Hard Core Living Constitutionalism

Stephen Griffin

Because of Jack's recent posts on living constitutionalism this might be viewed as a response, but I don’t mean it that way. His posts have been a wonderful and much-needed contribution to our understanding of living constitutionalism. I am recommending them to my students.

I have been thinking about how to define a “strong”, “robust” or “hard core” version of living constitutionalism in order to distinguish it in a clear way from opposing views. This is difficult if living constitutionalism is defined in a watered-down way that makes it too easy for most (not all!) to nod heads and agree that the judiciary has adapted the often vague text of the Constitution to changing historical circumstances.

Hard core living constitutionalism means the Constitution and constitutional change should be described, explained, interpreted, and justified in a fully historicized way. Properly understood, living constitutionalism is a full context sport. Let’s take interpretation, since in the DC gun case oral argument we had an outstanding example of undead constitutionalism, the kind that doesn’t live but talks. When interpreting the text or a principle, concept or institution (such as federalism, separation of powers, sovereignty) we first ask whether the context in which that phrase or principle is interpreted has changed since 1787 (or when adopted). Among other points, this means asking whether the asserted state purpose existed in the eighteenth century. This is especially relevant in the case of gun control because the change in circumstances has been so dramatic. In 1787, cities were not the complex urban areas they are now and professional police forces did not exist. The urgency present during my lifetime about crime control was not evident. Any approach that ignores this change in context will inherently undervalue the state purpose behind the legislation and privilege what we would now call a libertarian theory of the state.

And isn’t that what happened at oral argument? As Dahlia Lithwick recounts, more time was spent on grizzly bears than crime control, despite Justice Breyer’s efforts. I would have thought a little more attention was due on the part of lawyers arguing for DC to the threat guns can pose to police officers. Focusing on police helps make the point about the difference between the eighteenth century and today. Unless we are talking about an absolute right, a right so important that the state justification is irrelevant, the justices must always consider the rationale behind the legislation. But if the rationale is not reasonably analogous to any eighteenth-century purpose, making originalist analysis the sole touchstone will be biased against the state. That might be catnip for libertarians, but that doesn’t describe the constitutional law status quo.

What happened in Heller makes me more sympathetic to Jeremy Waldron’s critique of judicial review. Is there any area of policy where we would accept no evidence beyond what happened in the eighteenth century? The kind of discourse that results looks a bit lunatic from the outside.

Ignoring context and paying attention only to eighteenth century evidence also harmed deliberation over the Clinton impeachment. Scholars were so fascinated with the eighteenth century meaning of “high crimes and misdemeanors” that they forgot to analyze closely the relevant prior impeachments of Presidents Johnson and Nixon. As a result, they missed what was really different and dangerous in the Starr investigation – that it could have easily morphed into the first indictment and prosecution of a sitting president.

The same tendency has plagued the debates over presidential powers in wartime and the president’s power to initiate war. More attention has been shown to episodes such as going after the Barbary pirates and the Civil War than to the changes in the U.S. role in the world (and renewed attention to moral values such as those in the Geneva Convention) after World War II.

Over time, we have acquired experience with what constant resort to an eighteenth century baseline means. It leads to “law-office history”, just-so stories about framers’ intent, and a relentlessly “Whig” approach to U.S. constitutional history in which the winners are always imbued with contemporary values. It also leads, believe it or not, to Supreme Court justices actually ignoring changes made by subsequent amendments, as in the Burger and Rehnquist Court federalism opinions that failed to mention the fourteenth amendment.

Context matters not just because the Constitution is vague in some respects, but also because it is short. It was deliberately not an attempt to settle a vast array of policy questions in the manner of our state constitutions. By and large, it leaves questions of policy for politicians. But contexts for policy change. Unless we want to keep having constitutional debates set in an eighteenth-century policy context, we must consider a role for changing circumstances in constitutional interpretation. Changing circumstances include subsequent amendments, precedents, and key constitutional events, the sum and substance of a constitutional tradition that connects us with the past but is not derived from it exclusively.





Posted 10:05 PM by Stephen Griffin [link] (21) comments

Is There Any Way to Fix Legislative Oversight of Intelligence Operations?

Marty Lederman

In his new book, Eric Lichtblau accuses Rep. Jane Harman of having supported the NSA wiretapping program until it was revealed, and then hypocritically opposing it thereafter. In defense, Harman gives this story, which sounds plausible:

1. She and seven other members of Congress were told the basic outlines of the program.

2. They were instructed that they could not tell anyone else -- including their staffs and other members of Congress.

3. They were assured by the Administration that the program "complied with the law and that the senior-most officials in the Justice Department conducted a full legal review every 45-60 days."

4. "The Gang of Eight was not told – nor did it occur to me – that the Administration was violating FISA, despite Congress’ clear legislative intent when FISA was passed that it was the 'exclusive means' for monitoring the communications of Americans connected to foreign intelligence."

5. When the New York Times broke the story, Harman "was finally free to consult constitutional experts on the legal issues it raised. My call to a former CIA general counsel that Saturday provided the first inkling that the program was in not compliance with FISA but was conducted pursuant to claims of 'inherent' executive power. To this day, I have not been shown the memoranda produced by the Office of Legal Counsel to support the basis for the program!"

6. Once she learned that the program was a violation of FISA, she opposed it.

This is basically the exact, same sequence of events that occurred when Harman learned of the CIA interrogation program: The problem is systemic. (Really, the parallels are uncanny. Go back and read that post.)

Actually, there are at least two very basic, huge problems here:

First, Harman and the other seven members of the Gang of Eight themselves are not only far, far too cozy with the intelligence community they are overseeing, and far too credulous of what they are told (even after repeated incidents such as this one), but, more to the point, they know far, far less about the law they are overseeing than do the officials in the Executive branch who are implementing those laws. As soon as the NSA program was publicly revealed, literally hundreds (if not more) lawyers and others realized that its legality was highly questionable -- and we all presumably had far less knowledge of the details than Harman did. But for some reason, it did not even occur to Harman that the program described to her might be legally tenuous. She took DOJ's word for it.

Second, and more importantly, even if Harman had had doubts about the legality of the program, what could she have done about it? She couldn't speak to her staff, to her colleagues, or to anyone else well-versed in FISA or the law generally. If she had insisted on seeing the OLC memoranda -- which she certainly should have done -- what could she have done when the Administration refused to provide them (as it has continued to do to this day)? If she had told her staff and colleagues, the Administration would have ceased to brief her on classified matters (notwithstanding that that would be unlawful) -- and then the whole point of the oversight enterprise would have been defeated.

As I've previously written, the pattern is by now very familiar. Whenever the Administration begins to do something of dubious legality, it:

1. sends to Congress messengers who the Intel committees trust -- solemn, serious, professionals, often uniformed military officers

2. to inform a very select, small number of legislators of the conduct -- legislators who have developed close and trusted relationships with the intel officials briefing them and who are, quite understandably, loathe to undermine such relationships, which do, after all, facilitate trust, access, and oversight itself

3. and to provide such briefings after the conduct has commenced

4. in a highly classified setting

5. putting the conduct in its best possible light -- in particular, making sure to insist that it has prevented terrorist attacks

6. while assuring the legislators that it has been vetted by the lawyers and is legal

7. without showing the legislators the legal analysis supporting the conduct

8. without disclosing the legal arguments that cut the other way

9. without informing the legislators of any policy-based or legal dissent within the executive branch

10. while warning the legislators that they may not legally breathe a word of it to anyone -- certainly not to staff, or their fellow legislators, nor to experts outside Congress who might be able to better assess the legality and efficacy of the conduct

11. and while insisting that the legislators cannot second-guess the need for classification and secrecy, even in cases -- such as with respect to OLC opinions concerning what techniques are lawful and which are not, and with respect to conduct that has been revealed to the enemy already -- where there is no legitimate justification for the classification.

The reaction from the Intel Committees is, alas, predictable: Muted, furtive and internal (i.e., entirely ineffective) protest, at best. More often than not, acquiescence and encouragement.

Harman is correct that the post-Watergate oversight system was ostensibly "designed to position Congress and the courts as an effective check against unfettered executive power." But the Administration circumvented the courts; and there is literally almost nothing the Gang of Eight can do when they are presented with troubling but classified information. As I've previously written, even if Harman had been convinced that the CIA or NSA was engaged in unlawful conduct, the system as it is presently constructed gives her very little opportunity to do anything about it -- not, anyway, without serious ramifications, and accusations of revealing classified information.

What to do? Here's what I've previously written; I'd love to hear others' ideas:

The question of how, exactly, to reform the intelligence oversight process is a very important and complex one -- but it's something that is rarely debated in public, and even more rarely contemplated at academic settings and in law schools. [UPDATE: I should have mentioned that such discussions and proposals are not entirely unheard of. See, most importantly, section 13.4 of the 9/11 Commission Report, and this related paper, published in the California Law Review, by Anne Joseph O'Connell of Boalt.]

Far be it for me to lay out a definitive framework for reform, but it might include some or most of the following components (this is just off the top of my head; please consider it a rough work-in-progress):

1. Strict requirements of notification before dubious conduct is undertaken (or in truly exigent circumstances, immediately thereafter). That's basically the law now, with respect to covert action and other aspects of intelligence activity, but the Executive branch regularly bends and flouts the requirements, and Congress does little or nothing to enforce them.

2. Notification and reporting to the entire Intelligence and Judiciary Committees -- the "Gang of Four" and "Gang of Eight" rules have proven to be a recipe for disaster. What are the "Gangs" supposed to do with the information, anyhow, if they can't even share it with their colleagues on the Committees? Can you imagine limiting the information within the executive branch to only the President and three or seven agency heads?

3. Significant changes in the classification standards and practices. At the very least, OLC legal opinions should be public, with appropriate redactions to protect sources and agency methods and technological capabilities that are genuinely unknown. Conduct that is revealed to persons outside the government -- such as the way we treat detainees -- should not be classified.

4. A serious, workable mechanism for congressional revelation and public oversight of suspected wrongdoing, including rules, which Congress might codify, to allow Congress to question particular classification decisions.

5. Meaningful recordkeeping and related requirements. There's no good reason that a law should not be enacted requiring that all interrogations be videotaped, for instance. Such a thorough record is good for intelligence; it's good for law enforcement and trials; it's good for oversight; and it deters unlawful conduct.

6. This might be the most important item: choosing Committee members, and counsel, who know as much about the relevant law governing the intelligence agencies as the relevant actors in the executive branch do. As it stands, there is a huge disparity in expertise and understanding. Congress cannot possibly provide sufficient oversight unless the people receiving the information are as conversant with the legal landscape as are the intelligence agencies and the lawyers in the Justice Department. And congressional counsel must be afforded access to the same information provided to the members of the Committees. Can you imagine if the professionals and the counsel within the executive branch were denied any knowledge of what goes on in the intelligence agencies? Well, it makes just as little sense on the legislative side, too.

7. The members of the Committees must be willing to use the leverage they have to obtain information that the executive branch refuses to share. In recent days, Senator Rockefeller, for instance, has been heard complaining that he has repeatedly asked the Administration for memos, documentation, etc., regarding the CIA interrogation program, only to be rebuffed at every turn. The committees are still seeking authorization to make public the OLC memos on interrogation and surveillance -- but no such permission is forthcoming. But yet Rockefeller, et al., then go ahead and push through the Military Commissions Act; they work to grant telecom immunity; they cooperate with the Administration on FISA "reform"; etc. At every turn, that is, they cooperate to give the Administration most of what it wants in terms of legislative amendments. They should, instead, insist that they will not even consider such proposals unless and until the Administration comes clean with all of the information and documentation that the Committee has been requesting for several years.

* * * *
Some or all of these suggestions may be terribly misguided -- I more or less jotted them down off the top of my head. And perhaps I've neglected to focus on several much more important items. One thing's for sure, though -- the current system is woefully inadequate, and cries out for serious reform proposals.

Posted 7:38 PM by Marty Lederman [link] (22) comments

My Advice to Judges (For What it's Worth)

JB

Eric Posner remains insistent. He wants to know what I would tell judges about how to decide cases consistent with my views of the living constitution. As described earlier, I think that living constitutionalism is a theory about the legitimacy of the constitutional system as a whole rather than a theory that secures legitimacy by instructing judges to decide cases this way rather than that way. But Eric is certainly right that this emphasis does not exclude the possibility of giving judges general forms of advice as participants in the legal system. It's just that I don't think this sort of advice does much good for judges who are already well socialized into the mainstream of legal culture, and these are about the only sort of people who tend to get positions as judges in the first place. But Eric will not be denied: he wants an answer, so I guess I have to give him something.

Nevertheless, I should warn him that my advice for judges is, I fear, rather boring and humdrum; worse yet, I doubt it will help any judge decide any difficult case, for it will prove indeterminate in a wide variety of situations. I do wonder whether it will satisfy Eric:

1. Be faithful to the original meaning of the text of the Constitution and the principles that underlie it.

2. Make legal arguments using the modalities of text, history, structure, prudence, precedent and national ethos.

3. You are required to decide consistent with the text's original meaning but you are not bound by the original expected application of the text, although that may be useful evidence of original meaning or of the principles underlying the text.

4. Apply existing precedents as long as they reasonably implement text and principle, even if they are imperfect articulations of text and principle and even if you would have done things differently if you were writing on a clean slate.

5. Employ humility and charity in assessing constitutional interpretations of the past. Even if you think that previous jurists did not correctly implement text and principle, try to understand how their interpretations, read in their best light, might be faithful to the Constitution's text and principles.

6. Use the techniques of common law decision making to extend, limit, and revise doctrines and precedents to help keep them faithful to text and principle as you apply doctrines to new fact patterns and changing circumstances. Most of your work as a judge (and especially a lower court judge) will involve doctrinal development and application. Remember that doctrine and precedent should serve constitutional text and principle, and not the other way around.

7. When in the exercise of your best judgment, doctrinal encrustations and elaborations no longer adequately serve text and principle, or now conflict with them, you should overrule them and create new doctrinal solutions to implement text and principle. Once again be guided by the notion that doctrine and precedent should serve text and principle, and not the other way around. This advice about overruling previous decisions is of particular importance to members of the Supreme Court. If you are a lower court judge, you should do your best to accommodate your judgment in terms of existing upper court precedent.

8. Don't assume that judges are the only people who know what the Constitution means.

9. Pay attention to the tradition of conflicting interpretations of the Constitution that has been handed down to you as a potential source of enlightenment.

10. Do you best to live up to your judicial oath of office "to administer justice without respect to persons, [to] do equal right to the poor and to the rich, and [to] faithfully and impartially discharge and perform all the duties incumbent upon [you]."

Any questions, Eric?

Posted 2:55 PM by JB [link] (11) comments

Managing religion from Beijing

Lauren Hilgers

[Type the first couple of paragraphs of your post here.]

After some time of living in China, I have still not made it to Tibet, but I have a clear picture of the place in my mind. Maybe it was the 'Save Tibet' concert I went to college, but the image (one that I think I share with many Americans) intertwine mountains landscapes with elaborate monasteries and serene, saffron-robed monks.

In China's eyes, those monks and monasteries are much more subversive. Freedom of religion is guaranteed in China's current constitution, but the country's government has long sought to manage religious worship in the country, seeing it more often as a potential threat than as a right to be protected.

Their suspicion comes with a good deal of historical precedent--there have been a number of significant religious uprisings in China's past. A Taoist insurrection, for example, led by a group known as the "Yellow Turbans" contributed to the fall of the Han Dynasty. The Taiping Rebellion, led by a man who claimed to be the son of God in a unique interpretation of Christian tradition, took place just over a century ago, temporarily taking control of a swath of Southern China. (Tibet itself has a less-than-serene history, with a monastic and secular elite that went to great lengths to protect their feudal way of life during the early 1900s.)

[Type the rest of your post here.]

With reform and opening in China, the spread of religion became an accepted reality. China's deep suspicion of religious movements, however, with their ability to mobilize and influence Chinese citizens, remains. China’s solution has been to regulate all religious activity in the country, blending religious teachings with patriotic ones. In addition to local and provincial regulations, two important nationwide documents have been issued, the first, Document 19, outlines the general policy and attitude of the Chinese government toward religion. The concerns and history of that original document are well described in this post at Shanghai Scrap, a blog run by a friend of mine, Adam Minter, who is well-versed in China's religious policy.

The most recent, which went through a six-year drafting process, implemented nationwide regulations governing religion and religious organizations in 2005. These new regulations were heralded by party officials as a comprehensive framework for the practice of religion in China, protecting freedom of religion in the country. Much is left ambiguous in the regulations, however. “Normal” religious activities are permitted, for example, but no parameters are given for what “normal” might be. On the whole, the regulations continue a tradition of heavy government involvement.

Five religions are recognized in China: Buddhism, Taoism, Catholicism, Islam and Protestantism. Under the 2005 regulations, religious organizations and congregations must register with the local Religious Affairs Bureau, and sites for religious activity must be pre-approved. Registered groups can own property, publish literature, collect donations and (with some supervision) train and approve clergy.

Unregistered or unrecognized groups are another matter and are unevenly restricted throughout the country. Some may have contacts in local government and avoid any trouble with the authorities. Others are deemed too disruptive and labeled “evil cults.” These include groups like Falun Gong and a fair number of Christian sects. (Two such groups, Eastern Lightning and Three Grades of Servants, made international news after a violent clash left a number of believers dead a few years ago.) According to China’s Criminal Law "cult" members found guilty of disrupting public order may be sentenced to 3 to 7 years in prison. Leaders and recruiters may be sentenced to 7 years or more.

To ensure clergy are as dedicated to the State as they are to their religion, theological education is also closely controlled. According to the 2005 regulations, anyone wishing to study must do so at a government-recognized training institution for clergy. Potential students must demonstrate "political reliability," and all graduates must pass an examination on their theological and political knowledge to qualify for a position in the clergy. In Tibet, such an examination is reported to include a denunciation of the Dalai Lama.

In China's West, primarily Tibet and Xinjiang, the lines between religious fervor and secessionist leanings (or “splittism” as Chinese officials like to call it) can blur. As a result regulations in these regions have been drawn tighter. The Tibet Autonomous Region has its own set of strict implementation rules for the 2005 Religious Affairs Regulations. These implementation rules, valid as of January 2007, significantly tighten restrictions on the practice of Tibetan Buddhism. For example, nuns and monks may not travel across county lines without permission, and Tibetans may not begin religious training before reaching the age of eighteen.

From the rhetoric often heard from Zhang Qingli, the party secretary of the Tibet Autonomous Region, the tactic behind these tightened rules pits government directly against religion. "The Central Party Committee is the real Buddha for Tibetans," he said in a 2006 speech. In his earlier writings, Zhang also stated his goal is to ensure that “the constitution and laws enter the temple doors, the management systems and the minds of monks and nuns.” So far, those tactics have fallen flat.

Posted 11:21 AM by Lauren Hilgers [link] (6) comments

No Way to Run a Government

Marty Lederman

Eric Lichtblau, in an excerpt from his forthcoming book, confirms that the NSA wiretapping program was operated beneath an unprecedented and remarkable veil of secrecy. He confirms Jack Goldsmith's earlier testimony that the Deputy Attorneys General (Larry Thompson and then Jim Comey) were not permitted to be read into the program and, more astonishingly still, that the lawyers at the NSA itself were not permitted to see the John Yoo-penned legal opinions that provided the basis for the program the NSA was operating! (I can't even imagine what those meetings looked like: "No, really -- you guys do have the legal authority to secretly violate FISA; but we can't show you the legal theory why that's the case. Just trust us." And the NSA responded: "Oh, in that case, ok, we'll get right on it." Huh?)

The story also appears to confirm that the original Yoo legal theory was in effect that the President could disregard any laws he wished in deciding how to surveille al Qaeda. How often have we heard this?: "[Yoo's Opinion] was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers."

I don't think there's much more to be said about this that many of us have not already said multiple times over -- except that it remains scandalous that the Congress would even consider the Administration's requests for new legislation until the Administration has made public the entire set of OLC opinions on this issue and interrogation techniques, etc. (redacted, of course, to protect secret NSA technological capabilities). Congress has quite a bit of leverage here; they simply seem unwilling to use it.
Posted 9:17 AM by Marty Lederman [link] (9) comments

Let Felix be Felix

JB

I'm not quite sure how Orin Kerr got the impression that my account of living constitutionalism is designed to give advice to judges, since I point out in these two posts that that's really not the goal of the theory. In any case, he wants to know what advice I would give Justice Frankfurter:

Frankfurter [was] put on the Court by Roosevelt in 1939 back when judicial restraint was considered a liberal position. By the time Frankfurter left the Court in 1962, the Supreme Court's changing caseload had reversed the political valence of Frankfurter's model of the judicial role. Deference to the elected branches had become a conservative position rather than a liberal one. Would Jack have instructed Frankfurter that "times have changed," and that he needed to abandon his deferential approach? If so, why -- because Frankfurter was put on the bench to be a liberal, because new social movements were afoot, or both?

If you read the posts, you can see why I think Orin is asking the wrong question. First, judges have no obligation to decide cases because they were put on the bench to be a liberal, or a conservative, or a New Dealer, or an opponent of the New Deal. Now Presidents may nominate people to the bench because they expect or hope that they will decide cases one way rather than another, but that doesn't mean that the judges themselves have any obligation to do what Presidents tell them to do. There are certainly good reasons why we might predict that Antonin Scalia would vote in favor of restrictions on abortion, but he doesn't have an obligation to do so because he was appointed by Ronald Reagan or because pro-life forces pressed for someone like him to be appointed. This confuses a structural account of change with an individual's normative obligation.

Second, as I have tried to explain in agonizing detail, living constitutionalism is probably not best understood as a theory advising judges to "keep up with the times" or "adjust to changing conditions." There are usually many ways to do that, and they point in opposite directions. Nor is it best understood as a theory directed to judges and demanding that judges pay attention to or follow the demands of social movements or political mobilizations because there are usually multiple mobilizations often pushing on different sides of a question. Rather, living constitutionalism is primarily a theory about the legitimacy of the constitutional system taken as a whole: how and why constitutional doctrine changes in a way that preserves its legitimacy over time. Of course, judges may agree with particular political or social movements because of who they are-- which is why they may have been appointed in the first place-- and because they live in the same society as everyone else and therefore respond to changes in constitutional culture like everyone else. But that's not the same thing as saying that they should agree with one social movement or another. Again, this confuses a causal account of and a normative justification of systemic change with a normative obligation of a particular individual to behave in a particular way within the system.

So I don't see how my account of constitutional change gives Justice Frankfurter much advice at all other than to decide the cases consistent with the available tools of legal culture. I could certainly offer Justice Frankfurter substantive legal advice about how to decide particular individual cases. For example, I could explain why I think that the majority view in West Virginia State Board of Education v. Barnette is a better account of the purposes behind the First Amendment than the account he gives in the dissent. But I wouldn't tell him that he had to decide Barnette a particular way because he was required to decide the liberal way or the conservative way, or the way that Franklin Roosevelt who appointed him would have wanted him to decide it.

Posted 10:50 PM by JB [link] (4) comments

The Supply-Side Alternative, Part I

Guest Blogger

Steve Teles

Let me state right up front that I think Jack’s theory (jointly produced with Sandy Levinson) is, as essentially electoral theories of constitutional change go, about as good as you can get. Put simply, judicial behavior changes over time in response to shifts in popular attitudes, which are driven in large part by popular mobilization. Critically, the sole operative mechanism in his system is judicial appointments. Popular opinion changes, this filters down into the preferences of members of Congress and the president, and appointments represent the “vector sum” of (legislative and executive) preferences at the time of appointment. This does not require that Justices care a whit about popular opinion. All that is assumed is that the preferences of potential Justices are well-known at the time of appointment, and that the Justices that are appointed represent the point of overlap between Congress and the president.

This theory clearly flows into a theory of legitimation. If we think that democracy—defined here as conformity to popular preferences—is the sole means of legitimation, then a system that operates as Jack has described will (averaging over time) produce courts that reflect popular opinion. Courts are, therefore, at least as democratic—and thus legitimate—as any of the other branches.

This is a seductive theory, both in explanatory and normative terms, for legitimating judicial review in a democracy. However, if the explanatory piece of the theory is lacking, then parallel questions arise about the theory’s normative side. Let me suggest a few reasons for doubting the sufficiency of the explanatory side, and leave the normative problems for later.

Balkin’s is an exclusively demand-side theory. By that, I mean that judicial behavior can be wholly explained by electoral demand. There is a single point at which legislative and executive preferences meet, and judicial appointments are made at that point. While there are instances where Justices do not do what the popular branches expect them to do, these are the equivalent of “random errors,” which effectively cancel each other out over time. It is thus reasonable to assume that electoral “demand” determines what courts do.

Building on the arguments of Charles Epp in The Rights Revolution, I argue in The Rise of the Conservative Legal Movement that there are considerable problems with a purely demand-side theory of judicial behavior. In short, a demand side model of judicial behavior—as valuable as it is—generates substantial unexplained variance that only a supply-side model can account for. While I go into much greater detail on this matter in my book, let me present just a few supply-side factors that demand-side theories will need to either argue are relatively unimportant, or (I think inevitably) absorb into a more comprehensive theory. I will present the first factor in this post, and two others in subsequent posts.

Factor One: “The Pool.” The implicit assumption of demand-side theories is that those making judicial nominations always have available to them nominees that represent their ideological preferences (subject to what they believe they can get past Congress). I think that this is far from guaranteed, because the “pool” of potential nominees is far from comprehensive. To paraphrase Don Rumsfeld, presidents go into judicial nomination wars with the potential nominees they have, not those they might want. For various reasons, at any one time presidents find that the people who meet prevailing standards of what makes an appropriate nominee are exceptionally limited. While the “pool” may include at least one nominee who meets their ideological preference (while also meeting prevailing standards of appropriateness and potential confirmability), presidents care about more than judicial philosophy. They also care about ethnicity, gender, geography, age, past political favors and other factors unrelated to ideology. Therefore, if the pool of potential nominees is limited, presidents will find that they have to choose between their long-term interest in shaping the behavior of the court, and these other factors. The larger the pool, the more presidents can satisfy both their ideological preferences and their narrower political objectives (for example, choosing both a woman and a reliable conservative).

Now, if all presidents faced an equally limited pool, then this would not be a problem for a demand-side theory. But the supply-side theory of judicial behavior claims that they do not. The pool of potential nominees is produced by factors outside the control of presidents, typically by forces internal to the legal profession, or the result of investments by political coalitions in producing “well-groomed” nominees that occur well before (in some cases decades before) presidents start looking for people to put on the bench. Just as important (and this is especially significant for lower-court judges), presidents are limited not only by the content of the pool, but also by their ability to identify attractive nominees, and to predict the long-term ideological preferences of those in the pool. This information is a function of ideological networks, which take a great deal of time to develop, and which presidents must take as essentially given at the time they make the choices of judicial nominees. Put simply, the partisan coalition with a deeper pool, and with networks to choose effectively within it, will do more with whatever political opportunity their electoral power presents them with. And there is no reason to believe that the size of the pool and the effectiveness of networks will track the relative electoral power of competing party coalitions.

In my next two posts, I will present (at least) two other supply-side factors: agenda control and the scope of legally legitimate ideas.
Posted 6:17 AM by Guest Blogger [link] (12) comments

Fair-Weather Unitarians

Marty Lederman

As Jack has recently observed, apart from Katrina, the Iraq War and the conflict with al Qaeda, there has hardly been a government challenge of greater enormity this decade than the economic crisis we are now facing. Yet someone who is neither elected nor politically accountable, Ben Bernanke, is making virtually all of the nation's most momentous monetary decisions . . . and there is little the President can do about it. (The President may not remove members of the Board of the Federal Reserve except "for cause," 12 U.S.C. 242, which has long been understood to reflect congressional intent that the President may not remove such officers merely because of a substantive disagreement with their particular monetary decisions.) What's more, virtually everyone in the Nation now accepts this as the Way Things Ought to Be and, truth be told, is grateful and relieved that the President is not "the Decider" when it comes to the fate of our economy.

And what does the Bush Administration have to say about this profound threat to the "unitary executive"? After all, even with respect to the much-less-powerful Consumer Product Safety Commission, the Bush OLC (per John Yoo), wrote that a similar for-cause removal condition for CPSC Commissioners "could prove to be unconstitutional."

Well, on Monday, the Administration's Department of Treasury will "propose a far-reaching overhaul of the nation's financial regulatory structure that would reshape the relationship between Wall Street and Washington and redefine the responsibilities of some of the federal government's most powerful agencies." In particular, and most strikingly, the powers of the Federal Reserve would be dramatically expanded: the Fed "would gain the power to investigate any aspect of financial institutions that threatens the stability of the entire system, gathering information and taking action to combat risks to the financial system as a whole." In the words of one Treasury official, the Fed "would act as a 'free safety,' . . . with broad but somewhat undefined powers to roam the entire playing field of Wall Street's activities."

The Executive Summary of the Administration's statutory proposal, the "Blueprint for Financial Regulatory Reform," summarizes that "[t]he Federal Reserve's responsibilities would be broad, important, and difficult to undertake." The Fed would retain its current authority to implement the Nation's monetary policy and provide liquidity to the financial system. "In addition, the Federal Reserve [w]ould be provided with a different, yet critically important regulatory role and broad powers focusing on the overall financial system and the three types of federally chartered institutions (i.e., FIIs, FIDIs, or FFSPs). . . . In terms of its recast regulatory role focusing on systemic risk, the Federal Reserve [w]ould have the responsibility and authority to gather appropriate information, disclose information, collaborate with the other regulators on rule writing, and take corrective actions when necessary in the interest of overall financial market stability." For example, "the Fed would be given the authority to order investment firms to improve their systems for monitoring risk." If the Fed determined that certain risk exposures pose an overall risk to the financial system or the broader economy, it would "have authority to require corrective actions to address current risks or to constrain future risk-taking." The Fed could use this corrective action authority "to require financial institutions to limit or more carefully monitor risk exposures to certain asset classes or to certain types of counterparties or address liquidity and funding issues." The plan states that such Fed actions "should be coordinated and implemented with the appropriate regulatory agency to the fullest extent possible." However, "the Federal Reserve would have residual authority to enforce compliance with its requirements under this authority." The Fed would also have primary oversight responsibilities for payment and settlement systems -- "the mechanisms used to transfer funds and financial instruments between financial institutions and between financial institutions and their customers," which "play a fundamental and important role in the economy by providing a range of mechanisms through which financial institutions can easily settle transactions." The Fed would, under the Administration plan, "have discretion to designate a payment and settlement system as systemically important, and . . . have a full range of authority to establish regulatory standards." And the Fed would be given the ability "to undertake market stability discount window lending," which would "expand the Federal Reserve's lender of last resort function." (Recently, the Fed used its authority for the first time since the 1930s to provide access to the discount window to non-depository institutions.)

This is an Administration that has famously advocated for ever-increasing centralization of power in the presidency, and that has strenuously advocated for the "unitary executive" theory, under which the President should have effective control of the entirety of the "executive power" of the United States. Taken seriously, this would be a fundamental challenge to the post-New-Deal order, under which many important functions are assigned to actors who are for all practical purposes immune from meaningful presidential control.

And yet under the Administration's new statutory proposal, the "independent" Fed would be given much broader authority than it already enjoys to regulate the nation's economy. Needless to say, the Administration has not -- thus far -- added that tis bold new proposal "could prove to be unconstitutional." The Blueprint for Monday's statutory proposal does not even mention the apparent constitutional anomaly that these important functions would be transferred away from the control of the elected President and other politically accountable officials.

Many moons ago, in my very first semester in law school, the great Charles Black regaled my ConLaw class with a reminiscence of one day in the mid-1970s when he was waiting out a plane delay in an airport. Black happened to look up and spot Arthur Burns quietly sitting by himself across the way. The apparent absurdity of the fact that he was gazing upon one of the most powerful men in the world suddenly dawned on Black, and he asked himself: "Now who, exactly, elected him to run the nation's economy?; and where in the Constitution . . . .?"

But where are the unitary executive proponents -- in the Administration and among the academic and other champions of Justice Scalia's dissent in Morrison v. Olson -- when it comes to the most important and powerful "independent" agency of them all, the Federal Reserve? Nowhere to be found, far as I can tell. Indeed, apparently they see no problem in expanding the purview of the Fed even further, to give it virtually unreviewable regulatory authority over additional sectors of the economy.

To be fair, in a footnote in an Arkansas Law Review article in 1994, Steve Calabresi, one of the leading proponents of the unitary executive theory, conceded that under his view the statutory independence of the Fed is unconstitutional. (Calabresi also argued that such legal independence is unnecessary, because even without statutory insulation from the President, a "practical independence can always be achieved within our formal constitutional structure if public opinion thinks it desirable that it should exist" -- a conclusion that does not contend with the distinct possibility that the public expectation of Fed independence is largely a function of the fact that the Fed has been legally immune from executive control for so many decades: Before Congress limited the President's removal power in 1935, there was no expectation of independence -- the Fed included the Secretary of Treasury and Comptroller of the Currency as ex officio members so as to preserve executive control specifically to insure that the executive branch would be able to exert an appropriate degree of control over monetary policy, and President Wilson used the threat of removal to influence monetary policy.)

But there's a reason that concession is buried in a footnote. If Calabresi's is truly the view of the unitary executive proponents, they don't speak about it much in mixed company -- because to do so would reveal the radical nature of their otherwise reasonable-sounding theory: Taken seriously, Justice Scalia's widely admired arguments in Morrison would call into question the independence of the Fed and many other agencies that the public now assumes will and should act independently of White House control. And to question the constitutionality of these agencies at this late date would be to sound the death-knell for the unitary executive theory . . .

. . . which might explain why Justice Scalia wrote only for himself in Morrison (with Chief Justice Rehnquist writing for the Court in an opinion rejecting most of the UE theory).

The one-sided vote in Morrison might be explained, in part, by an case that was argued two years previously: President Reagan's Solicitor General, Charles Fried, had aggressively pushed a unitary executive argument to the Court in Bowsher v. Synar, claiming that one reason the Comptroller General could not be given important budget-reducing authority was because he was not subject to plenary presidential removal authority. (Fried won the case, but on the narrower ground that such functions could not be performed by an official subject to congressional control.)

At oral argument, the Comptroller General's lawyer, Lloyd Cutler, told the Court that if they accepted Fried's argument about the need for presidential removal authority, they would "take over the side with you the Federal Reserve Board which itself makes broad, predictive findings of fact and sets policy, the Federal Communications Commission which you have held determines the course of future public policy when it is issuing licenses and deregulating common carriers, and many other commissions."

In response, the very first thing Fried did at the beginning of his presentation was to try to assure the Court that his removal argument did not lead down that slippery slope to the unconstitutionality of the Fed: "I would like to say at the outset that this second argument does not in our view in any way cast any doubt on the validity of agencies such as the Federal Reserve Board, the Federal Trade Commission, or any such agencies, and that the notion that the second argument in some sense endangers those agencies or would embark this Court on some constitutional adventure is simply a scare which we don't intend to throw into the Court and I don't think need be thrown there."

To which Justice O'Connor famously responded, to laughter from the audience: "Well, Mr. Fried, I'll confess you scared me with it."

And ever since then, unitary executivists have wisely avoided any mention of how their theories would affect the constitutionality of the Federal Reserve. The Bush Administration's proposal to greatly expand the authority of that independent agency merely confirms that when it comes to theories of the unitary executive, the Fed is the third rail. Touch it at your peril. As Jack wrote:

Within the halls of the Bush Administration, nobody seems to be thumping the pulpit, arguing about the framers and demanding the sacred prerogatives of the Unitary Executive. Messrs. Cheney and Addington are nowhere to be heard from defending the President's powers to take responsibility for the money supply and for the financial crisis we are now in. President Bush doesn't want the buck to stop in his office. He likes the dictatorship of the Fed just fine. Of course, if the Fed were charged with interrogating prisoners, it would be a different matter entirely. . . .

Posted 10:10 PM by Marty Lederman [link] (19) comments

What Is Living Constitutionalism?, Part II

JB

In the last set of posts, I've been explaining my views about living constitutionalism. I've argued that living constitutionalism is a process of change through which constitutional doctrine responds to social and political mobilizations and long term changes in popular opinion about what the Constitution means.

Richard Schragger objects that my account is merely descriptive and external– it is simply "a description of how political/historical forces shape courts and other institutions of government." This can't be living constitutionalism because it doesn't answer the question of "What does the Constitution require?" and the question "whether the Court is actually engaged in making law." Schragger wants what he calls an internal account, an account that argues that "that the Constitution is law, that law has content, and that legal doctrine has to be justified by an actual theory or account of the Constitution, the rights it contains, and how those rights apply through time."

I agree with Richard that a theory of living constitutionalism must be both normative and internal. I disagree with his assumption that my account is merely descriptive or purely external.

Individuals and Systems

We can talk about our constitutional system descriptively-- how it works-- or normatively-- for example, how it must work to be democratically legitimate.

Second, we can talk about it from the perspective of an outside observer who does not participate in it, or from the perspective of a participant invested in the future of the system who regards its directives as binding on him or her. And within the class of participants, we can look at it from the perspective of a judge, a legal official, or a citizen.

Third, and most important, we can focus our normative judgments on how the system operates as a whole or on what individuals in a system should do within the system. Sometimes we focus on individual behavior, but sometimes we think the proper focus is on the system of the design as a whole. Suppose for example, that we want to design an efficient market. We ask how its design and incentives produce certain types of results, and if it does not, we redesign the market and shape the incentives. We do not spend very much time giving advice to people in the market about how to behave so as to produce efficiency; rather we assume that efficiency arises from the sum of their interactions, and not from each of them following our advice about how to behave. In fact, it may be a mistake to focus primarily on advising individual people about how to behave in the market, although educating people about costs and benefits, might be a good idea; so too much be educational campaigns to shape people's values and preferences. Another example of a focus on systems is our Constitution's separation of powers. It tries to preserve republican government by balancing contrasting interests, under the assumption, as Madison put it, that enlightened statesmen (the sort who would respond to good advice) will not always be at the helm.

When Richard says that my discussion is not "internal," what I think he really means is that I am not giving advice to judges about how to decide cases so that the constitutional system as a whole is legitimate. He is right about that. I don't think that's the most important point of focus in understanding the legitimacy of constitutional change. I will have something to say about this later on, but I do not think that giving advice to judges is the primary goal of a theory of living constitutionalism.

The more fruitful normative question is not what specific interpretive theory judges should adopt to ensure legitimacy, but whether the system of constitutional change the country has developed over time is legitimate. That is, is the system of constitutional decisionmaking legitimate taken as a whole? Does it serve the larger purposes of constitutionalism, democracy, and the rule of law?

"Living constitutionalism" cannot be simply a theory of how individual judges should decide cases– although obviously people can offer that sort of advice as well. It must be an account of why changes in constitutional doctrine over time– which largely occur outside of Article V amendment and are not in the control of any single person, much less any single judge– are legitimate. It has to be an account of why these changes can simultaneously serve rule of law and democratic values.

Advice to Judges or Theory of Legitimacy?

As I noted previously, I think people misunderstand what a theory of living constitutionalism has to do in order to be successful. They think it has to be a theory that tells judges-- "here's how to decide cases that come before you. Do this and don't do that."

Why do people think this? Possibly it is because they think that originalism is just such a theory, and so they assume that living constitutionalism must be its mirror opposite. They are wrong about living constitutionalism. They are also wrong about originalism.

Originalism offers advice to judges about how to decide cases because it is also a theory of what makes the constitutional system (and the institution of judicial review) legitimate. It argues that fidelity to the Constitution is necessary for democratic legitimacy. There are several theories for why that is so, but perhaps the most familiar version is that the Constitution was created through an act of popular sovereignty and therefore we must preserve the meaning of the Constitution over time in order to preserve the legitimacy of the original act. Hence judges must adhere to original meaning. If they do so, then they will do their part to maintain the system's legitimacy.

This theory closely connects what makes the constitutional system legitimate with advice to individual judges about how to decide particular cases. But living constitutionalism may not work the same way. It concerns how the system as a whole works over long periods of time: why the cumulative processes that produce changing interpretations of the Constituition over time are legitimate. It may not be advice directed to individual judges, or, if it is, it must be far more than that.

That's what I'm trying to explain. My approach is thoroughly normative, and it is also internalist, because I offer it from the perspective of someone in the system who wants to know what makes the system legitimate to them and to their fellow citizens.

Why do I emphasize focusing on how the constitutional system actually changes? The answer is simple: Ought implies can. We cannot expect actors to do what is not possible for them to do. That means that a causal account of the system is necessary precursor to any normative account of constitutional legitimacy. Sadly, much normative constitutional theory seems to ignore this crucial question. It assumes that if we just give judges the correct advice, and they follow this advice, the system as a whole will produce legitimate results. It does not stop to ask whether anyone could or would actually take the advice being offered or if individuals took it, whether the constitutional system as a whole would respond in the right way.

The work of a multimember court is not going to correspond to any coherent theory of advice directed at one individual. The cases will go all over the place: they will not correspond to any consistent methodology.

This does not mean that normative criticisms of judges and their decisions are useless or irrelevant to constitutional legitimacy. My point is that arguments about good judging and correct constitutional interpretation aren't external to the system of constitutional change. They are part of the process through which change occurs. The clash of opposed views about what the Constitution means and the clash of opposed positions about the authority of different actors in the system drives the system forward. When people argue with each other and try to persuade each other, they are helping to shape the constitutional culture in which citizens live and in which judges hear and decide cases. When lawyers argue before courts, they are trying to persuade judges to rule their way. Not only is normative argument about the Constitution not futile, it is a central element of what makes a living Constitution live. Arguments about what the Constitution means and who has the authority to say what it means are crucial because they persuade the actors in the system to think differently. This produces new judicial appointments and can shape the views of judges who are already on the bench. Normative arguments about what the Constitution means occur in mobilization, in political campaigns, in debates about judicial selection, and in litigation campaigns. They are the stuff of constitutional culture and the drivers of constitutional change.

"Keeping up with the Times"?

Understood as an account of the processes of constitutional decisionmaking, living constitutionalism makes a great deal of sense. It also has the advantage of making sense of the actual history of our nation. However, understood as a doctrine for correct judging, "living constitutionalism" is an undertheorized concept. The claim that the Constitution must "keep up with the times" and "reflect changing values" is substantively empty unless you give an account of how and why it does these things and how doing so maintains its legitimacy. After all, there are many possible ways that one can "keep up with the times" and "reflect changing values."

Aiming this injunction at individual judges is largely misdirected. If you say that individual judges have a duty to "keep up with the times" or "reflect changing values" you haven't really said much. And to me, at least, it is by no means clear why individual judges have any such obligation or responsibility to "keep up with the times" or "reflect changing values" instead of doing what they are supposed to do, which is interpreting and applying the law the best they see it. And even if judges had such a responsibility, whose interpretation of "changing times" and whose version of "changing values" should they look to? To my interpretation or to yours? Should they look to the values of contemporary liberals or contemporary conservatives, because, I assure you, both sets of values are constantly changing, and both of them are doing their very best to keep up with the times. You can "keep up with the times" as a liberal or as a conservative, as a secular person or as a religious person, as a technophile or as a technophobe. You just do so in different ways. You can respond to changing times by changing your values, or you can respond to changing times by maintaining your values in the face of trials. The latter is what civil libertarians argue for all the time, and there are many living constitutionalists among their number.

Instead, a theory of living constitutionalism must explain why certain features of the Constitution may change while others must remain the same. And it must explain why those features that change do so in a way that preserves the values of constitutionalism, the rule of law, and democratic authority. To do this you need both normative and descriptive accounts of law and politics, because you first have to understand how the system changes. To be a living constitutionalist, you have to understand why the Constitution lives, not just advise it to shape up and live right.

Do Judges Do Law or Politics?

Schragger objects that my account "doesn't answer the question of whether the Court is actually engaged in making law." I disagree. It should be obvious from my account that the Court makes law all the time. Courts must think and act and in terms of legal forms and practices; they must make legal arguments and write legal opinions. Their job is not to do politics, but to do law. Nothing in what I have said suggests that judges should do anything but make law. They should be faithful to text and principle, and use the various modalities of argument-- text, structure, history, precedent, prudence, and ethos-- to decide the cases before them. They will disagree among themselves, often heatedly, but that by itself does not make the process of change illegitimate. Rather, this process of disagreement about the law over time– and the mutual recognition of opposing positions– is crucial to the legitimacy of change in the constitutional system.

Through doing law (not politics), successive generations of judges, working in tandem (and in opposition with each other), inevitably translate changes in constitutional politics into constitutional law. They do so because new judges replace older ones, and because the judges who hear cases and decide them are influenced and shaped by the constitutional culture that they live in. This culture includes not only professional norms of what is "off the wall" and "on the wall legally," but also popular notions of constitutional values which influence professional judgements. That is, living constitutionalism is an account of a process for producing change that preserves legitimacy in a democratic society and allows judges to continue being judges.

A theory of living constitutionalism can't just be a theory of the content of the Constitution because, if it is truly living, that content will change over time. And it can't be just a theory of how individual judges should behave, because in a multimember body whose members are appointed at different times and under different circumstances, the work product of judges may keep within the mainstream of legal culture, but it will probably not match any consistent academic theory of good judging. Rather, living constitutionalism is a successful theory if it shows how systemic change occurs in a way that preserves rule of law values, maintains the benefits of constitutional government, and is roughly responsive to democratic politics.

It is no accident, I think that public opinion polls repeatedly show higher confidence for the Supreme Court than for the other two branches of government, even as people regularly hurl attacks at the Court for particular decisions. Americans want their Supreme Court and the lower federal courts to do two things: to act like courts, who decide cases according to law, and to be responsive to larger trends in public values. By and large the federal courts do this, and that is the long term source of their legitimacy in the eyes of the public.

The Importance of Constitutional Dissent

One consequence of my account is that some individuals within the constitutional system will not always like what judges do, because the system will produce constitutional changes that they do not agree with. People, and especially liberals, often associate "living constitutionalism" instinctively with whatever is progressive, but I think that is incorrect. A constitution that grows and changes in response to social and political mobilizations is as likely to move to the right as to the left. Indeed, it has moved in many different directions in our nation's history.

The conservative dominance of the last forty years is an example of the process of living constitutionalism at work, even though many of its proponents have fought under the banner of originalism. There is no contradiction here. Appeals to the values of the framers or founders are a pretty standard way that people call for a restoration to proper principles. That is to say, appeals to origins are a pretty standard way that people justify constitutional change outside of Article V (and change within it too). I think it was Quentin Skinner who once said (or perhaps he was quoting someone else) that every revolution sends its troops marching backwards into battle. That is, they use the tropes of return and restoration to promote what is actually change. The conservative originalism of the past several decades has been an attempt to replace a more liberal constitutionalism with a more conservative one. In many ways it has succeeded. That is also an example of the processes of a living constitution, although not one many liberals like.

But, you might respond, suppose that I am a liberal and these forces have produced constitutional doctrines with which I disagree. Why should I recognize the legitimacy of this process? You should recognize it because it is the same process by which liberal constitutionalism made its contributions to our constitutional tradition. This is the point I made in my discussion with Dahlia. She doesn't like what she thinks the Heller Court is going to do. She is not in all that different a position than critics of the Warren Court.

I don't like some of the decisions of the courts. I think that some cases like United States Morrison (which struck down the Violence Against Women Act) are bad law. There are others that I really despise. But I must accept them as law while working to change them over time through processes of legal persuasion in the courts and political mobilization outside the courts. I can argue that these decisions are bad interpretations of the law, and work to distinguish them or overrule them, just as people who disagree with me can work to limit or overturn decisions that they do not like, such as Roe v. Wade or Lawrence v. Texas. Faced with a deeply unjust decision, Dred Scott v. Sanford, Abraham Lincoln once said that Dred Scott was law, and should be respected until it is altered or overturned, but "we mean to do what we can to have the Court decide the other way." Here Lincoln articulated the basic premise of a living Constitution as a process. The Supreme Court's decisions deserve respect as positive law, but not respect as proper interpretations of the Constitution, unless, in fact, they are the right interpretations. People can and should work to overturn decisions that are false to the Constitution's spirit, and to its text and its principles, through political mobilizations, through the appointments process and through legal arguments directed at judges and legal officials.

Liberal and Conservative Living Constitutionalism

Liberals like myself must recognize that in a conservative era, the positive constitutional law of a living Constitution will become more conservative. That is also how the Constitution "keeps up with the times" and "reflects changing values." I must accept these decisions as law, but I need not accept them as correct. Living constitutionalism means that I can always dissent during "dark times" when my views are in the minority. I can try to persuade other people that my views are correct and work for the restoration or the redemption of constitutional values. Through this agonistic process of mobilizations and countermobilizations of groups seeking the restoration and redemption of Constitutional values the Constitution maintains its public acceptability. As my colleague Reva Siegel has pointed out, both sides must appeal to common values and common political goods in order to persuade the public that their views are correct. In the process, they acknowledge and incorporate aspects of each others' views. Contemporary liberal claims about the Constitution have been shaped by the conservative constitutional culture of our era, just as today's conservative constitutionalism reacted to and absorbed important features of the more liberal constitutional culture that preceded it.

What I have said will sound strange to many people, including many liberals, who have worked on the assumption that a theory of living constitutionalism must have two basic features: First, it must look like a mirror image of what they imagine originalism to be: a theory that offers advice to judges about how to do their jobs correctly and decide individual cases. (In fact, as noted above, originalism is also a theory of the legitimacy of the political system.) Second, it must lead to generally progressive results. I think neither assumption is correct. There are versions of living constitutionalism that offer substantive advice about how to decide cases, like John Hart Ely's process protection theory, or Ronald Dworkin's moral reading of the Constitution, or Stephen Breyer's theory of active liberty, or heck, even my own theory of text and principle. But a theory of living constitutionalism needs more. It needs a theory of legitimate change in a system that is ultimately not controlled by individual judges but by the interaction of different parts of the political system. It is, if you will, a structural argument about the nature of the constitutional system. And what could be more internalist than a good old fashioned structural argument?

To those who know something of my earlier work, these conclusions will not be all that surprising. Previously I argued that original meaning originalism, correctly understood, is not necessarily conservative in its implications. Now I'm arguing that living constitutionalism, correctly understood, is not necessarily progressive either. A lot of theories experience ideological drift; it's my job to show you how the river runs.

Posted 6:00 AM by JB [link] (14) comments

Defending My "Devotion to the Forms of Legality," "Verging on Fanaticism"

Marty Lederman

Guilty as charged. Yes, careful lawyer that I try to be, I did include a qualification to suggest that maybe there could, one day, be some case in which a newspaper should refrain from publishing a story about rampant illegality, affecting the privacy of tens or hundreds of thousands of U.S. persons, authorized by the President of the United States (in part on a theory that he has the constitutional authority as Commander in Chief to disregard the law). I can't just now think of what that case might be; but who knows? Hence, my assumption that the Times applied a strong, almost irrebuttable presumption in favor of publishing (once it was convinced the program was unlawful), rather than a bright-line rule. But I agree with David -- it's hard to imagine an easier case than this one.

Did the program "benefit the nation," in the sense of providing the intelligence community with relevant and important information it would not have obtained under FISA? I certainly hope so. But then, that would be true, in spades, if the President simply ignored all legal restrictions on intelligence-gathering -- an Executive unbounded by laws regulating surveillance, detention, interrogation, etc., would undoubtedly obtain far more information about the enemy than an Executive who takes care that such laws are faithfully executed.

And therefore . . . what, exactly? If that sort of "benefit" were a sufficient reason to refrain from publishing, then newspapers would never reveal any wrongdoing undertaken for security-related reasons (or for any other public purpose, for that matter). Eric doesn't suggest such a rule, of course -- he would ask the Times to weigh the benefits of lawbreaking against the "costs." I'm sure that at some level, the Times made such a calculation, based on what little they knew (i.e., as with Eric and me, not very much). Indeed, they invited the Administration to make the case that the program was legal, or that this was the rare case in which, despite the illegality of the program, the cost/benefit balance was so out of whack that my presumed "presumption" in favor of publishing a story about gross executive lawbreaking should have been rebutted. As it turns out, however, the Administration gave them very little reason to rebut the presumption -- and what it did say to the Times turned out to include representations that the Times discovered to be blatantly false, which left the Times with no reason at all to think that the presumption should be overcome -- and with a great deal of skepticism that the sky would, indeed, fall.

Callous disregard for the real costs and benefits? Hardly. What the Times knew, and what Eric conspicuously ignores, is that we as a nation had already engaged in a wide-ranging, detailed, and contested debate, over three-plus years, about the various costs and benefits of allowing the executive free reign to engage in domestic electronic surveillance, and we had reached a consensus about the proper resolution of such calculations in the manner prescribed by the Constitution: We enacted a law, by overwhelming majorities of both houses of Congress, and with the support of Presidents of both parties -- the Foreign Intelligence Surveillance Act. And Congress had repeatedly amended that law over the years whenever the executive made the case that the cost/benefit analysis had changed. (Eric confidently states that the NSA program did not, so far as we know, "actually injure anyone." This is just another way of saying that Eric disagrees with the vast majorities of Presidents, legislators and the public who have concluded that there are real harms when the government surveilles its citizens' e-mails and phone calls.)

To be sure, President Bush thought that the Congress, and all Presidents before him, had miscalculated the costs and benefits, and that this was a bad, bad law. But he also had good reason to believe that, even after 9/11, he would not have been able to persuade the Congress and the public to change that law in the manner he desired. And so he willfully disregarded it. That is to say, he violated it.

Under these circumstances, would it really make much sense for the Times to have attempted to independently evaluate whether Congress was "right" to enact FISA and its amendments -- whether Bush's cost-benefit analysis was more reliable than the one codified in careful detail in Titles 18 and 50? Wouldn't it make more sense for the Times to presume (there's the lawyer in me again!) that our national consensus of costs and benefits should receive the benefit of the doubt? (And this is even before we add to the mix what Eric cavalierly (grudgingly?) refers to as the "costs" of our Executive branch systematically and secretly running roughshod over the law itself. Here, Eric, I'm afraid you'll have to indulge me my "fanatical . . . devotion to the forms of legality." That's not only the lawyer in me -- it's the citizen, too.)

In any event, did the Times actually have reason to believe that its story would cause any substantial harms at all? Notably, the Administration failed to make such a case to the Times. And if the Administration couldn't convince the Times of the "costs," why should the newspaper decline to publish? The Administration's theory of harm, apparently, was that the NSA would have to suspend the program if it were publicly revealed. And in one sense that was true: Once the Times story broke, the FISA court took steps (a year later) to effectively bring the Administration into compliance with the law, which temporarily brought a halt to the program in early 2007 -- but only until the Administration could persuade Congress that there was a need to enact changes to the law to allow the program to resume once again. To the extent that was a "cost" -- prompting our legal system to work the way it was supposed to, rather than to allow the President to unilaterally arrogate all decisionmaking to himself, notwithstanding the law -- it's hardly one that should have given the Times pause; indeed, the debate within the FISA court, and with the Congress and the public, that resulted from the Times' decision to publish, and that continues to this day, is one of the great virtues of its stories.

Ah, but even if the program is back up and running, isn't it far less effective today because its existence (though not any details about NSA capabilities) has been brought to light? In other words, Eric seems to be saying, isn't a secret program secretly operated in the teeth of a law that appears to prohibit it more effective than one that has received public legal sanction? Eric quotes Jack Goldsmith as having written that the "revelations by Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done ‘great harm' to the nation." Like Eric, I know Jack well, and I believe he was entirely sincere in writing that. Perhaps he;s even correct. But Jack -- who is appropriately scrupulous about not revealing any classified information -- has not been able to provide either me or Eric with any reason to believe that the Times story tipped off al Qaeda in any way that diminishes NSA intelligence-gathering. And, more importantly, the Administration was not able to provide the Times with any plausible explanation of why that would be true, either. What does al Qaeda know now that it did not know (or have good reason to suspect) before it heard of Lichtblau and Risen?

Orin suggests that the real problem was not the Times stories, but the revelation in the Risen book that the NSA was intercepting foreign-to-foreign calls routed through U.S. switches. I think there are a couple of problems with this theory (besides the fact that it is not a criticism of the Times or Lichtblau). The first is that, if I recall correctly, the Administration has disclaimed the notion that the NSA program involves "sitting on the switches" and sweeping up calls indiscriminately from those switches, such as for purposes of data-mining. (Orin, do I have that right?) More importantly, my understanding (perhaps mistaken) is that even before State of War was published, it was not a secret that most foreign calls were routed through U.S. switches and, most important of all, as David Kris has repeatedly stressed, there was never anything unlawful, under FISA or other laws, about intercepting such foreign-to-foreign calls, in the first place. As the Washington Post reported three weeks ago:

Director of National Intelligence Mike McConnell . . . has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States. But in response to a question at [an ABA] meeting by David Kris, a former federal prosecutor and a FISA expert, [Assistant Attorney General Kenneth] Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States.

That is to say, there was no reason for al Qaeda, even before 2006, to believe that the NSA could not, or would not, surveille all of its foreign-to-foreign phone calls -- and that one effective and lawful way for NSA to do so would be to intercept such calls at U.S. switches, without the need for a judicial order. The NSA program revealed by Risen and Lichtblau presumably did not change that practice, which could have been initiated even before 9/11. (Of course, when it comes to these sorts of technical questions, I'm hardly an expert; therefore I welcome corrections or qualifications from Orin and others.)

Now, surveillance of foreign-to-foreign e-mails might have been covered by FISA (as "electronic surveillance" under 1801(f)(4)), if acquired from storage on a server in the United States, because stored e-mail is neither a "wire communication" nor a "radio communication" under FISA. Did Risen's book reveal that the NSA was intercepting such e-mails without court orders? If so, it might have revealed to al Qaeda this much: that although U.S. law requires a court order for such interceptions, the NSA was in fact ignoring that law, and intercepting the e-mails without judicial approval. Assuming there were those within al Qaeda who parse FISA that closely, it would remain the case that all Risen's book would have revealed to such persons was that the NSA was not following a court procedure that U.S. statutes prescribed. If al Qaeda was sending certain e-mails on the assumption that they would not be intercepted because the American executive branch was complying with FISA (is this sounding sufficiently ridiculous yet?), Risen's book arguably let them in on a secret, not about NSA surveillance capabilities, but about the fact that the Executive branch was refusing to follow U.S. statutory law. If that's the secret that the book revealed -- that al Qaeda should not uncritically assume the NSA will abide by FISA's requirements for court orders for foreign-to-foreign e-mails routed through the States -- well, can Risen really be criticized for that? After all, that would not have revealed anything about secret NSA capabilities when the agency is complying with the law.

Finally, Eric stresses that insofar as the Times' rationale for publication depended on its conclusion that the NSA program was unlawful, the Times ignored the fact that the program's illegality "was in the process of being corrected by Justice Department lawyers before the story was released." In other words, the Times' story did not, in Eric's view, have even the virtue of bringing to a halt an ongoing unlawful practice; and, as such, the Times's revelation of past illegal conduct (in the John Yoo era) might have been an inadequate justification for revealing a current, legal program of great value: "The Times made that particular outcome-a lawful program that was also effective because it was secret-impossible by publicizing it to the world."

Again, I'm not so sure the Times made an "effective" program impossible: The progam is once more in operation, and the Administration has vociferously and continuously argued that it is of enormous value.

But more to the point, even the "modified" program, as apparently approved by Jack Goldsmith, was quite plainly unlawful -- or so, I think, the Times should have concluded. Jack's theory, apparently (and here I stress once again that I am basing this solely on public sources), was that the program was lawful because Congress authorized it -- in effect, in part repealed FISA by implication -- when, on September 18, 2001, it authorized the President to use all necessary and appropriate military force against those responsible for the 9/11 attacks. This legal theory is defended in great detail in the DOJ "White Paper" issued on January 19, 2006.

I have enormous respect for Jack's legal acumen, and for the critical corrective role he played at OLC, which I have repeatedly lauded. But, with all respect, the "AUMF" theory for why the revised NSA program was legal simply doesn't pass muster, for reasons I have written about repeatedly. (See for example the letters collected here and here; and posts such as this and this.) Other than Eric, there are few serious scholars or lawyers who have tried to defend the argument and, more importantly, as far as I know not a single legislator of the hundreds who voted for the AUMF has agreed that they intended to thereby authorize a surveillance program that circumvented FISA, or has even given the AUMF theory any credence: the argument has met with uniform ridicule among those legislators who voted for the AUMF, including some who are defenders of the NSA program on other grounds.

All of which is to say that the Times had every reason to think the NSA program continued to be unlawful. In any event, the Times story would have been justifiable even if it had only brought to light the fact that before March 2004, the President had authorized a far less discriminating NSA program of remarkable (and still largely unknown) breadth, based on a legal theory so preposterous -- so much more indefensible than even the AUMF argument! -- that the entire top echelon of the Justice Department, Goldsmith included, threatened to resign if the President did not abandon it.
Posted 4:40 AM by Marty Lederman [link] (39) comments

Did the New York Times Have a Good Reason for Reporting the Illegal Wiretapping?

Marty Lederman

Eric Posner claims not to be able to discern from from Eric Lichtblau's column just why the Times changed its mind between 2004 and 2005 about publishing the story revealing the Bush Administration's unlawful wiretapping program.

What's the great mystery?

Apparently, in 2004 Administration officials asked the Times not to publish because, among other things, they insisted that there was never any serious legal debate within the administration about the legality of the program; that DOJ had always signed off on its legality; that the lawmakers who were briefed on the program never voiced any concerns; that there were tight controls in place to guard against abuse; and that the program would be rendered so ineffective if disclosed that it would have to be shut down immediately.

Risen and Lichtblau questioned these representations at the time, but couldn't persuade their editors that they were untrue. What changed in 2005? Eric P. says that Eric L. "does not really tell us." Really? Lichtblau reports that in 2005,

we went back to old sources and tried new ones. Our reporting brought into sharper focus what had already started to become clear a year earlier: The concerns about the program—in both its legal underpinnings and its operations—reached the highest levels of the Bush administration. There were deep concerns within the administration that the president had authorized what amounted to an illegal usurpation of power. The image of a united front we'd been presented a year earlier in meetings with the administration—with unflinching support for the program and its legality—was largely a façade. The administration, it seemed clear to me, had lied to us. And we were coming closer to understanding the cracks. By the time we met with White House officials in December 2005, Keller had all but made up his mind: The legal concerns about the program were too great to justify keeping it out of public view.

In other words, by late 2005, the Times had become much more convinced than a year earlier -- based on additional sourcing -- that (i) the program was illegal; (ii) that there were deep concerns within the Administration that the President had unlawfully authorized the program; and (iii) that because the Administration had lied to the Times about these important matters, there was much less reason to believe the other representations it had made -- about lawmakers being unconcerned, about tight controls, and about the fact that the program would have to end if the Times published. So there was really nothing much in terms of credible Administration arguments any longer weighing against publication. (Eric P. asks: "How was The Times to know whether the secret program was lawful or not?" Well, its reporters can read FISA, for one thing. And ask lawyers within the Administration, for another. After the Times story broke, it was not at all difficult for almost all careful observers to conclude quite easily that the program was unlawful. It's not really that close a question.)

What Lichtblau does not specifically say, but what must also have been the case, was that the Times probably decided that if the program was unlawful, as the Times and many in the Administration had concluded it was, then it was virtually incumbent on the Times to report it: Has there ever been any case in which a serious American newspaper declined to publish information it had about felonious conduct at the highest levels of government? And if that meant the cessation of the program, so be it -- because the program was, after all, unlawful. Unlawful programs should be ended -- or, in any event, the Times was quite justified in acting upon a strong presumption to that effect. (UPDATE: As I was writing this, David Barron was making the same point much more effectively in this post.)

One other, related point: Eric P. suggests that, because history shows that Administrations are not to be trusted, the Times would have been "naive" to have ever believed the Administration's representations in 2004 -- and that therefore Lichtblau must be dissembling when he writes that his editors placed faith in the Administration at that earlier date, and only came to lose trust in 2005, when the lies were exposed. I've never been a direct part of such discussions, but my understanding is that this is dead wrong. Whenever the government meets with a newspaper to persuade it not to publish a story for national security purposes, the tradition has been -- for good reason -- for the Administration to be as forthright and trustworthy as possible, so that the newspaper will have a great deal of confidence in its representations. When the Times found out that it was being played by the Administration, and that nothing the Administration said could be trusted, such a striking departure from the historical norm gave the Times every reason to believe, more than it had in the past, that it was being sold a bill of goods in most or all particulars, and that therefore it had no good, reliable reason not to publish.
Posted 8:34 PM by Marty Lederman [link] (10) comments