Originalism

We heard today from Professor Primus on problems with originalism. Primus is very smart and I thought the discussion was very interesting.

His argument was different than most attacks on originalism, was not against originalist constitutional interpretation, but against enumerated powers and federalism. His attack was on Lopez, Morrison, and the Section 5 cases rather than on Roe and Lawrence.

The point was that the constitution did not work, evident by the Civil War. Congress has the ability, and has been working to fix the problems, but that the court continues to move back to the structures of the original constitution and limits congress in its efforts. Thus, Lopez, Morrison, Kimel, and Boerne (I don't know if he cares about RFRA) all overturned good progressive legislation where the only fault was its failure to conform to structures of the constitution as originally enacted.

I like the argument because he is claiming not that the countermajoritarian judiciary should be the body making the big decisions, but that the constitution is too difficult to amend, that congress should be able to enact progressive legislation freely.

But we would, of course, be doing away with federalism. We didn't discuss the merits, only whether, regardless of the merits, we should feel bound by the original structure merely because it's the "constitution." A valid point--qualified, however, by the value in stability for stability's stake. But I agree that we should not uphold the constitution merely because that's the way the forefathers built it. The constitution is not necessarily "perfect" (Henry Monaghan, 56 NYUL REV. 353).

But I like federalism.

I like the spreading of risk. I don't know why the federal government will necessarily make correct decisions. Surely federal legislators don't "glow in the dark."

I like different bundles of rights state-by-state. Surely there is not one optimal bundle for the entire country.

So, discussion #2 would be that, even granting Primus' point, he still needs to offer a better plan. I'm still not convinced that federalism is bad, the frictions during civil rights movement notwithstanding. Moreover, to the extent that this is the concern, it seems that Goodridge is proof that states are currently in a better position to be including the out-groups.

Continue Reading "Originalism" . . .

Levels of Judicial Review

This week's decision in Johnson v. California and the discussion we've hosted on Kelo's call for heightened judicial review of state legislative eminent domain decisions have gotten me thinking about the point of the Court's decision for different levels of review.

Besides Justice Stevens' dissent, every opinion in Johnson was completely about the level of scrutiny. Justice O'Connor, joined by Justices Kennedy, Souter, Ginsburg, and Breyer posited that ALL forms of race discrimination are subject to strict scrutiny. Justice Ginsburg wrote separately to explain that she thinks that some forms of discrimination, as in Grutter, do not warrant strict scrutiny. Justice Thomas in his opinion, joined by Scalia, would not engage in such searching scrutiny in the context of prison management.

From Justice O'Connor:

The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and again that, "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining . . . what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion). We therefore apply strict scrutiny to all racial classifications to "'smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.

While I disagree with Justice O'Connor that all racial classifications necessarily contain this high risk of government employing illegitimate uses of race, I think that Justice Thomas goes too far in awarding such deference to the prison system. It seems that there are surely risks of discrimination in a context filled with such hate and racial division.

Justice Ginsburg, incidentally, makes the most sense. The reasons for Affirmative Action do not seem illegitimate. They may not be prudent, may in fact hurt minorities, but I don't think they are "illegitimate" in terms of the original meaning of the Equal Protection Clause.

What does this mean for Kelo? I think that the issue is largely the same. The claim is that although eminent domain is necessary for government operations, state governments at times use the power in illegimiate ways. The Court should police this, either by enumerating the purposes for a taking (as in Hathcock), or by reviewing the taking with less deference to state legislatures (as in Nollan and Dolan). Note that this is what the court did with punitive damages in Gore (enumarating acceptable purposes) and Cooper Industries (requiring heightened appellate review).

I guess, then, for me Kelo should be decided based on this risk of abuse. I need to read more to have an opinion on the idea, but would welcome fellow contributors, and commentors, to make the case.

Continue Reading "Levels of Judicial Review" . . .

The Harvard Federalist Symposium, Ex Post

Due to Harvard Law School's stinginess with wireless access -- no chance of a non-Harvard student's getting to use it -- my account of the weekend has to come at its end rather than in proper live-blogging style. More connected bloggers have begun filing their reports already:
Waddling Thunder on old judges and ethnic identity;
Will Baude on coffee (concurring with Carina), socializing, Dean Kagan, Arkes and Kozinski, President Summers (who Greg says pushed for Kagan's deanship);
Amber Taylor anticipating boozing, busyness and scandal, and after-the-fact discussion of the Madness of Prof. Arkes;
Mansfield Fox, disappointed by the lack of "sitting around in large leather chairs smoking cigars, drinking brandy and laughing malevolently";
and of course, Ex Post's counterparts at Ex Parte, whose blogging of the event is so thorough that it rather discourages me from transcribing my own notes.

Continue Reading "The Harvard Federalist Symposium, Ex Post" . . .

Love's Lockner Lost

It must be about text, because if it was all about precedent, I'd still have Lockner. So let's jump into the text, Publius, if you dare.

After explaining that life, liberty, and property can only be taken away upon due process of law, the Fifth Amendment goes on to provide that "nor shall private property be taken for public use, without just compensation." As Professor Merrill gladly admits in his class, this is a very curious phraseology. The Constitution does not grant states the right to take property for public use, so long as it pays just compensation. Rather, the Constitution, assuming that some public organs may take property for public use, requires that when they do so, they pay a just compensation. This is not an affirmative grant of power to the states, but rather a demand for compensation when the state exercises powers the constitution seems to already assume exist.

What can we make of this? One possibility would be to read the Constitution to subtly be saying that while a public use requires just compensation, a confiscation of property for non-public uses requires no compensation. That would be a pretty ridiculous construction, since (if nothing else) it would defy the normal sanctity of private property extolled in the immediately preceding clause. Not to mention, using a non-textualist argument (sorry Publius, sometimes you have to), it would make no sense to require state legislatures to remember the property owners when it acts in the public interest, while allowing legislatures to abuse private persons if they act for totally irrational (or corrupt) reasons.

So that's out. The next plausible reading would be that the Constitution understands that private property may be taken for public uses (maybe it thinks this because it makes no sense under the due process clause to allow the taking of private property, by a legislature, with no public benefit. Such a reading though would only continue to infuriate my good friend Publius, and he has been very nice to me this week, so I wouldn't want to do that). This would mean that the Takings clause itself actually has nothing very interesting to say about when a legislature has the power to take property for the public use, but would only speak to legislative responsibilities should such an event occur.

Personally, Lord Coke blames law schools for all the confusion. By naming it the Takings Clause, academics (probably consciously) have tricked generations of lawyers into thinking this clause regulates the Taking of property. In point of fact, it seems to only be concerned with Just Compensation (maybe that name is not as catchy).

So, if the Takings clause provides no insight into when a legislature may do what it purports to be doing in the public interest, we are forced to rely on some combination of Substantive Due Process with state constitutional doctrine to understand the limits of state legislative powers. I am happy to be a good textualist and understand that if the Kelos live in a state where the state constitution explicitly grants the state the power to take private property whenever it wants to at its sole discretion, then the Kelos have to live with that. In fact, the 9th and 10th amendments specifically demand the federal government respect this interaction between a state and her citizens (so long as the state has a Republican Government. Cool how all the stuff works together, right?).

However, if the state constitution is silent on the issue, we need a rule of construction for understanding the power of the state legislature. There is a federal question here, since the Constitution, in the general case, stands up for the property rights of the individuals. Therefore, it is not strictly a matter of state law, for resolution on independent state grounds. Once the federal courts have a right to be concerned, and once the matter is ambiguous, the Federal Courts should be welcome to use rules of construction (Scalia himself relies heavily on such judicially-created canons). In this case, where constitutional norms are at issue, it makes sense to use the constitution to help us develop canons by which we will interpret ambiguously presented powers of state government. That process, when reduced to short hand, is called substantive due process. It is keenly aware of the text of the Constitution, and the interaction between state and federal governments.

As a parting matter, ask yourself this. The end of Lockner came from a desire to make progressive labor reforms work (bakers, etc.). The same motivation led to the New Deal, which the Court only approved under Duress. If, as a principled matter, the original constitution worked against the New Deal reforms, and if Lockner was abandoned for the same policy objective that motivated the FDR duress campaign, isn't it possible that Lockner had it right the whole time, and Nebbia killed it for illegitimate reasons?

Continue Reading "Love's Lockner Lost" . . .

The Kelo Conservative/Libertarian Question

I think Kelo is a perfect issue for separating conservatives and libertarians. Conservatives tend to favor relying on text and precedent, libertarians pushing for person liberty in individual and economic rights. Petitioners in Kelo seek (the way Roe and Lawrence sought) to break with text and precedent to protect a right they are convinced deserves constitutional protection.

Lord Coke, in expressing his undying love for Lochner in his post on Kelo, seems to overlook this. Lochner is made up out of the due process clause, whereas Kelo is an interpretation of text and precedent. Maybe Lord Coke is arguing that Kelo should be decided on substantive due process grounds and doesn't need the public use limitation, but that, of course, is not the issue before the court.

The full holding of Lochner (as opposed to the watered down version that survives and pops up again in punitive damages) is completely without textual support. The Takings Clause, on the other hand, has a very stable and clear precedent that the Court is being asked by the Kelos (I mean IJ) to overturn.

But Lord Coke is not alone in this position. Richard Epstein debating this week on Legal Affairs begins his discussion of Kelo and eminent domain with this:

The mischief started 50 years ago when our Supreme Court in Berman v. Parker held that the urban renewal program in Washington D.C. could rip down a perfectly serviceable department store as part of a larger slum clearance project.

Epstein suggests that part of the "Constitution in Exile" is some heightened standard for "public use" as if Berman was the first case to depart from an uninterrupted history of libertarian property rights.

This, I'm afraid, (with all the respect for Professor Epstein) is crap.

In Professor Merrill's amicus brief, which I posted about here, he tracks the history of the public use requirement. The Supreme Court in its entire history has invalidated exactly one case on public use grounds. And the court has consistently upheld takings for the economic benefit of the community. From Professor Merrill's brief:

[T]he public rationale for the takings in each of these cases was the State's determination that the property was needed in order to enhance the productivity of particular resources. The Court recognized that the takings in these cases could not be justified on public health and safety grounds, see Fallbrook Irrigation Dist., 164 U.S. at 163, or on the ground that large numbers of persons directly benefited from the takings, see Clark, supra; Stickley, supra. Instead, in each case the condemnation was justified because of its impact on "the growth and prosperity of the state," Clark, supra, 198 U.S. at 368, or "the prosperity of the community," Fallbrook Irrigation Dist., 164 U.S. at 163 - in other words, because it was needed to promote economic development. Each of these decisions therefore stands for the proposition that condemnation for the sole purpose of economic development is a legitimate public use, provided a State so determines and this judgment is a rational one in light of the circumstances of the property and the needs of the public. Petitioners cite some of these decisions in footnotes (see Pet. Br. at 22 n.18, 33 n.31). But they have not explained why they should now be overruled based on a novel theory that the power of eminent domain cannot be used to promote economic development.

There are economic arguments on both sides, but from a textual and precedential perspective, I see no reason for the court to depart from 200 years of precedent. But then, I'm a conservative and not a libertarian.

Continue Reading "The Kelo Conservative/Libertarian Question" . . .

Kelo Shop of Horrors

I am not ready to dive into a defense of Lawrence, but if the Supreme Court of the U.S. wrote it, they should stick by it. Lawrence was decided on SUBSTANTIVE DUE PROCESS and not equal protection grounds. It precludes the state from crossing the threshold of the intimate bedroom. The logic has to be that state powers are limited by their constitutions, and as a rule of construction, in the absence of a specific grant of affirmative power, we assume that the basic constituent unit ends at the door ways of private homes.

If state governments want to condemn a small business district for building a GM plant, that presents a fight for another day. But if the a state is planning on demolishing a private residence, it should have to meet a higher public threshold standard than having gotten a majority of the legislature.

Unless Lawrence is (as the reference to the European Court of Human Rights would suggest) a blind stab at Feeding the Hungry and Clothing the Naked, then we must assume that its reasoning has meaning even if the parties involved were not members of a persecuted subgroup in society. If, as a default, the powers of the state are constrained, than substantive due process combined with the takings clause should demand that if the state wants to demolish my home, they had better get me to either sign a contract, or at least present a plausible public reason.

Maybe Lochner wasn't so crazy...

Continue Reading "Kelo Shop of Horrors" . . .

Strict Scrutiny in Prisons

The Court today in Johnson v. California held that a California unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility must pass strict scrutiny review.

Justice O'Connor's opinion holds that ALL racial classifications are subject to strict scrutiny. Citing Croson, she writes that "there is simply no way of determining . . . what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." The court explicitly refused to relax the scrutiny in the prison context:

When government officials are permitted to use race as a proxy for gang membership and violence without demonstrating a compelling government interest and proving that their means are narrowly tailored, society as a whole suffers.

. . . searching judicial review of racial classifications is necessary to guard against invidious discrimination.

. . . The necessities of prison security and discipline are a compelling government interest justifying only those uses of race that are narrowly tailored to address those necessities.

Justice Ginsburg's concurrence is interesting. She reminds us that she doesn't think that all forms of race discrimination gets strictu scrutiny, citing her language in Bollinger:

Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.

Justice Thomas, joined by Scalia, disagrees that these classifications should even get strict scrutiny:

[T]he majority resolves the conflict in favor of strict scrutiny. I disagree. The Constitution has always demanded less within the prison walls.

I don't understand why the deference Justice Thomas is asking for has to be in the standard of review, rather than in the narrow tailoring. I think that the system the prison is using should be, in the end, upheld. Justice Thomas describes the system in considerable detail and makes a strong argument that the system is both necessary and does a good job of avoiding overuse of the discrimination. But I think he might be getting ahead of himself.

The majority doesn't say that the system is unconstitutional, only that it must pass strict scrutiny. All they are doing is saying that the risk of irrational and harmful discrimination in the prison system is high enough that the Court should conduct searching review.

I guess I just agree that the risks of harmful discrimination in prisons are high such that I have no problem with the Court conducting a more searching review. I would find California's interest in avoiding gang fights in prisons obviously compelling, and a system that does a good job dividing people up according to race gangs, not just race, narrowly tailored.

Continue Reading "Strict Scrutiny in Prisons" . . .

Not To Quibble...

Publius,

While I basically agree with your last post (as well as Phocion's), I don't think it's necessary to see Chevron deference as somehow an infringement on Marbury. After all, the Court still reserves to Article III tribunals the ultimate power to review. It just recognizes that there are good reasons to trust (within the bounds of reasonability) that agencies might be institutionally competent to interepret the will of Congress as expressed in statutes particular to the respective agencies. A similar deference might well be in order with respect to the ICJ here, but not anything like direct effect or the abdication of the responsibility of Article III Court's to review.

Where Prof. Damrosch's presentation was least helpful to me was in addressing Prof. Bradley's point that, if there is to be review by an Article III court of the ICJ ruling, rather than direct effect, what weight should the Supremes here give to any Executive Branch pronouncement that might be forthcoming? This strikes me as at the heart of their disagreement, since they both seem relatively comfortable with some degree of deference by U.S. tribunals to the ICJ.

Continue Reading "Not To Quibble..." . . .

Why Medellin is Making the Wrong Argument

As I've been thinking about the Medellin debate last night I've decided that Professor Damrosch's argument makes even less sense than I initially thought.

I note below that Professors Bradley and Damrosch agree that the ICJ ruling is binding on the U.S. international obligations. Where they disagree is whether that ruling should flow through, and also bind the U.S. domestically.

But when pushed last night, Professor Damrosch agreed that the Supreme Court would not have to uphold a ridiculous ICJ ruling. For instance, if the ICJ interpreted the Vienna convention not to just require the notice to the consulate, but to abolish executing foreign nationals altogether, even Professor Damrosch (it seems) would agree that this ruling should not "flow through" the way she thinks Avena should.

What this means (I think) is that Professor Damrosch is not arguing that ICJ rulings are automatically binding--what she seems to suggest--but that there should be a sort of Chevron deference to the ICJ interpretation of the treaty. In a situation as we have here, where it's clear that the ICJ is right that the U.S. is in violation of its treaty obligations, the Supreme Court should be bound to give some deference to that body. But when the ICJ over-steps its bounds, the Supreme Court can overrule its findings.

This would not be an awful argument. Marbury certainly isn't the last word, as Chevron makes clear. The meaning of statutes can, in some circumstances, come from non-Article III judges without offending Marbury's famous holding that "[i]t is emphatically the province and duty of the Judicial Department to say what the law is." But this is a very different argument. And there are certainly problems with extending the domestic non-Article III adjudication jurisprudence to the international sphere where there is less political accountability and decision-making transparency, as I noted here.

Continue Reading "Why Medellin is Making the Wrong Argument" . . .

Doesn't look good for the Kelos

Based on Marty Lederman's account of the Kelo arguments today, things do not look good for the Kelos. Ledermann reports that "it was clear to O'Connor and Kennedy that the Court would have to overrule Midkiff and Berman to rule for the plaintiffs, an approach for which there was no majority."

Continue Reading "Doesn't look good for the Kelos" . . .

From Prof. Curtis Bradley . . .

I enjoyed participating in the debate, and I want to thank the Federalist Society and the Columbia Journal of Transnational Law for organizing it. I also want to thank the students who attended - it was a great turnout, and I thought the questions from the audience were very thoughtful and constructive.

As for the merits of the Medellin case, one point to keep in mind is that, in order for the petitioner to obtain relief, he must find a basis for preempting otherwise applicable state laws concerning the finality of convictions and sentences. The question of when state laws are preempted in U.S. courts, however, is purely a question of domestic law, not a question of international law. As the Supremacy Clause of our Constitution makes clear, there are only three types of law that can preempt state law in U.S. courts - the Constitution, federal statutes, and treaties. International judgments do not by themselves preempt state law.

It is still possible for Medellin to argue, as I noted in the debate, that the underlying treaty interpreted by the ICJ (the Vienna Convention on Consular Relations) has preemptive effect, and that U.S. courts should give weight to the ICJ's views about the meaning of the treaty. The Supreme Court in Breard stated that the ICJ's views about the meaning of the Vienna Convention are entitled to "respectful consideration," and I think that is about right. Ultimately, however, U.S. courts would need to make their own decision about the treaty's meaning, just as they make their own decision about the meaning of other laws that they apply.

In addition to fitting with the text of the Supremacy Clause, focusing on judicial enforcement of the underlying treaty rather than the ICJ judgment preserves a greater role for politically accountable actors (Congress and the Executive Branch) in deciding how to implement international decisions, which is consistent with U.S. democratic values. It also ensures that U.S. courts and the political branches have some ability to avoid implementing patently unreasonable or ultra vires rulings by international tribunals. Finally, it avoids the Article III and federalism concerns associated with allowing non-U.S. judges to directly override U.S. laws.

Curtis Bradley

Continue Reading "From Prof. Curtis Bradley . . ." . . .

The Specter of Internationalism

Marbury v. Madison, in no uncertain terms, declares that it is within the province of the judiciary to say what the law is. If treaties are to be used as rules of decisions in enforcement cases, surely it is the province of the judiciary, under Marbury, to explain that to us.

In yesterday's Medillin debate, though, Prof. Damrosch had no constitutional explanation for why the judgments of the Supreme Court should be displaced in favor of the judgments of the International Court of justice. She put forward an instrumentalist internationalist argument: Treaties only work if both sides are using uniform interpretations, and those interpretations should come from international adjudicators.

Sensible thought. The only problem is that the Constitution vests all judicial power in the Article III courts, not in the Article III courts and those other courts, domestic or foreign, which may arise out of convenience.

It is true that the Article III courts have been willing to abdicate some judicial authority to executive agencies. The agency situation, though, can be easily distinguished. Agencies live and die by their organic acts. It therefore makes sense to assume that they have a heightened understanding of the meaning of those acts. Secondly, even where agencies are allowed a first crack at stating what the law is, they are still reviewed for Chevron reasonableness---NOT left to make final decisions in the name of instrumentalism. Lastly and most importantly, the deference to executive agencies still retains all judicial authority within the Constitutional order. It merely shifts power from Article III to Article I. As serious a matter as that is, it is nothing near the shift of power that occurs when we defer to authorities which exist outside of the constitutional order, and abide by Belgian rulings.

But we are told that to be good international citizens we need to abide by neutral, objective treaty readings. This reliance on functionalism at the expense of the power allotments of the constitution has been in vogue in certain circles of late. Justice Breyer looks first to efficacy and then to the Constitution (as even his staunchest admirers will point out). Justice Kennedy looks outside our constitutional order to find a good-global-citizenship rationale for his opinion in Lawrence.

Internationlist tendencies are nothing new. They have sprouted from the middle ages, always with a claim that efficacy clearly will follow from ceding authority to international tribunals and organizations. The bulwark against this maneuvering is supposed to be the U.S. Constitution, which lays out the definitive framework for power allotments in our society. The Constitution should be the first and last authority used: It need bow to the altar of utilty.

Continue Reading "The Specter of Internationalism" . . .

International Obligations and Domestic Implementation

In the debate today, Professor Bradley made a very clear point at the beginning of his initial argument that Professor Damrosch never tried to answer or explain. His point was that there is a clear difference between the U.S.'s international obligations and its domestic implementation of that obligation.

This dichotomy suggests that it is possible for the U.S. to be in plain violation of international law, but for there to be no domestic remedy for the international law infraction. Bradley admitted a number of times that he thinks both that the Vienna Convention Treaty is self-executing and that the U.S. is in violation of international law. His point, however, was that although the ICJ ruling was a proper interpretation of the treaty for U.S. international obligations, it was not, itself, a treaty and is, therefore, not the "supreme law of the land."

Professor Damrosch doesn't seem to disagree. I don't think that she sees the ruling as itself being a new treaty, but that the ICJ ruling changes both the international and domestic substance of the treaty.

She wants to import the ability of the ICJ to interpret the U.S.'s international law obligations into the domestic sphere, allowing the ruling to also interpret the treaty's domestic effect. For her, the disconnect between the international obligations and domestic implementation undermines the structure and validity of the international legal system. She wants to remedy this, not by trying to convince congress to pass a statute clarifying the domestic nature of the treaty or by convincing the Supreme Court to agree with the ICJ and itself interpret the treaty the same way the ICJ did, but to require the Supreme Court to be bound by the ICJ ruling.

Professor Damrosch advanced a number of political arguments, that the U.S. needs to honor its treaty obligations, follow the ICJ interpretation ruling, because we benefit from the treaty protocol. But the argument must be constitutional--she has to show how the President and Congress can get around Marbury v. Madison by signing a treaty with a compulsory juridiction clause. She has to show how congress can vest legal authority in an international body without any review. These are arguments, it seems, she can't make. Instead, I think, she conflates the interpretation of U.S. international obligations and the domestic implementation.

Continue Reading "International Obligations and Domestic Implementation" . . .

Live Blogging for Curtis Bradley v. Lori Damrosch Event

Welcome to the debate over the Medillin case. I will serve as your humble live blogger. All typos are my own, and not the speakers.

Professor Flaherty serves as moderator:

"We are going to have a discussion which might blossom into a debate. We are here to discuss Medillin, and cutting edge issues of international law as a result. This includes self executing treaties, the interpretation of these treaties, and the resulting roles of the executive and the judiciary. The context is a death penalty case. We will hear first from Prof. Curtis Bradley, then Columbia's own Prof. Lori Damrosch, for 15 minutes each. This will be followed by a five minute discussion. Then, your humble blogger will attempt to ask a question.

Here's the background: The Vienna Convention on Consular Relations Art. IIIVI(B) has a requirement similar to the Miranda law. It requires notice to the consular post of a state if the national of that state is arrested or is awaiting trial. This has been interpreted to also give the detainee notice that he has the right to contact the consul.

Art. XCIV of the UN Charter requires member states to abide by the ICJ's judgments.

This is not the first time this has come up. In Briard v. Green, someone alleged he had not been given his notice in a timely fashion. He failed to allege this in a domestic court within the allowed time. This came before the ICJ, which ordered a stay until the ICJ could listen to the case on the merits. The U.S., though, did nothing to force Virginia to stay the execution.

The US Supreme Court said it was not bound by the stay order. First, because it was only temporary relief. Second, the Supreme Court held that a federal statute bolstering local death penalty rules took precedence over the ICJ and treaties like it.

Later, the ICJ reviewed the LeGrand case, where a German national alleged that he did not receive his Vienna Convention rights. The ICJ said that these rights were guaranteed under the convention, and that the US should grant relief. Avena involved 51 Mexican citizens in the US convicted of capital crimes. The ICJ said that the US States violated the Vienna convention by not giving notice of the right to contact consul, by not contacting Mexican consulate, and by not allowing the Mexican consul to provide attorneys. The ICJ ordered the US to review the convictions of these individuals by the means of its own choosing. From among these 51, we get the Medillin case, where the circuit court said there was no private right to relief. The court then denied relief and upheld the conviction.

Questions which arise:
1) Is the Vienna Convention the self executing law of the land?
2) Does it preempt state law?
3) Are individual rights under the Vienna Convention available for enforcement by the individual or only by that individual's nation?
4) What is the effect of the Avena doctrine? Can the US Delegate power to an international court, and if not, should there be persuasive deference granted.

Prof. Lori Damrosch

The reason the panelists are sitting is to make this seem less like a debate. Professor Damrosch filed an amicus brief herself, among with many others.

One thing which is not in dispute is the fact of a treaty violation. D was never informed of his right to contact the Mexican consul, nor was the consulate aware. The only question is the remedy. The ICJ thinks the remedy should be a reexamination of the conviction and the sentence in a hearing where the right under the Vienna Convention is thought of as more than a reason for mercy or clemency. In the German case, it was thought enough to have the executive recommend clemency. Prof. Damrosch points out that Bush was governor for many of these cases and happily signed the death warrants and your humble blogger is bored since he has heard enough subtle jabs against the Sainted President for one day. Clue number one that you are about to lose a debate: You cannot contain your hatred for successful conservatives long enough to stay on topic.

Back to the action. This is not a case about the death penalty, but about a consular treaty. This has nothing to do with whether the death penalty violates customary international law (good, because I would stop paying attention again). The amicus group that Damrosch joined had some who supported the death penalty and others who need better axes to grind.

Facts do matter in these cases. In the Supreme Court, facts are often not important, but here they are. The 51 cases from Mexico are all quite diverse, but they have this in common: they are all on trial for murder, they are all from Mexico, and no one was given notice or contact with the consulate.

Consular participation can make a big difference in developing facts at trial. That can change the outcome in a death penalty case, even if D will be found guilty. Why do these things matter? Language barriers, access to Mexican records, retention of experts, retention of supplementary council, etc., all are techniques used by the consulate which can be very effective.

For example, Professor Damrosch raises the case of someone sentenced to death in Oklahoma who reputedly had the weakest case in the history of Oklahoma (Boomer Sooner). The Supreme Court there remanded for consideration of the consular treaty, and the executive followed this up with a commuted sentence. This shows that the facts matter, the consulate can have an effect, and there is a role for the judiciary and the executive branch.

The Medillin facts are important, too. D's lawyer was incompetent and brought no records or personal history to show that this murder apparently wasn't so bad after all. Even if Medillin's council satisfies the constitutional test, the treaty sets up an independent test, because the consular office can offer different assistance in certain cases than the type of attorney assistance thought of under the Constitution.

Damrosch says that Federalists might not know enough about treaties. You have got to be kidding me. What is this based on?!? Here is the analysis that Prof. Damrosch is probably using. Federalists don't think that the Constitution is indifferent in its choice between the words "Congress" and "United Nations." Therefore, we are thought to be simpletons when it comes to international law, because we have yet to realize that efficacy in foreign relations should trump the Constitution. Prof. Damrosch will in fact make this argument in a few minutes. I will hold off until then. Stay tuned next week, though, for the Federalists versus Journal of Transnational Law international law contest. For those of an originalist bent, the framers did expect us to comply with international law. Framers thought that being a nation required adhering to international affairs requirements.

Key points about the Vienna convention (the lights go out in the room. I thought the Undertaker might show up to end this charade, but the lights go back on). It was adopted Under Article II with advice and consent of the Senate. There is no problem of Executive Agreements. Approval of this treaty was, in fact, unanimous. There is no issue of federalism. The framers would understand this as an appropriate use of the treaty power.

The president told the Senate that the treaty would require no legislation and was self executing. Therefore, it is the Supreme Law of the land, and is binding on all state judges, and should be used as a rule of decision in state and federal cases. Some would argue that Missouri v. Holland might apply here, but this seems as though an alien outside of his own jurisdiction is an appropriate subject for an international treaty. For example, Ware v. Hilton allowed a treaty provision between the US and England protecting Alien. Treaties protecting aliens should preempt state law. The stronger statement is that all state courts must effect the Vienna Convention in state court proceedings, and must use those interpretations of the ICJ to guide enforcement of the Convention.

No state has to opt into the system of dispute settlements under the ICJ. However, once a state has submitted itself to the jurisdiction of the ICJ, a state can by unilateral application bring a dispute over the application of a treaty to the ICJ. This judgment becomes a binding obligation under the UN Charter Art. XCIV.

Thus, the Vienna Convention binds the state court decision on Medillin, as interpreted by the ICJ.

We might contrast this to the system which existed before the Vienna Convention. Before this, consular relations were governed by consular international law. Disputes between the US and Mexico over consular relations have gone on for 150 years, with the US often complaining that Spring Breakers were arrested in Mexico and not allowed to contact the consulate. These disputes were subjected to ad hoc tribunals, which generally agreed that an alien should have the right to contact his consulate.

The US took the lead in requiring binding judgment to govern the Vienna Convention. The US itself demanded its enforcement in the Iran Hostages situation.

Damrosch thinks there is an area of disagreement between Prof. Bradley and Prof. Damrosch. She does not think that all judgments of the ICJ are not necessarily self executing in US Law. This one is special since the treaty was presented as directly applicable, requiring no implementing legislation.

The Nicaragua case might be different. There, the ICJ held that US policy towards Nicaragua was illegal under customary international law. This lends itself to political action as opposed to judicial action. However, judgments implementing self executing treaties are different.

Curtis Bradley

Thanks to everyone. These issues raise novel questions of the relationship between the US and international institutions.

3 general points by way of overview for how the case should come out. Mere fact that US has an obligation under International law to provide review and reconsideration does not tell us how an obligation is to be implemented within a US legal system. Everyone considers these separate questions.

Second: While Avena interprets US treaty obligations in a way binding on the US, the decision itself is not a treaty of the United States. The fact that this is an interpretation of a treaty and not a treaty has relevance for the status of the obligation.

Third: We are missing one key piece of the puzzle. We need to know the opinion of the executive branch as to what the court should do to accommodate international obligations.

Here's the bottom line. The case should be resolved as follows: There is a serious technical problem in this case, which could lead to the case being dismissed without getting to the merits.

If we do get to the merits, the Avena decision should not be enforceable in US courts, nor should any other ICJ opinion. The petitioner, though, may never the less have rights which might be informed by what the ICJ thought was the meaning of the treaty. Lastly, petitioner should be required to pursue this claim in the state court in the first instance. This is compelled by statute and by the federalism whiff of the case. Therefore, Bradley hopes the Court affirms and send the challenge back to the state court system.

The Federal Habeus statute requires treating this in the state court. The habeus statute allows raising claims for constitutional, state, or treaty rights. However, to appeal a denial, one must show a substantial denial of a constitutional right. There is no other basis for a federal appeal.

Here, the only obligations are treaty obligations. There are no constitutional obligations. When there is a conflict between a past opinion and reaching the merits, the Court should take the procedural out and not engender conflict with the past precedent. Someone could claim the treaty preempts state law, as governed by the constitution, but this is not a constitutional right within the cognizance of the statute. No one is claiming this is a constitutional right, any more than any time a statute preempts a state law. (I ask all our readers, though, to please Cf. Judge J. Harvie Wilkinson's excellent piece in the Columbia Law Review, Our Structural Constitution, in which he makes the claim that thinks like preemption, separation of powers, federalism, etc., are all collective rights).

Assuming the Court finds a way to get to the merits, Prof. Bradley thinks the treaty should be observed, and is the supreme law of the land, but that the ICJ judgment need not be enforced at this stage. None of the questions in the petititon for cert dealt with whether the Vienna Convention was the supreme law of the land. The only question is whether the ICJ ruling has direct effect because of a legal requirement or a notion of comity.

ICJ decisions are not the equivalent of Supreme Court decisions or any other binding precedent which could override state local procedure. The treaty might be able to override state law. However, it is not clear where the law comes from if the override comes from an ICJ decision. Only nation states can bring claims in the ICJ. The only enforcement mechanism for an ICJ decision is through the Security Council (see the UN Charter) at their discretion. This shows enforcement has a political, not judicial, character. The UN Charter says decisions should be undertaken by nations, but there is no self executing remedy. The Security Council has never enforced an ICJ judgment.

Under the constitution, only 3 kinds of laws can override local procedural law: statutes, treaties, and the US Constitution. Decisions of the ICJ cannot do so. It would be fine for the US Supreme Court to AGREE with the interpretation of the ICJ and enforce the Vienna Convention. However, the decision itself cannot override state law. The same is true for WTO decisions (which are enforced by a congressional scheme). There is no direct effect of a WTO decision. No such statute exists to give effect to ICJ decisions.

Giving direct effect to an ICJ decision would raise constitutional concern. It would allow non-US judges to exercise the judicial power and displace the law of the several states. It would intrude on state sovereignty by infringing on the world of criminal procedure. It is one thing to allow treaty makers this invasion, but another thing to allow unrepresentative international judges to have this authority.

Comity: We often give comity to the decisions of the courts of other nations. There are many differences between that kind of judicial relationship and this situation. Normal comity is to other NATIONS' courts, not to supranational bodies. Also, it is only for private law (and not criminal) matters, and is ALWAYS superceded by public policy rationales. The state of Texas here has a strong public policy reason supporting procedural default.

These are legitimate, neutral rules of state procedures. They can be applied to the most important rights of the Bill of Rights. Comity clearly does not go farther than the Bill of Rights.

The best argument petitioner has would be to focus on the underlying Vienna Convention. That says something about individual rights, and comes in a treaty (which we know can override state procedure). Petitioner did not pursue this argument though. One reason for this is a concern over what the executive branch will say. If the Executive Branch comes in and says that the ICJ misinterpreted the treaty, the Supreme Court might be likely to side with the President, since the Executive Branch negotiated the treaty. By the petitioner's route, it DOESN'T MATTER what the executive says, since the ICJ ruling has weight of its own accord. While this is a serious weakness, it avoids the Exec branch problem.

Back to Damrosch --- Discussion

The Supreme Court has seen some of these issues before. The Court has felt that INTERIM orders are not binding, and that state procedural default controls over Art. XXXVI . This was shown wrong in later ICJ cases, where the ICJ said that state procedural rules have to give way to treaty obligations.

Damrosch thinks the ICJ judgment is the governing interpretation of the treaty, and so the treaty needs to be given effect. She thinks that the US should not be able to unilaterally decide the interpretation of the treaty, but that if the convention is accepted without reservation, and if the US accepted the binding judgment of the ICJ, then they accept the authoritative interpretations of the treaty.

In Spring 2004 (now Prof. Damrosch is trying to say mean things about Scalia. Wait for the lightning bolts), Scalia dissented and said his colleagues did not pay sufficient attention to intermediate opinions interpreting the treaty.

On the lack of a filing of an Executive Position: She thinks there was an error in not supporting the petitioner. What happens if there is no executive position developed by the deadline? This would not mean the courts would be free to do whatever they want. They would still have to enforce the obligations of the US.

The executive branch argued vigorously at the ICJ and lost. They probably will not advance these arguments again. The Supreme Court usually says that it has the final say in the meaning of interpretations for domestic applications of treaty law, but this might not mean that controls over an ICJ interpretation.

Prof. Bradley Again

On the technical issue: Since we can affirm on any ground, affirming on the plain text of the habeus statute makes sense.

On Briard: The idea that the treaty might prevail is different from the idea that the ICJ decision has a res judicata effect. If it did have effect, it would only be binding to the parties in this case and would have no precedential effect for future litigants. However, if the US Supreme Court adopts the ICJ rationale as a domestic interpretation of the treaty, there would be a precedential effect to that new decision. All future litigants would get the benefit of what the ICJ thinks.

Even if the ICJ decision is authoritative as a matter of international law, that doesn't get us to the point of finding enforcement WITHIN the US legal system. Even the ICJ has said the enforcement of the treaty should be by means of the US's own choosing. If these things are automatically enforceable, most nations are in non compliance. No nations enforce ICJ decisions directly.

Could Congress commit to do this? Damrosch thinks we already have. All we have committed to do is to allow the ICJ to figure out what rights exist under the treaty. We have not committed our domestic judicial machinery to enforce the decisions of the ICJ.

Even if Congress doesn't act, the states can be the proper forum for solving treaty disputes. They can allow for review and reconsideration based on the Vienna Convention claims. If, though, the executive disagrees about the meaning of the treaty, we don't know what happens.

Question I: By St. Thomas More (This would have been your humble blogger's question)

What is the limit of our ability to cede interpretations to international courts? Is the Bill of Rights a check?

A: Damrosch

Congress has enacted implementing legislation for several international adjudication systems (like WTO), where Congress says the international adjudication is not self executing. The Senate here made a conscious choice to the contrary. They didn't reserve any power to decide otherwise.

Ceding interpretation to international treaties is inherent in the nature of international agreements. The uniformity itself is a virtue.

Question II:

Two pronged question. I would rather this not happen. I hate two pronged questions, because they are really two questions. Let's skip this one.

Question III:

General question on the bricker amendment. Isnt the bias that all treaties are self executing, if Senators felt like they needed an amendment to make all treaties non self executing?

Answer: Bradley:

Most treaties do not have clauses on self execution, which does not resolve the question of whether a treaty is self executing. It has never been thought that ICJ decisions by their own force can be directly enforced in the US courts. This is not because we want to reject the ICJ's decisions. We might want to amend statutes, which the courts cant do.

Damrosch:

Usually, international judgments are complied with. Some states do treat them as directly operative.

Question from the Moderator:

Is there no limit substantive limit on reviewability by Article III courts when there is delegation internationally? When there is delegation domestically, there is at least some review (even if it as light as Chevron deference). Does Damrosch think even this doesn't exist in the international context?

Damrosch:

If we concede that one side cannot determine obligations under a treaty, and there has to be an objective meaning, then we would have to say that both sides' highest courts should give effect to the meaning determined by the dispute settlement body.

Question For Bradley:

What happens if a foreign state would bring this suit to the US Supreme Court as a matter of original jurisdiction? Would that eliminate the difference between treaty obligations and their judicial interpretations? Also, is there any way to have any meat on such law like issues, without allowing for judicial enforcement?

Answer:

If Individuals are mentioned as potential claimants in European international law, they still only have a judicial remedy if provided under domestic law. Here, there is no individual mention and no mention of a judicial remedy.

Looking to historical practice, there have been no situations of domestic effect of international obligations without separate Congressional action.

Good Question by Someone in the Back:

If the US would be in violation of international law by not abiding by the ICJ opinion, isn't it fair for a judge to see himself as part of the state and therefore to try and place the state in compliance.

Answer:

If the executive says nothing, the Supreme Court might enforce the ICJ judgment, since there are no counterveiling domestic policy reasons. However, if there is a domestic legal problem (constitutional for example), a court must be faithful to the domestic legal order over the international agreement. The hardest case is if the executive disagrees. The court has some responsibility to let the executive be the nation's spokesman on international affairs, but has counterveiling responsibilities to enforce the nation's commitments under international law.

However, if the ICJ's reading was less reasonable, it would be fair to defer to the reading of the political actors.

Continue Reading "Live Blogging for Curtis Bradley v. Lori Damrosch Event" . . .

Paging Professor Keynes? An Economically Efficient Proposal for Tsunami Relief

The Book of Genesis tells a story of how Joseph---the son of Jacob acting as vizier of Egypt---purchases all the land of Egypt to fight a global famine. Having saved food from the years of plenty, Joseph is able to extend a lifeline to people who prefer to live on the land of another then to die on their own land.

This story may provide a model for raising the level of capital available to help the victims of the 2004 Asian Tsunami, perhaps the greatest Natural Disaster (in terms of number of people effected and killed) in the history of the world. The generosity of the world, and specifically the United States, has been remarkable in the months following the devastation. However, the ability or desire of the U.S. or anyone else in the world to give charity is probably finite, and probably not sufficient to fill the unparalleled needs this crisis presents.

People in effected areas need long streams of cash, but many are without the means to produce. Salt water has ruined the ability of the land to produce for three years. So, we have a situation like that which presented Egypt in days of old: The land is valuable in the long run, since it is only damaged for a short period of time, but it cannot produce soon enough to provide the material sustenance necessary to allow its owners to live.

So here's the summary: People need money now, but have only land which will be valuable in the long run but has no immediate payout potential. However, the terminal value of the land is very high (for tourism and agriculture and everything else), but the current owners will not be able to reap this value since they will not live long enough. The Western world has cash, but needs good investments to act as savings so it doesn't spend all its money now.

In times of crisis, Keynesian economics might provide a useful policy tool. Government is an institution much more stable and long lasting institution than private individuals or certain small businesses. A state can wait around to get the agrarian benefits of effected areas, because over the life of a state government, three years of zero productivity is not a deal breaker.

The solution would work as follows. Effected countries can, in the model of Joseph, buy the land from effected landowners. The current owners get money immediately and a promise to be able to repurchase the land at a fixed time in the future (to be actuarially decided based on the amount of time expected to pay off the purchase price with an appropriate interest rate, if not sooner). The government needs to promise to hold the land in trust for the heirs of the current landowners. The repurchase right can be considered a property right, capable of being past down through the generations, bought, and sold.

One potential problem is that the countries involved do not always play nice. Here, the conservative spin on Keynes can provide a solution. American and Western capital can take the place of the Asian governments, and provide the loans directly to the effected persons. The local governments need only get involved as necessary to coordinate (figuring out who is effected) and to change the necessary property laws. J.P. Morgan probably could be considered more stable than many governments in the region, and is capable of absorbing the short term outlay of cash where the long term benefits are secure. The American institutional investors could form a conglomerate to lay out the cash, promise not to sell the land to any bank which does not belong to the conglomerate, and promise to abide by the permanent buyback option which will be extended to the current landowners.

In order to establish credibility for certain of our more controversial programs, Conservatives would be wise to show how nongovernmental mechanisms, including market economics, can be used to solve private problems. The charitable instinct has been instructive (and is still necessary, our readership should do), but is necessarily limited. The market can provide great relief, and Americans who care about conservative solutions and have the means at their disposal should pursue this socially valuable while economically sound method of relief.

Continue Reading "Paging Professor Keynes? An Economically Efficient Proposal for Tsunami Relief" . . .

Velleman on Religious Dogma

David Velleman at Left2Right posts on the recent controversy regarding religious groups' taking the Indian Ocean tsunami as an opportunity to proselytize. Speaking of this and other forms of religious dogma, he writes:

Anyone who thinks that he understands what happens on the other side, and understands it well enough to meddle there, is suffering from monumental hubris, self-certainty of a kind that fuels inquisitors, crusaders, jihadists -- and some Israeli settlers, too.

In the comments following the post, he responds to criticism that jihadist suicide bombers should not be compared to proselytizing and mormon genealogy with: "it should be possible to talk about manifestations of similar attitudes closer to home, even if those manifestations are relatively harmless."

Sure, you can talk about it. But Velleman shouldn't pretend 1) that all religious zeal has this danger of leading to disaster and 2) that this is something necessarily religious.

Regarding my first point, it was noted in the comments that "certainly such things as the early abolitionists and the many churches' humanitarian efforts are not any less laudable because the purpose for the effort was religious." I agree that there's "something wrong with discounting otherwise beneficial efforts just because they were accomplished due to religious zeal." The issue should be the content of the action, not the source of the motivation for accomplishing the outcome.

Regarding my second point, Richard Posner spoke here last semester about what he called the "religion of the left"--a reading of the constitution that requires blind adherence to an interpretation of the first amendment. His contention is that since the possible consequences of a terrorist attack are so egregious, preemptive war and the curtailing of civil liberties may be justified.

Now, maybe one disagrees with the variables used in Posner's cost/benefit analysis; maybe the problems with intelligence should cause us to add to the risks and raise the potential costs. But my experience has been that my lefty peers refuse to even undergo the analysis. There is something about the First Amendment that requires blind adherence even in the face of possible disaster. In Posner's words: "The First Amendment has become a suicide pact."

So, it seems, there is dogma on both sides.

I don't entirely disagree with my lefty friends in their somewhat blind adherence to the First Amendment. Such zeal can be used to accomplish both good and bad. But the argument has to be that we should cabin the zeal because the possible benefits of the good are outweighed by the possibility and likelihood of the bad, not that we should cabin zeal because (regardless of what it is actually currently producing) it could at some point lead to bad.

I think, by the way, that the left alienates a lot of people who are extremly sympathetic to their causes with this sort of discussion. Surely human rights activists should seek to garner the support of people motivated by both religious and non-religious reasons.

Continue Reading "Velleman on Religious Dogma" . . .

Sylloliberalism

Let's consider the following staples of the liberal scriptural cannon.

1) The European powers created artificial borders in the colonial world which do not accurately reflect national boundaries.
2) War is probably justified against any the leadership of nations who use force to disrupt international peace. For examples of this, we could look either to the substantial unanimity around the world supporting the first Gulf War, or to Chapter VII of the U.N. Charter itself, supporting the right of nations to aid the self defense of victims of war.
3) The War in Iraq is not justified (two years after they all voted for it) since there were no weapons of mass destruction, no terrorists, and no breach of the international order.


Focusing on the third tenet, I would like to ignore for now the first claim (that the absence of WMD removes the justification for war), since it requires separate analysis. After all, War probably can be justified by a legitimate RISK of WMD, even if that risk (like any odds calculation) proves to have been likely but false. I would also like to ignore the second (the absence of terrorists in Iraq) since it has proven so obviously absurd as to need no discussion here (even CNN can find the terrorists there, on a daily basis).

I would like to briefly touch on the liberals' hypocritical conception of international law's understanding of the prerogative of the United States to assist in collective self defense. Their standpoint is clearly laid out by the change in Democratic/European opinion over the two Gulf Wars. The first Gulf War, aside from everything else, was justified to them because Saddam Hussein initiated the era of War. The default is to be a ban on war, but in invading Kuwait, Saddam fractured the peace so harshly that he could be dealt with forcefully. This justification for War is clearly preserved in the U.N. Charter, where even the absence of a Security Council resolution can lead to war where nations assist other peoples in Self Defense.

Fast forward to 2003. Here, Saddam Hussein had not invaded another country, so the liberals distinguished between Gulf War I and Gulf War II. But let us consider what the nature of War is. War is an attempt by a government to use force to extend its laws past the boundaries where they are entitled to exist. It is (to keep with the theme around here) an act of ultimate lawlessness, using violence to throw out the most fundamental legal characteristics of another system (who is in charge and who decides who gets to be in charge). While Saddam Hussein certainly enforced his will against many peoples who, behind the veil of ignorance, might be considered separate nations from Iraqi Sunnis, the happenstance of the Iraqi border deprived this brutalism of the label "War."

Here's the point. If the borders in areas formerly under European control are not sensible, than the insistence on requiring acts of War to cross these artificial boundaries is also not sensible. Saddam Hussein did worse thinks to the Shiites and Kurds in Iraq then he ever dreamed of doing to the Kuwaitis. He tortured, maimed, and robbed them. He assassinated the leadership of these peoples, and did the best he could to wipe whole populations of them off the face of the Earth. In a world with sensibly drawn maps, these acts probably would have met the liberal definition of War, removing all debate as to the propriety of U.S. liberation actions.

Those of us who are concerned with Law have less license to pay attention to artificial boundaries. Saddam Hussein has been making war against the Kurds and the Shia for the extent of his reign of terror. He used force and murder to substitute their ability to have rights and laws for his own desires. Formalistic attention to the Europe-drawn border system in deciding the rights of abused peoples is neither a normal nor a consistent approach.

Continue Reading "Sylloliberalism" . . .

More Medellin (ex ante) and International Delegations

PG gives a great summary below about the debate here next week. I want to throw in my two cents and tie it into what, to me, is the most interesting current constitutional law debate.

In signing the Vienna Convention on Consular Relations, the U.S. agreed to compulsory jurisdiction in the ICJ concerning interpretation of the treaty. When the U.S. government failed to contact the Mexican consulate concerning the death sentences of the mexican nationals, Mexico brought Avena before the ICJ and got a ruling that the U.S. did in fact violate the treaty.

The concern for conservative constitutional scholars such as Curtis Bradley is that this clause of the treaty giving the ICJ power to interpret our obligations under the treaty consists of a delegation of lawmaking authority to an international body. This issue is always viewed in light of the domestic nondelegation doctrine which constrains congress' ability to delegate its lawmaking authority to other domestic bodies. Since Article I vests "all legislative power" in the congress, courts have been reluctant to allow congress to delegate the power away.

Now it's clear that this has been relaxed, that the delegations are clearly okay as long as a plain statement accompanies the delegation. But the concerns in the international realm are far more intense. There is a significantly inreased lack of transparency with international bodies making decisions, a dilution of domestic accountability, and an increase in power of one branch over another--typically the executive branch. All these concerns militate a far more exacting delegation review in the international realm.

There are other concerns, such as the limits that Article III imposes on such a delegation, whether the constitution requires that an Article III judge have some review of these decisions. But these concerns are fare more murky . . . a discussion for another post.

So that's the overview, introduction to the debate. The event will surely be very exciting. We'll be live-blogging it and hosting lengthy discussion on the issue afterwards, maybe even accompanied by some grown-up guest bloggers.

Continue Reading "More Medellin (ex ante) and International Delegations" . . .

Global Limited Government

Over the past few weeks, this forum has hosted a discussion on what it means to have a government of laws and not a government of men. In the domestic arena, there is some hope that shifting this nation's wealth from the hands of the government to the hands of the people is a step in this direction. Changing social security has the potential to shrink the scope of governmental control while simultaneously expanding the control that individuals have over the world. However exciting these changes to our domestic distributions of wealth may be (contain your laughter please) the most dramatic efforts at achieving conservatism in this world are being pursued at the point of the bayonet.

The Global War on Terror forms the latest link in a chain begun by the giving of the Commandments at Sinai to liberate mankind from arbitrary and malicious human rule. This pursuit has, over the centuries, taken the name "law."

Where there is law, there is limited authority of humans with power to do as they will simply on the basis of their power. The more constraints a society places on the ability of the powerful to do as they wish to those without power, the more there is law.

In the United States, as evinced by the social security debate, we are at an elevated status of law. The powerful generally cannot kill or maim the weak. We have chosen our own leaders and given them limited realms within which they can recognize their own will. Sometimes, the development of law and individual autonomy requires granting these governmental authorities the powers to prevent powerful people from encroaching on the liberty of others (see the pollution laws). Other times, constraining the powers of our elected leadership enhances the liberty of the individual and thereby pushes our society further along the continuum of law (see the First Amendment, the Due Process Clause, and the effort to privatize social security).

But in lands infected with the disease of terror, there is no law whatsoever. Those with the power to kill are in no way restrained from exercising this power. This separates the murderers of Al-Queda from petty criminals (a distinction lost on Senator John Kerry), for organized international terror not only kills individuals but vociferously denies the power of Earthly laws to constrain their behavior to their fellow men and women.

While less powerful and malicious on a global scale, this ideology is a more extreme example of the fascism which scourged the world throughout the last century. The Nazis and Stalinists denied the permanency of human dignity. They erected laws strictly to serve the sadistic needs of the powerful. But, in a deranged way, they felt some fidelity to the notion that society should be governed by laws. While perverse, cruel, and immoral, the two evil Totalitarian societies of the last century at least paid lip service to the idea that the conduct of humankind should be organized in societies of law.

The terrorists throw off even this final vestige of law/liberty. They do not distinguish between innocent and guilty, friend or foe. They respect no limit on their own power, or no claim of a right to be left in peace by any of their victims. And no man, perhaps, evinced this barbarism more than the deposed ruler of Iraq. He killed and tortured at will. He made war against religions, cultures, ethnicities, nations, and civilizations. If given the chance, we know that he desired to raise the scale of his culture of death and lawlessness through use of whatever weapon of massive destruction he could get his hands on.

Carrying the message of law to the unlit places of the world is the calling of our time. President Bush wrongly calls it the purpose of our generation, for those soldiers who pushed back the German forces twice in the last century, and forced the Soviet Union to collapse under the weight of its own hypocrisy shared the same mission. Limited government is just a different avatar of law and liberty. While pursuing an ownership society at home, we are putting marginal touches on a society long dedicated to the rule of law and hence the role of the individual in governing his own affairs. But we must continue to remember that much of the rest of the population of the world has been denied these protections. While the process of bringing law around the world may require certain horrible choices, including deaths, it should be remembered that the orders we replace were ultimately only constrained by death itself.

Continue Reading "Global Limited Government" . . .

Medellin v. Dretke Debate, Ex Ante

We Who Cannot Be Present on Monday at 4 PM to see Lori Damrosch and Curtis Bradley discuss Medellin v. Dretke offer a quick preview. The case will be argued before the Supreme Court on March 28; it's an attempt to implement the International Court of Justice's judgment in Avena and other Mexican Nationals (Mexico. v. U.S.) through federal habeas corpus proceedings.

That judgment found that the U.S. had violated the Vienna Convention on Consular Relations by failing to notify the Mexican consulate when its nationals were arrested and allow Mexico to assist its citizens. The petitioners are not asking the Supreme Court to reverse their convictions, only to have their convictions and death sentences reconsidered. The trouble with going along with the judgment is that it apparently would require overturning Breard v. Greene -- a step the Fifth Circuit was unwilling to take -- a 1998 case in which the Supreme Court held that our procedural law overrides international law.

Continue Reading "Medellin v. Dretke Debate, Ex Ante" . . .

The 7th Circuit on SDP

I love this from a 7th circuit opinion:

"As one commentator astutely observed,

A reader of the Supreme Court's substantive due process cases can come to feel like a moviegoer who arrived late and missed a crucial bit of exposition.

Where is the part that explains the connection between this doctrine and the text of the constitutional provisions from which it takes its name?"

The opinion proceeds to discuss what it calls the "murky waters of that most amorphous of constitutional doctrines, substantive due process." I read Salerno the other day where Justice Rehnquist refers to it as "so-called substantive due process" and was commenting to a friend how conservative judges always, even after all this time, get in a little jab everytime they discuss the doctrine.

(Hat tip: Howard)

Continue Reading "The 7th Circuit on SDP" . . .

One for the Supremes

I don't like Judge Sentelle's opinion (as much as I like Judge Sentelle) to the extent that it reads Branzburg to completely bar any first amendment protection in this context.

Branzburg itself held that "news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment." And Justice Powell's concurrence held that a claim to privilege "should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."

So it's clear, even from Branzburg, that there are some areas where the first amendment does give some protection to reporters' revealing of sources.

Moreover, the Branzburg holding has been "chipped away at." The cases since Branzburg have held that there is a balancing test, where courts are required to "look to the facts on a case-by-case basis in the course of weighing the need for the testimony in question against the claims of the newsman that the public's right to know is impaired." Carey v. Hume (DC Cir. 1972), cited in Judge Tatel's concurring opinion. Judge Tatel's concurrence cites numerous circuits that have held the same, that there is qualified first amendment protection for reporters' sources.

I think this is one the Court should take. Either Judge Sentelle is right and the majority of the circuits are not taking Branzburg seriously enough, or (more likely) Branzburg should be should be limited. As much as I don't want more ammo for the Bush-haters, I don't think, as Lord Coke does, that this is an instance of the "crusade to pigeonhole every conceivable human interest into various protections of the Bill of Rights." The right to keep reporters' sources confidential is not a huge right without any textual support, but is protecting something at the core of democratic government.

Continue Reading "One for the Supremes" . . .

Like lambs...

Judge Sentelle's opinion today in In re: Grand Jury Subpoena will be heralded as a great victory for enemies of the current administration who are waiting for some keystone to support their conspiracy theories du jour. Let them rejoice. While they dance for joy, the grownups will win the far more important battle over our constitutional heritage.

Here is the bottom of line of Judge Sentelle's opinion: The first amendment means what it says and nothing more. The appellants here sought an expansive reading of the first amendment on two counts. First, they wanted the king of all penumbras around the first amendment guarantee of freedom of the press. Under their theory, the Constitution, in granting freedoms to the news media, guarantees them a path of least resistance. According to the reporters' theory, a source need not be revealed to a grand jury (!) since this revelation would put a damper on that individual reporter's ability to get confidential information in the future. This would expand the first amendment from only protecting the very right of the press to print or broadcast its news stories or opinions without fear of criminal prosecution to weighing against any effort to inconvenience anyone who has anything to do with the press. But, as my antitrust professor says about the Sherman Act's guarantee of fair competition: "We never promised you a rose garden." The first amendment provides a critical freedom necessary for the political and social life of a free society. It ensures that the free flow of information cannot be suppressed by the government. But it does not immunize all possible negative effects that might result from the expression of freedom of the press. In their attempt to create a large electron cloud around the First Amendment's guarantees, the appellants in this case do the Constitution a disservice by failing to note the incredible guarantee provided by the first amendment. In constraining the reach of the first amendment to the core protection provided by the text itself, the panel led by judge Sentelle has refocused our attention on the essential characteristics of our journalistic liberties.

The same treatment is given to the idea that another First Amendment protection, for freedom of speech, could be expanded to give a confidential source the right to speak to the press (which he certainly has) with total anonymity (which he certainly does not). Once again, a look at the core protection of the first amendment is informative. The first amendment guarantees that private citizens may communicate their views without fear of punishment being doled out because of the content of their viewpoints. It does not promise a pat on the back or immunity from other, content neutral laws, regulating interactions between government employees with confidential information and the public at large. By denying the orbital protections, the DC Circuit returns turns our attention away from a vanilla First Amendment ideal allowing communication on the communicator's terms back to the more powerful notion (which we now take around the globe) that free people must be able to express their political ideals without fear of the wrath of those in power.

Led by its Rightsized First Amendment construction, today's opinion boldly flies in the face of the forty year old academics' crusade to pigeonhole every conceivable human interest into various protections of the Bill of Rights. By disguising today's jurisprudence in political cloth, the DC Court may very well have hidden this important fact so well, that they who would be most normally inclined to fight tooth and nail against such a doctrine will be first in line to support it.

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SDP and Punitive Damages

As I noted in my earlier post, punitive damages seem like a wild departure from the court's regular economic substantive due process jurisprudence since the permissible purposes for the deprivation of property are not "any rational basis," but are restricted to a state's interest in deterrence and retribution. Moreover, the court's recent holdings in Gore and State Farm seem to require a narrow tailoring of damages awards to those two specific purposes.

I'm not saying that I'm a huge fan of the cases. At first blush I certainly felt as T. More seems to. But I wonder how far these cases actually depart.

Think of them in the context of the "rational basis with teeth" line of equal protection cases. Cleburne held that mere negative attitudes or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses. Thus, even though the mentally retarded are not a "protected class" and don't get any heightened review, the basis for discrimination must nonetheless be rational.

Likewise in Moreno (hippies) and Romer (sexual orientation) the court found discrimination to fail even the easiest bar to discrimination. Olech held that even for people in no class, everyone has a right against arbitrary and irrational discrimination.

So, in punitive damages, the question seems to be whether the court is correct in saying that punishment and deterrence are the only rational purposes for awarding punitive damages. The gist of the holdings of the above equal protection cases is that "animus" is not a rational basis, and that discrimination based solely on it will fail. Similarly, arbitrary and excessive punishment may fail even this low bar.

The Court may get Gore and State Farm wrong in the "exacting" review that they mandate of lower court damages awards, but I don't know that dismissing these cases as comparable to Roe and Lawrence, as T. More seems to do, is fair. The "minimum rationality" test must mean that something doesn't pass. Certainly juries are capable of acting irrationally . . .

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SDP Continued: A Brief Response

I am happy to see that substantive due process, possibly the greatest legal challenge of the American legal order, has gotten such attention in this space. I understand your concerns specifically, T. More and would like to respond briefly.

In my mind, we have to separate out the powers of the state governments with the power of the federal government. The federal government is entirely a creation of the United States Constitution. In the first instance, its powers are limited to the enumerated ones. Therefore, matters which do not effect interstate commerce in a legitimate way, or touch upon historical discrimination, are generally beyond the power of Congress to act. One conception of the ownership society constrains the power of the federal government because of these limits. As more of America moves out of the sphere of public control and into the sphere of private property, I think Congress has a less colorable claim to a right to make laws. Money which is in my house, while subject to the commerce power under the sham decisions of the New Deal, is now likely to be thought of as beyond the scope of the federal government.

The character of the federal government as a place of limited powers also raises the possibility of substantive due process limits to the powers of Congress and the President. It is agreed that the People (see the preamble) and the states (see the Ratification clause) came together to grant powers under their control to the federal government. The character in which we banded together to cede power to the United States government provides important limits on the powers of Congress. In Griswold, in those parts of the opinion where Justice Douglas is not making up constitutional rights for use against the states (more on this later) he suggests that since the marital bedroom existed as an institution before the Bill of Rights or government at all, government cannot easily invade its precincts.

For the Federal constitution, this is the "basic unit of society question." If people came together in their capacity as families to give power to the federal government, then it is fair to say the federal government may not pierce the family veil, since they never had the right to do so in the first place. Substantive due process provides this guarantee, which is hinted at from other provisions of the constitution, as well as our (now deplored by the left) TRADITIONS of liberty and freedom.

So that's the federal government. A government of limited powers. But for the state governments, we have another issue altogether, which you are right to point out. The state governments retain plenary powers, or at least so much power as the various state constitutions allot to the state governments. If the people of Oklahoma have provided in their constitution that the government may make no laws regulating intimate conduct, than all must agree that the government of Oklahoma is powerless to do so, and some might even agree that the Federal courts should enforce this limitation (see Rehnquist's concurrence in Bush v. Gore for an argument as to why the Federal courts should, in T2, demand that states stick to the guarantees they made in T1).

However, absent a specific constitutional provision (or a judicial state constitutional interpretation) to the contrary, I do not see why the federal courts would use the federal due process guarantee to cabin the powers of the state governments. As a general rule, the state governments have general powers. They are the ones that Bork must be speaking about when he agrees with the dissent in Griswold, that no matter how much he like our privacy, we have to agree that we have compacted with the state that if the public interest (morals, welfare, health, or safety) demands an invasion of that privacy, we are bound grant entry to the forces of the state.

As a last matter of agreement, even though its cliche, I would like to point out the silliness of the notion of "privacy" for abortion rights or intimacy rights. While I mind it less for birth control issues, intimate conduct (by its nature), and abortion (by at least hypothesis in the debate) each deal with other people. While they may both be spheres denied to public regulation because of a mix of federal and state constitutional guarantees, they surely do not raise the same issues as regulations dealing with bodily organs (which, incidentally, can be regulated).

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NY Gay Marriage Ruling Synopsis

For those who haven't yet read Hernandez v. Robles, The NY Supreme Court ruling that New York state's marriage laws violate both the Due Process Clause and the Equal Protection Clause of the New York State Constitution, I thought I would provide a quick (and admittedly rough) synopsis of the support for the state court ruling.

The court begins with a discussion of Loving v. Virginia (striking down a ban on interracial marriage), then cites Goodridge v. Department of Public Health (MA ruling allowing gay marriage) for authority in deciding that the statute does bar homosexual marriage. The court's holding, therefore, declares the statute unconstitutional rather than construing it narrowly to avoid barring the gay marriage.

DUE PROCESS CLAIM
The meat of the opinion is its finding that marriage is a fundamental right under the NY State Constitution. The court cites Planned Parenthood v. Casey:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . These matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

then cites Loving:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men . . . . Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.

again cites Goodridge:

the right to marry "is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference."

Other support that the court relied on include Skinner, Griswold, Eisenstadt, Prince v. Massachusetts, Pierce v. Society of Sisters--all with the goal of establishing a liberty/privacy right to interests associated with marriage.

One thing I find interesting from the court's opinion is it's reliance on Loving--principally an equal protection case--for its establishment of a liberty interest. Loving's equal protection analysis makes up about 4/5 of the opinion, with only a short due process paragraph at the end.

The opinion also frequently conflates liberty/privacy interest within marriage with privacy interest in entering marriage. The reliance on Eisenstadt, Griswold, and Pierce all don't seem relevant when viewed this way. I guess they serve to establish a general "relationship" privacy interest, but it is quite easy to distinguish the two different interests. I also fail to see how Roe and Lawrence are relevant.

In terms of liberty due process rights, I think the court fails to establish gay marriage as a fundamental right. This of course depends, as in Lawrence, on the level of abstraction that the court treats it. There is a tradition of heterosexual marriage as a fundamental right, so the court could say, as it did in Lawrence, that the right does not distinguish based on sexual preference. Then the right would not be to heterosexual marriage, but to marriage, in which case gays are being unduly denied the right.

Jack Balkin notes that this holding undermines state statutes against polygamy and incest. In fact, there is no discussion of any sort of distinction in the opinion. I can't see a way for the court to distinguish the two and I have heard two different con law professors at Columbia, both of whom are gay, say that they can't see any distinction between gay marriage and polygamy in this respect. Balkin notes that the court could find a compelling interest in prohibiting polygamy and no such interest in prohibiting gay marriage, but there is no discussion of this in the opinion.

EQUAL PROTECTION
As the Loving court established the equal protection violation and then skirted the due process issue, Hernandez does not give much of an equal protection holding.

The Plaintiff's argument is quite logical: Plaintiff, were he a woman, could marry this man, so he is being denied a right based on his gender. This is a new argument, supported only by a couple random state decisions cited in the opinion, but one that the U.S. Supreme Court hasn't heard.

The court, however, did not even reach this argument. For the court, "[t]he exclusion of plaintiffs from entering into civil marriage indisputably discriminates against them on the basis of sexual orientation." According to the court, the state didn't advance any rational basis for the discrimination.

Conspicuously missing from the opinion was a citation of Romer v. Evans, where the court struck down a discriminatory amendment to the Colorado Constitution. It seems Romer would substantially support the holding since it bars discrimination based solely on animus.

According to Balkin, the New York Court of Appeals has not accorded discrimination against sexual minorities any heightened review. But since Romer is still rational basis review, there could be support even without the heightened review.

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