stronger than others. Mark's own comment (on the weakness of the arguments against validity) confirms this. That is why Jack is right to focus on the soundness of legal analysis.
It is not just about marshaling five votes, at least not for judges with integrity, but about coming up with and adhering to the most compelling legal argument. The more often we emphasize this the harder it will be for judges to engage in cynical analysis. Posted
12:05 AM
by Brian Tamanaha [link]
(62) comments
Sunday, January 03, 2010
The Justices Roberts
Mark Tushnet
As Sandy Levinson's posts (including the most recent) have suggested, when we think about the current administration and the Supreme Court, our thoughts almost inevitably turn to the mid-1930s. It's easy to push the parallels between the Roosevelt and Obama administrations too hard, but some parallelism does seem to be there: taking office mid-crisis, offering ambitious policy proposals with some prospect of success in Congress, and -- importantly here -- facing a Supreme Court staffed by justices whose ideological formations (or "judicial philosophies," if you like) contain important elements that could be used to put into constitutional peril some aspects of the administration's policy proposals. (Here too we shouldn't exaggerate. The Court in the mid-1930s endorsed an expansive, Hamiltonian interpretation of the general welfare clause, thereby putting its stamp of constitutional approval on the Roosevelt administration's Keynesian spending programs. The full story is, as they always are, even more complicated.)
The pivotal actor at the Supreme Court during the constitutional confrontations in the mid-1930s was Justice Owen Roberts. Early in the Roosevelt administration Justice Roberts generally cast his votes with the Court's judicial conservatives. During the 1936 Term he cast his votes with its liberals. After that he reverted to form, as an important recent paper shows. In 1936 Justice Roberts faced and made a choice. It would be nice if we could preserve the parallelism by saying that in the 2010s (Chief) Justice Roberts will have to face and make some choices. More likely, though less symmetrical, Justice Kennedy will be in the first Justice Roberts' position.
(Pop quiz: List the justices who shared a last name -- Harlan, Jackson, Marshall, White, Roberts, ???)
I agree with every word of Mark's post: It really does boil down to whether the Conservative Majority would dare to strike down the most important domestic social policy legislation in the past forty years, which, like the Civil Rights Act of 1964, would have passed only after vicious filibusters. But let's assume they do. Then what?
Bush v. Gore is an interesting evocation, since the one thing we know for sure is that Al Gore rolled over and played dead on December 13, proclaiming his duty to accept, without further protest, the decision of the Court, whatever its intellectual merits. He therefore provided no leadership for anyone who might have wished to engage in serious protest beyond signing angry ads. So, possibility one is that Barack Obama, the former University of Chicago professor, says "I really regret that the Court came to the decision it did, but we are a country that believes in 'the rule of law,' which means that five justices get the final say on what the Constitution means, whatever the rest of us think of their decision. So, until those in the majority have the courtesy to resign or die--and assuming that the Republicans will allow me to place justices more sympathetic to my own constitutional vision on the Court--I will just have to accept the fact that health reform is off the table, given that no other bill is likely to survive the Senate (which, incidentally, is also intellectually indefensible, but that's as irrelevant as what I think of the Supreme Court's decision). The Constitution is indeed whatever the Supreme Court says it is, so let's move on...."
But there are, of course, other possibilities. Perhaps the President would summon up the emotional energy to denounce the decision and to suggest that there is no reason that the country must be in thrall to a group of five "willful men" (since I assume that Ginsburg and Sotomayor will be in dissent against any such decision), anymore, incidentally, than we should continue to be in thrall to an almost terminally dysfunctional Senate. Therefore, he will devote his energies and political skills to a debate about structural fundamentals, beginning with the Supreme Court--should it be packed, should it require a supermajority to invalidate federal legislation, etc.) and moving on to the Senate. Indeed, he will suggest that the use of the veto power on policy (instead of constitutional) grounds is itself an affront to 21st century democracy, so that he would himself be willing to support that diminution in presidential power as part of a grand bargain by which the Senate is transformed into an institution that makes sense for our present world. This is obviously unlikely, but if one is looking for silver linings in a Supreme Court invalidation of the legislation, this would certainly be it for me.
It is not surprising that my friend Randy Barnett supports such drastic judicial intervention, since he has no regard at all for the notion of "judicial restraint." His impressive corpus of work, the best defense of a basically libertarian Constitution currently available, calls on courts and judges to be far more interventionist than has been the case for almost a century. But I am more than curious about the wing of conservatives who have embraced "judicial restraint." Consider in this context the savage criticisms by Richard Posner and J. Harvie Wilkinson of the Heller opinion as activism run riot (a view that I do not necessarily subscribe to, even though I find the Scalia opinion itself intellectually indefensible). Will they really suppport such a de facto coup?
A final question: Where would Randy advise his clients to file the original suit, since it might be embarrassing if the Court was faced with a district and a unanimous circuit court opinion finding no problem with the legislation. So what's the best forum to shop? Concomitantly, what is to stop proponents of the legislation from initiating the litigation, seeking a declaratory judgment that they will be violating no one's rights in requiring proof of insurance? Or will the final legislation direct that any litigation take place in DC (and what is the current likely split on the DC circuit with regard to such arguments)?
Liberals, the Individual Mandate, and Critical Legal Studies
Mark Tushnet
This morning's Washington Post has a story on proposed legal challenges to the individual mandate in the pending health care legislation. (In brief, conservatives are arguing that Congress lacks the power to require people to purchase health insurance or pay a penalty, under either the commerce clause and the power to tax and spend for the general welfare.) The story observes that liberal-leaning constitutional scholars think that, as Erwin Chemerinsky puts it, "There are many close constitutional questions. But this is not among them," or, as Jack Balkin says, "All of these arguments don't work, but they're interesting to debate."
I'm afraid that these reactions demonstrate that liberal-leaning constitutional law types haven't absorbed the lessons of critical legal studies -- or, indeed, the lesson Justice William Brennan taught his law clerks by holding up one hand with his fingers splayed: "With five votes you can do anything." The CLS lesson was -- and is -- that where the stakes are high enough and the political energy is available (to lawyers and judges), at any time the body of legal materials contains enough stuff to support a professionally respectable argument for any legal proposition. So too with the constitutional arguments against the individual mandate.
I lack both the interest and the energy to work out the arguments in detail, but I've thought enough about the constitutional issues to be able to sketch out an argument, compatible with existing law, that the individual mandate (a) doesn't fall within Congress's power to regulate interstate commerce, (b) doesn't fall within Congress's power to tax and spend for the general welfare, and (c) is (in its penalty aspect) a direct tax prohibited by the Constitution. I myself don't find these arguments particularly strong, but that -- on the CLS view -- doesn't mean anything about what constitutional law on this matter "really" is. If, as Holmes said and as CLS reiterated, what the law "is" is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.
Apparently, Senator Hatch has not read the text of the individual mandate (or else he's just fibbing)
JB
Orrin Hatch and his friends get the benefit of the pages of the Wall Street Journal to tell us things about the individual mandate that are not actually true.
First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.
Is that so? Let's look at the House and Senate Bills. Here's the House Bill:
‘‘PART VIII—HEALTH CARE RELATED TAXES ‘‘SUBPART A. TAX ON INDIVIDUALS WITHOUT ACCEPTABLE HEALTH CARE COVERAGE. ‘‘Subpart A—Tax on Individuals Without Acceptable Health Care Coverage ‘‘Sec. 59B. Tax on individuals without acceptable health care coverage. ‘‘SEC. 59B. TAX ON INDIVIDUALS WITHOUT ACCEPTABLE HEALTH CARE COVERAGE. ‘‘(a) TAX IMPOSED.—In the case of any individual who does not meet the requirements of subsection (d) at any time during the taxable year, there is hereby imposed a tax equal to 2.5 percent of the excess of— ‘‘(1) the taxpayer’s modified adjusted gross income for the taxable year, over ‘‘(2) the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer.
Now let's look at the Senate Bill:
‘‘CHAPTER 48—MAINTENANCE OF MINIMUM ESSENTIAL COVERAGE ‘‘Sec. 5000A. Requirement to maintain minimum essential coverage. ‘‘SEC. 5000A. REQUIREMENT TO MAINTAIN MINIMUM ES21 SENTIAL COVERAGE. ‘‘(a) REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.—An applicable individual shall for each month beginning after 2013 ensure that the individual,and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month. ‘‘(b) SHARED RESPONSIBILITY PAYMENT.— ‘‘(1) IN GENERAL.—If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c). ‘‘(2) INCLUSION WITH RETURN.—Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month. ‘‘(3) PAYMENT OF PENALTY.—If an individual with respect to whom a penalty is imposed by this section for any month— ‘‘(A) is a dependent (as defined in section 152) of another taxpayer for the other taxpayer’s taxable year including such month, such other taxpayer shall be liable for such penalty, or ‘‘(B) files a joint return for the taxable year including such month, such individual and the spouse of such individual shall be jointly liable for such penalty. ‘‘(c) AMOUNT OF PENALTY.— ‘‘(1) IN GENERAL.—The penalty determined under this subsection for any month with respect to any individual is an amount equal to 1/12 of the applicable dollar amount for the calendar year. ‘‘(2) DOLLAR LIMITATION.—The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount (determined without regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends. ‘‘(3) APPLICABLE DOLLAR AMOUNT.—For purposes of paragraph (1)— ‘‘(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750. ‘‘(B) PHASE IN.—The applicable dollar amount is $95 for 2014 and $350 for 2015.
The House bill is a tax on adjusted gross income. You pay the tax if you don't purchase health insurance. Put another way, if you don't want to buy health insurance you can just pay the tax.
The Senate bill is a penalty tax. If you don't want to purchase health insurance, you pay the tax. The penalty is assessed for as long as you don't buy insurance. Such taxes are quite common-- think, for example, about the penalties imposed for failing to pay your income tax on time, or a tax on polluters who fail to purchase and install anti-pollution equipment. The Senate bill can also be classified as an excise tax on an event-- failure to pay premiums in a given month.
Congress's powers to impose an income tax, a penalty tax, or an excise tax are unproblematic. The House and Senate versions of the individual mandate are clearly within Congress's powers to tax and spend for the general welfare. Nor are they direct taxes that must be apportioned by state. Under the 16th Amendment taxes on income need not be apportioned no matter what the source of the income; excise and penalty taxes are not taxes on real estate and they are not capitation or "head" taxes, taxes that are levied on the population no matter what they do. Therefore they are not direct taxes within the meaning of the Constitution and existing precedents.
Either the House or the Senate version of the tax is clearly constitutional under existing law. It is not even a close question.
The reason why Senator Hatch does not tell you what is in the bill in his op-ed is because once you read it, you will see that what he says is not true. The individual mandate is structured as a tax. And the tax is perfectly constitutional under Congress's powers to tax and spend for the general welfare.
Rethinking CONventional Wisdom on State Hospital Licensure
Frank Pasquale
If there is one aspect of contemporary health care regulation that conservatives have decried, it's certificate of need (CON) laws. These laws require licensure of new health facilities (and sometimes expansions of facilities) in thirty-seven states. Denounced as relics of socialist central planning, they were a prime target of the Bush-Era Dose of Competition report. But, as David Leonhardt notes, it appears that CON laws are reducing costs without impairing quality in some areas. First, a bit of background. As health costs rose in the 1960s, many policymakers believed that a surplus of health services was to blame. Policymakers worried that health care costs were rising due to “induced demand:” the more doctors and hospitals there were, the more these actors would try to counteract the normal price-depressing effect of increased competition by finding more wrong with patients, thus “inducing” demand for their services. Although such a strategy could rarely work in a normal market, health care is a credence service—it is very hard for the average consumer to “second guess” his or her provider about the amount or nature of care needed.*
In 1974, Congress passed the National Health Planning and Resources Development Act. The Act required new health care facilities, and additions to existing facilities, to obtain a Certificate of Need (CON) from the appropriate state agency as a prerequisite to receiving federal funds via the Medicare and Medicaid programs. As a result of these laws, those opening new health care entities needed to demonstrate to state commissions that their services are actually needed by the community.
Over time, state boards started addressing concerns beyond “induced demand," including social goals of equity and fair distribution of health resources. When I emailed a New Jersey policymaker who has worked in this area, he told me that the state would be unlikely to license specialty hospitals that concentrate on the most lucrative cases because they would threaten the ability of safety net hospitals to use revenue from such cases to cross-subsidize uncompensated care. He called such egalitarian concerns "explicit and leading factor[s] of discussion at all levels in CON proceedings.”
Leonhardt is more concerned about the classic CON goal of cost-control, and sees CON laws as a key reason for positive developments in Richmond, Virginia:
Since 1996, the Richmond area has lost more than 600 of its hospital beds, mostly because of state regulations on capacity. . . . Richmond has gotten rid of 15 percent of its hospital beds, and its health care still looks a lot like the rest of the country’s, only cheaper and a bit better. . . .
[Meanwhile, health facilities vastly expanded in South Dakota after it scrapped its CON law in 1988.] In other industries, all that new capacity might have led to a glut, in which workers and equipment sat idle. But health care is different. Doctors and patients tend to believe that more care is better, and patients often don’t pay much extra for any additional care. So new doctors, nurses and equipment generally stay busy.
Dr. John Wennberg of the Dartmouth Medical School refers to this phenomenon as supply-sensitive care. Dr. Marlon Priest, the chief medical officer of Bon Secours, puts it this way: “If you build 100 beds, they’ll get used.” . . . [But] [m]ore care is not always better care. Sometimes, in fact, it’s worse. Just consider the recent research showing that radiation from CT scans will eventually kill thousands of patients a year.
I'm not fully sold on the Dartmouth studies (here's one critique of them), and I do worry that efforts to fight overtreatment will lead to some "meat ax" rationing that denies care to the poorest. But when cost saving initiatives are combined with a commitment to preserve access to care for all, they may be as close to a "Pareto optimal" health policy as we can get.
*(Lawyers have their own version of this "induced demand" problem, encapsulated in the old saw: "When there was one lawyer in town, he had no business; when another moved in, he was swamped with cases." I suppose laws against barratry are offer a loose parallel to CON in the legal profession. Antitrust may stand in the way of legal and medical professionals' own actions to avoid "induced demand.")
Wikipedia has a very helpful entry on the population of the US states. One gets to 50% of the total population, according to 2008 census estimate, with the nine largest states, California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, and Georgia. (Note, though, that the percentages are calculated by including the populations of US territories such as Puerto Rico and the District of Columbia, which, of course, have no voting representation in Congrees.) So one might divide the Senate into two groups, one of 18 senators who represent a majority of the population, the other of the remaining 82 senators who represent slightly less than 50% of "we the people." If one adds four more states, North Carolina, New Jersey, Virginia, and Washington, one reaches 60% of the total population, and adding yet eight more states, ending with Minnesota, reaches 75%.
So what this means is that 42 senators represent 75% of the population, while the remaining 58 (beginning with Colorado and going through Wyoming) have just short of a filibuster-proof majority in the Senate while representing, by definnition, less than 25% of the total population. It is possible, of course, that 2010 census figures will demonstrate that, say, it would take the top 22 states, with 44 senators, to get up to 75% of the population, so that the remainder of the population would have "only" 56 senators.
I suggest that there is no more merit to this configuration of power than there is, say, to the present allocation of veto power in the Security Council of the United Nations or the assignment of independent representation in the General Assembly, prior to 1989, to Ukraine or Byelorussia. All of these can be readily explained as the result of "necessary" compromises at the time of the formation of the institutions in question. But, of course, the same is true of the 3/5 compromise re the "representation" of slaves. The inability of the Security Council to reform itself, because of the assignment of veto powers, is a major problem with the contemporary United Nations. Ditto the Senate. Many people probably don't really care about the UN (and may even view it as basically illegitimate); they obviously don't really want a more "functional" Security Council. But can we afford the same complacence about the American government and the egregious Senate? Posted
11:05 PM
by Sandy Levinson [link]
(70) comments
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