The Next Preemptive Opinion?

Gerard N. Magliocca

One important issue in my scholarship is the place of "preemptive opinions" in constitutional law. A preemptive opinion is one in which the Supreme Court invalidates the major initiative or policy plank of the opposition party immediately preceding or following an electoral realignment. These decisions that have three characteristics: (1) they reach out to decide unnecessary constitutional questions (so that they can make a political statement); (2) they decide those unnecessary issues in a extraordinarily broad manner (so that they can make a political statement and create powerful doctrine); and (3) they develop some new understanding of liberty or equality to buttress their arguments (as precedent is usually strongly against the reasoning). The three leading examples of this phenomenon are Worcester v. Georgia (John Marshall vs. Jacksonian Democracy), Dred Scott (Roger Taney vs. the Republican Party), and Pollock v. Farmers' Loan & Trust (Melville Fuller vs. William Jennings Bryan). The New Deal (The Four Horsemen vs. FDR) also saw this kind of unorthodox action, though I'm not familiar enough with those cases to single one out as the best representative.

Will the individual mandate be the vehicle for the next preemptive opinion? Well, a few things point to yes. First, the health care reform is obviously the signature law of the Obama Administration. Second, there is a plausible argument that the 2008 election was a realignment, so we are in the crucial window. Third, the courts that have considered the statute thus far have blown past the various ways that they could use to decline to decide the merits now. Fourth, yesterday's District Court opinion invalidated the entire statute (not just the individual mandate), which is an exceptionally broad remedy even though the reasoning did not call into question other federal laws on the books. Finally, the critical decisions have articulated an inchoate liberty interest against the forced purchase of goods (compulsory commerce) that is new to our jurisprudence.

None of this, though, answers the question of whether the Justices will issue a preemptive opinion here. It is not possible to predict whether an opinion will be broad or narrow, for instance, when different choices are available. All we can say is that there is a real chance that this kind of decision will come in the near future, and thus more attention must be given to the (admittedly few) precedents in this category. They will tell us more than the leading Commerce Clause cases about what the Court will do next year or in 2013.
Posted 8:08 PM by Gerard N. Magliocca [link]

A brief note on the rule of law and judicial activism

JB

Compare:

The individual mandate cannot be severed. This conclusion is reached with full appreciation for the “normal rule” that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.

-- Judge Vinson in Florida v. HHS

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

-- Per Curiam opinion in Bush v. Gore.

It is hard to see Judge Vinson's opinion on the question of severability as entirely unaffected by partisan considerations, just as it is hard to reach the same conclusion about the 5-4 decision on the remedy in Bush v. Gore. When a judge informs you that a particular decision is unique, and unlikely ever to be repeated again--a ticket good for this day only--one begins to suspect that something other than the dispassionate application of the rule of law is going on. And of course, there is a remarkable congruence between what the Republican Party wants and what Judge Vinson has done (not to mention what the conservative majority did in Bush v. Gore).

The Republican Party does not want to excise the individual mandate but keep the most popular features of the ACA; it wants to get rid of the entire statute. This is something that Judge Hudson, who also declared the individual mandate unconstitutional in Virginia v. Sebelius, was unwilling to provide. In these "unique" circumstances, however, Judge Vinson was happy to be of service.

I never thought I'd say this, but compared to Judge Vinson, Judge Hudson is starting to look like an apostle of judicial restraint.
Posted 6:21 PM by JB [link]

Hall's New Article on Commerce Clause Challenges to the ACA

Frank Pasquale

Another federal judge has called the ACA unconstitutional. Digby offers some realpolitik. For those interested in the Commerce Clause issue, Mark A. Hall's new article, forthcoming in the University of Pennsylvania Law Review, pinpoints the strongest arguments for and against federal power under the Commerce Clause to mandate the purchase of health insurance.   His key points in defense of the law appear below:
Read more »
Posted 5:42 PM by Frank Pasquale [link]

The Politics of "Constitutional Law"

Mark Tushnet

Here's something between a genuine question and a thought-experiment: Would the dynamics of the discussion among people who pay attention to these sorts of things change were a Republican-appointed judge to uphold the Affordable Care Act, or a Democratic-appointed judge to hold it unconstitutional? (I put it this way to avoid using the freighted term "legitimacy.")
Posted 4:27 PM by Mark Tushnet [link]

Et tu, Garrett

Sandy Levinson

Garrett Epps, whom I very much like personally and whose work I greatly admire, has an article in the current Nation justifiably attacking some Tea Partiers (think of Michelle Bachman) for their wacky, and often pernicious, views of the Constitution. The subtite of his piece (I assume the product of Nation headline writers) is "Inside the right's cammpaign to hijack our country's founding text--and how to fight back." So, given that I agree with a great deal of the piece, including, for example, his takedown of Antonin Scalia for basic dishonesty in the way he actually operationalizes his vaunted commitment to "originalism" and a "dead Constitution" (Scalia's term, not his critics'), why am I left so dismayed after reading the piece?

The quick answer is that Epps cannot forbear from engaging in his own version of Constitution worship. If the response of the Left to Bachman and her ilk is to claim only that we love the "real" Constitution more than they do--and to ridicule without discussion the desires of some of the Tea Partiers to amend the Constitution--then I we only slip further into the reverie of Madisonian "veneration" of the Constitution instead of adopting Thomas Jefferson's injunction not to treat it as an "ark of the Covenant." When all is said and done, Epps, like most contemporary leftists, including the American Constitution Society (an organization that I happy to financially support), is almost entirely Madisonian, which, for me, obviously, is no compliment. (Hope springs eternal that the ACS will become more critical of the Constitution.)

So here's the bill of particulars with regard to Epps's essay:

"Our Constitution wasn't written to rig the political game but to play it without killing one another. It created a government and gave that government the power it needed to function." First, it is patently false to say that the Constitution "wasn't written to rig the political game." After all, as he himself notes (contra the ridiculous claims of Bachman), the Constitution was written to rig the game in favor of slaveowners and the states they lived in, who got a huge bonus in the House of Representatives (and, therefore, the electoral college and, ultimately, because it's the President who chooses nominees for the Supreme Court, that institution as well). And, of course, as he well knows, having written a fine book on the Fourteenth Amendment, it took a bloody war that killed two percent of the entire population of the United States in order to overcome this particular aspect of the Constitution. But, as he also well knows, the South actually won greater political power by losing the war, inasmuch as the former slaves who had been treated as only 3/5 of a whole person now indeed became "whole persons," but since by the end of the 19th century, they were disallowed from voting, the South got a huge "segregation" bonus that was even bigger than the slavery bonus, which, of course, rigged American politics until at least the time of Lyndon Johnson and the passage of the Voting Rights Act. Moreover, the Senate was obviously rigged in order to protect the political interests of small states, and we play the price for this every single day with regard, to take only the most obvious example, an indefensible (and expensive) agricultural policy that is passed at the "bipartisan" behest of upper Middle West Senators who care more deeply about agricultural subsides than anything else.

I agree withi Epps that the Constitution "gave the government the power it needed to function." Marshall was correct in McCulloch v. Maryland, which is enough to establish the constitutionality of the Affordable Care Act. Period. The problem is not "interpretation" of Article I, Section 8, but, rather, the egregious set of political structures that make it next to impossible actually to pass the kind of progressive legislation we so desperately need. In fact the ACA is both of historic importance and thoroughly mediocre as a genuine attack on the ever rising costs of medical care, and the reason it is so mediocre is the ridiculous power given small state senators, plus, of course, the indefensible filibuster rule, which is the result of the Constitution's grant of a power to each House of Congress to establish its own rules. One can say "you lie" (correctly) to Bachman, Glenn Beck, and their minions, but that has precious little to do with addressing the extent to which the Constitution is shamefully rigged in favor of maintaining the status quo in domestic politics. (Foreign and military policy raise different issues, though, of course, one could argue that we continue our idiotic policy toward Cuba--this is literally the 50th anniversay of the embargo established against that country--because of the structures of American politics such as the electoral college andthe inordinate power given "battleground states" like Florida, not because most rational analysts believe it makes the slightest bit of sense in today's world.)

"The framers wanted to impel change, not prevent it." Well, yes and no. The fact is that many of the Federalist Papers are full of language denouncing the tendency of legislatures, particularly the House of Representatives and its greater sensitivity to ordinary (and passionate, basically irrational) electors, to pass unwise legislation. That is, after all, why we have a bicameral system in which the Senate has a death-ray veto over anything passed by the House, and then, for good measure, the also undemocratically-chosen (in the 1787 Constitution) President would also have a veto power. (I put judicial review to one side.)

"The original Constitution prohibited oppressive practices...." Surely Epps should have rewritten this sentence, given that it so notably protected slavery, writing in a special protection for the international slave trade until 1808.

"[T]he Constitution allowed for a government adequate to the challenges facing a modern nation." No, not really. Or, to justify such an optimistic statement, one first has to create a list of "challenges" to the nation since 1789, when Washington was inaugurated, and then assess how well the government responded to them and the extent to which inadequate responses might have something to do with defects in the constitutional design. One challenge, of course, was the fact that American Indians weren't fans of American expansion, and Andrew Jackson did indeed "solve" that problem by an American version of "ethnic cleansing." But, just as obviously, in no way did the government adequately respond to the problem of slavery or the aftermath of slavery. Again, it's not that the Constitution estops the government from doing so by saying it doesn't have the power. Rather, it creates a structure within which politics occur that make this highly unlikely.

"The idea that states have rights. . . appears nowhere in the original Constitution." As a matter of fact, the Constitution very clearly does give states some genuine rights. Article VII makes ratification a matter of decision by state polities, not by the people at large. And Article IV requires, for example, the assent of a state before it can either lose territory (by division into more than one state) or gain territory (by amalgamation with another state). This is why, for example, we can't simply force the Dakotas to become one state, which would still be overrpresented with two senators. I agree strongly with Epps that the actual number of rights specified for states is astonishingly few, that most notions of states rights are made up by the Supreme Court, but why can't one settle for this rather than claiming that the Constitution is totally silent as to states possessing at least some rights (including, for that matter, a right to have its own miitia, under the Second Amendment. Today, this is viewed as a "minimalist" interpretation of the Amendment, but, as I've written on other occasions, there is nothing minimalist in the real world about sub-national units having a right in effect to have their own quasi-armies).

"The most important truth about the Constitution is that it was written as a set of rules by which living people could solve their own problems, not as a 'dead hand' restricitng their options." With respect, I think that "the most important truth about the Constitution" is that it is the most difficult to amend Constitutoin in the entire world and therefore makes it next to impossible for "living people" to "solve their own problems" if, God forbid, solution might require formal amendment of the sacred text. We are confined in an "iron cage" developed by long dead people from 1787 who had no comprehension of the way that the United States would actually develop and what kinds of political structures might be necessary to new realities.

Although Epps is critical of unnamed"progressive legal scholars" who "hold forth with polysyllabic theories of hermentics that ordinary citizens can't fathom," I am afraid that he commits the basic sin of almost every law professor, which is focus exclusively on what I have come to call the Constitution of Interpretation--i.e., the Constitution that law professors love to talk about and that is the subject of endless litigation and law review articles--rather than the Constitutoin of Settlement that never rises to the top of a law professor's consciousness because there really isn't anything to "interpret" (what part of "two senators" or "January 20" do you not understand) and, of course, this is never of interest to the judiciary.

One obvious response to this critique is simply that he didn't write the article I wish he had written. So what? Unfortunately, I think it matters. He concludes his article by writing "Ordinary Americans love the Constitution as leawst as much as far-right ideologues. It's our Constitution too. It's time to take it back." Well, as everyone who follows Balkinization knows, I very definitely do not love the Constitution, and I don't think that anyone else should either, except those who benefit from the status quo. Otherwise, we're all like deluded spouses who accept being battered as simply part of what the trials and tribulations of marriage/politics are all about. Ordinary Americans should learn that it is far past time to dispense with their mindless love and instead to engage in cold-blooded analysis. Ironically or not, the best model for that is that of the Framing generation itself, which ruthlessly dispensed with our first constitution, the Articles of Confederation, because it was viewed as thoroughly dysfunctional. There is, alas, not an iota of that most valulable lesson of 1787 in Epps's essay.

I obviously hope that he responds to this critique, either here or on his own indispensable blog site at the Atlantic. He is always worth reading (not least because, as a former reporter, he writes extremely well). But this time, at least, I do conclude, "et tu, Garrett?"
Posted 11:30 PM by Sandy Levinson [link] (53) comments

Does Virginia's challenge to the individual mandate lack subject matter jurisdiction?

JB

Kevin Walsh at the University of Richmond argues that because of previous Supreme Court precedents, subject matter jurisdiction doesn't exist and that the case, Virginia v. Sebelius, should therefore be dismissed.

Virginia's source of standing in the constitutional attack on the individual mandate is a recently-passed state statute that seeks to shield Virginia's citizens from the gulag-like horror that is the individual mandate; Virginia argues that the individual mandate is unconstitutional if it preempts Virginia's new law. Virginia claims this gives it the necessary hook to challenge the individual mandate in federal court even though the law doesn't require it to purchase health insurance.

Walsh argues that the law of federal courts puts limits on declaratory judgment actions like Virginia's in order to "insulate federal courts from the strong political forces surrounding lawsuits that seek federal court validation of state nullification statutes." Is he right? Read it and decide for yourselves. Federal courts buffs, this one's for you.
Posted 3:00 PM by JB [link]

Ghailani and the Lost Lesson of Federal Prosecutions

Jonathan Hafetz

Federal district judge Lewis A. Kaplan today sentenced Ahmed Khalfan Ghailani to life in prison for his role in the 1998 bombings of two U.S. embassies in East Africa. To date, Ghailani is the only Guantanamo detainee to be prosecuted in federal court.

Ghailani’s case demonstrates the feasibility of Article III trials for even the most challenging terrorism cases. Ghailani’s prosecution was severely compromised by his prolonged imprisonment in a secret CIA jail and at Guantanamo, all while he was under federal indictment. Ghailani’s coercive interrogations led to the exclusion of one government witness; two other witnesses who had testified against Ghailani’s co-defendants died during Ghailani’s years of extrajudicial detention. Although the jury acquitted Ghailani of all charges of murder and conspiracy, it still convicted him of a count serious enough to result in a life sentence.

The Ghailani conviction, however, will likely have limited impact, at least in the short term. Defense Secretary Robert Gates is expected to issue an order authorizing new military commission trials at Guantanamo. Congress, moreover, has enacted legislation barring the administration from using defense department funds to prosecute any Guantanamo detainee in federal court for at least the current fiscal year, thus dealing a critical blow to Attorney General Holder’s plan to prosecute Khalid Sheikh Mohammed and the other alleged 9/11 plotters.

Stripped to its essence, the choice is as follows. Should the United States charge those responsible for the worst domestic terrorist attacks in the nation’s history in a time-tested and credible adjudicatory system? Or should it instead continue to hold them in legal limbo (via military detention) or try them before military tribunals whose rules remain in flux and legitimacy open to question? Law and logic dictate the former. But if past is prologue, partisan gamesmanship and the politics of fear will continue to prevail, and federal prosecutions of Guantanamo detainees will remain the exception not the norm.
Posted 3:41 PM by Jonathan Hafetz [link]

Hasen: "leave the question of who should be Chicago's mayor to the voters"

Mary L. Dudziak

Rick Hasen has a sensible reaction to the Illinois Appellate Court ruling knocking Rahm Emanuel off the ballot for Chicago Mayor.  Here's his bottom line:

Today's decision is wrong on many levels. Whether Emanuel's move to D.C. for a year should affect his mayoral chances is a question for the voters, not the courts, to decide. Emanuel's residency is no secret--it has been a defining campaign issue. If Chicago voters don't want to vote for Emanuel because they think he's a carpetbagger (even though this strains credulity given his longstanding Chicago ties), they can reject him at the ballot box. Now, in a nonpartisan election, they'll have to choose among a long list of candidates, none of whom has polled as strongly as Emanuel. Finally, should a politician really face a penalty like this for serving the president? Is it really true that no good deed goes unpunished?

The appellate court's overly technical reading of Illinois law risks denying Chicago voters their first-choice candidate for mayor. For no good reason, the court has thrust itself into the political thicket. If there's time, the Illinois Supreme Court should get the judiciary out of the fray and leave the question of who should be Chicago's mayor to the voters. 

The rest is on Slate.  Hasen's Election Law blog is the best place to follow breaking news on election snafus.
Posted 10:33 AM by Mary L. Dudziak [link]

The Economics of Tiger Parenting

Ian Ayres

Crosspost from Freakonomics:

When my daughter Anna was 7, she told me she desperately wanted a dog. I looked her in the eye and said, “You can have a dog if you publish an article in an academic peer-reviewed journal.” I wasn’t kidding. I really, really didn’t want a dog because I thought it would disrupt our family routine, which included large dollops of what Amy Chua’s controversial new book, Battle Hymn of the Tiger Mother, refers to as Tiger parenting. (Full disclosure: I am a friend and colleague of Amy Chua. Her book had me in tears at times. I predict that it will be made into a movie — after several weeks on the bestseller list.)

But I was willing to put up with the disruption if Anna was willing to do something extraordinary. So, for the next year-and-a-half, I worked hard with Anna and her brother, Henry — first in teaching them statistics and then in co-authoring a study based on survey data the kids collected concerning perceptions about the variability of women’s height. (BTW, we found that the response rate is very high when an 8-year-old asks you “Would you answer four questions for a Snickers bar?”) One of my happiest days as an academic was when the study was accepted for publication by Chance, a Journal of the American Statistical Association.

As I write this, our beloved family dog, Cheby (who is named for the mathematician that discovered Chebychev’s inequality), is lying at my feet.

Read more »
Posted 4:15 PM by Ian Ayres [link]

The Obama Generation

Gerard N. Magliocca

We are now in the second half of President Obama's term. This is probably a good time to think about how the last two years fit into broader patterns of constitutional development, with an eye towards what will happen in 2012.

In my books on Jacksonian Democracy and Populism, I set forth a detailed descriptive model of "generational change." The claim is that there is a pattern tied to the realignment of the party system that recurs approximately every thirty years and results in major constitutional reform.

What does this framework have to say about the Obama Administration? Well, here's what it suggested to me in 2008: (1) Obama would win the presidency decisively; (2) a transformative statute would be enacted by Congress in the first year or two of his Administration with some procedural irregularities; and (3) that statute would generate a powerful backlash in favor of the President's political opponents. I knew this because that is how every new constitutional generation begins. My premise, of course, was that the 2008 election was a realignment. The generational model, though, contains a handy diagnostic for making that assumption; namely, that about thirty years had passed since Ronald Reagan's watershed election in 1980. (I'll explain how I arrived at that yardstick in some future posts. It works for every fundamental shift in the party system except for what occurred between the 1960s and the 1980s.)

What does this framework tell us about the next two years? Well, it suggests to me that: (1) there will be a sharp conflict over the Affordable Care Act in this Congress focused on the Spending Clause; (2) the probability that the Court will strike down the individual mandate is relatively high if the case is decided prior to the next presidential election; and (3) President Obama will be reelected with more than 55% of the vote. The reasoning is the same as stated above--that is how the pattern has played out before if you adjust for certain variables.

So why haven't I written this up in a law review article or a book? One reason is that the size of the Republican victory in 2010 calls into question the premise that 2008 was a realignment. It is possible, though not probable, that the backlash against the President will carry through until 2012. More fundamentally, the historical pattern that I am relying upon only has eight data points (the Founding, Jeffersonian Democracy, Jacksonian Democracy, Reconstruction, Populism, the New Deal, the Civil Rights Movement, and the Reagan Revolution). No serious social scientist would say that is enough for a robust model. Nevertheless, I think that I am going to write this up. After all, at least I have some predictions that can be tested clearly.
Posted 3:03 PM by Gerard N. Magliocca [link]

Reforming congress

Sandy Levinson

There is a very interesting op-ed in today's NYTimes on Congress's dereliction of duty in not raising the number of members of the House of Representatives in almost 100 years (!!). The average district is now over 700,000, and Delaware and Montana a single-district states with over 900,000 population. The "cube-root law" of districting, which suggests that representatives bodies should the cube root of the total population, would generate a House of around 676 members. The authors of the op-ed, Dalton Conley and Jacqueline Stevens, note that a House with the same average population as was the case when it became a 435-member entity following the admission of Arizona and New Mexico in 1912, would have about 1500 members. One might well believe that that is too many.

Another Times article, titled "While the House is Abuzz, Senate Hits Snooze Button," concludes by noting the unanticipated "alliance" between Socialist Rep. Victor Berger, who in 1911 proposed abolishing the Senate, described as an "obstructive and useless body," and Republican Rep. Michele Bachman, who apparently suggested last week that the House should propose the same thing. (It would take a constitutional amendment, of course, but only a "regular" amendment, since abolition wouldn't violatel the "equality" provision of Article V requires unanimity to amend.) Perhaps this is an illustration of the "stopped clocks are right twice a day" principle, but I hope that this suggestion of Rep. Bachman's is actually discussed rather than being dismissed as simply loony. To be sure, I presume that her abolitionist instincts were dormant in the last session, when Republican mad-dogs in the Senate were able to wreak havoc against a Democratic House. And, all things considered, I do believe, as I've said on many previous occasion, that the country is far too large and diverse to be governed effectively by only one legislative house. But none of this vitiates Berger's observation about the Senate we have (as against other Senates that might well be designed). No doubt most readers of Balkinization applaud the "obstructive" role the Senate will play against the mad-dog House, but "we" should recognize that such applause carries a real cost in legitimizing what has become an indefensible institution.

Incidentally, returning to the theme of the first paragraph, Larry Sabato, whose valuable book (available online for $11.79) proposes many specific constitutional changes, advocates increasing the size of the Senate as well as the House, and I think he's clearly correct. Even assuming the present alloction of power, I'd rather there be 200 senators (with Wyoming having four of them) than the present 100.
Posted 12:06 PM by Sandy Levinson [link] (14) comments

"Finally Able to Capture Their Fair Share"

Frank Pasquale

In his inaugural address, President Obama stated that "a nation cannot prosper long when it favors only the prosperous." But virtually every critical personnel choice he's made in recent months suggests little, if any, concern about addressing the root causes of American inequality. The turn to Jeff Immelt and Bill Daley reminds me of the worldview of Larry Summers, as summarized by the president of a well-connected international advisory firm:

[While traveling in Chile,] I thought back to [a] conversation with Lawrence Summers at the Charles Hotel in Cambridge, Massachusetts. Summers had suggested that the reason the most economically successful members of society are getting so much more might be that the world is actually becoming more efficient: the system is rewarding the more skilled at proportionally higher rates, giving those with access to technology greater rewards for their heightened productivity, and giving those leading enterprises of growing scale greater returns for their companies' incremental growth. Unfettered markets are doing their job. Isn't it possible, he was positing, the overachievers are now finally able to capture their fair share of returns given their relative talents, productivity, and contribution of valued economic outcomes? (55)

A Summersian economist might lament the mere $101 million earned by Verizon's CEO over the past 5 years. Between 2006 and 2007, Mexican communications mogul Carlos Slim Helu grew his fortune by $19 billion, a sum equivalent to about 2.5 percent of Mexico's GDP. Perhaps if Verizon's CEO can make that much, he'll finally be able to capture his fair share, too.
Read more »
Posted 12:10 PM by Frank Pasquale [link]

Linnaean Regulation in Health Insurance and Information Technology

Frank Pasquale

I was recently listening to Health Affairs's "Newsmaker Breakfast with Karen Pollitz." She gave a fascinating presentation on the challenges she faces as she develops HealthCare.Gov as a portal for information about health insurance. As I noted a few years ago, health insurers can easily mislead consumers about the nature of their coverage, and disclosure charts can be very helpful.

But even disclosure charts run up against the slipperiness of language. Pollitz noted that for some plans, a "deductible" was not really a deductible; you could easily spend much more out-of-pocket on health care than the stated "deductible level" before coverage kicked in.

How can an individual make an informed choice when words lose their meaning in a tangle of qualifications and conditions? At what point does a deductible cease being a deductible? While this might seem like a relatively technical question of insurance regulation, it is reflects a more general information-gathering problem that will confront regulators in coming years. Scientists could only predict and control aspects of the natural world when they could be named and classified. Any successful regime of healthcare reform will depend, at a bare minimum, on a flexible yet standardized classification system that can map what health insurers are doing. Like Linnaeus patiently organizing a welter of living forms, regulators will need to taxonomize pullulating permutations of insurer practices.
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Posted 10:48 PM by Frank Pasquale [link]

Health care reform: the Broccoli Objection

Andrew Koppelman

One of the most rhetorically effective arguments that has been made against President Obama’s health insurance mandate is that it places us on a slippery slope to totalitarian government. If the federal government can make us buy insurance, what can’t it do? Thus the principle, endorsed by the Supreme Court only a few years ago, that the commerce clause gives Congress plenary authority over the economy is now seen as dangerous. "In the broadest sense every decision we make is economic. The decision to marry. The decision to keep a job or not has an economic effect," Judge Roger Vinson of the Florida District said in December. "If [the federal government] decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?"


It is for this reason that opponents feel it is necessary to invent new limits on Congressional power – limits that just happen to invalidate the mandate. The Eastern Virginia judge who declared the mandate unconstitutional, Henry Hudson, declared that in order to be subject to regulation by Congress, an individual had to engage in “some type of self-initiated action.” He cited no authority for this proposition, and there is none. He invented it in order to invalidate the mandate. He was also worried about overreaching federal power. The Broccoli Objection generates the Self-Initiated Action Principle.


The Broccoli Objection, as I will call it, rests on a simple mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one.

Read more »
Posted 4:48 PM by Andrew Koppelman [link]

The Ninth Circuit and the Writ of Habeas Corpus

Jason Mazzone

Today, the Supreme Court decided Harrington v. Richter and Premo v. Moore. In both cases, the Court reversed 8-0 (with Justice Kagan recused) the Ninth Circuit's grant of a writ of habeas corpus. Justice Kennedy authored the opinion for the Court in both cases. And in both cases, the Court is highly critical of the Ninth Circuit's decision granting the habeas petitioner relief.

Justice Kennedy's opinion in Harrington (joined in full by every Justice except Justice Ginsburg) begins with the strongest rebuke of a lower court's habeas ruling to be found in any Supreme Court case:

The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review. The Court of Appeals, in disagreement with the contrary conclusions of the Supreme Court of the State of California and of a United States District Court, ordered habeas corpus relief granted to set aside the conviction of Joshua Richter, respondent here. This was clear error.

"Judicial disregard" is as close as it gets to saying the lower court flouted the law.
Posted 4:35 PM by Jason Mazzone [link]

Zero Left

Frank Pasquale

Andrew Sullivan displays his Oxford debating talents in today's post "Does The Blogosphere Permit Left Wing Ideas?" He approvingly quotes Will Wilkinson's diktat that "socialists" have never "made compelling arguments about policy." But he maintains a patina of objectivity by coyly wondering, "If we're missing worthy far-left blogospheric voices, who are they?" "Neglected hard-leftist" is a dubious honorific, given the radioactive status of the merely liberal. As Paul Horwitz observes, the "influence of leftist rhetoric" is "vanishingly small in American politics."

Perhaps we could paraphrase Grover Norquist and conclude that the left is small enough to be dragged out and drowned in the bathtub. If so, what does American political discourse lose? Quite a bit, especially when you look at big issues like health care and finance.
Read more »
Posted 7:50 PM by Frank Pasquale [link]

Martin Luther King Day Reflections on Michelle Alexander's "The New Jim Crow"

Frank Pasquale

A map called "Architecture and Justice" was one of the most chilling displays at MOMA's Design and the Elastic Mind show a few years ago. One could watch in real time as a red dot--representing a person--was swept from one of New York City's poorer boroughs and "landed" in an upstate prison.

Part of the mapping project is called "Million Dollar Blocks," because annual imprisonment costs of some city blocks exceed $1 million. In those places, "on a financial scale, prisons are becoming the predominant governing institution in the neighborhood." Certainly the 14,000 residents of Brownsville, Brooklyn may feel that way, enjoying about 6,000 police stops a year for "furtive movement" or "other" unspecified behavior. As the NYT reports, "in each of those encounters, officers logged the names of those stopped — whether they were arrested or not — into a police database." And there are many crimes to solve---as Sen. Jim Webb has noted, "With 5% of the world's population, our country now houses nearly 25% of the world's reported prisoners."

I kept thinking of the "Million Dollar Blocks" while reading Michelle Alexander's extraordinary work "The New Jim Crow: Mass Incarceration in the Age of Colorblindness." Alexander's position on the criminal justice system evolves over time:

After years of working on issues of racial profiling, police brutality, and drug-law enforcement in poor communities of color as well as working with former inmates struggling to "re-enter" a society that never seemed to have much use for them, I began to suspect that I was wrong about the criminal-justice system. . . . Quite belatedly, I came to see that mass incarceration in the United States has, in fact, emerged as a comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow. [emphasis added]

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Posted 5:42 PM by Frank Pasquale [link]

Continuity in Government

Sandy Levinson

The Washington Post reports that Arizona law declares vacant a seat of any public official who is unable to discharge his/her duties for a period of three months, which might well apply to Rep. Gifford. As a matter of fact, the provision makes a great deal of sense, if one believes that the citizenry is entitled to "full representation" (whatever exactly that might mean). What is interesting is whether the provision is constitutional, inasmuch as the Constitution, when listing the criteria for membership in the House or Senate, does not list "capacity to function" as one of them. And the Court, in its infinite wisdom several years ago declared by a 5-4 vote that it was unconstitutional for a state to add to the criteria set out in the Constitution.

Predictable outrage has been expressed at the possiblity that Rep. Giffords might lose her seat and a special election called should she not continue her "miraculous" recovery. But consider the possibility that she was only one of, say, two hundred members of Congress severely debilitated had Flight 93 crashed into the Capitol. Dead senators are no problem at all, since they can, in most states, be succeeded the next day by whomever a governor appoints. Dead representatives can't, alas, be replaced by anything other than special elections. But the problem in both houses is a signiificant number of seriously disabled reperesntatives and senators. A joint commission of the American Enterprise Institute and Brookings Institution has been working now for almost a decade on the problem of "Continuinty in Government," but, altogether predictably, Congress as a whole has done nothing whatsoever to address this possibility. (Texas Senator John Cornyn deserves great credit for in fact holding hearings on the Brookings-AEI proposal back in 2004, where former Sen. Alan Simpson (R-Wy) expressed outrage at the unwillingness of Republican Rep. James Sensenbrenner of Wisconsin, who was then chair of the House Judiciary Committee, even to hold hearings.) No further hearings, to my knowledge, have been held in the past half-dozen years. "Retail vacancies" are not a serious problem (save perhaps for the state or district in question), but "wholesale vacancies" could prove a national disaster, since, among other things, We the People would demand action from a de-facto dictatorial President if Congress could constitutionally govern (because, for example, it could not achieve a quorum of its membership, most of whom would be disabled).

Arizona's law might be unconstitutional, but, unlike many recent Arizona statutes, it is not at all stupid, and it would be most unfortunate if, yet again, a serious discussion about what is in fact a potentially disastrously dysfunctional feature of the Constitution is brushed aside because of the belief that it would be disrespectful to Rep. Giffords to address candidly how long it will be before she can resume her responsibilities. Of course, South Dakota Tim Johnson was incapacitated for many months following his stroke, and South Dakotans were happy to re-elect him at the next available opportunity. (And perhaps Massachusetts was delighted to be "represented" by Sen. Kennedy in the last months of his life when he was confined to his home save for the symbolic trip to cast his vote in favor of reform of our egregious system of delivering medical care.) One hopes, obviously, that Rep. Giffords will have the same recovery as did Sen. Johnson, but, frankly, I don't recall anybody describing the extent of his recovery as "miraculous."
Posted 5:30 PM by Sandy Levinson [link] (14) comments

Because It Works

Ian Ayres

Crosspost from Freakonomics:

To my mind, WeightWatchers is the industry leader in performing rigorous testing of their services. Under the leadership of Karen Miller-Kovach, its chief scientific officer, it has sponsored several randomized control trials comparing the effectiveness of the WeightWatchers point system to other diet approaches. For example, Miller-Kovach is a co-author of this 2003 JAMA study (which showed that after 2-years WeightWatchers helped overweight dieters lose about 3 percent of their body mass – reducing their average weight from 207 to 201 pounds).

But I’m troubled by the current advertising campaign that accompanies the rollout of the New PointsPlus system.

The tagline “Because it works” is not well supported by the data. (You can see the phrase in the background in this television commercial, where the amazing Jennifer Hudson belts out “Feeling Good.”)

Miller-Kovach has been out in front promoting the new point system claiming, for example:

Our new PointsPlus program is based on the latest scientific research and is designed to guide people to foods that are nutrient dense and highly satisfying, ensuring they will make healthful decisions, have successful weight loss and learn to keep their weight off long-term.

The WeightWatchers site helpfully has a page laying out “The Science behind thePointsPlus™ Program”:

The Weight Watchers approach delivers a science-based, lifestyle modification program based on 4 pillars— diet, physical activity, positive thinking skills and an environment of support.

The new PointsPlus program does not waiver from this foundation, but rather incorporates advances in science and nutrition as it relates to weight management. It has been tested in a rigorous, independent clinical trial, and the results demonstrate it delivers significant weight loss as well as improvements in cardiovascular risk factors and eating behaviors linked with long-term weight loss and hedonistic hunger (an urge to eat when the body does not have a biologic need to). ^1,2

These two footnotes (1,2) are the crucial backup for both the “because it works” claim and the claim that the PointsPlus program has been “tested in rigorous, independent clinical trials and the results demonstrate it delivers significant weight loss.”

It turns out that the two studies, which are both coauthored by Miller-Kovach, provide pretty meager support for these claims.

One study took 132 adults with BMIs between 27 and 35 and randomized them to “1 of 2 systems for appraising food intake” (I guessing, the old points and the new points system). Then after 12 weeks, the researchers looked to see whether there was a difference between the groups in weight loss or in self-reported measures of weight control of hedonic hunger. The key, and to my mind alarming, results were succinctly stated:

Results: 111 subjects (99 F, 12 M) completed all Week 12 assessments. With no differences between conditions on any measure, analyses used the combined sample. M % weight loss was 4.4% (S.D.=3.71).

The study of just 111 subjects seems to have found no difference on any measure between the old and the new point systems. The average weight loss for diets after 12 weeks was 4.4 percent, which is not only modest (especially given that most dieters regain weight between 6-24 months), but the standard deviation of 3.71 suggests that it is not even a statistically significant loss in weight. Counter to the claims of the website, I do not believe that “the results demonstrate it delivers significant weight loss.”

The second study which is cited seems to be just a second analysis of the same experiment (132 adults again with BMIs between 27 and 35). Instead of looking at weight loss and self-reported measures of hunger, this study looked to see whether there were differences between the groups in “Lipid, blood glucose, blood pressure and waist circumference.” But again, the researchers report no differences between the old and new point systems: “With no weight loss differences between conditions, analyses used the combined sample.”

So, as far as I can tell, the change to the new point system is supported by a single experiment of 132 subjects that could not find any difference in results between the two point systems. To my mind, the campaign may mislead consumers, who are more likely to hear in the phrase “New PointsPlus, because it works” the idea that WeightWatchers made the change “because the new point system works better than the old points system.” But the current studies don’t support this inference. A more accurate, but less appealing tagline would be: “New PointsPlus, because it doesn’t work any worse.”

I may be wrong about all of this. One of the downsides of starting to teach Intellectual Property is that I find myself seeing an increasing number of Lanham Act violations. In fact, the new point system, by providing more dieting freedom and flexibility (the new system, for example, attributes zero points for fruit), without any worse results may be a net good. But I fear this more subtle message is unlikely to be understood by consumers who are in the market for a weight loss plan.

(Conflict Disclosure: I’m a co-founder of a website and author of a diet booklet (including a frank assessment of its limited empirical support) which might be viewed as either a substitute for or a complement to the WeightWatchers system.)

Posted 2:35 PM by Ian Ayres [link]

American constitutional exceptionalism

Guest Blogger

Miguel Schor

In a recent post David Beatty writes that while the American Constitution is thriving abroad, American constitutional law is not. While I have reservations about Professor Beatty’s claim that our formal Constitution still sets the global standard given the variation we see in how governments are organized around the world, there is little doubt that the United States is increasingly an outlier on the global stage when it comes to judicial output. Professor Beatty characterizes the American approach as a “pluralist” and polarized “conversation between competing cults.”

Constitutional polarization may well be our distinctive contribution to twenty-first century global constitutionalism but the causes for this have less to do with how judges reason than it does with how constitutions mediate conflict. All constitutions that authorize judicial review have to deal with the problem of judicial discretion since reasonable people can and do disagree on the meaning of the open-ended provisions of a constitution.

One could seek to cabin this discretion by policing how judges interpret a constitution. The debate between common law constitutionalism and originalism is, at bottom, a disagreement over how best to constrain judicial discretion.

One could also seek to limit judicial discretion by means of checks and balances. While all constitutions place democratic limits on judicial review, the United States Constitution is exceptionally weak in this regard. The problem of judicial discretion did not loom as large in the constitutional imagination of the framers as it did in the imagination of twentieth century constitution writers who could and did draw on our experience to fashion stronger political limits for national high courts. Judges on European constitutional courts are subject to term limits and are also typically subject to supermajority appointment provisions. Canada, the United Kingdom, and New Zealand have sought to empower legislatures to play a larger role in constitutional interpretation.

These are post-war constitutional developments and it may be that polarization will one day characterize constitutional orders abroad much as it now does in the United States. Nonetheless, it is also quite possible that the sharper tools political actors abroad have at their disposal to contest judicial decisions they disagree with mediate conflict better than the weaker tools available in the United States. Democracies, for example, do a better job of mediating conflict than do dictatorships because there is greater input into policymaking. The same is likely true for constitutional law. Judicial supremacy as we have in the United States weakens the ability of other actors to contest decisions they disagree with. In short, design, time, and accident go a long ways towards explaining why our constitutional order is so exceptionally polarized.

Miguel Schor is Professor of Law, Suffolk University Law School and currently Visiting Professor and Director of the Constitutional Law Center, Drake University School of Law. You can reach him by e-mail at mschor at suffolk.edu
Posted 6:00 AM by Guest Blogger [link]

“Ten Times More Productive”

Frank Pasquale

I respect Tom Friedman's Cassandran efforts to curb American dependence on foreign oil. One can occasionally snicker at his exuberant style, but not the environmentalist substance. America needs more green hawks like him.

But I was taken aback by his casual comment on a radio show that American workers need to be "ten times as productive" as Indian or Chinese workers to maintain current earning levels. Over the past fifty years, we've seen CEO salaries go from about 50 times employee average pay to a 500 times multiple. If anyone needs to become "ten times more productive," it's those at the top of the "value chain."
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Posted 10:17 PM by Frank Pasquale [link]

The Insurance Industry and the Constitutionality of the Individual Mandate

JB

This last week Kansas's attorney general asked to join the Florida challenge to the individual mandate, making Kansas the 26th state whose attorney generals have have opposed the individual mandate in the affordable care act. (Over at Volokh Conspiracy, Ilya Somin finds this groundswell of state opposition to the constitutionality of the act remarkable and even unprecedented. It's worth noting, however, that attorney generals representing 37 states supported the Violence Against Women Act in 2000. But this even greater display of state consensus on constitutionality did little good. The act was struck down by a conservative Supreme Court majority in United States v. Morrison-- perhaps ironically, on federalism grounds).

To explain why so many state attorney generals have supported the challenge to the individual mandate, it's also worth noting that virtually all of the attorney generals who have challenged the individual mandate are Republicans. Repeal of the health care act has become a Republican political goal, at least in official public rhetoric. And the political battle is being waged on several fronts, including the courts. Although many Republican lawyers and legal scholars (see Charles' Fried's recent op-ed as an example) do not believe the individual mandate is unconstitutional, the constitutionality of the affordable care act increasingly has become a constitutional debate between politicians and political operatives in the two major political parties-- a political controversy, that, not surprisingly, has now been carried to the federal courts for resolution. (Alexis de Tocqueville, please call your answering service.)

At the same time, this Politico story suggests that the health insurance industry has made its peace with the affordable care act, precisely because the law includes an individual mandate.

The reason is simple. The individual mandate was an industry idea designed to give health insurers some 30 million new customers. The insurance industry wanted to avoid a public option, which would have allowed individuals to avoid buying insurance from a private company. (Note that having to buy insurance from a private company is precisely the objection made by conservative opponents of the individual mandate!) Now that the public option has been defeated, and new regulations are being written, the insurance industry is more or less content with the new business opportunities created by the act.

If the individual mandate is struck down, but the rest of the act remains in place, then the insurance industry has all of the new costs created by the popular guaranteed-issue requirements of the act, but none of the cross-subsidies created by the individual mandate. At this point, their business models, far from being assisted by the new legislation, are in serious jeopardy. Indeed, the government might eventually have to respond with something like a different version of the public option designed to absorb a substantial number of high risk individuals, or even (shudder!) move ever closer to a single payer system.

The insurance industry therefore might be happy with striking down the individual mandate only if all of the affordable care act went with it. But this is very unlikely to happen. The individual mandate is severable from the rest of the act, as Judge Hudson's recent opinion recognized, and that is so even if Congress did not include a specific severability provision. Federal courts will be loath to strike down a significant piece of legislation with many different facets simply due to one provision. They will, instead, leave it up to Congress to decide what to do.

And make no mistake, Congress will not repeal the most popular parts of the affordable care act, even if the individual mandate is struck down by the federal courts. The same Congress that finds it hard to cut anything from its budget won't be able to bite the bullet on this one either.

Thus, if total repeal is not on the table, the insurance industry's interest is in keeping the individual mandate and thus opposing any attempt to hold it unconstitutional.

It will therefore be interesting to see whether, as the litigation develops, members of the insurance industry begin to file amici supporting the constitutionality of the individual mandate. If they do, Republican party politicians who have received substantial contributions from the health insurance industry over the years will have an interesting decision to make. The Tea Party may despise the individual mandate, but the health insurance industry does not. Which is more important to Republican politicians, their base or their contributors?

Perhaps equally important, if the insurance industry tells the federal appellate courts or the Supreme Court that striking down the individual mandate is economically unsustainable and will lead to a single payer system, it is interesting to speculate about what the federal courts--including conservative members of the judiciary--will do. Will courts be more tempted to strike down the entire affordable care act, or will they instead be even more drawn to the mainstream view that the mandate is perfectly constitutional?
Posted 10:31 AM by JB [link]

The U.S. Constitution: Beloved or Betrayed

Guest Blogger

David Beatty

At the end of their dialogue on the theory and structure of the U.S. constitution Randy Barnett and Sandy Levinson raise an interesting point. Both agree that for Americans their constitution is “beloved” but they also acknowledge that in the rest of the world it is not.

They do not speculate why that division of opinion has come about. In this short post I do.

It is true that the fortunes of American constitutionalism abroad have sagged in recent years but it is important not to exaggerate what the rest of the world finds wanting in what Americans think of as a universal ideal.

Today virtually everyone agrees with the basic organizing principles of government the Americans introduced in 1789: accountability of rulers to their subjects; separation of the powers of the legislature, executive and the courts; division of powers between national and regional governments; and (in 1791) entrenchment of a constitutional bill of rights. Democracy, the independence of all three branches of government, federalism and the practice of judicial review are now widely accepted as the basic tools to counter arbitrariness and abuse of power in government.

In terms of the broad structure of government, the American model still sets the standard. There are differences in the styles and specific guarantees that are included in modern constitutions but for the most part these reflect the time and place where they were written and are more a matter of responding to local needs than being explicitly anti American.

It is more in the theory and practice of constitutional law that outsiders have come to the conclusion that American constitutionalism is not a practice to be emulated. One feature of the American model of constitutional democracy that many outsiders find particularly regrettable is how personal and partisan it has become, especially among the judges who sit on the Supreme Court.
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Posted 6:59 AM by Guest Blogger [link]

The Tucson, Arizona Shooting 2011: The Interaction of Mental Health Problems and the Language of the Gun

Bernard E. Harcourt

David Brooks and some of the letter writers capture the reaction to this tragic incident well with their sentiment that “the political opportunism occasioned by this tragedy has ranged from the completely irrelevant to the shamelessly irresponsible.” Looking ahead and more calmly, it will be important to think about several dimensions of the tragedy, including first the provision of mental health care post-deinstitutionalization, second the regulation of dangerous weapons, third the nature of political discourse and political resistance, and fourth our intense culture and love of guns in this country. These factors interact, and it is important to understand how, exactly. Mental health problems interact with our culture of guns in such a way as to produce these exceptional killings. In the Southwest, in a city like Tucson, there is what I would call a “language of the gun” that has become the very way in which many individuals express themselves, their identities, their desires, their difficulties, and their emotions, including rage. It is, in my opinion, unlikely that we will be able to properly address the issues of mental health provision or regulate guns more effectively unless and until we come to grips with the lust for guns that permeates so much of our culture.

A few years ago in Tucson, I interviewed a number of young men and boys at the Catalina Mountain School, a juvenile correctional facility and, more than anything, I was deeply struck by their fascination with guns, their attraction to firearms, their lust for the weapons. The interviews revealed rich sensual, moral and political, and economic dimensions of guns and gun carrying among these youths. I came away from the experience convinced that it will be impossible to deal with the problems of handgun possession or to impose effective gun control measures unless we get a handle, first, on the deeply seductive and complex nature of guns. We need to focus on the interactions. Just as different factors may interact in China to produce the recent rash of knife killings in elementary schools, it’s crucial to explore in this country how mental health issues relate to guns.

In Tucson, I began all the interviews with a display of the three pictures of guns that I had taken out of a magazine, the American Handgunner — a 9 millimeter, a .45 semi-automatic, and a Colt .45 revolver—and asked a free associational prompt. A very few of the youths expressed visceral opposition to the guns (some preferred knives), but the vast majority were filled with lust at the very sight. The very image of the handguns inspired a deep sense of awe and desire. They would fixate on the photos and, with expressions of slight laughter or giggling or quiet moaning, would manifest a kind of yearning for the guns. Many of the youths wanted to go shoot the guns, or touch them, or smell them. “They’re cool. I want to play with them. I want to go out and shoot them.” “Guns are nice. They just, I don’t know, I just, I just like guns a lot.” “I would like to have one of these. . . . I always want, I always like, I always like guns. . . . Yeah, I always like to have one.” “I want to go shoot them. I want to see how they handle.” “They look tight. They look nice.” “They’re nice looking guns.” “I kind of like how they look. I just want to go shoot them.” “Those are some tight guns. I like them. I like the way they look.” “I love guns. Hell yeah, I love guns. [I love] everything about a gun.” “Those are some pretty tight guns.” “I think they’re cool. I like them. They’re nice. Someday I want a gun collection.” “(Smiling) It’s just tight right there. . . I like it. . . . It’s just tight like the way it looks. The way you can shoot. Those can shoot like ten rounds, huh? But they get jammed a lot. I had one.” “I’d say they look pretty tight. . . . They look cool.” As a 17-year-old explained, “Everybody likes guns these days, dude. Hell yea. They’re exciting. I mean what the hell. You feel powerful when you have a gun. You get respect.”

It is difficult to express in words the richness of emotions that the pictures evoked in these youths. The fact is, these (images of) guns were deeply seductive objects of desire. They held a surprisingly powerful and passionate grip over many youths. At the same time, carrying a gun had a strong moral dimension to many youths. Most of the youths I interviewed associated guns with a form of aggressive, pre-emptive self protection, and many of them felt self-righteous about the need for self-protection. In other cases, youths invoked notions of “enemies” and conceptions of warfare. Youth gun carrying also had an economic dimension to it. For many youths, handguns had important exchange value. They represented a commodity to be traded or sold for cash or drugs or sexual favors.

All in all, the interviews revealed a rich set of experiences with guns. The vast majority of the Catalina youths, twenty-six or 87 percent of them, had possessed guns at some point in their lives. And the firearms they carried were often high-caliber semi-automatic pistols. The nine millimeter was, in the words of a 17-year-old Tucson youth, “the size of the moment.” “It’s just going to be more powerful,” a 14-year-old student impatiently explains, “and it’s kind of just gonna go pretty much right through you.” Or, as a 17-year-old gang member states, semi-automatics “look nicer,” they’re better “if you want to let off quick rounds,” and “they’ll just put a hole in somebody’s ass.”

I came away from the experience in Tucson thinking that it is absolutely crucial to explore the different appeal and seduction of guns, and their relationships to issues like mental health, wealth distribution, and family ties. I have the same feeling when I read about the accused shooter, Jared Loughner, and his relationship to guns. I’m left thinking that we need to better understand this culture and language of the gun if we are to make any headway in making guns less dangerous and helping to avoid future tragedies like the one in Tucson.
Posted 1:47 PM by Bernard E. Harcourt [link] (52) comments

Constitutional Atheism

Gerard N. Magliocca

Two of my co-bloggers have written about the importance of faith in constitutional law. Sandy's book on "Constitutional Faith" and Jack's work on "Constitutional Redemption" both make the point that citizens must believe that the Constitution can be made better in order to sustain their allegiance to the document. There are similarities between how this works and how religions relate to their founding scripture. Both rest on the fiction, as I pointed out in a post last month, that the Word is infallible and that errors made in its name are the fault of human institutions. In other words, there must always be a platonic Constitution that people can appeal to when they disagree with the Supreme Court interpretations. Thus (as I will explain in some additional posts), much of constitutional practice is driven by the need to preserve that ideal.

There is one problem with this analysis. Suppose you are not religious. In that case, the notion that mystical faith is a necessary component of constitutional legitimacy would be hard to comprehend. What would a constitutional atheist say? I think the best answer was given by Walter Bagehot in his classic discussion of the platonic role that the Crown plays in the British Constitution.

"The ruder sort of men-- that is, men at one stage of rudeness--will sacrifice all they hope for, all they have, themselves, for what is called an idea--for some attraction which seems to transcend reality, which aspires to elevate men by an interest higher, deeper, wider than that of ordinary life. . . . The elements which excite the most easy reverence will the the theatrical elements-- those which appeal to the senses, which claim to be embodiments of the greatest human ideas, which boast in some cases of far more than human origin. That which is mystic in its claims; that which is occult in its mode of action; that which is brilliant to the eye; that which is seen vividly for a moment; and then is seen no more; that which is hidden and unhidden; that which is specious and yet interesting, palpable in its seeming, and professing to be more than palpable in its results; this, howsoever its form may change, or however we may define it or describe it, is the sort of thing--the only sort--which yet comes home to the mass of men."

I leave it to you to decide whether Bagehot's description of constitutional faith as nothing more than a superstition is correct.
Posted 9:40 AM by Gerard N. Magliocca [link]

Twitter’s Response to WikiLeaks Subpoena

Marvin Ammori

Can the U.S. Continue to Support a Free Global Internet in the Age of Wikileaks, Cyberwar and Rampant Copyright Piracy

Posted 1:41 PM by Marvin Ammori [link]

Is the Obama Administration countenancing torture of a US serviceman?

Sandy Levinson

An eloquent editorial in the LA Times suggests that the answer is yes. Put it this way: What would our reaction be if it were discovered that someone held by the Taliban were being subjected to the treatment apparently imposed on Pfc. Bradley Manning? Is this just another example, alas, of the maxim, "if we do it--and it doesn't include the rack and screw or waterboarding (for the Obama Administration)--then it isn't torture" (or even "cruel, inhumane, or degrading treatment"?)

For better or worse, I can't blame this on the Constitution, which, properly interpreted, would find such treatment to violate the 8th and/or 14th Amendments. (In the Orwellian world of the law, the 8th Amendment might not apply because Pfc. Manning's treatment isn't "punishment" after conviction (which is what is presumably covered by the Amendment), so we have to turn to an "unenumerated right" contained within the "privileges or immunities of US citizenship."
Posted 7:33 PM by Sandy Levinson [link] (61) comments

Mea Culpa (And a bit more on Shapiro's Legality)

Brian Tamanaha

Imagine proud parents showing off their newborn child for the first time to a group of friends, when a loud jerk says: “Your baby is beautiful, but I must tell you that I really hate babies. They cry all the time, demand constant attention, and poop a lot.” That would be a world class cad.

In her response to my previous post on Legality, Heather Gerken objects that I praise Shapiro’s book, but then go on and on about why I think his methodological commitments to universalism and essentialism, and his assertion that sociological insights on the concept of law are irrelevant to legal philosophy, are misguided. As Heather correctly points out, my objections are not to Shapiro’s book in particular but to a set of views he shares with other legal philosophers (I should clarify that not all legal philosophers agree with these views). A more charitable post would have taken Shapiro’s book on its own terms. As she notes, reviews of historical works typically evaluate the merits of the historical narrative and do not castigate the author for following shared assumptions of the historical craft.

Heather is right. Although she was too nice to call me a cad, I’ll own up to it. Like the obnoxious fellow mentioned above, my post on his book was in poor form. A more thoughtful course would have been to praise the book, then write a separate post raising my criticisms in a way that do not center on Shapiro’s book alone. Let me say again: Legality is an excellent book! Order a copy here.

Although I agree with Heather’s criticism of my post, I must take slight issue with one aspect of what she says. While she is correct that historical pieces are usually reviewed without attacks on the historian’s methodological commitments, a ground-work in general jurisprudence is different because these commitments, which shape the philosophical account of law that results, should be justified by the legal philosopher. Shapiro begins his book with a discussion of these very issues (including the passage I criticized in my post). Furthermore, the proposition that law is a socially constructed institution—and hence is contingent and can change—is in tension with the notion that law has an essential nature (a tension which Joseph Raz acknowledges and discusses at length in Chapter Two of his recent book). It is entirely appropriate, therefore, to raise doubts about the philosophical quest to identify the essence or nature of law—although I admittedly did not raise these doubts in a constructive fashion.

Heather is also right to criticize my post for exuding “frustration” with the dismissive attitude some legal philosophers (though not Shapiro) evince toward sociology. I lost my intellectual cool after reading Shapiro’s assertion that sociologists are limited to humans while what philosophers say also extends to alien civilizations. Blog posts, especially on theory topics, should not be written in exasperation. Sorry, Scott. Read more »
Posted 6:59 PM by Brian Tamanaha [link] (6) comments

Levinson Barnett Diavlog on Constitutional Structure

JB

Here is a Bloggingheads diavlog between Sandy Levinson and Randy Barnett on several issues of constitutional theory and structure, including the Senate, the Tea Party, and a discussion of Randy's proposed Repeal Amendment:



Posted 9:15 PM by JB [link]

If at First You Don't Succeed...

Ian Ayres

Crosspost from Freakonomics:

Last fall, I saw my recidivist coauthor, Barry Nalebuff, and was struck by how much weight he’d lost. He had a clearly different body shape. I told him he looked great. Barry turned to my spouse (and coauthor) Jennifer Brown and said, “I’m doing it on my own, so I don’t have to use that [expletive] stickK.com.”

I was shocked. Not so much at the language. I’ve heard Barry drop the F-bomb a time or two. But it was so bizarre to have Barry shy away from using a commitment contract. Barry is a world-class game theorist who hasn’t only written about the benefits of commitment devices; he’s also used them to lose weight. He’s the father of the bathing suit diet. Back in 1993 on the first day of a business school course on game theory, Barry promised to teach his last class of the semester in a Speedo if he hadn’t lost fifteen pounds by then. The threat of humiliation was a pretty strong commitment, and sure enough his business students never got to see what I just saw this past summer at the pool — the sight of Barry Nalebuff in a swimsuit.

So it came as a sobering surprise to hear Barry Nalebuff express such unbridled emotion when he said he was dieting on his own to avoid using “that [expletive] stickK.com.” What was he thinking? Of course, Barry’s cri de coeur has something to do with the fact that I’m one of the cofounders of stickK. To be my friend is to know that a stickK contract is an option. Implicitly, I think Barry as a game-theorist was already thinking a step ahead. He understood that if he can’t lose weight on his own, he’s going to have to take bolder action.

I never realized it before, but the mere existence of stickK is providing a service to some people who know of it but never use it. Part of Barry’s motivation to lose weight on his own is to avoid having to use stickK. I must admit that this indirect commitment effect wasn’t foremost in our minds when my cofounders and I set off to create a commitment store. But we’re happy to be of service.

Barry made this backstop benefit of stickK explicit when I asked him later about what prompted him to say what he did. Barry, with typical acuity, said, “If at first you don’t succeed, then use stickK.”

Posted 2:44 PM by Ian Ayres [link]

When Is "Undersight" Unconstitutional?

Ian Ayres

Crosspost from Freakonomics:

If oversight is when a superior has the right to disapprove of an underling’s decision, what is “undersight”?

It’s my term for when an underling has the right to disapprove of a superior’s decision. It’s not surprising to see principal-agent contracts with oversight provisions, but in two recent statutes the lame duck Congress has arguably imposed undersight provisions on the President acting as our commander-in-chief:

1. A major defense authorization bill, which “both chambers passed on the last day of Congress’s lame-duck session” included a “provision [that] forbids the transfer of any detainee to another country unless Defense Secretary Robert M. Gates signs off on the safety of doing so.”


2. The ‘‘Don’t Ask, Don’t Tell Repeal Act of 2010’’ only becomes effective, inter alia, 60 days after the President “transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating [that] the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”
   

These acts are constitutionally troubling because they undermine civilian control of the military. It might be permissible for Congress to delegate a purely ministerial function to an underlying. For example, it might be permissible for Congress to condition an appropriation on a non-discretionary accounting (such as when the “Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 suspended DOD affirmative action in any fiscal year directly following a fiscal year in which DOD certified that it awarded at least 5% of its contract dollars to small disadvantaged businesses”). But it strikes me as impermissible for Congress to give a non-civilian underling veto power of military policy. And to be clear, our military leaders are constitutional underlings to the President because of the commander-in-chief clause.

These recent undersight provisions remind me of the wrong-headed reconstruction amendment to the Army Appropriation Act, which required Andrew Johnson “to transmit all orders to military commanders through General of the Army” Ulysees S. Grant. One way to avoid the constitutional difficulty is take the “commander” in “commander-in-chief” more seriously. These three underling provisions on policy would not be troubling if the President could simply order his underling to make the requisite statutory certification. But the intent of Congress in the GITMO, DADT and reconstruction examples seem to be to insert an underling as an independent decision maker. It’s not surprising that Obama’s lawyers are debating whether to issue a signing statement “asserting that his executive powers would allow him to bypass the restrictions.” One can make a principled distinction between a President resisting a Congressional ban on torture and a President resisting a veto from a constitutional underling.

Posted 2:49 PM by Ian Ayres [link]

What Is It About Philosophy?

Heather K. Gerken

Yesterday, Balkinization poster Brian Tamanaha wrote about Scott Shapiro's new book, Legality. [In the interest of full disclosure, I should note that I'm Scott's colleague and friend, so discount accordingly].

What intrigued me about the review was that it was effusive about the book but unleashed a blistering attack on Shapiro's disciplinary commitments. Tamanaha calls the book a "superb articulation and defense of exclusive legal positivism" and "a truly impressive book." But he roundly criticizes Shapiro for eschewing what Tamanaha calls a "pluralist" approach because Shapiro refuses to take into account all of the insights social science has to offer in thinking about what law is. Shapiro is painstakingly clear about why he chose to do so; as an analytic philosopher, Shapiro thinks it's important to shear away a great deal of information in order to figure out what law is. It's clear, however, that Tamanaha doesn't buy this approach.

Setting aside the merits for the moment, Tamanaha's review surprised me. Philosophy is decidedly not my cup of tea. But I can't remember seeing a review of an important piece of legal history that spends pages criticizing it for hewing too closely to Clio's norms. I can’t remember seeing a review of an important sociological study that mourns the fact that it failed to take into account all of the insights afforded by economics. I don’t mean to say that Tamanaha's arguments are in any way inappropriate -- to the contrary. But I do think reviews like this one -- extremely positive about the work, relentlessly negative about the disciplinary rules that shape it -- are unusual.

Maybe members of every discipline feel like they get this type of pushback from law professors, who are so accustomed to an interdisciplinary, problem-centered approach that we sometimes lose patience with disciplinary bounds. But the pushback against legal philosophy seems of a different sort to me. The closest example I've seen is the reaction to the work of economists, which is often challenged along these lines. Still, at the end of the day, even those hostile to economics still typically evaluate economic work against the norms of that discipline, something that I take to represent a begrudging admission that economics is capable of generating valuable insights.

I think I would have been less surprised by the review if I thought that Tamanaha really believed that analytic philosophy isn't capable of generating valuable insights. If I read him correctly, though, his claim isn't that analytic philosophy contributes nothing, but that analytic philosophy would get a lot more traction if it drew on other disciplines. That's a perfectly fair claim to make, but to be convincing one would also have to show that this disciplinary shift wouldn't dilute the contributions analytic philosophy is otherwise capable of making.

Let me offer an example, and here I want to borrow a lovely analogy from Fred Schauer's review of Legality. Schauer writes in mostly admiring terms about the book's main argument that law involves planning. His main criticism is that Shapiro fails to take into account the role of sanctions in thinking about what law is. As Schauer explains, Shapiro does so quite self-consciously. In the tradition within which Shapiro is writing, one focuses only on the essential properties of law, and law can exist without sanctions.

Schauer talks about the study of birds to explain why he thinks Shapiro should have included sanctions within the ambit of his analysis. Schauer notes that analytic philosophy would push one to focus on the only two things that birds have in common: they have a backbone, and they have feathers. Schauer says that the problem with this approach is that it prevents one from thinking hard about the fact that most birds also fly. He notes, correctly, that we "surely . . . miss something important if we ignore the fact that almost all of them can and do fly."

Yup. But an analytic philosopher would presumably respond that if we started with flying as a criterion, we might think too much about bats or ignore the luckless penguin (an argument that Schauer, to his credit, anticipates). Similarly, if Shapiro had included sanctions within the ambit of his analysis of the law, he might have missed the important (and, in his view, essential) role that planning plays. It's possible, then, for Schauer to be right that it would be exceedingly useful for some philosophers to think about the role sanctions play in the law, but that argument gets traction as a critique of Legality only if Schauer's review successfully shows that Shapiro could have come up with the same or better insights about law and planning by taking sanctions into account.

That brings me back to Tamanaha and why philosophers, particularly analytic philosophers, seem to annoy the hell out of the rest of the academy. A claim like Shapiro's -- that it is important to ignore certain types of evidence -- seems to suggest the irrelevance of things that the rest of us find important. Similarly, Tamanaha's response -- that scholars should extend their reach and think in interdisciplinary terms -- is intuitively appealing. But it's crucial to remember the core disciplinary claim Shapiro is making -- that legal philosophy is making progress precisely because its arguments don't rest on social science. If Shapiro had claimed that his was the only way of thinking about these issues, he'd be making a foolish claim. But his claim is that analytic philosophy is one very useful way of thinking about these issues. And I don't think Tamanaha would really dispute that point.

Nor should the rest of us, because we all ignore some things in order to focus on others. Historians confine themselves to the claims their documents allow them to make. Economists shear away lots of information about real-world behavior in order to generate certain useful insights. Even law professors, less bounded by disciplinary norms, do it. Mid-level theorists, for instance, don't spend time defending their basic assumptions; they just note them and move on. Doctrinalists don't begin every article with a defense of stare decisis. And so on.

That brings me to one last thought about academic pluralism. Tamanaha rebukes Shapiro for not being a pluralist. But I suppose there are two kinds of pluralism. One version suggests that each of us should be pluralists in our work -- that each scholar should look to every relevant discipline in searching for answers. Another suggests that it's perfectly fine to search for answers using our own disciplinary tools, provided that we respect the efforts of others to do the same. Shapiro's book is certainly not pluralist in the first sense. But it is in the second.

Finally, and perhaps this is entirely due to my friendship with Scott, even if you think analytic philosophy is too insular, Legality seems like the one book that shouldn’t be tarred with that brush. Shapiro does an impressive job explaining the debates within the discipline and showing how and why they matter to those outside of it. His ideas are certainly relevant to constitutional law, and he's writing a paper applying them to international law with our colleague Oona Hathaway. The book goes a long way toward sharing the insights of analytic philosophy with the rest of us and that, too, seems like a pluralist move.
Posted 2:04 PM by Heather K. Gerken [link]

Read the Whole Constitution

JB

Today, as a symbolic act, the House of Representatives will read the U.S. Constitution aloud.

Good for them. I wish they would make it an annual event.

But in order to avoid having any member read parts that remind people of slavery, House members are omitting parts of the Constitution that have since been amended.

This is a mistake.

The Constitution is not perfect. Nor are our political institutions. Nor are the American people. But we can take pride in our Constitution precisely because we Americans have continually sought to improve the Constitution, our institutions, and ourselves over time. We have not always been successful in these efforts. We have made many mistakes along the way, and we have committed many injustices. We continue to do so to this very day. The point rather, is that by creating this great experiment in self-government-- the United States Constitution-- we have committed ourselves to achieving a more just, free and equal society under law and we have adopted our Constitution and amendments to it as a way of realizing those commitments in history. It is a task that began with the founding and continues to this very day. It is a task that is never finished.

Reading the entire Constitution is a way of reminding ourselves that the Constitution is always a work in progress; that it has been flawed in the past and probably is still flawed in the present; that what we have now before us is not necessarily the final version of the Constitution, but that the Constitution can always be improved and that it must be improved; that no matter how much our political institutions may have failed us in the past, and no matter how much we have failed ourselves in the past, political redemption is always still possible; and that We the People of the United States can still always strive for a more just, more free, and more equal country-- what the Preamble of the Constitution calls a "More Perfect Union."

Reading the entire Constitution-- including its oblique references to slavery--is a way of engaging in proper humility about the products of flawed human beings, but it is also a way of expressing faith in eventual improvement. If the Constitution once allowed great evils, and now it does not, perhaps someday we will be able to recognize the current evils it still allows, and ameliorate them as well.

Reading the entire Constitution should not be an act of shame that politicians avoid. It should be an act of hope.
Posted 12:53 PM by JB [link]