Constitutional Borrowing, circa 1960

Mary L. Dudziak

In Thurgood Marshall’s office after his death, draped over an armchair in the morning sun, was a cloak made of monkey skin. The cloak was from Kenya, and was among the Justice’s most treasured possessions. For years, Marshall told his friends and his law clerks stories about Kenya. The cloak was a gift, he told them, from the time he was made an honorary tribal chief. But even those closest to Marshall knew little about the Kenya adventures he so keenly remembered.

This essay, forthcoming in Green Bag, illuminates Marshall’s work on a Bill of Rights for Kenya in the early 1960s as an exercise in constitutional borrowing.

When Marshall went to Kenya he "looked over just about every constitution in the world just to see what was good," and he told an interviewer that the United States Constitution was "the best I’ve ever seen." But at a conference in London on the Kenya constitution, he offered a draft bill of rights for Kenya that had no American constitutional language in it. The rights Marshall embraced as ideal, at least for an emerging African country, drew most extensively from the Universal Declaration of Human Rights, and parts were based on the constitutions of two newly independent countries, Nigeria and Malaya. Marshall’s American sensibility appeared in his document most clearly in his assumption that independent courts would enforce the bill of rights, and his emphasis on equality, something he still hoped to realize in his own country.

The essay is coming soon in Green Bag, and is posted on SSRN. The full story of Marshall’s work in Kenya is told in Exporting American Dreams: Thurgood Marshall’s African Journey (Oxford University Press, 2008), which includes Marshall's bill of rights for Kenya in an appendix. The Introduction to Exporting American Dreams can be downloaded here.

Labels: Africa

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Posted 9:39 AM by Mary L. Dudziak [link] (0) comments

Grading the California same-sex marriage opinion

Andrew Koppelman

The recent California same-sex marriage case, In re Marriage Cases, 2008 WL 2051892, has drawn a lot of coverage primarily on account of its consequences: same-sex marriage is coming to California, and unless the voters overturn the result by referendum, which is doubtful, it is there to stay. This is, in itself, good (although the decision, coming half a year before a presidential election, will help John McCain mobilize his alienated base, a consequence which a lot of same-sex marriage supporters should regard as bad). But a few people are also interested in the quality of its reasoning. If you are one of those people, the following analysis is for you. The rest can stop reading.

The California Supreme Court’s opinion is distressingly conclusory. It combines a tortured and probably unsalvageable substantive due process analysis with a strange, ultimately barely successful equal protection argument. If it is persuasive, it is barely so. Law professors are grumpy people who care less about whether you’ve argued the right side than about whether you’ve constructed your argument competently. I would give this opinion a barely passing grade.

The court’s arguments are based on clauses of the California constitution that resemble the federal equal protection and due process clauses. But since the decision wasn’t interpreting the U.S. Constitution, it can’t be reviewed by the U.S. Supreme Court.

The substantive due process argument

The doctrine of “substantive due process” holds that some interests of citizens are so fundamental that the state may not violate them without a compelling interest – which means, it is hardly ever permissible for the state to violate them. These interests are not enumerated in the Constitution. The judges must simply declare what they are. This can leave decisions based on them quite vulnerable, as notoriously is the case in the most prominent modern substantive due process decision, Roe v. Wade. The Court declares that there is a right to abortion without ever explaining the constitutional basis for such a right. (For my attempt to provide a better, more textually grounded basis, see here.)

The first holding of the California court is that there is a substantive right to marry, and that that right protects same-sex couples. Here is the crucial paragraph:

“Furthermore, in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation - like a person's race or gender - does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

The objection to this reasoning, of course, is that according to opponents of same-sex marriage, marriage is inherently heterosexual, so that same-sex marriage is a contradiction in terms. Rejecting that position requires substantive philosophical argument. It won’t do to just define marriage as “the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own.” That’s just a bald conclusion masquerading as an argument.

The conclusion is backed by paragraphs iterating that marriage is really, really important to the people who want to get married:

“The ability of an individual to join in a committed, long-term, officially recognized family relationship with the person of his or her choice is often of crucial significance to the individual's happiness and well-being. The legal commitment to long-term mutual emotional and economic support that is an integral part of an officially recognized marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual's development as a person and achievement of his or her full potential.”

I agree. I have written in favor of same-sex marriage many times. But the argument of the paragraph just quoted isn’t a constitutional argument. The fact that you really, really want to get married can’t be the basis for a constitutional right. Otherwise the incest and polygamy laws would be in trouble, too.

The opinion moves on to equal protection considerations. The rule of equal protection, crudely put, is that some forms of discrimination are unconstitutional when engaged in by the state.

Sex discrimination

The plaintiffs in the marriage case argued that the denial of marriage licenses to same-sex couples is sex discrimination. This argument, which I’ve made again and again, can be stated in two syllogisms.

First syllogism:
(1) Laws that make people’s legal rights depend on their sex are sex-based classifications.
(2) Laws that discriminate against gay people are laws that make people’s legal rights depend on their sex.
Illustrations: If Lucy may marry Fred, but Ricky may not marry Fred, then (assuming that Fred would be a desirable spouse for either) Ricky is suffering legal disadvantage because of his sex. If a business fires Ricky, or if the state prosecutes him, because of his sexual activities with Fred, while these actions would not be taken against Lucy if she did exactly the same things with Fred, then Ricky is suffering legal disadvantage because of his sex.
Therefore
(3) Laws that discriminate against gay people are sex-based classifications.

Second syllogism:
(1) Sex-based classifications are subject to heightened scrutiny.
(2) (from the first syllogism) Laws that discriminate against gay people are sex-based classifications.
Therefore
(3) Laws that discriminate against gay people are subject to heightened scrutiny.

This argument has been rejected in court many times, though none of the opinions have managed to counter the logic thus stated. I’ve always thought that courts had done this because, from a political standpoint, the argument proves too much. If accepted, the sex discrimination argument would entail that all laws discriminating against gays, notably marriage laws, must be swept away at a single stroke. Judges, I thought, are understandably hesitant to begin down that road.

Yet the California court rejects the argument, while at the same time upholding a right to same-sex marriage! What is the reasoning?

“In drawing a distinction between opposite-sex couples and same-sex couples, the challenged marriage statutes do not treat men and women differently. Persons of either gender are treated equally and are permitted to marry only a person of the opposite gender. In light of the equality of treatment between genders, the distinction prescribed by the relevant statutes plainly does not constitute discrimination on the basis of sex as that concept is commonly understood.”

The trouble with this reasoning is that it is the same logic that was used to defend bans on interracial marriage: both races are equally forbidden to engage in the prohibited sexual conduct, so there is no race discrimination. That argument was rejected by the U.S. Supreme Court in 1964 in McLaughlin v. Florida, in which the Court unanimously invalidated a criminal statute prohibiting an unmarried interracial couple from habitually living in and occupying the same room at night. “It is readily apparent,” wrote Justice White for the Court, that the statute “treats the interracial couple made up of a white person and a Negro differently than it does any other couple.” McLaughlin stated the obvious. If prohibited conduct is defined by reference to the actor’s own race or sex, the prohibition is not neutral with reference to that characteristic. Where same-sex marriage is prohibited, the clerk must, in doubtful cases, require the applicants to drop their pants or lift their skirts in order to know whether it is permissible to issue the marriage license.

The California court distinguishes the miscegenation decisions, including its own groundbreaking Perez v. Sharp (1948), because “the antimiscegenation statutes at issue in those cases plainly treated members of minority races differently from White persons, prohibiting only intermarriage that involved White persons in order to prevent (in the undisguised words of the defenders of the statute in Perez) ‘the Caucasian race from being contaminated by races whose members are by nature physically and mentally inferior to Caucasians.’” If this was the sole basis of those decisions, however, the miscegenation laws could have been saved by making them apply equally to all interracial marriages. The U.S. Supreme Court’s opinion finally invalidating all miscegenation laws in Loving v. Virginia (1967) made it clear that this was not an option.

The California court goes on to say that “a statute that treats a couple differently based upon whether the couple consists of persons of the same race or of different races generally reflects a policy disapproving of the integration or close relationship of individuals of different races in the setting in question, and as such properly is viewed as embodying an instance of racial discrimination with respect to the interracial couple and both of its members. By contrast, past judicial decisions, in California and elsewhere, virtually uniformly hold that a statute or policy that treats men and women equally but that accords differential treatment either to a couple based upon whether it consists of persons of the same sex rather than opposite sexes, or to an individual based upon whether he or she generally is sexually attracted to persons of the same gender rather than the opposite gender, is more accurately characterized as involving differential treatment on the basis of sexual orientation rather than an instance of sex discrimination, and properly should be analyzed on the former ground. These cases recognize that, in realistic terms, a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual's sexual orientation.”

But this makes no formal sense. The registrar has to determine what sex the applicants are. There is no particular reason for the registrar to inquire into the applicants’ sexual orientation. The California marriage law is then quite different from a rule that does formally discriminate against gay people, such as the U.S. military’s automatic expulsion of any member who is known to be gay.

Sexual orientation discrimination

The court then goes on to hold that discrimination on the basis of sexual orientation is presumptively unconstitutional. The court explains that “the most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual's ability to perform or contribute to society.”

Here the court is on firm ground for the first time. No one can reasonably dispute that gay people have been the object of unjust, insane hatred for a long time. Even the Vatican, no friend of gay rights, concedes that much. If it is stipulated that sexual orientation discrimination is what’s going on here, then the statute is in trouble.

Once we have gotten that far, then the burden is on the state to justify denying same-sex couples the right to marry. If the state has that burden, it is in trouble. The court is obviously right that a parallel institution of domestic partnership “inevitably will . . . be viewed as of lesser stature than marriage and, in effect, as a mark of second-class citizenship.” Opponents of same-sex marriage are confident that they are right, and perhaps they are entitled to their confidence, but they haven’t done a very good job of articulating their position. An argument simply defining marriage a certain way does the state no more good than it did the court (in the substantive due process argument, discussed above). So here, at last, the opinion winds up on solid ground.

It was, however, an unnecessarily bumpy ride.

So the case is rightly decided, even if much of its reasoning is unpersuasive. Let’s now hope that it survives the fall referendum and that the Republicans are so damaged that even this gift is not enough to salvage their hopes.


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Posted 11:06 PM by Andrew Koppelman [link] (20) comments

California's Gift

Ian Ayres

The California Supreme Court decision striking down the state’s ban on same-sex marriages does more than change the marriage rights of the 10% of U.S. citizens living in the Sunshine state. The decision changes the legal rights of all Americans. Same-sex couples from Kansas and Connecticut for the first time have the option to go to California and to legally marry.

Massachusetts was the first state to legalize gay marriage, but California is the first state to let out of state couples to visit the state to get hitched. San Francisco may well become the Las Vegas of gay marriage. By staying just a few days to establish residency, a couple can visit, legally marry and return to their state.

For supporters of marriage equality, the decision truly is California’s gift to America. But new freedoms create new choices. The option to marry presents new choices not only for same-sex couples, but it also raises a new ethical choice for heterosexual couples as well.

Most directly, same-sex couples suddenly will have to choose whether they will legally marry. For some, hypothetical plans will now be put to the test.

Being legally married in California does not mean that your marriage will be recognized when you return home. But there are still strong reasons for same-sex couples to come to California to marry. Some will come to California for symbolic reasons. The right to marry is essential to basic human dignity, and some couples will seek the validation of a government’s imprimatur. Thousands of same-sex couples have entered into civil unions in Vermont. More than two thirds traveled from out of state. A sovereign state’s willingness to formal legal recognition of marriages should draw still greater numbers.

But more than symbolism is at stake here. Some same-sex couples will marry in California with the hope of assuming tangible marriage rights and responsibilities back in their home state. Whether they will obtain those tangible benefits is by no means clear. This question will take years to resolve, and it will be complicated by choice of law rules, the federal Defense of Marriage Act, and anti-recognition statutes and state constitutional amendments enacted in more than 35 states.

Some states may extend blanket recognition to same-sex couples married abroad; others may deny it. Still others may give recognition for some purposes (such as distribution of property upon termination of the relationship or death of one of the spouses) but not for others (tax advantages or other state benefits that turn on marriage status).

But gay couples need not be the only ones to flock to California. Environmental tourism has drawn travelers for years. California could enjoy a new wave of what we might call human rights tourism. Supporters of gay rights, regardless of sexual orientation, may want to reward the state for granting equal marriage rights. Instead of the negativism of boycotts, a supporter of equality might spontaneously organize a tourism "buycott" of California.

California’s new policy also creates a new ethical choice for different-sexed couples. Now that it is possible to marry in a jurisdiction that does not discriminate on the basis of sexual orientation, is it moral for heterosexuals to marry in a discriminating state?

Suppose you were living in Virginia when the state still prohibited interracial marriage. Even if you wanted to marry someone of the same race, wouldn’t you consider traveling to a neighboring state that did not discriminate? From now on, every heterosexual couple that wants to marry must face the same question:

Do I want to marry in a state that discriminates or one that does not?

After all, heterosexuals can now marry in a nondiscriminating jurisdiction without risking nonrecognition back in the U.S.

Proponents of marriage equality have long analogized the ban on gay marriage to a “whites only” water fountain from which only heterosexual couples could drink. Most white Americans would walk across the street to avoid drinking from a white’s only water fountain. Now heterosexuals must choose whether they will travel across a state line to marry in a jurisdiction that has taken down the “heterosexuals only” sign.

With a single stroke, the California Supreme Court has offered all Americans the right to marry without regard to sexual orientation or citizenship. The rest us of us are now challenged to construct an appropriate response.

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Posted 9:35 AM by Ian Ayres [link] (52) comments

Obama and the national conversation we are not having

Stephen Griffin

I hope everyone took note of the recent WaPo story about Obama volunteers running into some very ugly racial attitudes in states like Pennsylvania and West Virginia. I think President Bush gave an interview reported same day in the LA Times in which he said that race wouldn’t be an issue in the campaign unless the press made it an issue. I’m afraid the President along with the rest of us are about to receive a lesson about the persistence of bigotry and racism in a significant (though presumably minority) percentage of the voting public. The continuing political relevance of racial attitudes many think extinct is not news if you live, as I do, in Louisiana. Race relations in New Orleans (recently highlighted by Katrina) and Louisiana (highlighted by the case of the Jena Six) have been terrible for years. Here are a few thoughts informed by my southern experience on the national conversation we are not having and will likely never have.

Of course I’m referring to the national conversation that some expected to follow after Obama’s much analyzed March 18 speech on race in Philadelphia. That was never likely because the speech was occasioned by something that was essentially personal to Obama rather than an event that affected the nation as a whole. But the campaign to follow will focus the interest of most citizens. You might think this should have already occurred given record turnout, media interest, etc., but the nominating process is inside baseball compared to the upcoming carnival of the general election.

So it is likely there will be more incidents that will remind Americans who are paying attention that all is not well with race relations and the state of racial justice in this country. Aside from President Clinton’s one effort to get a conversation started in the context of affirmative action, there hasn’t been any presidential leadership on these issues for decades. But could the Obama candidacy be an occasion for improvement? My Louisiana experience cautions against it.

When a conversation or dialogue on race is mentioned, I always think about an experience I had shortly after moving to New Orleans in 1989. Sometime in the early 1990s, the local paper, the venerable Times-Picayune, ran an impressive series of special reporting on the state of race relations in the city. It sparked so much public reaction that the paper ran a second series composed of letters to the editor and other public comments. Overwhelmingly, blacks thought New Orleans had a serious problem with race relations. Overwhelmingly, whites thought discussing problems of race made matters worse. I would describe the white reaction as more indifferent than hostile. Their attitude seemed to be: what’s the point?

I can only dimly imagine the frustration I would feel if I thought that a conversation on race relations would make a material improvement in my life or the lives of my fellow citizens but it turned out there was no one interested in sitting down on the other side of the table. Many scholars and other people of good will have a lot invested in theories and practices of democratic deliberation, discussion, dialogue, and conversation. But they don’t work unless all parties are willing to engage. If racial trouble flares for Obama, blacks (and others, including many young people) will want to know why, after all this time and all the progress the country has made. They may get many well meaning responses, but they won’t get much of an answer.



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Posted 10:56 PM by Stephen Griffin [link] (55) comments

The Most Important Aspect of Today's Same-Sex Marriage Decision?

Marty Lederman

Today's California Supreme Court decision is certainly momentous, and worthy of celebration, for obvious reasons. It will, I think, come to be seen as part of the grand tradition of that Court, as exemplified by its bold 1948 decision in Perez v. Sharp, which prompted numerous states to abandon their anti-miscegenation laws, eventually leading to Loving v. Virginia. But wholly apart from the particular holding on same-sex marriage -- which is plenty important in and of itself, even if it has only a third of the precedential effect that Perez had -- it strikes me that the most significant legal development in the Court's decision is that it is (to my knowledge) the first time any state or federal court of last resort has held that discrimination on the basis of sexual orientation is suspect and thus subject to strict scrutiny under a constitutional equal protection clause. See pages 95-101 of the majority opinion.

There is a strong argument, I think, that the particular form of discrimination at issue here would be invalid even if viewed under a more forgiving "rational basis" lens, because there is no non-invidious, legitimate reason for the state to restrict the institution of "marriage" to single-sex couples -- which was in effect the holding of the Massachusetts Court in Goodridge.. (See pages 20-22 of this brief.)

But long after the question of same-sex marriage is considered by other courts, legislatures, and popular referenda -- indeed, long after the same-sex marriage becomes ubiquitous and as unremarkable as mixed-race marriages -- the Court's holding today that all discrimination against gays and lesbians is constitutionally suspect is apt to have profound ripple effects across a wide range of different legal contexts. Indeed, if other courts were to follow it, it would require states to provide "civil unions" to same sex-couples, with equal tangible rights and benefits, even where there is for some reason a state-law carve-out for "marriage" as such. And in California itself, this particular holding will have dramatic precedential effects even if the voters were to carve out an "exception" for marriage at the ballot this fall.

Here's the key, landmark holding:

There is no persuasive basis for applying to statutes that classify persons on the basis of the suspect classification of sexual orientation a standard less rigorous than that applied to statutes that classify on the basis of the suspect classifications of gender, race, or religion. Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.

P.S. Important but little-remarked fact: Of the eight Justices in the majorities in Goodridge (Massachusetts) and In re Marriage Cases (California), seven of them are Republican appointees.
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Posted 6:57 PM by Marty Lederman [link] (55) comments

Why John McCain Needs The Living Constitution

Guest Blogger

J. Rebekka Bonner
Yale Information Society Project

While delivering a graduation speech last week, John McCain stated that "the proper role of the judiciary has become one of the defining issues of this presidential election. The next president will nominate hundreds of qualified men and women to the federal courts, and the impact of these choices will reach far into the future." Contrasting his vision for America’s judiciary from that of Senators Clinton and Obama, McCain argued that he would nominate judicial candidates whose judicial philosophy and temperament are in the mold of Chief Justice Roberts and Justice Samuel Alito.

Elsewhere, McCain has argued for a "strict constructionist" philosophy of constitutional interpretation. What McCain means by "strict constructionism" is not entirely clear. A strong possibility, however, is that he is taking sides in the familiar debate between originalism and living constitutionalism; that is, he is arguing that judges should try to determine the original meaning of the constitutional text and then apply it strictly as it would have been applied at the time that it was written. This would make sense of his arguments that judges have arrogated too much power to themselves to decide what the Constitution means.

McCain’s choice of constitutional theories is particularly important because of the recurring debate about his own eligibility to serve as President. McCain was born in the Panama Canal Zone, then an unincorporated territory, to American citizens. Ironically, if we apply a "strict constructionist" philosophy of interpretation like that described above, it is likely that he would not be eligible to serve as our country’s President. Only if McCain embraces some form of Living Constitutionalism can he establish his right to run for the nation’s highest office.

The Meaning of "Natural-Born" Citizen: A Strict Constructionist Approach

The text of Article II of the Constitution states that only "natural born" citizens are eligible to serve as president. But to what concept does the phrase "natural born" refer? Taken by itself, the meaning of "natural born" is ambiguous.
Suppose we decided to be strict constructionists and sought to apply the words strictly as they would have been applied at the time of the ratification of the Constitution. How did the Founding Fathers understand the concept of "natural born"? While one letter from John Jay to George Washington dated July 25, 1787 described the clause as "a strong check to the admission of Foreigners into the administration of our national Government," the Founders failed to provide an independent definition of "natural born" at the time that they wrote the Constitution. The most straightforward argument is that "natural born" was a well recognized term of art, based upon the most commonly applied principle of traditional British common law dating from the 16th century. These distinguished between citizenship by birth and being "natural born" for purposes of such questions as the right to inherit and the right to hold certain offices. Under those common law rules children of British citizens born anywhere other than on English soil generally were eligible for birthright citizenship; however, they didn’t generally inherit their English parents’ own "natural-born" status. Because of these disabilities, Parliament made occasional exceptions, granting some (but not all) of the rights of "natural born" citizens to persons born overseas.

If we applied the common law rules in force at the time of the Founding, McCain fails to meet the "natural born" requirement for the Presidency. John McCain was not born on American soil; rather, he was born at a U.S. military base in the Panama Canal Zone. State Department policy states that "[d]espite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth." Moreover, all current U.S. territories (and Panama as a formal matter) are unincorporated, which means that they are not fully part of the United States and not all aspects of the U.S. Constitution apply automatically to them. Unincorporated territories (including Guam, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands) are treated as external possessions that, under the Supremacy Clause, receive only those powers that may be extended to them by the U.S. Congress.

Strictly construing the constitutional text, and applying it the way the Framers would have applied it, we would have to conclude that McCain is constitutionally ineligible to be president. But is this the right interpretive philosophy we should use to decide this question, or for John McCain to use when selecting federal judges?

McCain’s Presidential Eligibility Saved by Living Constitutionalism

On May 1, the U.S. Senate approved an unopposed nonbinding resolution reflecting its judgment that McCain should be considered a "natural-born" citizen for purposes of presidential eligibility. Legislation introduced earlier this year by Missouri Sen. Claire McCaskill and supported by Democratic candidate Sen. Barack Obama seeks to define a "natural-born" citizen as any person born to a U.S. citizen while serving in the active or reserve components of the U.S. armed forces. This would seem to indicate that a significant political consensus exists that under the correct interpretive approach to the Constitution John McCain is eligible to be president.

That interpretive philosophy is "Living Constitutionalism," which is premised upon the notion that the Constitution’s application to changing times and circumstances should be dynamic. A Living Constitution is a document that is flexible and was designed by the Founders to reflect the evolving realities of the society that lives under it and implements it.

To apply the Constitution properly to our current circumstances, we should try to examine and understand the larger principles behind the text. We must look to the entire history of our country and how circumstances have evolved since ratification of the Constitution. Requirements for U.S. citizenship (and even the definition of it) have changed markedly since the Constitution's ratification in 1789. In 1790, the Congress first recognized the citizenship of children born to U.S. parents overseas under the first naturalization law: "[C]hildren of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens." In the infamous Dred Scott case, the Court held that this act merely referred to a method of naturalization. Dred Scott, however, was overturned by the Fourteenth Amendment in 1868. The Fourteenth Amendment mentions two types of citizenship: citizenship by birth and citizenship by law (naturalized citizens): It says that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Since 1790, the Congress has continued to exercise its broad Article I discretion to confer citizenship through a series of bills. This legislation indicates Congress’s abiding belief in its power to denote who will be considered either birthright or "natural born" citizens. Existing citizenship case law illustrates the Court’s doctrinal acknowledgment of Congress’s ability to regulate conferral of citizenship beyond that birthright citizenship which is conferred by birth within the territory of the United States. Persons born in the United States, and persons born on foreign soil to two U.S. parents, are born American citizens and are classified as citizens at birth under 8 U.S.C. §1401. Current U.S. statutes define certain other individuals born overseas as "citizens at birth." Prudential arguments support the position that the best reading of the Constitutional text is one where the meaning of "natural born" is construed generously, and not strictly, to include foreign-born children of U.S. citizens. After all, John McCain’s example demonstrates that such citizens can be and are as much part of the American community as any other children born of American parents. It would not be faithful to the Constitution’s larger principles to exclude from the presidency children born abroad to U.S. military or diplomatic parents serving our country overseas while simultaneously holding that children born in the United States to alien parents would be eligible. Through a philosophy of Living Constitutionalism we can see that the best and most faithful interpretation of our Constitution is that John McCain is eligible to be President.


Conclusion: Fidelity and the Living Constitution

The irony of McCain’s defense of "strict constructionism" is that it leads to the conclusion that he isn’t eligible for the presidency. If that is the case, McCain will never have the opportunity to nominate any federal judges at all. But the strict constructionist model is the wrong one. We should decide this question, like other constitutional questions, according to the Living Constitution approach that reflects and is faithful to the document’s larger principles. McCain should keep these facts in mind when describing his vision of judges "with demonstrated fidelity to the Constitution."
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Posted 2:55 PM by Guest Blogger [link] (11) comments

Solum on Semantic Originalism: Take Two

Stephen Griffin

I am deeply grateful to Larry Solum for responding at such comprehensive length to the eight questions I posted about his article advocating semantic originalism, a genuinely new approach to the tangled debates over constitutional interpretation (a word used here in a general sense!). He must have set some sort of record by writing what amounts to an additional short law review article. Solum’s responses, detailed on his Legal Theory blog, show that I misunderstood his theory in several respects. So by way of apology, it is clear I did not pay enough attention to his explanation of “clause meaning” (by way of including concepts like federalism within it) and still have more to understand about the “contribution thesis,” the idea that in current practice, semantic content provides rules of constitutional law. I also very much appreciate Solum's kind remarks concerning my book, American Constitutionalism.

After reading Solum’s responses and further mature deliberation (my favorite phrase from Pierson v. Post), I think it is appropriate to take stock at a more general level. In doing so, I sincerely hope I don’t test Solum’s patience because it is not my intention to deny that he has written a truly significant, non-trivial (see below) contribution to constitutional law and theory, one that ought to provide some much needed clarity to very old debates. Ordinarily I might not carry the discussion to such a length, but for me this has been a nice warm-up to the forthcoming AALS Conference on Constitutional Law next month in Cleveland where Solum and I will be on a panel on constitutional theory (with Michael Dorf, Kermit Roosevelt, and Reva Siegel). If you are a constitutional law professor at an AALS school, I hope to see you there!

And now, on with the show.

Solum has done a better job than I ever could summarizing his long article in his recent postings. That said, it is useful to make three preliminary points. First, let’s notice the central importance in Solum’s theory of the distinction between interpretation and construction. Interpretation determines the semantic content of constitutional clauses. When interpretation reveals that the text is vague, we need “construction” to translate semantic content into rules of constitutional law. Many believe that relative to constitutional adjudication by the Supreme Court, vague constitutional provisions are where the action is. If the constitutional clauses typically adjudicated by the Court and argued over in scholarly discussion really are vague, then Solum holds that construction is appropriate. Now here is the key point. In his response, Solum acknowledges that this move “relocates many of the most interesting and important questions to the construction zone – the area in which constitutional vagueness is resolved.” This raises the issue of the relationship of Solum’s theory to traditional originalism (what Solum might call “old” originalism). We can’t address this issue properly until we know what is going on in the construction zone.

My second preliminary point is about the “fixation thesis.” Solum claims this thesis unites originalists and shows why his theory deserves to be called an originalist theory. So let’s mark it carefully. The idea is that all originalists agree that the meaning of a given constitutional clause was fixed at the time of framing and ratification. Because Solum holds that all (or nearly all) constitutional clauses have semantic content, this implies the content of all clauses, vague or clear, were fixed in this way. But, as just discussed, we can’t resolve all clauses into legal rules by using interpretation alone. Sometimes we need construction, a different process.

Finally, throughout his article Solum is concerned to show that his theory really is a form of originalism, that there is a meaningful connection between it and past originalist theories. He is also concerned to show that despite his apparent exclusive concern with semantically clear constitutional provisions, his theory is non-trivial. Let me get this out of the way at once: I have no doubt that Solum has produced a significant non-trivial theory that ought to be read by everyone conversant with constitutional theory. Having a theory that rigorously and comprehensively explains why “clear” constitutional clauses are clear is quite important. Or, by way of imitation, read Solum!

These preliminaries aside, let’s distinguish triviality from relevance. Solum’s theory is non-trivial because it tells us something important about how the Constitution is and should be interpreted. But is it relevant in a strong sense to the ongoing debate over originalism? In what follows, keep in mind I’m not advancing an objection to the main elements of Solum’s theory. Instead, I’m arguing that his theory does not relate in a strong sense to traditional originalism and thus cannot help with its many difficulties. In the past, originalists (and others) did not usually make the distinction between interpretation and construction. So how would we map traditional or “old” originalism onto these distinctions? It strikes me originalists were and are quite concerned to ensure that vague constitutional clauses like “freedom of speech” and “equal protection” comport with original meaning or intent. Of course, Solum has things to say here. Meaning for him is semantic meaning and that is of little help in the case of a vague clause. But let’s stick for a moment with how traditional originalists see things.

If nothing else, originalism is a theory of legitimate constitutional decisionmaking. The process of arriving at a legitimate constitutional decision must be originalist “all the way down.” So mapping traditional originalism onto Solum’s theory involves saying that constitutional construction, the process of producing rules of constitutional law, must be consistent with originalist evidence. Normally, we would say “consistent with original meaning (or intent).” But remember for Solum, meaning is determined only by interpretation and that is no help with respect to vague clauses. So construction does not determine meaning, it provides rules to decide cases. Still, it must be consistent with evidence from the past, from the time of original adoption. If it is not, the whole purpose of originalism would be frustrated. Let me be clear. Solum’s distinctions would stand as valid, but traditional originalists would have no assurance that the results of constitutional construction could be vetted by evidence drawn from the past. Traditional originalists are originalists through and through (although they may be willing to compromise their principles for practical reasons, see Justice Scalia). Is Solum an originalist in this sense? That is a harder question because his article is not centrally concerned with explaining constitutional construction.

What about the fixation thesis? At first glance, it looks absolutely consistent with traditional originalism. But a problem is introduced once you keep in mind Solum’s distinction between semantically clear provisions and those that are vague (although vague provisions do have a minimal or thin semantic content). Solum maintains meaning is determined through interpretation and that meaning can “run out,” fail to be determinative in the case of a vague clause. My read is that traditional originalists think originalist evidence controls the meaning and application of every clause in the Constitution. It does not run out (or that is unlikely). Of course, they might concede Solum’s non-normative arguments on meaning. The point, again, is that originalists are originalist all the way down. Vague clauses pose challenges that originalist evidence can overcome. So traditional originalists would say that the purpose of construction must be to fix the meaning of vague clauses. As I understand the state of play, this is like an oxymoron for Solum, but conventional wisdom for originalists. This means the fixation thesis is inconsistent with traditional originalism. To make it consistent, we would need to know much more about the process of constitutional construction. That’s where the action is.

So let’s go there. What happens in constitutional construction? Here is where we get to the question of interpretive pluralism. I have consistently advocated pluralism both as the best positive, or descriptive-explanatory theory of constitutional practice and as a normative theory. While of course these are different dimensions of analysis, interpretive pluralism satisfies both. Can traditional originalists take pluralism on board? Well, actually, no. To the extent Solum and the “new” originalists affirm pluralism in constitutional construction, they sever the cord with traditional originalism. And I think any proper understanding of Whittington and Barnett’s new originalist theories would show they do not and cannot affirm pluralism (I will also note in passing that I do not think Whittington, Barnett and Solum are all operating from the same page with respect to the meaning of construction—Whittington’s ideas are different from those of Barnett and Solum).

So it seems I have a major disagreement with Solum on this point. In his response, he says interpretive pluralism can be used in constitutional construction. Accepting Solum’s terms for a moment, I certainly agree the appropriate place for interpretive pluralism is constitutional construction. Pluralism was never advanced as a way to determine the semantic meaning of the Constitution. The problem is the acceptance of pluralism, at least in the sense advocated by myself and other scholars like Philip Bobbitt, is inconsistent with traditional originalism. You can have one or the other, but not both. Perish the thought!

How can I justify such dogmatism? As I explain in “Rebooting Originalism,” an article forthcoming in the Univ. Ill. L. Rev., new (and old) originalism tends toward exclusivity, the claim that originalism is the only (or at least primary) legitimate method of constitutional interpretation. You might ask how that can be on the positive side. Doesn’t everyone acknowledge that the Court uses multiple methods of interpretation? The problem is that originalists tend to see the multiple methods as easily reducible to the one true method, original meaning or intent. Text? The text is not autonomous of original meaning. History? That’s originalism! Precedent? Ultimately depends for its authority on original meaning. Structural arguments? Better be consistent with original meaning! And so on. Perhaps there’s some overlap here between positive and normative arguments, although it doesn’t matter for my purposes. I’m reporting my sense of the typical originalist approach.

And what of the normative side? Here one of us must be wrong because I think Solum misses the mark. He refers to new originalists having differences among themselves as to the normative ground of constitutional construction: “different normative views about constitutional construction.” First, if this is the case that shows there is no strong link between new and traditional originalism. Traditional originalists believe that originalism is indeed the primary method of interpretation (construction) that has been used (has always been used) to adjudicate the Constitution. Second, under the traditional view, originalism is the only legitimate theory and I do not understand Barnett and Whittington (in their books) to disagree. Thus, Barnett and Whittington advocate what I refer to as “exclusive” originalism and what Mitch Berman calls “strong” originalism. Further, if Solum were correct in these passages (page 27 of his Response), it would make the critique of non-originalism offered by theorists like Barnett and Whittington hard to fathom. Consistent with what I argue in “Rebooting,” “non-originalism” is best understood as interpretive pluralism. That’s what both new and old originalists must reject. Of course they must. To be an originalist means believing in just one legitimate method of interpretation or construction. Otherwise, the entire debate over originalism, non-originalism, etc. loses meaning. And there is indeed a debate.

I’ll close with a note on the modalities that is not aimed at anything Solum says. There is a widespread view that in his two books, Bobbitt offered a typology of methods of constitutional interpretation. A list, in other words, however elaborate. This is a mistake. The modalities are modes of understanding, ways of perceiving the constitutional universe (in the construction zone) inspired by the ways of understanding in the American legal system as a whole. This is shown by their persistence over time and the hold particular modalities have had over significant figures in American jurisprudence. Originalism is one such method. But only one.


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Posted 2:03 PM by Stephen Griffin [link] (5) comments

On being ashamed of one's country

Sandy Levinson

Every American should read a story in today's New York Times by Nina Bernstein aptly titled "Italian’s Detention Illustrates Dangers Foreign Visitors Face." Quite frankly, it is the kind of story one would expect to have a dateline of, say, Zimbabwe, China, the old Soviet Union, Myanmar, or Iran. Instead, it depicts our own fearful nation that has created a Kafka-esque "national security" bureaucracy that exemplifies every adage about power corrupting. The attitude of the US Government toward detainees seems all too exemplary of Roger Taney's unforgettable line about the juridical reality facing blacks in America in 1857: The had "no rights that whites were bound to respect." This is a fundamental rejection of what is best in classical liberalism, which is precisely that all individuals have rights that must be respected.

One can only wonder what Mr. Salerno must be telling his fellow Italians about the United States right now. Would it be shocking if he or his friends found himself/themselves saying (something like) "God damn America" for its willful and wanton cruelty to those it deems Others and, therefore, without those rights that we so pridefully accord fellow citizens (except, as with Jose Padilla, when we don't)?

I would like to think that there would be no real disagreement about the truly shameful injustice done Mr. Salerno. Do political conservatives really want to defend what in other contexts would be recognized as a fascist security apparatus?

[UPDATE: One should also read the book review in today's Times, "How Abu Ghraib Became the Anything-Goes Prison," by Michiko Kakutani reviewing Philip Gourevitch's and Errol Morris's new book Standard Operating Procedure. Especially chilling is the following:

In this volume Brig. Gen. Janis Karpinski, commander of the 800th Military Police Brigade at Abu Ghraib, is quoted as saying that General Miller told the soldiers at the prison: “The first thing I noticed is that you’re treating the prisoners too well. You have to take control, and they have to know that you’re in control. You have to treat the prisoners like dogs.”

This perfectly captures what can can only be termed the fascist mind-set. It might have begun at Guantanamo (or Bagram), but it has, alas, migrated far beyond Abu Ghraib, even if it would not be expressed so vividly as Gen. Miller put it.]




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Posted 10:10 AM by Sandy Levinson [link] (34) comments

Attempt at Show Trials--US Military--And Why it Failed

Brian Tamanaha

The following are passages from Military Judge Captain Allred’s recent findings of fact in US v. Hamdan (link to opinion can be found in Marty's post below):

During the interview, [Chief Prosecutor, Office of Military Commissions] Colonel Davis observed that the reputation of the commissions for fair treatment might be enhanced if there were some acquittals, as there had been in Nuremburg. Mr. Haynes [Legal Counsel, Department of Defense] responded "We can't have acquittals. We've got to have convictions. We can't hold these men for five years and then have acquittals," or words to that effect. Colonel Davis was surprised that Mr. Haynes did not appear to have considered the possibility of acquittals....

About 28 September of 2006, [Colonel Davis] attended a meeting of the Senior Oversight Group, held in the office of Deputy Secretary of Defense Gordon England. During one of these meetings, Mr. England said "there could be strategic political value in getting some of thee cases going before the [November 2006] elections. We need to think about who could be tried..."

On 18 July [Legal Advisor] General Hartmann announced that he was going to select the next cases to go forward. He wanted cases that would be "sexy" enough to capture the public interest, or cases in which an accused might have blood on his hand, rather than cases involving low level actors transporting documents, etc....

On 15 August 2007....General Hartmann directed that three cases be ready to refer [the day an anticipated decision comes down by the Court of Military Commission Review]. Colonel Davis objected that three cases could not be ready by that date, and thought it odd that the Legal Advisor should be directing a particular number of cases to be referred on a date certain. General Hartmann stopped the discussion by saying "I said we are going to have three cases ready on that day. Does everyone understand me?"

In an article published in February of 2008, Colonel Davis wrote that he had resigned because he concluded that "full, fair and open trials were not possible under the current system."

Captain Allred's legal findings:

The Commission is troubled by the following actions of the Legal Advisor that reflect too close involvement in the prosecution of commission cases:

Telling the Chief Prosecutor (and other prosecutors) that certain types of cases would be tried, and that others would not be tried, because of political factors, such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play.

Appearing to direct, or attempting to direct, the Chief Prosecutor to use evidence that the Chief Prosecutor considered tainted and unreliable, or perhaps obtained as a result of torture or coercion, was clearly an effort to influence the professional judgment of the Chief Prosecutor. While it is true that the trial judge is ultimately the gatekeeper for each item of evidence, each Prosecutor also has an ethical duty not to present evidence he considers unreliable.

The Legal Advisor's intimate involvement in the details of prosecutorial decision making have led one prosecutor to resign, another to seek ethical guidance from the Navy JAG ethics office, and has led both prosecutors in this case, and their former supervisor, to believe they were being micro-managed in both the performance of his duties and the exercise of their discretion.

Based upon these findings, Captain Allred ordered that the Legal Advisor be removed from further participation in the case, and ordered that the Department of Defense not subject any of the prosecutors who protested these actions to "any adverse consequences, professional embarrassment, unfavorable performance rating, or other disadvantage as a result of such participation."

Once again, we see an instance where higher-ups in the Bush Administration with no respect for the rule of law are resisted by lawyers in the trenches who refuse to do their bidding (at the cost of their professional careers). As disgraceful as is the conduct of the former, we must celebrate and be thankful for the conduct of the latter.


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Posted 8:44 PM by Brian Tamanaha [link] (19) comments

New Media as a Counter to Old Media Concentration

Neil Netanel

My previous posts have looked at newspapers’ decline in the face of Internet competition and have bemoaned the consequent impairment of the press’s ability to serve as a vibrant fourth estate. Here I present the other side of the coin. I argue that new media, including search engine aggregators like Google News and, indeed, peer-to-peer file swapping networks, perform a valuable First Amendment function of loosening media conglomerates’ hold and providing opportunities for a more diverse range of speakers to reach an audience. I point not just to the institutional press, but the news and entertainment media as a whole.

Many have lamented media consolidation, and it does certainly appear that the media industries that dominate public discourse have reached levels of concentration that are deleterious to both competition and expressive diversity. As I report in Copyright’s Paradox (but have not checked to see if I need to update for this post), four major record labels control some 85 percent of the U.S. record industry market (held at four rather than three only because regulators refused to approve the merger of EMI with Time Warner), six major studios consistently garner well over 80 percent of domestic box office market share, and ten publishing houses enjoy oligopoly domination of the trade and paperback book markets. Further, almost all the dominant firms in each area are part of a media conglomerate with affiliates in the other areas. These affiliates, which include content producers, aggregators, and distributors, extend and solidify the dominant firms’ control of the market. To complete that picture, ‘‘Big Six’’ media giants—CBS Viacom, Time Warner, NBC Universal (a unit of General Electric), Sony, News Corporation, and Disney—own all the major movie studios, the two largest record labels, and three of the top ten trade book publishing houses. A seventh global media conglomerate, Bertelsmann, is the largest trade book publisher, the largest record label (as part of its joint venture with Sony), and 50 percent owner of Europe’s largest operator of independent television stations. The Big Six conglomerates also own all five U.S. television networks and sixty-four cable television networks, which together account for 98 percent of U.S. primetime television advertising revenues. Not surprisingly, that oligopoly extends to television programming as well as distribution. Together with Liberty Media, which owns approximately 18 percent of News Corporation and 4 percent of Time Warner, the Big Six own more than four-fifths of prime-time programming. Likewise with motion pictures. Together with their dominance in film production, the Big Six own motion picture distribution arms that earn some 96 percent of U.S. movie theater rentals, reflecting the fact that independent studios must rely on the majors to get their films to theaters. Finally, the Big Six’s radio station holdings garner 65 percent of all U.S. radio advertising revenues.

Newspapers are even more highly concentrated on a local level, but less on a national level. Fewer than 1 percent of U.S. daily newspapers have a direct competitor in the same city. Nationwide, the top 10 newspapers garner 19 percent of circulation and the top 10 magazines receive 27 percent of magazine circulation.

Interestingly, as Matthew Hindman’s recent study shows, the Internet does NOT upend the concentration of newspaper readership. Twenty-nine percent of web traffic for news and media sites goes to the top 10 web sites, and for news web site traffic no less than print circulation, the top 50 outlets make up just less than 50 percent of the total market. Likewise, the Nielsen/Netratings listing of the top twenty most visited news Web sites for January 2008 indicates that, except for Yahoo News and Google News, all of the sites are individual sites of major American newspapers and broadcasters or news aggregation sites controlled by major American media. The Web does produce a long tail of many niche sites, but, if anything, it seems to amplify the power law concentration of consumer demand for the most popular sites.

Importantly, I think, the Google News news aggregation algorithm counters that demand side concentration somewhat. As reported by Newsknife, the top twenty sources appearing in Google News are also dominated by mainstream U.S. news media. However, they also include Reuters, Al-Jazeera, BBC News, and Guardian Unlimited, all based outside the United States and all presenting perspectives that are often quite different than those of U.S. news media. Those who search for news at Google News are thus potentially exposed to a greater diversity of opinion than online news site readers otherwise partake.

In making it possible for users to search for and to gain access to hundreds of thousands of sound recordings and videos, file trading networks have much in common with search engine aggregators like Google News and, indeed, Google. BigChampagne file trading measurement shows that, as with Google News search results, file trading network downloads are dominated by popular commercial media hits. But peer-to-peer file trading networks also create openings for authors and artists who are not affiliated with major labels, publishers, and studios to reach a sizeable audience. They likewise afford an outlet for the creative appropriations, remixes, and mashups that, through digitally intertwining elements of disparate well-known works, have emerged as a potent art form and occasional vehicle for social critique and political commentary. So alongside their highly controversial facilitation of massive unauthorized copying of copyrighted expression, peer-to-peer file trading networks, like social networking, user-generated content, search engine, and content aggregation sites, may well serve the salutary function of enhancing expressive diversity.


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Posted 4:42 PM by Neil Netanel [link] (2) comments

What Is The Nature of Law?

Brian Tamanaha

On Legal Theory Blog, Larry Solum just posted another excellent lexicon entry, this one on "The Nature of Law." As usual, his explanation is concise and informative. Solum lays out the traditional legal theory debate over "What is law?" as a contest between natural law theory and legal positivism.

One limitation of Solum's discussion is that it fails to consider the sophisticated analysis of this issue by social theorists and social scientists. Max Weber, Eugene Ehrlich, and Niklas Luhmann, for example, all highly regarded theorists who were well versed in natural law theory and legal positivism, went outside this standard debate to answer the question "What is law?" in terms of the social forms and functions of law.

Another limitation of Solum's discussion is that it treats the question "What is the nature of law?" as equivalent to the question "What is law?" But these are not the same question. If one takes the position that "law" has no "nature," that opens up a different angle on "What is law?"

These comments are not criticism's of Solum's summary of the legal theory debate over "What is law?," for he faithfully reproduces the basics of that debate (which he might go beyond in promised future entries). The problem is with the dusty old, artificially narrow parameters of the debate itself. A broader look at the question "What is law?" can be found here.

[Type the rest of your post here.]

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Posted 10:04 AM by Brian Tamanaha [link] (7) comments

What Liberal Constitutionalism Has Going For It

JB

I would amend Orin Kerr's remarks about liberal constitutionalism slightly. There are three things liberal constitutionalism has going for it, three reasons why it is superior to the snake oil that Justice Scalia has recently been selling in public.

First, liberal constitutionalism is committed to protecting people's rights-- rights that most Americans have come to take for granted, including freedom of speech and equality for blacks and for women. Justice Scalia's originalism can't account for many of these results except as mistakes made by previous judges that we are stuck with. Orin rightly emphasizes the power of the populist belief that We the People decide how we will govern ourselves. I would add that belief in basic rights as every bit as populist-- and deeply rooted in American traditions-- as belief in majority rule. The Declaration speaks of equality and inalienable rights even before it talks about the consent of the governed. It tells us that protecting rights is why governments are formed. We live in a rights culture; people don't like it when their rights are abridged. And history shows that Americans will fight for their rights if they believe that governments threaten to abridge them. Protection of rights and consent of the governed are two key ideas of the Declaration. We must keep both in mind in understanding why our Constitution is great.

Second, Scalia's story about America is deeply pessimistic. As he has written, the Constitution is a set of constraints designed not to permit evolution but to prevent rot. We stick to the original expected application because the founders feared a more brutal time and wanted us not to become worse than them. But Americans are optimistic: they believe that America can and will get more just and more free over time. They think of history as a continuous struggle for greater justice and equality. That is why they are proud of Brown v. Board and the civil rights movement: both symbolize the progressive story of American history. Liberal constitutionalism is at its most appealing when it is most optimistic about the country and about its improvement through history. Those changes came both through new laws passed with the consent of the governed and through the judiciary's expansion of constitutional rights. The two trends are not opposed. They work together. The judiciary expanded constitutional rights as the country demanded greater recognition for those rights. That is the real story of the Civil Rights era. In this sense, there is no contradiction between the Declaration's two great ideas.

Third, Orin is right that Americans believe strongly in democracy. What most Americans may not realize, however, is that a commitment to original expected application, taken seriously, limits democracy because it drastically restricts the power of national majorities to protect citizens and prevent abuses and injustices. Scalia's model of original expected application casts into doubt many of the democratic achievements that Americans have come to expect and are proud of. If you apply the constitution the way the framers expected, the Civil Rights Act of 1964 is unconstitutional. So too would be national environmental laws, federal consumer protection laws, federal protections against sweatshops and employer abuses, even Social Security.

Scalia well knows that strictly applied, his version of originalism produces results that would be unpalatable to most Americans. He accepts the New Deal not because he thinks that it is faithful to the original meaning but because he agrees that we have to keep the nonoriginalist precedents that permitted it around. They are all mistakes but we have to accept them. So he routinely accepts expansive federal power that is well beyond what the framers would have imagined. That is why he calls himself a "faint hearted originalist." But "faint hearted" is another way of saying "my principles are wildly unrealistic and I throw them out the window whenever they would be too politically embarrassing."

In fact, Scalia isn't really an originalist at all. He is what I would call a "New Deal/Brown originalist." That is, he is a conservative who accepts the New Deal and very basic elements of the civil rights revolution because all Americans have come to accept them, but insists that we go no further down that road. Scalia is not defending the framers; he's actually defending a conservative version of the constitutional status quo circa 1960. There is no particular reason to defend the Constitution of 1960 from further change. It is certainly not the framers' constitution. And it is not our Constitution.

Scalia may say his originalism is respectful of majority rule, but he is perfectly happy to strike down lots of laws for which there is little basis in the original expected application: Affirmative action and commercial speech are two examples; Bush v. Gore is another. Scalia says that his philosophy leaves decisions to We the People, and only imposes limits the framers would have imposed. To quote his own opinion in Lawrence v. Texas: Do not believe it. Scalia picks and chooses when to apply his originalist rhetoric, to strike down laws he opposes and uphold laws that he likes or that he realizes would be to embarrassing to strike down. There are several things we might call this, but judicial restraint isn't one of them.

By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution's text and principles, and apply them faithfully to new circumstances and new challenges.

Perhaps most important, these principles aren't particularly liberal principles. They are constitutional principles that both liberals and conservatives can accept. If you wanted a slogan for a twenty first century constitutionalism, that would be a pretty good start.

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Posted 8:59 AM by JB [link] (56) comments

Learning to Link: The Military Commission Decision Disqualifying the Legal Adviser, Brig. Gen. Thomas Hartmann

Marty Lederman

On Saturday, the New York Times reported a major development in the military commission proceeding against Salim Hamdan, something it properly called "a new blow to the Bush administration’s troubled military commission system": On Friday, the Commission disqualified from the case Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, because General Hartmann had indicated that political considerations should be brought to bear on prosecution decisions, and because Hartmann had also pressed for the introduction of evidence that had been obtained by use of waterboarding and other forms of torture and cruel treatment. As the Times reported:

[Military judge Capt. Keith J. Allred of the Navy] said the general was too closely aligned with the prosecution, raising questions about whether he could carry out his role with the required neutrality and objectivity. Military defense lawyers said that although the ruling was limited to one case, they expected the issue to be raised in other cases, potentially delaying prosecutions, including the death-penalty prosecution of six detainees at Guantánamo Bay, Cuba, for the Sept. 11 attacks. Critics of the military commission system said Friday that the judge’s decision would provide new grounds to attack the system that they say was set up to win convictions.

* * * *
General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantánamo military prosecutor, Col. Morris D. Davis of the Air Force. Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture.

“National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantánamo judges are not typically released publicly until days after being handed down.

Note the bolded phrase near the end: The judge's opinion was "not released publicly" but was "obtained by the Times." I'm not sure what it means for an opinion to be issued but not to be "released publicly." It wasn't classified; and presumably it was both entered on the docket and provided to counsel, which seems like a "public" release to me. In any event, it appears not to have been publicized by the Commission, or otherwise by the Department of Defense, and therefore it was an important public service for the Times to report it.

The weird thing, though, is that the Times did not provide its readers with a copy of the opinion itself. Nor did the Wall Street Journal in its story. Likewise the Associated Press and the Washington Post. (The Post story oddly states that "[t]he ruling was first reported by the New York Times yesterday." When the Supreme Court issues its decision in Boumediene next month, will the Post report that "the ruling was first reported by SCOTUSblog"?) Reuters and UPI apparently did not even see the opinion themselves, let alone provide it to their readers: they merely reported on the Times story about the decision.

This morning, the Times has published another sharply worded story about Judge Allred's decision, explaining how it is "a major new challenge to the Bush administration’s legal approach to the war on terrorism." And yet, although this story has plenty of links to other stories and sources, it, too, fails to link to the judge's opinion -- which is, after all, the subject of the story.

As far as I can tell from a quick Google search, the only sources that actually bothered to provide their readers with access to Judge Allred's opinion were the Miami Herald and the National Institute for Military Justice. (Those are links to the opinion. The Herald story is here.) Kudos to them. It would be nice if the remainder of the mainstream media finally figured out that they would well serve their readership (and demonstrate respect for that readership) if they provide access to the legal documents that are the subject of their breaking news stories. Hyperlinking: It's not just for bloggers any more.
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Posted 3:06 AM by Marty Lederman [link] (22) comments

Close Enough for State Park Historical Society Work

Michael Stokes Paulsen

Yesterday was my daughter's fourth grade class field trip! Not having a real job, I was able to go along. We bicycled down the Mississippi on a (rare) beautiful Minnesota spring day, to Fort Snelling. Among the presentations was a short talk about the Fort's "most famous residents," Dred and Harriet Scott. I listened with great interest -- and some amusement. Here is my rough paraphrase of the young guide's presentation. For Balkinization Fun: How many things are wrong with this picture? (Yes, you may participate even if you've written a book about the case.) :-)

" This [recreated] room is where Fort Snelling's most famous residents lived, Dred Scott and Harriet Scott. [Pictures held up.] They were slaves of Captain John Emerson, who was a surgeon. He brought them here from Missouri, which was a state that had slavery. This was Captain Emerson's kitchen, and the Scotts lived in this room, with the two daughters they had here. Those daughters became his slaves as well. Now, there weren't many options for slaves. They could run away, but they could be hunted down. But have any of you heard of the Underground Railroad? [brief discussion]. That was where people helped slaves escape to states in the north, where slavery was prohibited."

"Now Fort Snelling is in the north, but Minnesota wasn't a state yet. It was federal territory. Several years before, when Missouri was admitted as a state where slavery was permitted, Congress had passed a law saying that slavery would be illegal north of Missouri but legal south of Missouri. So Captain Emerson was breaking the law when he brought Dred and Harriet here, wasn't he?!"

"Now, when the Scotts got back to Missouri, they did something very brave. They sued the United States Government. They said that they should be free. But Missouri was a slave state. Do you think they could get a fair trial there? All the judges and the juries owned slaves! They lost their first trial. But then they appealed and had a second trial. But they lost that one too. Finally, they appealed to the U.S. Supreme Court. It took 11 years! And all that time, the family was in trouble, in hiding, and in jail. Now how old are you? 10? So the case took longer than you all have been alive, and all that time the Scotts were in hiding or in jail."

"Now it took a lot of money for them to get their case to the Supreme Court. They could have bought their own freedom, but instead they spent the money to take the case to the Supreme Court, because they knew their case would affect all slaves in the whole country. Whatever the Supreme Court decided would be a new law for the whole country. But you know what happened? The Supreme Court said that slavery had to be legal everywhere [and that the Missouri Compromise was unconstitutional]. So now there was going to be slavery everwhere, even in the northern states!"

"That led to a big war. Does anyone know what that war was called? That's right -- it was the Civil War, between the states that had slavery and the states that didn't have slavery. And after that war, which the North won, slavery was abolished by the Fourteenth Amendment."

"The Scotts lost their case, but they bought their freedom anyway [and lived happily ever after]."

I didn't want to be one of those parents -- you know the type. (Heck, maybe you are the type!) And there really was a lot of mostly-right, useful information, good for fourth graders, in the presentation. (It's not much worse than most textbooks I've seen, including several college and law school texts.) So I just sat there and smiled.

Then we went on the blacksmith shop, which was really cool. The guy made a nail, right there before our eyes! And I got to hang on to it, all the way back on the bike ride to the Dairy Queen!

Michael Stokes Paulsen



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Posted 11:05 AM by Michael Stokes Paulsen [link] (15) comments

What's A Theory of Constitutional Interpretation For, Anyway?

JB

I've argued that the major constraints on judicial practice in contested constitutional cases come not from specific theories of interpretation but from institutional features of the American constitutional and political system:

First, judges are subject to the same cultural influences as everyone else—they are socialized both as members of the public and as members of particular legal elites. Second, the system of judicial appointments and the practices of partisan entrenchment determine and limit who gets to serve as a judge. Third, lower federal courts are bound to apply Supreme Court precedents. Fourth, the Supreme Court is a multi-member body whose decisions in contested cases are usually decided by the median or “swing” Justice. Over time, this keeps the Court’s work near the center of public opinion.

This combination of internal and external features constrains judicial interpretation in practice far more effectively than any single theory of interpretation ever could; it does much of the work in constructing which constitutional interpretations are reasonable and available to judges and which are “off the wall.” Equally important, this combination of internal and external factors keeps judicial decisions in touch with popular understandings of our Constitution’s basic commitments, continually translating, shaping and refining constitutional politics into constitutional law.

If all this is true, Brian Tamanaha asks, what is the purpose of theories of constitutional interpretation? After all these features will operate whether judges are originalists or non-originalists, pragmatists or common law constitutionalists. As it so happens, I've written on precisely this subject in a recent article:

One of the reasons I have spent so much time thinking about the practices of constitutional change is that I do not think that one can usefully engage in normative constitutional theory without paying at least some attention to what positive constitutional theory teaches us. To put it simply: ought implies can. We should not expect from judges—or from the constitutional system for that matter—practices of constitutional decisionmaking that they simply cannot provide. And we cannot adopt a theory of constitutional interpretation that the actual system of constitutional law could never be faithful to. We know that constitutional law and doctrine have changed markedly in many different areas over time. We also know that constitutional doctrine responds to the work of social movements and political parties and tends to reflect the vector sum of the dominant political forces of the time. A theory of constitutional interpretation that cannot account for these features of our system of constitutional decisionmaking will be inadequate to the task. Hence normative theories of constitutional interpretation must do different work than most law professors currently think they do.

The most important function of theories of constitutional interpretation is not to constrain judges in difficult and contested cases. Constraint mostly comes from other institutional features of our political system. Rather, normative theories about constitutional interpretation are important because they help us understand and express claims about the legitimacy or illegitimacy of our current constitutional arrangements, precedents, and practices. Call these the Constitution-in-practice. In a constitutional culture like our own, many different people have ideas about what they think our Constitution stands for. Theories about how to interpret the Constitution offer us a language to defend and criticize parts of the Constitution-in-practice with the hope of moving it closer to our ideals of what the Constitution should be.

Citizens’ ability to make claims on the Constitution and to demand that existing arrangements conform to their views is important to maintaining its legitimacy over time and to serving as “our law”—that is, as a common object of fidelity and attachment. The Constitution maintains its legitimacy to the extent that people with very different commitments can reasonably view it as sufficiently worthy of their respect and obedience so that all of them can enjoy the benefits of the rule of law, social cooperation, and political union. Different citizens, from their varying perspectives, must be able to see that the constitutional system, understood in its best light, is sufficiently just that they can accept it as theirs, or—if it is not currently sufficiently just—they must be able to have faith that it could become so in time.

The Constitution-in-practice, however, may fall well short of these standards. And things may get worse, not better, over time. Therefore citizens must have ways to critique our existing arrangements, to talk back to courts and other political actors, and to persuade their fellow citizens about what the Constitution requires. They need tools to help identify what features of existing arrangements are sufficiently faithful to the Constitution and what features are not faithful.

Theories of constitutional interpretation form part of this tool kit. They offer platforms, concepts, and languages for legitimation, critique, persuasion, dissent, and mobilization that might promote eventual constitutional reform. These activities—legitimation, critique, persuasion, dissent, and mobilization—are central parts of our shared (and perpetually contested) constitutional culture. They matter both to the legal profession and to the political life of our nation. No doubt lawyers, judges, and legal academics will probably develop more sophisticated and complicated theories about interpreting the Constitution than most ordinary citizens. But citizens in a democracy must also have their own understandings and opinions about what makes constitutional claims—and existing arrangements—faithful or faithless to the Constitution.

Thus, theories of constitutional interpretation serve two basic tasks—and the method of text and principle helps us perform both of them. First interpretive theories should let us explain why valuable features of our existing constitutional arrangements are faithful to the constitutional project correctly understood. There are many ways that the American constitutionalism might have evolved, depending on political, social, and economic contingencies. One goal of theories of constitutional interpretation is to explain and justify our existing forms of development in hindsight.

Second, precisely because the Constitution-in-practice responds to mobilizations, social movements and political parties may have promoted unjust and unconstitutional policies that become widely accepted and part of the Constitution-in-practice. (Think, for example, about the construction of Jim Crow as a constitutional regime that lasted for the better part of a century.). Therefore theories of constitutional interpretation should let us produce viable critiques of existing practices in the name of a deeper constitutional fidelity.

This second criterion is particularly important: It is not enough to have a theory of constitutional interpretation that explains why everything that has happened is perfectly fine. Such a theory will be nothing more than an apology for the actual; it will abdicate our political and moral responsibilities to be faithful to and to continue the constitutional project.

We need more than a theory that explains why many of the changes in our constitutional practices have been faithful to the American constitutional project. We also need a theory of constitutional interpretation for dark times—that is, times when our views of what the Constitution really means have been submerged and disrespected by the dominant forces in society. During such times citizens and members of oppositional social movements must obey positive law, but they do not have to accept it as correct or faithful to the Constitution. They can protest it in the name of the Constitution and work to change people’s minds. But to do this, citizens need normative leverage to challenge the existing practices of constitutional law so that they can restore or redeem the Constitution’s promises. Citizens need a way of grounding their claims about the Constitution that is independent from the Constitution-in-practice. Interpretive theories make it possible for people to pledge faith in the Constitution even though the Constitution-in-practice falls short of what think the Constitution is and should become.

Above all, citizens need a theory of interpretation for dark times because the present is always dark times for somebody’s vision of the Constitution. Often it is dark times for both sides of an ongoing national controversy like abortion or gay rights. For example, although I argue that the most faithful interpretation of the Constitution protects women’s rights to abortion, I know that many of my fellow citizens disagree with me. For them, the continued enforcement of abortion rights makes a mockery of the Constitution, just as for me the limitation or undermining of the