Power of the Presidency, Marbury, and Torture

A question has arisen in comments about the question raised by Professor Yoo about whether these actions are such that Congress could regulate the President and his use of force.

We are concerned not really with what the President does, but in what circumstances the Court can tell the Executive that it has overstepped its bounds, and is taking unconstitutional actions. The question then, is not really the role of the Executive, but the role of the Court to constrain the Executive.

This, of course, is Marbury v. Madison. Marbury stands for the proposition that it is the role of the Court to decide which branch or body is to say what "The Law" is. Marbury means that the Court acts as a mediator among the actors of the government under the Constitution and, in the words of our dear Professor Monaghan, "allocat[es the] functions" of these bodies.

Note that this does not mean that the Court is to pass independent judgment on these bodies' actions. There is no "one form of review" that the Court exacts on legislative or executive action.

Consider, for example, Marbury (refusing to adopt a reasonable interpretation of Article III), Chevron (adopting a reasonable interpretation of a statute by an agency), Curtiss-Wright (refusing to scrutinize executive action in foreign affairs), Katzenbach (allowing Congress to adopt a reasonable interpretation of the equal protection clause (subsequently overruled)), and City of Boerne (refusing to defer to a reasonable interpretation of both Section 5 of the FOurteenth Amendment and the Free Exercise Clause). In each of these cases, the question for the Court is how closely to scrutinize the government--legislature or executive. Sometimes the Court defers to reasonable interpretations, sometimes exacts independent judgment.

This decision of the scope of review is dependent on the structure of the constitution and where it vests powers. Just a couple examples:

The Constitution vests regulation in Congress. The Court's role is not to decide how it would regulate, but to decide how Congress did regulate. Assuming that Congress isn't violating other parts of the Constitution, it should, then, pull all the meaning for "The Law" from the statute, not itself. Complete deference to Congress when acting within its powers. (Tribe, American Constitutional Law)

When Congress vests some of this power in an agency, the role of the Court is not to provide the meaning, but to make sure that the Agency is acting within the scope of its delegated authority, within its powers as vested. Complete deference within that scope. (Chevron; Monaghan, Marbury and Admin State)

The political question doctrine is merely a determination that the question asked is one that the Constitution directs the President to answer. The Court determines only that this is, in fact, a question for the President, and if it is, complete deference. (Henkin, Is there a Political Question)

So, the question for judicial review of Presidential actions in the war on terror--internment, torture, etc.--is the extent to which these actions are constitutionally-committed to the President such that they are not open for judicial review.

This is the discussion I would like to begin, both among fellow contributors and those who wish to comment.

I don't have the answer, only (I think) the question. My guess is that the regulation of prisons full of POW's and terrorists is something that is very tied to the Commander in Chief power, and something that the Courts, and the legislature for that matter, should not be in the business of regulating. Youngstown constrains these powers in their use against citizens, but I think POWs, and especially non-state terrorists should fall outside Youngstown's holding.

Anyway, comments welcome.

Continue Reading "Power of the Presidency, Marbury, and Torture" . . .

Clement

I guess Acting SG Paul Clement, a fellow federalist, breezed through committee today and will become the youngest (38) SG since William Howard Taft (32). I saw him argue Cutter, and was blown away; he made the others look like 1L's. Anyway, very impressive, and an extremely nice guy.

Continue Reading "Clement" . . .

Responses to comments

A few comments in response to some of the high and low quality responses to my post.

1) First off, I agree that it can be a very dangerous precedent to try and figure out the exact moment at which torture is acceptable, because of Prof. Waldron's great point about the danger of underemployed professional torture artists sitting around. However, his answer still seemed elusive to me because he characterized the hypothetical as a corrupt question. Why corrupt? Because he felt like it was unfair that he should be forced to consider extreme circumstances which might push him to accept extreme interrogation techniques (which, incidentally, seemed like something Prof. Yoo was not even pushing for. This slight of hand that so many want to perform, wherein they assume that reservist guards at Abu Gharib were reading internal Office of Legal Council memoranda on international conventions so as to know what they could get away with is beyond absurd, especially in the absence of any proof whatsoever. I am reminded of a South Park episode, where a troupe of underground Gnomes is sure that if step one is stealing clothes, step three will be profit. They just have not yet figured out what step two will be, though they are sure that when they figure that out, steps one and three will be seamlessly connected. But I digress . . .). As Prof. Yoo kept trying to point out, though, we have been attacked already. He pointed out REAL terrorists who had been arrested from whom the United States has acquired real information.

2) The memory that WE HAVE BEEN ATTACKED by international Al Queda should be an answer to the comment that there is no ''morality in all this madness.'' One cannot say the Geneva Convention will never apply. It applies in all conventional wars which served as the mental model for the drafters of the Geneva Convention. However, this situation is different. It is a more extreme version of the conflict that so often arose between rebel groups and entrenched governments in the 1980's, for which (as Prof. Yoo pointed out), President Reagan actively refused to allow expansion of the Geneva Convention. Here is a very simple point of morality: our elected officials are responsible for keeping the nation intact, even if it means infringing on what otherwise would be the rights of those terrorists who have vowed to kill Americans and have already perpetrated many devastating attacks. If this were a criminal law exam, the answer would be easy. All Al Queda members are part of a conspiracy to kill, which has been solidified as criminal by multiple overt attacks. Unless members disavow the conspiracy, they should be considered part of the effort. I am honestly surprised that so many find this, albeit extreme hypothetical, a cause for moral alarm. Even Prof. Waldron gave up the point, saying that in his ideal solution, after letting terrorists execute a massive attack against American soldiers, we would carry moral responsibility for our choices. He was right to point out that the terrorists would be infinitely more subject to damnation, but there is a moral choice in doing what one can to stop harm from occurring.

3) I will let you figure out for yourself the static moral quality of the tax debate. As Louis Armstrong said when asked to explain Jazz, ''Man, if you gotta ask, you'll never know. ''

4) In response to Anderson's comment, I think the issue of whether criminal liability could attach to an executive order to torture in these situations is complicated. For many such complicated points of international law, the international legal order relies on public opinion as its primary enforcement device. The theory is that since most treaties can never be enforced using state sponsored force, the most effective enforcement tool is public opinion. The corollary to this, though, is that if public opinion does not consider an executive action under a treaty a violation, then it is not worthy of enforcement, since mobilization of shame is the weakest international enforcement tool available. Prof. Waldron thinks the torture MEMO (again, not Abu Gharib), has brought internal and external shame to our country. If he is right, then we have been punished, and it would show a real harm to the policy (though perhaps not one which overcomes its benefits, and perhaps also a harm fueled largely by disingenuous opponents of the administration). However, I believe the world is filled with a lot of Senator Schumers, all of whom at some level agree with the need to at least contemplate more-aggressive means of information extraction if the ticking bomb was in their home town.

Continue Reading "Responses to comments" . . .

Context cuts both ways

T. More,

Of course you are right that we need to be concerned with the context in which our laws were created to be good positivists or even good natural lawyers. However, the moral context leaning against torture is not the only one supporting the Geneva Convention and domestic torture legislation. ALL our laws, national and international, are created with the specific understanding that they can be abridged if necessary to defend the very existence of the Nation.

The Constitution speaks of suspension of habeas corpus in times of rebellion only in the powers of the legislative branch, yet President Lincoln was deemed, under the extraordinarily dangerous circumstances of the Civil War, to have powers to suspend the rights of detainees in wartime. The Vienna Convention on treaty interpretation specifically allows violation of treaty norms if violation is required for self defense.

Put more broadly, one might say that the entire institution of war shows that the applicability of law must be understood in a context of protecting the nation first and foremost. In normal times, a people are not permitted to march with automatic weapons, and gun down people from another country. If arrested in that other country, they would be tried and jailed. However, in wartime, the peoples of the Earth accept that the protection of individual countries allows for temporary suspension in the set of laws which normally govern interpersonal conduct.

The nuclear hypothetical, while perhaps unlikely, poses an even more extreme example of danger to the Republic. The hypothetical could be simply phrased as a question as to the applicability of torture laws in the face of unprecedented domestic catastrophe to human lives, the economy, and the environment all in one.

With war, when the normal veil of law is pierced, the Geneva Convention has given us a level of lawfulness to fall back on. This is perfectly sensible, since in most situations, the presence of war does not really spell imminent risk of national doom. In the normal scenario, loss at war will produce a loss of independence perhaps, or serious economic catastrophe. But historically, loss at war has been unlikely to decimate the civilian population.

The nuclear hypothetical, though, poses another layer of catastrophe. And just as the laws of civilian conduct are breached by the realities of war, the laws of war should be breached by the realities of nuclear cataclysm. The same context which reveals a moral abhorrence to torture reveals a general legal norm that preservation of the state rises above any law.

T. More and J. Waldron are correct for pointing out that even this utilitarian game rises to extreme dimensions (with infants, rape, and murder all in play) very quickly. This gives rise to the point that Prof. Yoo made, which Waldron never fully responded to, which convinced T. More that Prof. Yoo should be writing wills in exurbia. What we do in extreme circumstances may be justified by the context of law, but we will still have to live with ourselves. In the case of the United States, that means the ultimate law a president faces is the political process for him and his party and his policies. So while the torture of a suspect's wife may be justified by extreme circumstances by LAW, it might not be justified to the polity.

Trickery? Evasion? Not at all. The point of the torture memo was to explain to the president of the United States what acts of interrogation would lead to criminal prosecution. The extreme measures of torture justified by utilitarianism probably, if the context justified them, not lead to criminal prosecution. But they would lead to popular rebuke and a powerful statement of our collective moral stances. Then again, if the danger was grave enough, the votes might come down the other way (as they did last November, after the opposition party tried to rally the public around their opposition to Prof. Woo's memo).

The last lesson of all this is that we too, in our time and our circumstances, are entitled to have a moral view of the world that differs from the views of the authors of the Geneva Convention 55 years ago. The act of ratification of the Geneva Convention cannot be said to forever bind the United States to one moral view. It is either moral in absolute terms (in which case, the act of ratification is irrelevant, it would have been morally binding for the millennia before the treaty), or it is bound up in the moral views of one place and time, subject to rethininking by future generations who encounter different experiences informing their own imperfect moral views of the world.

As a parting note, in writing this it strikes me as very curious that the same liberal left which refuses to acknowledge a static morality on any issue (marriage, abortion, drugs, sex, taxes, freedom of contract, etc.) has decided that the views of the Senate in the last century on the topic of torture are etched in stone, never to be subjected to re-examination in new lights and circumstances.

Continue Reading "Context cuts both ways" . . .

Waldron-Yoo Debate Webcast

. . . is available here. (RealPlayer)

Continue Reading "Waldron-Yoo Debate Webcast" . . .

T. More, fair points. In response:

1. On the positive Law:

I still don't understand what positive law Waldron thinks the severe punishment violates. How any GC provision applies to a non-signatory is a mystery. And when domestic law adopts the "torture" provisions but not the "severe punishment" provisions, I don't see how that is prohibited either.

And in any event, I agree with Yoo that some things in this area are constitutionally-commited to the president. Call them "war powers" or "political questions,"but these are areas where the President has vast powers. That means (s)he is both entitled to deference in either reasonable interpretations of treaties, or treaties that don't conflict with earlier executive interpretations. I'm not sure exactly where I stand on it, but these, you will remember, are Marbury issues--these decisions are constitutionally-committed to the President and are not subject to independent review.

If that's the case, then whatever law there is--be it treaties or domestic statutes--can, in fact, be undone by the President because the Constitution says so. To be sure, with this position it becomes hard to draw lines of what is and isn't constitutionally-committed to the Executive, but I feel safe in the ticking time bomb hypothetical that it is.

So, 1) I don't think severe punishment against al Qaeda members violates any positive law and 2) there are areas and situations where the law is whatever the President says it is. Protecting the country from terrorists is one of those areas where, I think, situations can arise where this deference is due.

Note how Waldron never answered Yoo's question to define torture in any meaningful way. I really wanted to know whether Waldron's sacrificing 8 million people to avoid torturing one person would extend to things like sleep deprivation or physical exertion--things that he never showed violated any positive law. Waldron wants to draw a line and absolutely preclude torture in absolutely every circumstance. To me, it seemed that he would draw that line at speech--you can yell, lie, deceive--but no physical abuse. But anyone with any consequential/utilitarian sense would laugh at the idea of not being able to slap a terrorist for information about an attack.

2. On Structure:

I'm not sure where this structural argument is coming from. I fail to see the distinction between an argument here based on a "structure" of morality and one based only on morality. I may not be getting at what you mean here, so do feel free to respond and clarify your position.

I'm guessing this is based on Waldron's position on the "compromise" view of natural law--that rather than natural law being actual "law," it explains the need for human law, and its underlying values. I agree. So we respect life, abhor torture, and from that springs all this positive law, and one should respect these values from which the law comes. Sort of a legislative intent/purposivism argument.

That's fine, and I agree. But these are people that have placed themselvs outside the rule of law, and are shaking the very foundations of the system. These are people, (as some people argue murders are, and should get the death penalty) that do not respond to "law" and either must be dealt with in a way that helps preserve law for us, or we must "take the hit" so that we extend our law to even them. That's exactly what terrorists do--they try and destroy the foundations of law. And I do not think that the "law" that you and your friend Jeremy are saying we should stick to will keep them from accomplishing this. Those that place themselves outside the legal system lose "rights."

This is true, you say. Anyone who disobeys the law loses rights: you get locked up, you get money taken from you, etc. But some things should never be taken away.

My response is that the rights that are taken depend on the danger of the person's actions to the legal system. I, who in regular circumstances strongly oppose the death penalty, think you can kill terrorists. Send missles into the caves in Afghanistan. These people pose too great a threat to our system of law.

3: On Kantians in Government:

The only thing that imposes absolute restraints on government is the Constitution. Statutes can be repealed, treaties can be terminated--this is all permitted, and required under the Constitution. The Constitution can even be amended. The law has to change to adopt to new circumstances, and there is no reason why the government should abide by outdated legislation. Our present government cannot "bind" any future government.

Your argument is that we should pass laws when we're sensible, and not break them based on emotion or temptation. But you and Waldron are operating in a "September 10th world" (it's cliche, I know). Passing statutes of what to do to terrorists on September 10th is not a well-reasoned decision of how to deal with terrorists on September 12th. The "ticking time bomb" hypothetical was completely far-fetched before we discovered a terrorist network whose purpose is to undermine our entire structure of civilization.

So don't tell me that we are "bound" by these outdated structures and relationships. Again, I still don't see where the positive law forbids severe punishment, but even if it did, we need to reevaluate it. No argument is being made by you or Waldron that such a ticking time bomb authorization to use torture would not pass Congress. I have no question that it would. So whatever the desireability of a government full of Waldrons, such is not even remotely the case. Those who are passing laws to "bind" us to certain actions in our "weak moments" would not bind a soldier from severely punishing, even torturing a terrorist to get information of a bomb.

And on who I want to make up the government, I'm not saying I would take a government full of Yoos. I don't want a government full of anybody. I trust some people to make decisions regarding the protection of the government, some people to make decisions regarding the way the law should function for the vast majority of people who abide by it. But one thing I'm sure of is that I don't want Waldron anywhere near the military.

4. On Morality:

Obviously these are moral questions. I still don't see what that has to do with articulating the law. Are you arguing that Yoo should have told the President differently what the law was, or that he should have gone beyond what the law is and given the president his moral take on the issue? I think the President should be able to be told exactly what the law is, and this requires drawing lines and finding the borders.

Yoo said on numerous occasions that he does not think the state should use "torture." He wanted to engage Waldron on these severe punishments, but Waldron would not answer the question. So don't tell me that Yoo did not have sufficient moral arguments for the use of torture, because he was never advocating it. And I still have no idea whether Waldron's position extends to severe punishment, and whether that changes the issue at all.

Yoo is not a philosopher, nor does he pretend to be. He is, or was, in the business of advising the President on the legality of his actions regarding the protection of this country. He was not here to provide a moral defense of the implications of his memo. He wanted to talk about its merits, real conversation about the nature of the Conventions, but Waldron wanted to talk about morality. So don't be disappointed when the two are answering different questions.

Yoo's defense of his position is based on pragmatics, from people (the vast vast majority of the country) who do not have absolute moral prohibitions on these things regardless of the cost.

You close by getting into utilitarian arguments, which you and Waldron are not allowed to do. Don't talk to me about the "unreality of that hypothetical." You do not think that torture is only impermissible because of what it accomplishes; you think it is absolutely prohibited. I'm willing to engage in the pragmatics, am not sold on any particular use of torture. But I cannot believe this absolute prohibition.

I'm even interested in these "military culture" arguments--that the more permissible torture is, even if it's not authorized, it gets to places like Abu Ghraib. But I'm not interested in an argument that asks me to respect the life of a terrorist over 8 million civilians.

To be sure, I have no answer to the rape examples. I, admittedly, hadn't thought of this before yesterday. I would distinguish them from my hypothetical because these people are innocent, have not placed themselves outside the rule of law. So I have a significantly harder time with that, maybe even prohibitively harder. To be sure, I think the question gets hard even when its terrorists, not civilians. Expand the hypothetical to include 100 terrorists, and only one of them knows. Can you torture all 100? Dunno. I think the argument gets interesting, but Waldron won't discuss it.

I think I should be clear here that I agree with the vast majority of the pragmatic critiques of torture that have been offered, and agree that it is subject to abuse, that it is not going to issue these kind of "ticking time bomb" pieces of information. I think it's likely that nowhere near such a drastic example has happened. But the hypothetical possibility, and the moral obligation I think the President would have to protect the 8 million lives, makes me unable to accept this absolute prohibition.

I am interested in the severe punishment line of thinking. I have no problem with things like sleep deprivation and physical exertion to get information out of the #3 al Qaeda leader. I don't know if these things would work, whether we could even get any information from them, but this is what I would like to discuss. If you could save any life, 10 lives, just by keeping the al Qaeda leader awake for a week until he breaks, I am 100% for it.

In any event, I appreciate the dissent, and hope to continue the debate.

Continue Reading "T. More, fair points. In response:" . . .

I Respectfully Dissent

Publius,

I respectfully, but totally and vehemently, dissent from your treatment of the relationship between law and philosophy, law and morality, and Waldron and Yoo today, particularly with respect to the hypothetical concerning the "nuclear scenario" posed to Professor Waldron.

First, Waldron's position concerning the positive law is clear: the positive law absolutely forbids torture, period. It does not brook exceptions for "nuclear" threats, real or imagined. This may be a disappointment to you, it may even seem wrong to you, but as a Federalist committed to the rule of law you surely recognize that your disappointment, even your moral disapproval, are not enough to undo the law. Or do you think he is wrong in his characterization of the positive law? (Note that even Yoo did not challenge it; Yoo's preferred stratagem is to define torture so narrowly that to proscribe it is to proscribe nothing.)

Second, his noting of the moral prohibition on torture set the legal prohibition in a deeper context: even a "positivist" about the standing of law as a human artifact ought to recognize that it is not an arbitrary artifact; rather, law has sources and inspirations. Thus, Federalists such as yourself recognize, presumably, that although the 11th Amendment does not explicitly require state sovereign immunity, the structure built by it implies such immunity. It is, therefore, entirely a real world and realistic approach which notes that our legal prohibition on torture, which is absolute, is rooted in similarly absolute moral prohibitions on torture. Prof. Waldron noted, and Yoo never responded to the point, that there are clear moral concepts bound up in and implemented by our positive laws concerning torture. Thus, to consider the moral implications of such laws would just be good lawyering, not importing one's personal views (which might or might not be as averse to torture as our treaties and statutes are), in just the way that structural arguments constitute good lawyering on the part of fans of state sovereign immunity.

Third, on the general point whether a government of Waldrons would be unimaginable or undesirable, I think you are on the weakest ground yet as a Federalist. Federalists, you will recall from the Federalist Papers (esp. No. 51), recognize that government needs restraints precisely because government officials are not angels. Thus, our absolute traditional prohibitions on torture exist and need to be affirmed precisely after 9/11. It is when the temptation to torture arises, and not in its absence, that we must be grateful to inherit a tradition which abhors it. Circumstances can and often will arise in life when that which we do not in our best moments approve seems very tempting. These moments we tend to call our weak moments; we encourage the development of virtue to help us to be strong when circumstances push us to be weak. It is precisely, therefore, when torture seems most appealing that we should be grateful for the likes of Jeremy Waldron who will remind us to tremble at the thought of it. This is what the rule of law is all about.

Fourth, were you not deeply embarrassed that Prof. Yoo had precious little, and nothing precious, to say about the moral implications of these laws? He presented himself like a small town lawyer who just probates wills, and has not the time or the fancy thinkin' to imagine what the laws of trusts and estates ought to be. This might serve as an excuse for the shoddy workmanship, the embarrassing lawyering, of the Yoo/Bybee (he did not deny his hand in it today, when directly challenged on that point) memo; it certainly does not excuse the silence of a distinguished professor of law at one of our nation's finest law schools on the normative dimensions of an essentially moral part of our laws which he himself has helped to shape. Who among us is a law student who, when taking Torts, was not required by his professor to consider the moral dimensions of liability, recompense, and the like? Who among us, when taking Contracts, was not asked to weigh the moral dimensions of breaking promises against the "efficient breach?" Answers to these complex questions were not dictated, but the resources to address them were expected.

Today Prof. Yoo tried to play the role of "mom and pop lawyer" incapable of addressing the normative aspects of law. He showed little aptitude or interest for the moral implications of what he did write, though some enthusiasm for the immature "reality" of the parlor games represented by the nuclear hypothetical. Perhaps we listened to a different debate, but I did not hear Prof. Yoo defend the applicability of that hypothetical. He did advert to the capture of the #3 member of Al Qaeda; he did not tell us (presumably because if he knew it national security clearance would not permit it) whether that individual had yielded any 9/11 type information, or whether torture would make such yields more likely. And remember, 9/11 was not a nuclear attack. So let us return to the hypothetical, which imagined that one man out of 20 captured would "certainly" know how the millions would be killed.

The unreality of that hypothetical, to reiterate, is this: Al Qaeda, in the real world, does not trust its operatives enough to let any one of them know the details of its operations. Neither, for that matter, did/does the IRA in Ireland. Terrorists, no strangers to torture themselves, prepare to avert its risks. Further, our intelligence gathering against Al Qaeda occurs over years, not in discrete, crucial moments, conveniently and identifiably proximate to the tragedy being plotted. How many people are too many to torture, over how much time, and with what variability of certainty as to their knowledge of what might be transpiring? The framing issues here, in the real world, as against the ivory tower hypothetical posed, matter quite a lot.

Prof. Waldron's "ivory tower" point was also that some things are so wrong that no countervailing threat could justify them. His point was to deny the applicability of utilitarianism in this context. Your astonishment at that answer could only be justified by a certainty that we must be utilitarians in such situations. Fine: How many infants would you rape, as a defender of the hypothetical, in order to stop the detonation of the bomb? If you answer "none" or close to it, then you are no utilitarian worthy of the name (except for some strained and silly "rule utilitarian" which is always a dodge, as it abandons the notion of actually calculating utils or anything of the like, and simply mimics deontological or categorical reasoning in hard cases). If you would in fact be willing to rape wives, daughters, or mothers of terrorists in order to prevent such a bomb exploding, then you would have to answer to the law and to most traditional forms of morality. Or you could simply assert: "Hey, governments have to do ugly things sometimes. Do you want a Government of Waldrons?"

Given the choice of scholars we saw today, and given the choice of arguments, I will take a Parliament of Waldrons, a Federal Bureaucracy of Waldrons, and a Supreme Court of Waldrons. If we ran out of Waldrons and had only Yoos left for dog catcher, I'd consider eliminating the office.

I respectfully dissent.

T. More

Continue Reading "I Respectfully Dissent" . . .

There are philosophers, and then there are lawyers

While I will surely post more substantial comments on this later, my initial thoughts following the debate are that 1) I was surprised, and 2) I was not surprised.

I was surprised, even shocked, that Waldron answered the question we put to him about the "ticking time bomb" hypothetical where New York City is going to be blown up if we don't torture this terrorist. In his article, he just skirts the issue as put to him by Professor Dershowitz, argues that these situations don't exist. Professor Yoo noted in the debate that there have, in fact, been instances like this, but I can at least respect an argument that these hypothetical examples don't materialize, and therefore shouldn't be the basis for discounting Waldron's theory.

Instead Waldron said:

The answer that law and morality and religion requires that in no circumstances is torture to be used. The law is unambiguous, it's a total prohibition. And for some of us, our morality dictates the same. We would take responsibility for the consequences of the bomb's explosion, for the consequences of our morality.

What? I was shocked. I expected him to again skirt the issue, but he took it head on. This I cannot understand. I think the President not only doesn't have a moral obligation in such a situation to avoid the torture, but has a moral obligation to do precisely the opposite. I can't believe that anyone finds this sensible. How is he going to explain to the 8 million peoples' families that he didn't think it was "right" to torture the terrorist to save their husbands/wives/children/parents? This, I think, is silliness.

Why wasn't I surprised? Well, I wasn't surprised because philosophers and lawyers are two very different breeds. I knew these two would talk past each other. Waldron lives in a world where nothing he says really matters, where he doesn't have to make real, pragmatic choices. No government full of Waldrons could ever function.

It's like the "War is not the Answer" stickers I see on bumpers on the way to school. Not the answer to what? Surely it is the answer to some things--to Pearl Harbor, to dictators committing genocide, and (I think) to 9/11. But to say it is not the answer to anything is to take dogma and ideology to a level of absolute nonsense.

Continue Reading "There are philosophers, and then there are lawyers" . . .

Waldron-Yoo Debate on Torture

This event was co-sponsored by the American Constitution Society, and the ACS president said that it would be streamed live and also archived online for viewing. We will post links to that if/ when available.

In the meantime, my best effort at transcribing the debate:

Prof. Debra Livingston gave the introduction and questions. Prof. John Yoo teaches at Berkeley School of law, clerked for Justice Thomas, and was deputy assistant attorney general in the Justice Department 2001-2003. Prof. Jeremy Waldron, University Professor at Columbia, wrote a critique of the Bush Administration's approach to law titled "Torture and positive law" that is to be published in the Columbia Law Review.

Livingston: Prof. Yoo, you have argued that enemy combatants in the war on terror operate outside the law and therefore are not under protection of the Geneva Conventions. What checks are there on U.S. power over such detainees at Gitmo?

Yoo: First, I would like to say that it is a welcome change to leave the People's Republic of Berkeley to come to Columbia. Waldron was one of the people who hired Yoo at Boalt, and Yoo clerked at the same time as Dean Schizer at the Supreme Court. "At Berkeley, we would never have such a structured debate; we would begin with the yelling."

To answer the question: Al Qaeda and its operatives are not entitled to POW status, because they are not a nation-state that has signed a treaty for reciprocal treatment, and AQ has never said it would follow the Geneva Convention. Everything they do is designed to violate the core principles of the laws of war, particularly the protection of civilians, primarily through non-targeting of civilians and distinguishing combatants from civilians. With 9/11, AQ operatives disguised themselves as civilians and targeted civilians.

What checks still exist, then? There's a number: the federal criminal laws, the military justice system, the legal checks within our own system to prevent any violation of domestic laws. Political checks; Congress could cut funding, impeach the president, de-fund Gitmo, etc. We have assumed that the checks have to be judicial, but that's not the system applied in wartime in the past. Do we think the courts would be a successful institution in monitoring the laws of war? Maybe the ultimate check is reciprocal treatment, which is how the laws of war have operated in the past.

Waldron: There are also the protections the Geneva Convention gives in Common Article 3, that people taking no active part in hostilities (including those who have laid down their arms) are entitled to certain minimal protections, including protection against torture. What the world's attention will be riveted on is America's placing itself outside the one framework set up to prevent barbarity. It's a matter of our honor, and how that translates into military culture that trains soldiers under Geneva. It's not just public relations; it's the viability of our alliances, the willingness of allies to hand over prisoners to us.

Livingston: While most if not all would agree that nothing approaching torture should be used in ordinary criminal law, doesn't the threat of war and terrorism necessitate harsher treatment?

Waldron: So we are not to approach the issue with the September 10 mentality. There are two ways to qualify or limit a right: to say that it is subordinated or traded off for national security; or you re-define it in wartime. It's being suggested that we use the second method. The first method is explicitly ruled out by international law; the restriction on torture is absolute, even in times of emergency. To sneakily mess with the definition seems to me a terrible mistake, and flies directly in the face of the absoluteness of the prohibition.
There is a danger of turning the word torture into a technical, legalistic term. If someone is being half drowned, and we say it is not torture, torture becomes a legal term like "certiorari." The ordinary soldiers understand that they benefit from a convention framed in ordinary language terms. When we lay down an absolute prohibition on torture in human rights instruments, we didn't do so as an academic exercise. We laid down this law specifically to constrain us in the circumstances where torture would be a temptation, not in peacetime academia. Apart from the disgraceful discussion in Yoo's memo, you undermine the legal and military culture by changing the meaning of torture. You can get yourself into a situation where Reservists and military police have heard that torture in the eyes of the law is not what torture normally understood is, and then we come to Abu Ghraib.

Yoo: The government captures Abu Zubaydah, a top person in AQ who would know the plans of attack on the U.S. He's been trained to resist standard interrogation. Jeremy didn't say what he would do to get information out of someone like that. The administration doesn't want to commit torture, but should we not consider things that fall short of that, things other democracies have done in the face of terrorist threat? The federal criminal statute prohibits torture abroad, but not cruel, unusual inhuman treatment. Some things in basic training, such as physical labor or letting someone sleep only 7 hours a day, would go beyond normal interrogation. In a traditional war, we may not need intelligence information from captures because we can survey troop movements, but when we're fighting a non-state actor, probably the only way to pre-emptively stop an attack is to gain intelligence from captured operatives.

Livinston: The Geneva Conventions act to civilize the behavior of the acting nation, not just to protect the detainee. Why should we abandon them wholesale simply because individual detainees may not be within the Conventions?

Yoo: I don't think that was the purpose. It was drawn up to regulate the kind of conflict we saw in World WarII. Article 3 applies to conflicts not of an international nature, such as civil wars and resistance fighters. It wasn't in the contemplation of people at that time that an organization like AQ could wield the power of violence of a nation state. So we're trying to figure out now what rules should apply to a non-nation state wielding the power of a nation state. In 1977, there was a protocol drawn up to amend the Gevena Convention, and the U.S. refused to ratify that treaty. President Reagan clearly articulated that it would give protected status to terrorists who would not obey the rules of warfare.

The Geneva Conventions apply in Iraq, they apply in Afghanistan. It's not that we dispense with it based on the nation, but rather based on the individual. Citizens of various countries are fighting on behalf of Al Qaeda, not their nations, and this causes them to have a non Gevena Convention status.

Waldron: With the protocol Reagan didn't sign, the issue was primarily POW status, not protected person status. Why did people think the treatment of prisoners needed to be rethought in 1949? One reason was because during World War II, one power claimed we were dealing with a new form of warfare; they said that considering the nature of the Soviet Union, being a collection of Bolsheviks rather than a real nation, the Gevena Convention didn't apply to them. Two powers, Germany and Japan, thought enemy pilots engaged in bombing civilian areas who were captured didn't have POW status but should be executed for the crime. We needed a comprehensive scheme to avoid arguments about categories of detainees. The U.S. headed the prosecution of lawyers who had tried to make patchworks. So I do not agree with John's vision of GC as a patchwork; it's not how the 1949 revision was envisioned or written.

Livingston: Will you engage a hypothetical?

Waldron: Of course.

Livingston: Let's assume a nuclear device is set to go off in an American city. Are we justified in using torture on 20 suspected terrorists to find out where it is before it kills thousands of people?

Waldron: It's a bad and corrupt question, but I said I would answer it and I will. The answer that law and morality and religion requires that in no circumstances is torture to be used. The law is unambiguous, it's a total prohibition. And for some of us, our morality dictates the same. We would take responsibility for the consequences of the bomb's explosion, for the consequences of our morality.

The question is corrupt for a number of reasons. It is designed to bring the opponent of torture down to the level of the defenders of torture for a single case. The question is corrupt factually; it supposes that torture is capable of getting accurate information. The war on terror is a war of information and intelligence. To think primarily in terms of TV scenarios of massively important pieces of information that we know are there is not realistic. The nature of the relationship between torturer and victim means that the victim will tell the torturer what the torturer thinks he wants to know.
Also, the question assumes that somehow we have the people who are trained to torture, yet who will do it only in this one case. There will be a cadre of torturers sitting around looking for work. There will be a culture of torture developed, changing the politics, training and discipline of the CIA and FBI. Everything we know about torture from the 20th century is that it grows out of control. We unleash everything depraved and sadistic in human affairs. We need to think about the trauma to the legal system, of having it be known that we have concocted room for torture. Everything that's had its reference on respect for human dignity begins to totter and crumble under this response of torture.

Yoo: All I can do is give you the practical choices the government faces. What is it that the government can do that goes beyond questioning; that might yield productive information? Al Qaeda is organized like a network, and there are some nodes far more important than others. The people the government captured who were involved in 9/11 planning are such nodes. We do know that they have such information in their heads.
It's a difficult argument to prove or disprove, whether Abu Ghraib officials were affected by the change in government culture. I could also say that I think the negative effect would be limited, but how do we prove or disprove it? It's an emotional, rhetorical argument. Do the reports from Abu Ghraib evidence it? I don't think they've shown anything like that.

Livingston: The Schlesinger report, written August 2004, concluded that there had been this valuable intelligence obtained at Gitmo, including Al Qaeda's efforts to obtain WMDs, potential travel routes to the U.S., etc. The majority of detainees had been treated appropriately. Well-documented policies and procedures are imperative to counter the chilling effect that abuses have had on gathering information. So isn't it a reasonable call for lawyers to say what is and isn't permissible in interrogations? And how would you go about this exercise?

Waldron: Certainly is it permissible for lawyers to scrutinize techniques for compliance with the law, and to list acceptable techniques. They also could list techniques likely to be used unless prohibited. You have to allow for the ingenuity used by people working under discipline. We have enormous detailed guidelines in military field manuals about honorable and lawful methods of interrogation. Much of the information gained at Gitmo has been gained that way. We are only now hearing the voices of people released from Gitmo, and it's unclear yet what the record will be on abuse and interrogation.

Audience Question: Prof. Yoo, you stated that Congress has chosen not to take an absolutist position on torture, because the statute applies only overseas and to extreme and unusual cruelty. Could Congress regulate torture, and to what extent does the executive have un-reviewable authority?

Yoo: Congress made a distinction between torture and things short of torture, and Congress criminalized only the former. As an academic matter, Congress cannot criminalize the legitimate exercise of the president's power. If the president ordered coercive interrogation, can Congress prohibit that? Congress cannot say that it's a crime for the president to use a nuclear weapon or send armies to Europe. In extreme circumstances, the commander in chief power does extend so far as to be unreviewable. But the administration is not ordering or authorizing torture so this has not arisen yet.

Question by Ex Post's T. More: You didn't engage Waldron's discussion of morality.

Yoo: I view the function of a lawyer not to interject my own moral views into what the government should do. So I had to answer whether the GC applies, a distinct question from what we should do as a matter of policy. Applying the GC to detainees isn't legally compelled. I don't think limits on presidential power are compelled by treaty. A lot of these arguments you and Waldron make, I don't disagree with them, but they should be considered separate from the legal analysis.

Waldron: I do think that with regard to some law, you can do a strict separation between the letter of the law and the moral spirit. But with human rights, international and much constitutional law, you cannot do that; you must understand the moral ideas that shape its content and give us our sense of its important. You need to understand the GC not as a strange set of runes, understanding it only by what the letter of the law requires. This is not to intersperse one's own religious views. Supra-positive aspect; you cannot understand them without their moral aspect.

Audience Question: What do you think is bad about torture?

Yoo: I don't believe the state should inflict severe physical and mental pain on people. I'm not here advocating that we ought to be torturing anybody. I've been trying to limit my argument to things that fall short of that, things that would not be severe physical and mental pain. Jeremy is not a consequentialist; he's the most well known legal philosopher today in the Kantian tradition. I think it would be very difficult to be a Kantian and have any responsibility in the government. People in the government have to be consequentialists, have to make trade-offs. If you're consequentialist, and you're talking about these things short of torture, you balance the losses of reputation against information that could stop attacks.

Audience Question: Both Waldron and Yoo oppose torture, and it has these negative effects on our international reputation, how do we stop it? International law hasn't prevented it, and it's still going on through extraordinary rendition etc.

Waldron: I'm not as pessimistic as you are about stopping torture. There's a lot of torture that the various conventions are ineffective in stopping, but we do what we can to shame and give the international human rights law some power. Drawing this line between torture and inhuman, degrading treatment, which the law does, to treat people cruelly and inhumanly, is to make a fetish of the word torture. We have shown the world that for our own self interests, we are willing to trade off. It does huge damage to being able to maintain international standards. That's what I'm most concerned about.

Yoo: We do have a system that is investigating and punishing instances of torture. Do countries' signatures lead them to lower levels of human rights abuses? We're been relying on a domestic law paradigm without an international enforcement mechanism. Maybe the answer is for countries to use their power to enforce the human rights law. But I would caution against reading the prohibition so broadly as to make the defense of the country impossible.

Livingston: I would like to thank our panelists, and this is a debate that will continue over the next several decades, I fear.

Continue Reading "Waldron-Yoo Debate on Torture" . . .

Extremely Funny "Family Guy" Clip

It may be inappropriate, but this is one of the funniest law-related things I've ever seen. It's a clip of a Supreme Court fraternity-like initiation from the The Family Guy. You need an .mp4 codec to watch it. Here is one for Windows Media Player.

Continue Reading "Extremely Funny "Family Guy" Clip" . . .

More on Scalia at NYU

I've had an interesting back and forth today in the comments of a post on Law Dork I figured would be interesting to "reprint."

First, a comment which I thought was by our very own PG, but it turns out was by someone else:

Scalia has been quite clear and outspoken in his disgust at sodomy and his belief that states should be able to criminalize it. I don't see any problem in asking him if he has engaged in the practice. If he has not and really thinks the state should interfere in our private lives to that extent, he should feel no shame in saying that he does not engage in sodomy. The same is true of people who take strong public stands against use of narcotics. Those who take those stands should be prepared to admit whether they use drugs or not and pay a price if they do. If Scalia lives his life consistent with his view of the law, then he certainly has not committed sodomy and should deny having committed sodomy in the same way that he would deny having committed beastiality or murder: straightforward and shamelessly.

And another comment:

To all of you how think Berndt was inappropriate:

When did etiquette become more important than equality?

My response:

Marc, no one is saying that etiquette is more important than equality. But the equality debate should be conducted with etiquette, with mutual respect, and with real arguments--not name calling and shock value. Screaming and disruption does not convince anyone of anything, does not help those who are working through the issue.

PG (should be Joseph), as you have noted elsewhere, saying that this outburst was appropriate because condemners of Sodomy should be asked whether they engage in it has nothing to do with substantive due process. It's Scalia's jurisprudence, not his political views, that brought this result. So whereas such a question to a legislator or prosecutor may be better placed, there is no reason to ask the Justice.

Even placed to a legislator or prosecutor, however, I fail to see the relevance. Another example: A legislator might think that it's a good idea for no one to drive SUV's, that the aggregate use is bad for the environment, but her own use of the vehicle doesn't do enough damage for it to be of harm. I think that drugs have a bad aggregate effect on society, but that my smoking pot in my bedroom doesn't. (I actually don't, but you get the point)

To be sure, these are not moral reasons for criminalizing the conduct. But there is no reason that I see that the decisions of hypocritical legislators are necessarily bad. Everyone is, to some extent, a hypocrite, and I don't see a reason why I should not enact a law I believe is moral and good just because I struggle with it.

This all has nothing to do with Scalia sodomozing his wife, but just to further point out the ad hominem and logically fallacious nature of the outburst.

Response from Chris Geidner:

Correct me if I'm wrong, Publius, but this -- "I don't see a reason why I should not enact a law I believe is moral and good just because I struggle with it." -- sounds like a "we're all sinners" argument. Do you "struggle" with driving an SUV?

Your argument that personal hypocrisy is fine if a legislator's only problem is the aggregate effect makes no sense in terms of a discussion of legislative prohibitions of sodomy (and, to me, makes no sense at all). And since I don't think one "struggle[s]" with trying to stop driving their SUV, it appears to me that it is a morality-based argument you are trying to make. There is no non-morality-based condemnation of homosexuality that would make sense to me of your use of the word "struggle."

As to how all this applies to Eric Berndt, well, much of the Court's debate in Lawrence related to whether morality alone could justify laws. Justice O'Connor clearly stated that it could not.

Justice Thomas, in his dissent, noted the following:

If I were a member of the Texas Legislature, I would vote to repeal [the sodomy law]. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated.

Justice Saclia, on the other hand, writes:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

To pretend that these men have approached their dissent with the same neutrality as to the morality of homosexuality is to ignore the words they put in their opinions. Justice Scalia may not have written, "Two men? Together? Disgusting!!!" but he left no doubt about the moral position he takes on homosexual conduct.

A more neutral, less inflammatory dissent than Justice Scalia's easily could have been written. Justice Thomas did so in two paragraphs.

To question whether that man himself engages in sodomy is not an ad hominem attack; to the contrary, it -- from hypocrisy to questions about his living under the protection of a rule he opposed to making Scalia face the question that gays and lesbians feared the state might at any time ask them -- is the question itself.

My response:

Chris, you're conflating my two points.

My first point (with the SUV's, not the morality questions) is an example of a legislator voting for something, arguing for something that she doesn't do herself, but only doesn't do herself because only the aggregate effect of the actions matter. Another example is antibiotics. We as a race take too many antibiotics such that the aggregate consumption is making them less effective. But there is no reason for an individual to not take antibiotics even though that individual may think it a good thing for everyone as a whole to cut back. This point had nothing to do with "struggling" or "we're all sinners." It's perfectly logical for these people to make these decisions. The problem is one of collective action, not one's temptations. (as i noted: "To be sure, these are not moral reasons for criminalizing the conduct")

The second, separate, point about morality is, admittedly, harder. My point there was that I see no reason to discount someone's vote for moral legislation because one doesn't always follow it. If I were to steal pencils from my office once in a while, but to still think that stealing was immoral, I don't see how my stealing affects that separate conclusion about the morality of stealing. I am a hypocrite, yes. But what does that have to do with the morality of the action? Disagree or not that stealing is immoral, should be illegal; but to attack the prudence of enacting a law preventing stealing because it's immoral, based on whether the person talking himself steals, is an ad hominem attack. It is "appealing to personal considerations rather than to logic or reason."

But this isn't even getting to the issue, doesn't have anything to do with the Justice. The fact that Scalia thinks homosexuality is disgusting has absolutely nothing to do with whether there is a substantive due process right to it. For an originalist, the homo/heterosexual distinction on a "right to privacy" makes no difference. I love Justice Thomas' dissent for this reason--he very plainly says that although he thinks it's a dumb law, there is nothing in the Constitution that forbids it. You picked out an ugly part of Scalia's dissent, but he says the same thing elsewhere in the opinion. And I agree that Scalia should have not included the section you cited in his opinion, but what does that have to do with the existence of "substantive due process?" Nothing.

If the question hadn't been phrased in a vulgar, rude, and tactless way, I think it would be a valid question for someone who doesn't understand the real jurisprudential issue: "Justice Scalia, wouldn't you be opposed to a law that regulated your private sexual conduct?" His answer would be: "Yes, I would be opposed to the existence of the legislation. But there is nothing in the Constitution that forbids it, and I would uphold the law." And if you think that the Justice never upholds actions that he disagrees with because he is constitutionally constrained, then you need to do some more reading. See, e.g., flag burning, limits on punitive damages.

So my issue is not with the question itself--a valid question for a first year law student, although not an informed legal argument--but that it was put so vulgarly in an attempt to (I think) undermine the legal arguments by painting the arguer a homophobe, which has nothing to do with the existence of substantive due process rights. Only once you make judges legislators by giving them power to determine what is and is not a substantive due process right can you make these claims, and even then (as my second paragraph above argues) such an allegation is pointless and fallacious.

The only thing you can accomplish by painting Scalia a homophobe is that you can convince others to infer that he is an originalist precisely because he opposes the gay rights movement. I have no idea whether this is true, nor, I think, do you or anyone else. I think if people read his material and listen to his arguments, one sees that originalism is grounded in democratic theory and the rule of law, not an opposition to minority movements. Such an attack on his intentions completely ignores the merits of the theory of interpretation, and focuses on the completely unascertainable and irrelevant intentions of the interpretors. I am an originalist, but support the gay rights movement in many respects. What i don't support is taking moral decisions away from a legislature and giving them to 9 lawyers. That is not progress, but gambling that those 9 lawyers are going to agree with your morals.

Continue Reading "More on Scalia at NYU" . . .

Coming Up: Yoo v. Waldron on Torture

I don't usually announce upcoming CLS Fed Soc events, but the debate this week is not to be missed. It is on Thursday at 12:15 between Jeremy Waldron of Columbia Law and John Yoo of Boalt Hall on "American Foreign Policy in the War on Terror: Is Torture Ever Acceptable?"

Jeremy Waldron has recently written an article called "Torture and Positive Law"that will be published in the Columbia Law Review, and John Yoo was the author of the famous Bybee Torture memo.

PG will be doing some of her phenom-transcribing, which will be available shortly after the debate.

Continue Reading "Coming Up: Yoo v. Waldron on Torture" . . .

Walpin on the Solomon Amendment

We heard today from Gerald Walpin on the Constitutionality of the Solomon Amendment. I guess I was a little critical of the speaker in my questions because I was called a "communist" after the talk.

My issue, and the root of my questions, was Mr. Walpin's contentions regarding Universities' academic freedom. He continued to suggest that it's not a First Amendment violation to mandate that the universities allow the recruiters. While I agree that universities should allow the recruiters, and that by not allowing them they are impinging academic freedom, the universities should be able to make that choice, should not be forced to allow the recruiters. I also think that private religious schools should not be forced to allow Planned Parenthood to recruit on campus.

But I don't know why he talked about this topic so much. The schools are not being forced to allow the recruiters. If they don't want the recruiters, don't take the money. The only issue would arise if this were to be a "false choice"--if the university could not operate without the money, then they don't have the option of not taking the money, and this is not a valid conditional exercise of the spending clause. Otherwise, schools are waiving their first amendment rights for funding--clearly permissible.

But, a friend suggests, isn't it also a false choice if the cost/benefit makes the decision prohibitive, even if the university would continue to exist? All this means is that Congress isn't getting its money's worth, or that Congress really wants the universities to comply. The universities are getting a lot of money just to let the recruiters on campus. Congress could push to get more for their money or to just pay less, but that would move the cost/benefit analysis closer to the middle, jeopardizing universities' decisions to comply.

The federal government is buying for itself future JAG attorneys, not regulating the speech of the universities. That Congress is paying a lot for these attorneys does not make the scheme unconstitutional.

Note the irony as well: Those who have pushed for high federal taxes and oodles of government spending on all of these programs are now up in arms because the government isn't spending that money the way they want it to. Hmm. I hate to say "we told you so," but we did. (hat tip to Lord Coke for this idea).

Continue Reading "Walpin on the Solomon Amendment" . . .

Ad Hominem Attacks

Chris Geidner at Law Dork responds to Phocion's post about the Scalia-NYU debachle with a critique of Phocion's calling the outburst an "ad hominem attack":

This was not an ad hominem attack. Phocion misunderstands the purpose of the phrasing of the question. Berndt -- prior to Lawrence depending on his state of residence -- could have been questioned (or arrested) because of his sex acts, denied child custody or been fired as a result of that questioning, and so on. Berndt turned the tables in a way that no one at a law-school event would expect.

ad hom i nem; adj.

Appealing to personal considerations rather than to logic or reason: Debaters should avoid ad hominem arguments that question their opponents' motives.

To what was Mr. Berndt "appealing?" It seems that an appeal to logic or reason would have been phrased this way: "Justice Scalia, do you want the government to regulate your private conduct in your bedroom?" The Justice would have answered that regardless of whether he wants that conduct regulated, he would not strike down a law as unconstitutional. For Scalia, the homo/heterosexual distinction is not the issue.

Instead, I think, Mr. Berndt was trying to "out" the Justice as a homophobe in order to undermine his position on constitutional interpretation. From his statement at Wonkette:

[A]n independent motivation for my speech-act was to simply subject a homophobic government official to the same indignity to which he would subject millions of gay Americans. It was partially a naked act of resistance and a refusal to be silenced. I wanted to make him and everyone in the room aware of the dehumanizing effect of trivializing such an important relationship.

Now regardless of whether this is true, or tactful, or a good thing for the gay rights movement, this is an ad hominem attack. The merits of Justice Scalia's constitutional interpretation has nothing to do with whether he is a homophobe. Even if the Justice were an originalist solely because it keeps rights away from gays, this would be an ad hominem attack.

Mr. Berndt also explains that his "legal" reason for the outburst was to somehow argue with Scalia's failure to address Justice Kennedy's point in Lawrence that the state action did not advance a legitimate enough interest:

Even so, I did have a legal point: Justice Kennedy's majority opinion in Lawrence asked whether criminalizing homosexual conduct advanced a state interest "which could justify the intrusion into the personal and private life of the individual." Scalia did not answer this question in his dissent because he believed the state need only assert a legitimate interest to defeat non-fundamental liberties. I basically asked him this question again

Silly. This is both a stretch, and (I think) an afterthought. Mr. Berndt did not ask him this question.

Again, I don't know whether this outburst was a good or bad thing for the gay rights movement. I suspect it's bad because tactlessly attacking Supreme Court Justices' personal sex lives is going to offend just about everyone. But this was definitely an ad hominem attack, with no resemblence of a real legal argument. These kind of attacks don't convince anyone of anything.

Continue Reading "Ad Hominem Attacks" . . .

Great News!

I'm pleased to announce that the Columbia Law School Federalist Society will be hosting the 2006 National Federalist Society Student Symposium on "International Law and the State of the Constitution." More information to come as the topic and the panels develop.

Continue Reading "Great News!" . . .

Law & Economics for Originalists

The jurisprudence of Judge Posner is, to a large extent, the kind of pragmatism that originalists abhor. Engaging in the sort of cost/benefit analysis that Posner loves so much necessarily avoids the question of original intent and the text of a statute. Hopefully this doesn't come to a surprise to conservatives that there is much dissent among the flock about the role of the judge.

Judge Ginsburg's talk didn't address this much, was mostly about the rise of economics in regulation. But my issue with Law & Economics is not its value in regulation or in the crafting of statutes, but when a judge should employ this type of Posnerian economic analysis. At the end of his talk, Ginsburg provided a good answer. He noted that perhaps the best use for law & economics for judges is the ability to spot economic loss, to understand marginal costs as the important ones. This "applied common sense" is the best use for judges.

I think he's right; the more informal uses of law & economics seem the most appropriate for me.

I wonder, however, whether another possible context for appropriate economic analysis could be a default rule in the face of an impossibly unclear statute. The example that comes to mind is a bankruptcy case--United Savings Assn. v. Timbers of Inwood Forest. The issue was whether undersecured creditors should earn interest on their collateral after a bankruptcy petition had been filed by the debtor. The statute spoke to oversecured creditors, that they are entitled to post-petition interest, but for undersecured creditors only that they should receive "adequate protection."

Justice Scalia's opinion takes a very textualist approach to the statute that says nothing about the issue at hand. His result is that the statute should not give post-petition interest, and that "adequate protection" only applies when the value of the collateral is depreciating.

Law & Economics scholars criticize the opinion as sub-optimal since the debtor has access to free capital, which could be better used by the creditors. The result is unnecessary economic loss. The debtors don't have incentives to get out of bankruptcy because they have free capital. The creditors should be able to give the money to profitable businesses that can better use the capital.

Others applaud the opinion because it protects debtors--a major purpose of the bankruptcy code. If debtors had to pay interest on their loans, the process of bankruptcy rehabilitating worthy, but struggling businesses, would be severely impaired.

But Justice Scalia's opinion doesn't rely on either of these reasons. Instead he searches through the text for the answer when it is plainly not there.

My question, then, is why shouldn't "efficiency" be a default rule in this case? You do your best job with the statute that you're given, but at some point you realize that it doesn't answer the question at hand. The judge has to provide some of the meaning.

This "federal common law of efficiency" would just be a default rule, subject to reversal by Congress. But I don't see any problem here for originalists. There has to be some answer, and Congress hasn't given one, so why should we try to drag it out of a statute that hasn't considered it?

Continue Reading "Law & Economics for Originalists" . . .

I had heard, but didn't believe it . . .

. . . Alex Kozinski on The Dating Game. View it here. (realPlayer)

Continue Reading "I had heard, but didn't believe it . . ." . . .

Medellin Oral Argument Transcript

. . . is available here.

Continue Reading "Medellin Oral Argument Transcript" . . .

Betting on Judicial Independence

So neither the Left nor the Right really care about the Constitution. Pragmatism and Legal Realism have become so pervasive that I think it's all become kind of an act. So for the Right, preaching "federalism" just means there are more liberals in the federal government than the states and they have a better chance of spreading conservative policy through the states. For the Left, judges and lawyers are disproportionately liberal, so they can get more done by using their lawyers to convince judges than they can be enacting leglation. The "Constitution" is largely a tool of rhetoric.

Now that is overstating the issue, but the point, I think, is still valid. Erwin Chemerinsky on the use of the fillibuster is the perfect example. When the dems were in power, he decried the use of the fillibuster, now he's arguing for its use as a vital part of democratic government. Silly.

The problem arises when either side makes neutral Constitutional arguments. "Judicial independence," "textualism," and "federalism" are all neutral in the sense that they can, based on the substance of the issue, go either way. If one thinks that these theories of government are neutrally good, provide freedom and promote democracy, then fine. But if you're making these arguments based on whether they will deliver a certain outcome, then you're gambling. You're betting that the makeup of the people in the poltical branches isn't going to change such that your jurisprudence is going to produce inopposite results.

And judicial independence is the worst one. If the folks at ACSblog think that Congress shouldn't be able to set standards of review for the courts, what happens when the judge doesn't want to disturb the lower court ruling, ignores a statutory mandate for de novo review. Rest assured that Chem is going to be at the front of the line decrying this "judicial activism."

So the Left is betting. And if this newkular option goes through, it is probably a losing bet. They're going to be at the front of the line arguing for judicial restraint; they're already the ones arguing for federalism. I think I've heard more arguments out of lefties for federalism recently than out of conservatives.

Now, I think the Right does this better than the Left. But I hope it's because we really believe in neutral principles and law uncorrupted by politics. We should rely on the neutral principles of the Constitution that have treated our country so well. And this means we can't depart from the principles as soon as they don't give us the outcome we want. Constitutionalism requires patience, as it is not perfect.

Let us restore formalism, not trade left-wing pragmatism for right-wing pragmatism. We should do this because we believe in formalism itself, but also because betting on a pragmatist is a scary thing. See, e.g., Stevens, Souter, Kennedy. Even if you pick right-wing pragmatists, you can't trust them to even deliver the outcomes you want.

Formalism ensures the upholding of the structural constitution and "Our Federalism" regardless of the changing tides of politics.

Continue Reading "Betting on Judicial Independence" . . .

I Guess I Underestimated the Left

I had previously assumed that "no one . . . really thinks this thing is unconstitutional" and T. More noted how bad the arguments were that Prof. Tribe was making in the aftermath of the statute. I didn't see Tribe's nonsense, and everything I've read, including a piece by Dorf, concedes that the Schiavo statute is constitutional, regardless of how wise it was to pass.

But, alas, I spoke to soon. We have today on ACSBlog a silly argument that the Schiavo statute was unconstitutional.

I agree with T. More that this statute was bad policy. But there are (left wing, brace yourself) things that can be bad policy, but still constitutional.

All of the arguments in the post, and in the Birch opinion that the post so heavily relies on, attack the constitutionality of the statute on what it was intended to do.

First, that "Congress cannot legislatively overrule court decisions it doesn't agree with." The word "overrule" here is being used rather lazily because the Schiavo statute is not revisiting the state court decision. The decision stands, but Ms. Schiavo's parents have standing to bring an action alleging that Terri's due process rights were being infringed. Congress is not "overruling" Florida state family law, but is letting a federal court adjudicate Ms. Schiavo's constitutional due process rights.
And moreover, there is absolutely no problem with Congress overruling the courts when it does so pursuant to an enumerated power. I think it was Kroger that Congress overruled in the context of supplemental jurisdiction, and all the age discrimination and disabled discrimination statues are all an overruling of the court failing to find equal protection violations. The whole Section 5 struggle evidences this--Congress can't pass these age, disabled, religion discrimination statutes when it's ratcheting up a 14th Amendment right, but that's not because the Court is the grand issuer of moral decisions, but because of federalism--Congress isn't acting pursuant to a valid enumerated power. Here, not the case.
I'm not sure what the ACS post really means with this, because it later admits that Congress actually can regulate the jurisdiction of federal courts under Article III.
Now, it's clear that the intended effect of the jurisdictional statute was a reversal of the effects of the Florida Supreme Court decision. But I still haven't heard an argument as to why the intent of the statute matters. It surely doesn't in the commerce clause realm.

Second, that a congressional mandate for de novo review is somehow inappropriate. From the ACS post:

While Congress can grant federal jurisdiction under its Article III powers, it is a violation of judicial independence for the legislature to dictate how a federal court should exercise its judicial function.

Ah, the "judicial independence" clause. What? There is, among others, FRCP 53, 72, and the bankruptcy rules, all of which control the court's review of other courts' decisions. So that doesn't work.

To be sure, the ACSBlog post makes a couple good points. The congressional subpoena that I wrote about here, is surely an abuse of legislative power.

But, some advice to my friends on the left: Don't assume that the fact that a statute is bad policy makes it necessarily unconstitutional. Because if you're bent on covering everything under the "perfect Constitution," you're going to make some bad arguments.

Continue Reading "I Guess I Underestimated the Left" . . .

Whither "Activism?"

Lawrence Solum's latest "legal theory lexicon" entry thoughtfully considers the uses, misuses, and ultimately the usefulness of the terms "strict construction" and "judicial activism." In the end, Solum concludes that there is not much clarity, coherence, or utility to either term; at least not so much as to make them useful for careful thinking about jurisprudence.

As to the former, "strict construction," I would quite agree with Solum. Though the President and other politicians and popular commentators tend to like the term "strict constructionists," one does not hear Judges or Professors saying this much of their own approach. But as to "judicial activism" I'm not so sure we don't know it when we see it.

At least at the Columbia Law School, I find that even professors who like such decisions as Roe and Roper (to name but two) acknowledge that they are at best a massive stretch of existing law and really fairly naked substitution of judicial wisdom under the guise of judicial review. I believe that when judicial review is exercised in a fashion to strike down a law or policy using arguments that simply will not hold up as uses of legal materials, that constitutes judicial activism.

As I say, I find that I have conversations with a variety intellectually honest professors at Columbia who support these decisions because they believe that judges are by and large a healthy counterbalance to the popular will. Whether they will think the same of the role of judges as more "conservative" activism arises remains to be seen. But I do not think that many law professors (I know that Tribe and Dworkin claim to be exceptions) seriously imagine that there is any legal skill that could be taught that would be sufficient to produce the likes of Roe or Roper. As I understand Dworkin's claims that what these judges are doing really is the act of "getting the right legal answer," they require judges to be trained in moral reasoning as much as if not more than they are trained in legal reasoning. This most judges are not, and this in any event would mean that judges were using lots of extra-legal reasoning to reach the "right" result. This would constitute activism, I think, given most classical notions of the rule of law. And I think we can all envision ways we would like the law to be that it actually is not; if as judges we announced that it were so, then we would be being activist.

Activism arises, as the great Henry Monaghan frequently admonishes us, from the view that the Constitution is perfect; once one begins with this premise, then it simply remains for judges to debate perfection. This they are not trained to do, and this way lies activism.

I admit that there are judges and professors who would say that I simply have a too narrow view of what fills out the category "law," and that saying that judges who substitute their own judgment for the law is technically true as a description of activism but not particularly helpful. Acknowledging that there is some force to that argument, perhaps the "perfect constitution" argument of Prof. Monaghan should be amplified or complemented with some consideration of whether judges think the Constitution is living--that its "grand phrases" are more aspirational and are launched on careers of growing meaning. It seems to me that any judge who believes that she is called upon to be an expositor of a Constitution of ever-shifting meaning is committed to a view that her job requires activism from time to time. Justice Scalia seems to think that this is the important divide, given his recent pronouncements on the subject.

What do you think? Does judicial activism amount to anything other than the charge that the judge is wrong in a given case? Or is it, as I suggest, really a claim about the role of the judge or the nature of law--one that intellectually honest folks (including judges and professors) should simply be honest about, the way Kennedy is honest in Roper that the Justices' judgment is playing an important role in the decision?

UPDATE: I would add to the above two clarifications: (1) That a judge would be activist for following preference over law in refusing to invalidate an unconstitutional provision as much as for striking one down. That is, judicial review is part of the rule of law, on which citizens rightly depend. If a judge is complicit in undermining the rule of law by allowing a lawless act of the legislature, then such would constitute activism. (2) There are plenty of ways of being wrong without being activist. Assume, arguendo, that Justice Scalia was wrong to uphold flagburning in Texas v. Johnson. We would not seriously imagine that such was activism, even if it was error. Further, though I think the majority in Casey v. Planned Parenthood were wrong, to the extent they were relying stare decisis they were not activist. Almost by definition, following a prior precedent, though it may be debatable in its wisdom, is not activist. (3) A third point arises from the first two, though it is not a clarification: it appears that my account of activism depends crucially upon the motives of the judge, which makes identifying it subjective in at least one and possibly more than one sense of the term. Is this fatal to the account? Does it really make it no improvement over Potter Stewart's take on pornography?

Continue Reading "Whither "Activism?"" . . .