The Constitutionality of the Syrian Intervention (Or: Why I am not a war powers hardliner)

Stephen Griffin

Let’s assume the Syrian intervention involves using bombs and cruise missiles against the Assad regime.  Now, I could pose the constitutional question this way: what does the Constitution have to say about President Obama’s proposed Syrian intervention?  But if I did, you would be misled, especially if you were a non-lawyer unfamiliar with war powers.  Because you would assume that I wouldn’t ask the question unless I had a well-developed set of materials, such as the constitutional text and lots of cases, to bring to bear in order to generate the answer.  In fact, the text is somewhat thin and everyone agrees the case law is almost nonexistent.  So we might start wondering how all of the constitutional experts opining on the intervention are so sure of their arguments.



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Posted 2:47 PM by Stephen Griffin [link]

Jobs and Freedom

Joseph Fishkin

Fifty years ago, there was a March on Washington for Jobs and Freedom. Today, we remember it as a call for race-based civil rights and voting rights legislation. It was that: The marchers demanded the legislation that became the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and the March itself helped build the political will that eventually broke the Southern filibuster. The marchers also called for enforcing that never-yet-enforced provision of the Fourteenth Amendment that would reduce the representation of states that disenfranchise some of their citizens. Perhaps we are more likely to remember the legislation that was won, and to forget the demands that were never met.
Posted 7:44 PM by Joseph Fishkin [link]

The Global March on Washington

Mary L. Dudziak

The March on Washington literally happened around the world as people in many countries "marched on Washington" in August 1963 by demonstrating at U.S. diplomatic posts.  This episode is one example to the way civil rights had an impact on U.S. foreign relations.  The United States tried to manage the global impact, for example by working with the Egyptian government, which suppressed a demonstration in Cairo.  I tell this story in today's New York Times, and the fuller story is in my book Cold War Civil Rights.  Today's piece begins this way:

An important but little-known episode in the story of the March on Washington unfolded on Aug. 17, 1963, in a Paris nightclub called the Living Room.

In response to a call by the writer James Baldwin for his fellow Americans living in Paris to support the civil rights march, more than a hundred people — including the blues musician Memphis Slim and the actor William Marshall — crowded into the club for a meeting. The atmosphere was electric. The group believed that the pressure of foreign opinion could play a critical role in the civil rights movement, and they gathered to figure out how to energize it. 

The pianist Art Simmons “spoke movingly of being forced every night to explain” American racial discrimination to Parisians, even as “he could not really explain it to himself,” recalled Barbara Sargent, wife of the pastor of the American Church in Paris. 

Paris was only one site of global action in support of the American civil rights movement. Around the world American expatriates, anticolonial activists and everyday citizens “marched on Washington,” delivering petitions to American embassies and consulates and holding marches of their own. 

Posted 8:05 AM by Mary L. Dudziak [link]

Accelerated Learning in an Era of Decelerated Earning

Frank Pasquale

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Posted 10:13 AM by Frank Pasquale [link]

Wedding Jitters

Gerard N. Magliocca

The New Mexico Supreme Court's recent opinion in Elane Photography v. Willock has garnered a lot of attention, but not for the reason that I find interesting.

For those unfamiliar with the case, a same-sex couple called a wedding photographer to shoot their commitment ceremony. (New Mexico does not recognize same-sex marriage).  The photographers at the studio refused, saying that they did not support same-sex weddings (or any equivalent) because of their religious beliefs.  The couple sued under New Mexico's anti-discrimination statute, and the state Supreme Court affirmed the judgment for the plaintiffs.  The Court rejected the photographers' state law and First Amendment defenses (freedom of speech and free exercise).  Some see this as an affirmation of gay rights, while others see it as detrimental to freedom of speech.

I see this as an excellent opportunity for the U.S. Supreme Court to revisit its holding in Employment Division v. Smith, which I believe was wrongly decided.  The New Mexico Supreme Court relied on Smith in rejecting the photographers free exercise claim.  The state anti-discrimination statute, the Court concluded, was a neutral law of general applicability.  As a result, that law did not violate the Free Exercise Clause under Justice Scalia's analysis in Smith.  Now people can quibble with this reasoning.  The photographers contended that the state law was neither neutral nor generally applicable and that the case fell under the "hybrid rights" exception in Smith.  If these objections and the free speech claim are deemed meritless on appeal, however, then the Court could reach the issue of Smith and stare decisis.

I hope the Justices take up this question.  It is worth adding that Willock would not fall along the usual left/right lines.  Some of the liberal Justices have criticized Smith, but would otherwise be inclined to support the same-sex couple.  Meanwhile, Justice Scalia wrote Smith, though reaffirming that decision would probably require him to rule against the photographers.

 
Posted 8:21 AM by Gerard N. Magliocca [link] (60) comments

Ted Cruz's birth certificate distraction

Sandy Levinson

[PLEASE READ UPDATES BELOW AS WELL]

Texas's junior senator Ted Cruz rather flamboyantly made public his Canadian birth certificate in an attempt to prove that he was, after all, a citizen by birth of the United States inasmuch as his mother is clearly listed as having been born in Wilmington, Delaware (and, therefore, a birthright citizen of the United States).  Although there is no conceivable argument that Sen. Cruz is a "14th Amendment natural-born citizen," that should be entirely irrelevant if in fact he was a citizen at birth under US law, as, for that matter, Barack Obama would have been had he in fact been born in Kenya (which, of course, he was not).  But statutes can be tricky, and in order to be a statutory citizen in 1970, when now-Senator Cruz entered the world, his mother had to have lived for five years in the United States following her 14th birthday.   Otherwise, she could not have passed her own undoubted citizenship on to her baby boy.

I assume she did, but truly enquiring minds--including professional journalists--should at least ask where Eleanor Elizabeth Wilson was following her 14th birthday.  Did she, for example, run away to Canada after graduating from high school?  I have no earthly idea what the answer is, but Legal Eagle Ted Cruz, described as a legal genius by all who know him (which I do not), should certainly be aware that his own birth certificate does nothing whatsoever to establish definitively that he fulfills the constitutional requirement to be President.  The only thing that will do that is proof of his mother's whereabouts between her 14th birthday and the time she gave birth to the would-be President. 

Is it really possible, incidentally, that the junior senator had no idea that he was a Canadian citizen until last week?  Was he never at all curious about whether Canada, like the U.S., accorded citizenship to all born within the national territory?  Does he make a general habit of treating his mother's statements of law--"Oh, Ted, you're a 110% American"--as definitive without checking easily accessible Canadian sources. Thus, according to one such source, " Ever since Canadian citizenship was first granted on January 1, 1947, an individual has been considered to be a Canadian citizen if he/she was born in Canada. (emphasis added) This is provided for by section 3(1)(a) of the Citizenship Act, which states that:

3. (1) Subject to this Act, a person is a citizen if
(a) the person was born in Canada after February 14, 1977"

The date listed, incidentally, simply acknowledges that the citizenship law in effect when Ted Cruz was born had been changed in 1977, but the changes made no difference at all with regard to the  reality of birthright citizenship. 

But, as I say, the real issue, for legalists, is the length of his mother's presence in the United States prior to her move to Canada.  I should also say that I think the "Second Class Citizenship Clauses" in the Constitution, beginning with the "natural-born citizenship clause" and moving on to the disability of naturalized citizens to be elected to the House or Senate until seven and nine years after naturalization, respectively, are indefensible and should be repealed by constitutional amendment.  If Democrats had any sense, they would seek out Orrin Hatch, who in 2003 proposed repealing the offensive clause of the Constitution in order to make Arnold Schwarzenegger eligible to run.  Obviously, it went nowhere.  But it was a good idea in 2003, and it's a good idea in 2013.  Indeed, it would be interesting, to say the least, to see if Sen. Cruz would support true equality for all U.S. citizens and allow each and every citizen to dream of growing up to be President, which, for example, Jennifer Granholm could not do because she didn't emigrate from Canada until she was all of three  years old. 

Hell would freeze over before I would vote for our junior senator for any public office, but that is because of his egregious views and has literally nothing to do with any doubts that might exist about the basis of his citizenship.  Though it certainly would be interesting if his mother had not met the durational residency requirement to pass her citizenship along and Ted had never gone through any kind of naturalization process.  That might mean that he isn't a citizen at all even as we speak.  I would be truly shocked if that's the case, but there really is only one way to find out.

UPDATE:  Two excellent posts by Northwestern's Steven Lubet further clarify matters.  He notes that the Senator's mother graduated from Rice, which certainly suggests she meets the residency-in-US-after-fourteen requirement.  Lubet points out that Cruz is the sponsor of a savage constitutional amendment that would require added evidence of citizenship (I.e., beyond what is now required by federal statute, upheld by the Supreme Court against Arizona's protest), so that he certainly shouldn't be satisfied simply with Mama Cruz's assurances that she lived in the US during the relevant period.  He should demand much more (including verification that she in fact remained in Houston and didn't, for example, leave for extended trips to Mexico). 

Also, one of the discussants below is correct that Barack Obama's mother was only 18 when she gave birth--in Hawaii--to her son.  So this does mean that he would not have been a statutory "natural born citizen" had he been born in Kenya (which he was not). 

The John McCain episode is really quite interesting, for it appears quite clear that he was NOT a citizen at the moment [SEE THE RECANTATION BELOW] he was born in the Canal Zone, though Congress did pass a statute just several months letter according birthright citizenship to children of Americans born in the Canal Zone.  I don't believe the statute made the citizenship retroactive, though even if it did that raises delicious theoretical questions as to how he could possibly be a "birthright citizen" if in point of legal fact, he was not so at the moment of birth, which for those not trained in the legal arts might seem determinative.  The point is that almost no one took the requirement seriously vis-à-vis McCain, which may be additional evidence that it's time to repeal that truly unattractive feature of the original Constitution.

FURTHER UPDATE:  Upon reading Steven Sachs's excellent article responding to Jack Chin's earlier essay setting out the argument why McCain was not a citizen at birth, I am certainly convinced that that I was in error in saying that McCain's status at birth was "quite clear."  Chin's very interesting argument depended on the very specific words of the statute and a distinction between being born within "the limits" of the United States and "within the jurisdiction" of the US.  The Canal Zone was the latter, but certain not the former (like, for example, Guantanamo today).  For Chin that is dispositive.  Sachs argues that there is one need not read the statute so restrictively; many courts collapsed the distinction, which, as practical matter, became relevant, if at all, only after the United States decided to emulate European countries by becoming an imperial power with colonies.   And the statute goes back to 1795, when territories like the Canal Zone (unlike those "territories" that had that status only until they became the states they were expected to be), were certainly not within the contemplation of the Congress.  And, of course, there are very good reasons not to adopt such a restrictive reading unless one believes there is really no way to avoid it.   

I find one of Sachs's most interesting arguments, spelled out in a much longer essay, to be "non-statutory":  i.e. that children born to US military service personnel abroad are automatically US citizens, save for very exceptional circumstances, based ultimately on British common law going back literally centuries and never repudiated by Congress.  (It begins with the observation that a child born to British monarchs while travelling abroad, presumably on matters of state, would be eligible to become king or queen, and the same principle applies to soldiers and diplomats sent abroad to conduct the monarch's business, including warfare.)  From this perspective, the crucial fact is that McCain's father was a high officer within the Navy, and his mother accompanied him to the posting in the Canal Zone, as allowed (and perhaps even encouraged) by law.  Quite obviously, Cruz (who I am confident is constitutionally eligible to be President) cannot make any similar claims.  Indeed, I gather that his father didn't become a US national (and renounce his Cuban citizenship?) until sometime in the 2000s. 

Had any court actually been presented with the McCain case, I would have been sympathetic to the view that the law should be read, if at all possible, to recognize his citizenship, and Sachs provides such a (more than merely possible) reading.  So, although it remains true that "the John McCain episode is really quite interesting," the reason is not what I suggested.  To be sure, an excellent reason for adopting Chin's reading of the materials, which is certainly a possible, even if not compelled, reading, is the belief that it should be made as hard as possible for anyone not a "natural-born" citizen by virtue of having been born within the territorial limits of the US, to become President.  It should be clear that I don't subscribe to this view, and I have my doubts that Chin does either.  What I do remain confident in saying is that the McCain and Cruz episodes could be excellent teaching devices for the interplay of common, statutory, and constitutional law, on the one hand, and practical political circumstances, on the other, where millions of Americans would (properly) find it outrageous if their favorite was disqualified from running for the White House because of true legal technicalities that are impossible to defend on extra-legal policy or normative grounds.  I'm assuming that we treat Schwarzenegger's disqualification not as a "legal technicality," but, for me at least, as a truly unfortunate and indefensible feature of our Constitution that cannot be evaded by skilled lawyering.
Posted 12:12 AM by Sandy Levinson [link] (59) comments

More on executive clemency

Sandy Levinson

The New York Times has an excellent editorial today complaining about President Obama's extraordinarily sparing use of his constitutional power to grant pardons or, just as importantly, commutations of overly-long sentences.  As he prepares to address the country on the 50th anniversary of Martin Luther King's (and John Lewis's....) speeches at the March on Washington, Obama could do much worse than offer some reflections on the costs to a society of adopting often vindictive retribution over a belief in the possibilities of redemption with regard to those convicted of crime. 

Again, I suggest he take a leaf from Warren G. Harding and suggest that perhaps it's time to commute (not pardon) the 20-year sentence of John Walker Lindh, who was railroaded into a guilty plea by the altogether credible threat that the Bush Administration would seek the death penalty.  The DOJ fired a whistleblower who noted the lack of basic rights accorded Lindh after he was in the hands of American authorities.  He doesn't have to invite Lindh for a chat at the White House as Harding did with Debs.  And, if he doesn't want to pay the political cost of exhibiting some mercy toward Lindh, then, s suggested in my earlier postings, there are surely thousands of people imprisoned for drug offenses who would be better off were they back with the families.  Not to mention that it would save the US a whole lot of money.  And, while he's at it, President Obama could override the Bureau of Prison's vindictive refusal to allow Lynne Stewart, who apparently is dying of cancer, to spend her last days or months outside of prison. 

I truly believe that this seeming indifference toward people he could in fact help with the stoke of a pen is the single most unattractive aspect of the President's persona. 

[UPDATE:  As the result of a conversation with Akhil Reed Amar, I should make it absolutely clear that I do not genuinely analogize Debs and Lindh.  Debs was a thoroughly admirable figure in our history, and even if one disagrees with his opposition to World War I (a subject about which I have indicated my deep ambivalence in other postings), it is still outrageous that he was sent to prison for 10 years for exercising the freedom of speech that should have been guaranteed (and certainly would be protected today) by the First Amendment.  There is nothing admirable about the conduct for which Lindh is being imprisoned.  That being said, there is a remarkable article on Lindh that appeared in Esquire magazine in 2006 and suggests that he may in fact be a more complex person than "The American Taliban" that quickly became his label.  The reason to pardon Debs, for which Harding deserves honor, was to rectify a constitutional injustice.  He never should have been in prison in the first place, and he remained in prison because of Woodrow Wilson's vindictiveness.  Lindh raises quite different questions about the meaning and occasions for the display of mercy, though I will continue to point out that there are certainly injustices that surround his interrogation and the pressure brought to bear on him to plead guilty as a way of avoiding a quite possible death penalty.  All of this being said, I certainly do not expect Obama, or probably any president, to display any mercy toward Lindh, who will, after all, gain his liberty in approximately eight years and therefore make the issue moot.  Lynne Stewart is a different case.  What exactly is the national interest in making her die a miserable death in a federal prison?.  Will that serve as a deterrent to future miscreants? 

And then there a host of unknown schnooks.  Consider Edward Young, the subject of a powerful column by Nicholas Kristof in the NY TImes.  He was sentenced (mandatorily) to fifteen years in a federal prison for possessing seven shotgun shells he had gotten when helping a neighbor clear out her home after the death of her husband, a hunter.  Needless to say, possession of the shells violates the "felon-in-possession" statute.  A federal prosecutor insisted on bringing the prosecution, taking no note at all of the fact that Young has seemingly mended his ways since leaving prison in 1996.  . So let Obama's first display of genuine mercy be in that case, which would presumably appeal to a very different constituency than anyone who actually cares about Stewart or, even more so, Lindh.  The real point is that he demonstrate that there is something other than icewater that courses through his veins when presented with examples of the injustice that is part of the American system, as his own attorney general, presumably with White House clearance, pointed out.  Let him spark a "national conversation" by asking if Edward Young is really a menace to the country or, for that matter, whether Martha Stewart should be denied the right to possess a firearm with which she might defend herself against someone who invades her home--declared by the Supreme Court a "fundamental right" in Heller and thus protected by the Second Amendment--because she had the very bad judgment to lie to an FBI agent investigating a case of insider trading.  . 
Posted 11:45 AM by Sandy Levinson [link] (30) comments

The mixed record of Winston Churchill

Sandy Levinson

World War I broke out last night.  That is, I finished Christopher Clark's truly monumental The Sleepwalkers, one of the best--and most depressing--books I've read in some years, about the origins of World War I.  Everyone in government--especially anyone aspiring to be President--should read it.  It captures the importance of distorted perceptions, pettiness, bureaucratic infighting, sheer contingency, and the like, in bringing about what really does seem to be an unmitigated catastrophe (unlike the "mitigated catastrophe" of the American Civil War, which at least had the virtue of formally ending chattel slavery).  Anyone who continues to believe that the War was "caused" by rapacious German imperialists is simply mistaken, even if, like everyone else, the Germans did their share to bring about the catastrophe.   

Perhaps the single most chilling passage in the entire book comes from a letter that Winston Churchill wrote to his life on July 28, 1914, as Britain made the decision to support France and Russia and therefore guarantee unequivocally that it would be a continental war.  "Everything tends toward catastrophe, & collapse.  I am interested, geared-up and happy."  Churchill might have been one of the great figures of the 20th century because he was so monumentally right about Hitler and gave such great speeches reminiscent of Henry V at Agincourt.  That being said, he also had a truly disastrous record of misjudgments in both domestic and foreign policy, including his enthusiastic support for British entry into the war.  It strikes me that he may have had traits of Teddy Roosevelt, who, I am confident, would also have been "interested, geared-up and happy" had be been President during World War I (as he so desperately wanted to be).  Whether this would have been good for the United States is certainly debatable.  I am genuinely torn on whether I think Woodrow Wilson was right to take us to war in 1917, the main consequence of which was setting the stage for the even more catastrophic World War II because of Versailles.

I cannot imagine Barack Obama writing similar sentences to Michelle, and for me that remains a big plus, whatever my disappointments in his presidency.  One of the worst legacies of Churchill may be his "setting example" of grandiosity for, especially, George W. Bush, who, one suspects, was thrilled to fly onto the aircraft carrier and declare "Mission Accomplished."  (And, for what it is worth, Churchill the imperialist played his own role in supporting British colonialist practices that helped contribute to the 1947 disaster on the Indian subcontinent and throughout the Middle Ease unto this very day.) 
Posted 12:50 PM by Sandy Levinson [link] (60) comments

There's no blaming the Constitution for this inadequacy of Barack Obama

Sandy Levinson

George W. Lardner, Jr. has an excellent op-ed in today's Washington Post, a successor, in a way, to an earlier similar op-ed in the New York Times in 2010.  Both make the same basic point:  The Constitution unequivocally gives the President of the United States the power to pardon anyone for any crime committed against the United States.  It can be used wisely (Warren G. Harding's pardon of Eugene V. Debs--which was followed by a meeting, at Harding's request, at the White House, in which he said, "I have heard so damned much about you, Mr Debs, that I am very glad to meet you personally"--which is enough in my book to remove Harding as the candidate for America's worst President) or unwisely (Bill Clinton's pardon of Marc Rich, George H.W. Bush's pardons of Caspar Weinberger and Eliot Abrams), but it is an important part of the President's power.  As Lardner points out in today's column, if Obama shares his Attorney General's view that the US has incarcerated far too many people for far too long prison terms as part of the "war on drugs," there's actually a very simple solution:  The President can commute all of the sentences to time-served, save for the kingpins who deserve their mandatory (or even longer) sentences.  Similarly, if push comes to shove, he can announce an amnesty for everyone who entered the country illegally prior to, say, January 1, 2012 or everyone who has overstayed a visa (which I gather "explains" far more "illegal aliens" than does initial illegal entry).  To be sure, that would create a huge political firestorm, but, hey, what does he have to lose? 

It's clear that his second term is shaping up to be a failure, some of which may be his own fault; some of which is simply the fault of circumstances that he really can't control, like the current chaos in the Middle East, where I continue to believe that his judgment is far, far better than, say, that of Sen. John McCain, who almost literally has never seen a war he didn't want the US to get involved in; and some/most of it the fault of the Constitution, which gives the mad-dog Republicans who control the House of Representatives the power to torpedo any and all legislative initiatives supported by the President.  But, as already indicated, Obama can't blame the Republicans or the intricacies of the American alliance system in the Middle East for his remarkable failure, in what is now the fifth year of his presidency, to use his Pardon Power in a way that might both provide individual mercy and at the same time educate the public about the pathologies of our so-called "criminal justice" system.  

He has proved quite willing to abuse the prerogatives of office, like many other presidents, when he believes that "national security" is at stake.  But he appears altogether unwilling to use an undoubted prerogative of office to help a bunch of truly vulnerable people and, by the way, save the US a whole heap of money that is now devoted to their incarceration.  One gets the distinct feeling that he issues any pardons at all only under extreme pressure (something like his pardoning the Thanksgiving turkey).   One of the reasons I viewed Mitt Romney with contempt was the pride he took in never using his power as Governor of Massachusetts to issue a pardon.  Obama, I am afraid, is only slightly better than Mitt on this score. 
Posted 1:47 PM by Sandy Levinson [link] (35) comments

Focusing on the Core Harms of Surveillance

Frank Pasquale

The "summer of NSA revelations" rolls along, with a blockbuster finale today. In June, Jennifer Granick and Christopher Sprigman flatly declared the NSA criminal. Now the agency's own internal documents (leaked by Snowden) appear to confirm thousands of legal violations.

Legal scholars will not be surprised by the day's revelations, just as few surveillance experts were all that shocked by the breadth and depth of PRISM, PINWALE, MARINA, and other programs. Ray Ku called warrantless surveillance unconstitutional in 2010. Civil liberties groups and legal scholars warned us repeatedly about where Bush-era executive power theories would lead. As anyone familiar with Bruce Ackerman's work might guess, pliable attorneys have rubber-stamped the telephony metadata program with a "white paper" that "fails to confront counterarguments and address contrary caselaw" and "cites cases that [are] relatively weak authority for its position." There are no meaningful penalties in sight (perhaps because the OLC has prepared documents that function as a "get out of jail free" card for those involved).
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Posted 11:21 AM by Frank Pasquale [link]

Sleepwalking

Sandy Levinson

I am close to finishing a truly great (and thoroughly depressing) book, The Sleepwalkers: How Europe Went to War in 1914, by Cambridge (England) historian Christopher Clark.  It portrays how a group of decisionmakers from many different countries chose actions that eventuated in the true catastrophe of 1914-1918 (which led quite directly to the even greater catastrophe of 1939-45).  No one "chose" World War I, of course; most of them believed that a show of force would lead to a relatively quick victory.  They were wrong.

I discovered a few moments ago that I'm in the 30% of the people responding to a Washington Post poll (obviously scientifically unreliable) who think the Administration is correct in not cutting off military aid to the dreadful people now running Egypt.  Listening to stories about what happened in Cairo yesterday is wrenching, and Obama was surely correct in cancelling the joint military exercises with Egypt.  If he can cancel the meeting with Putin (which I also oppose) because of the relatively minor Snowden episode (there is, obviously, no extradition treaty with Russia, and there is a millennium-long tradition of offering political asylum to political refugees), then, obviously, the military exercises had to go.  But cutting off the $1.5 billion of aid, however satisfying as a statement--but about what, the savagery of the repression yesterday, or the decision to displace the elected president who was himself proving to be a disaster on a variety of grounds?--could well threaten a variety of American and world interest.  Think of Donald Rumsfeld and "known unknown" as well as the more dangerous "unknown unknowns."  What might happen if we cut aid off?  Perhaps the military would be tempted to renounce the peace treaty with Israel; indeed, that treaty is a major explanation of the aid in the first place.  Perhaps more serious, as a threat to American interests, would be a decision to cut off trade through the Suez Canal.  Or perhaps that would happen simply through the dissolution of the Egyptian State.  Are we prepared to send in American troops on the ground--I'm afraid drones will prove completely irrelevant--to capture the Canal?  Israel, France, and the UK tried that in 1956, and Ike, to his eternal credit, realized that was a truly terrible idea. 

I also find myself supporting the Administration's waffling in Syria.  Does anyone really believe that the US has a magic wand it can wave to make things come out all right in that country?  I initially supported Obama back in 2008 because I had more faith in his judgment than in then-Senator Clinton's.  I share many of the disappointments with Obama.  I'm afraid he has reinforced my view that we ultimately should junk the presidential system in favor of a parliamentary one that would produce not only less gridlock but more capable and experienced national leaders.  But I really don't know what beyond sheer hopefulness--similar to what was expressed in a number of embassies in July 1914--supports the call that he be more "decisive" and use American power to "intervene" in the really terrible situations in both Syria and Egypt.  How much of a more general conflagration do we want to risk?  (And, yes, I support his waffling on Iran.)  Should we really "sleepwalk" into a general Middle East War as the self-proclaimed "indispensable nation"? 

Posted 8:03 PM by Sandy Levinson [link] (53) comments

Stanford Constitutional Law Center Fellowships for 2014

JB

Stanford Law School's Constitutional Law Center is seeking applicants for two academic fellows to begin in the summer of 2014. The resident fellowships last two years, and the application deadline is September 15th, 2013. Details here.
Posted 6:48 PM by JB [link]

Reading Justice Jackson: Fulbright and the War Power

Mary L. Dudziak

This week I happened upon an interesting illustration of the impact of Justice Jackson’s Steel Seizure concurrence on war powers politics.  I was doing research in William Fulbright’s papers at the University of Arkansas.  The purpose of the research is for an article that will be a thick description of the politics surrounding passage of the Gulf of Tonkin Resolution, currently titled:  Four Days in August: How Congress Declares War.  More on that topic much later.  But as usually happens in an archive, I looked at other files that piqued my curiosity.  Like a couple of folders containing research materials from Fulbright’s work on the 1973 War Powers Resolution. In one of the folders is a copy of Jackson’s concurrence, marked up.

Most of the attention paid to Jackson’s opinion usually focuses on the way he divides presidential power into three categories (when the president’s action is consistent with what congress has enacted, when it is in opposition to congress, and the “zone of twilight” in the middle).  My personal favorite part of the opinion is where he refuses to call Korea a “war,” and instead calls it a “foreign venture,” arguing that, in essence, the president can’t unilaterally go to war, and then use that conflict as the basis for expansion of his own powers.  Fulbright focuses on neither.  Instead, he gives an attentive ear to what Jackson had to say about Congress and its relationship to the modern presidency.*

The emphasis and underlining begin on page 653 of U.S. Reports, in a passage on the presidency:  "No other personality in public life can begin to compete with him in access to the public mind through modern methods of communication.  By his prestige as head of state and his influence on public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness."

The folder is from 1971-73, but Richard Nixon would not have been the only president on Fulbright’s mind.  He shepherded the Gulf of Tonkin Resolution through the Senate at the request of Lyndon Baines Johnson.  By 1971 he had broken with LBJ, written The Arrogance of Power, and held hearings on whether the Johnson Administration had misled the Senate about the Gulf of Tonkin incidents.

Fulbright appears to have taken away from the opinion just the sort of message Jackson was trying to send to lawmakers.  On page 654, Fulbright underlined one of Jackson’s iconic quotes: “We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”

And then he follows on p. 655 by underlining this: “With all its defects, delays and inconveniences, men have discovered no technique for preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”  But he doesn’t underline the final sentence, which is about the Court’s own role: it is “the duty of the Court to be the last, not the first, to give them up.”

Fulbright’s engagement with Jackson helps illuminate one of the roles judges play in the war powers arena.  Their impact comes not just from outcomes, but also from their ideas.  Dissents and concurrences can inject an important critique.  (Another opinion in the file is Douglas’s dissent from the dismissal of Massachusetts v. Laird, the case challenging the lawfulness of the Vietnam War.)  Fulbright, as a former law teacher was surely an especially attentive reader, of course. Even if Fulbright was already thinking along Jackson’s lines by the beginning of the 70s, Jackson’s opinion may well have reinforced his views, or given them legitimacy. 

* I should add a caveat: I am pretty sure that Fulbright did the underlining.  I have ways to confirm this (compare ink and type of pen used with passages in other documents written by him, consult with Fulbright biographer about his reading and underlining habits, etc.).  Because I just did this research, I haven’t had a chance to do that yet.  But I thought you all might find this interesting nevertheless.
Posted 6:49 PM by Mary L. Dudziak [link]

The Riddle of Constitutional Formalism

Gerard N. Magliocca

Next month I will begin a series of talks on John Bingham to coincide with the publication of my book.  As I reflect on what I will say, I keep returning to the idea that Bingham was America's most important legal formalist.  That may sound like a strange claim to make about a politician, but hear me out.

Bingham's great contribution to the Constitution was Section One of the Fourteenth Amendment.  He did many pragmatic things to get that text adopted and ratified, but was unwavering in his belief that an Article V amendment was essential to ensure justice.  He was also deeply committed to the idea that getting the law correct was the way to advance racial equality.  On both of these points, he faced the wrath of Thaddeus Stevens, who contended that these measures were not necessary and would not achieve Reconstruction's goals.  To some extent, Bingham had a pragmatic response, which was that Stevens' program could not get through Congress or be sustained.  For the most part, though, Bingham took the positions that he did because he had a formal view of the rule of law.  His opposition to the Civil Rights Act of 1866 (a view shared by almost none of his Republican colleagues) as unauthorized by the original Constitution or the Thirteenth Amendment was an excellent example of his approach. In this sense, the longstanding argument over "radicals" vs. "moderates" during Reconstruction is misleading.  Bingham was every bit as radical as Stevens.  The divide that mattered was between pragmatists and formalists, and the formalists largely prevailed.

Today Reconstruction is seen as as a failure of formalism.  Many paper rights were created, but they meant little in practice for one hundred years. Is that judgment correct?  Without Section One of the Fourteenth Amendment, many subsequent advances would have been harder to achieve or would be viewed as less legitimate.  And it always takes time to turn rights into reality, but that does not mean that enshrining aspirations (for example, "All men are created equal") is wrong.  These are the kinds of questions that I hope people will ask themselves when they consider Bingham's life.    





Posted 9:52 AM by Gerard N. Magliocca [link] (16) comments

Does Judicial Review of National-Security Policies Constrain or Enable the Government?

Rick Pildes

This is a slightly modified and updated cross-post from Lawfare:

With the current controversies over the NSA’s surveillance programs, I want to return to broader issues about how to think about the role of courts in the national-security area.

In this area, government typically tends to be exceptionally resistant to judicial review of constitutional challenges. Moreover, American constitutional law’s tight requirements that limit courts to adjudicating only actual “cases and controversies” offers many bases, such as standing doctrine, on which government can legitimately argue that courts cannot or should not reach the substantive merits of these challenges. From this just-completed Term of the Supreme Court, a clear example is the Court’s 5-4 decision in Clapper v. Amnesty International, here. Holding that it had no power to address the substantive issues, the Court dismissed a challenge to parts of the 2008 amendments to FISA that enabled the government to engage in certain foreign intelligence surveillance, with FISA court approval. This particular mode of surveillance targets non-U. S. persons located abroad — without having to demonstrate, as in the past, that the target of the electronic surveillance is a foreign power or agent of a foreign power.

More broadly than any one particular issue or case, one of the most remarkable features of our political and legal system since 9/11 is how few of the central issues the courts have addressed on the merits — despite the novelty of many of the legal questions and the high stakes involved. Considerable uncertainty still remains about the proper scope of the Authorization for the Use of Military Force. No court has addressed the circumstances under which targeted killings are lawful. Many issues about the proper procedures to be used for trials before military commissions, and what charges can validly be brought there, remain unanswered. And as Clapper illustrates, courts have had nothing to say about the scope of various surveillance programs.

Typically, divisions over judicial review in this area have a characteristic ideological orientation. Civil libertarians, hoping the courts will invalidate programs in the name of individual rights, press courts to reach the merits. More “conservative” national-security proponents, including the government, argue against a judicial role. It is no surprise that Clapper, and cases like it, generate 5-4 decisions that put the conventionally-labelled “conservative” Justices against the “liberal” ones. To those who resist judicial review, the fear is that once courts get into the business of resolving national-security issues on the merits, they are too likely to impose rights-constraints on otherwise effective national-security programs.

But two very significant benefits to government policy in this area can also result from judicial review. Over the many years since 9/11, I have come to wonder more whether our system calibrates these potential benefits and costs well.

First, government actors have a need for legal clarity, particularly in national-security areas where the legal questions are novel and the stakes of guessing wrong particularly high. In the absence of more definitive court guidance, government lawyers and policymakers have spent a staggering number of hours trying to anticipate what courts might conclude is the valid scope of the government’s power to detain, or to use military trials, and similar questions. In many contexts, a significant element in what government actors need is simply legal clarity; knowledge of where the lines lie between the permitted and the forbidden can help government actors figure out how best to reach their legitimate goals. Surely there is something not fully functional about a system that requires a decade’s worth of guesswork, and all the resources involved, about exactly where the legal boundaries lie.

Second, judicial decisions do not just call a halt to government action, they also legitimate it. A definitive legal ruling that some controversial program is lawful can diminish (even if not eliminate) some of the power of the charge of illegality Those resistant to judicial review, including the government, can too easily lose sight of this power of courts to legitimate government action. Many of us on the Lawfare site have argued for years (see here, here, here) that government needs to embrace more transparency to help explain and legitimate its national-security policies. Judicial review can be seen as part of that transparency effort.

By way of contrast, the Supreme Court of Israel has eliminated virtually all procedural obstacles to judicial review, including of national-security issues — to an extent that would be shocking to those familiar only with American judicial practice. But one of the benefits is that the Israeli Court has issued the most important judicial decision in the world on the lawful parameters of targeted killings, and the Israeli government now has clarity about the lawful scope of any such actions.  For a good article on the decision see this piece by Barak Medina.

None of these comments is designed to make a starry-eyed, overly idealist case for judicial review. Courts can, indeed, make mistakes. Judicial review must not compromise legitimate national-security needs, such as protecting confidential sources and methods, as well as not compromising necessarily covert programs. And some of the constraints on American judicial review are deeply rooted in constitutional law and history, while others are more matters of prudential limits.

But I want to call more attention to the fact that the American practice of narrow, “case and controversy” judicial review is an outlier among courts in many other major democracies. And there are some significant costs — from the perspective of the government itself, not just those who seek to challenge government action in the courts — to a structure of judicial review that still leaves us, more than a decade after 9/11, with so little legal guidance from courts on so many novel, essential, and continuing issues at the center of counter-terrorism law.
Posted 7:42 AM by Rick Pildes [link]

Legal Scholarship (2) -- In Public Venues

Mark Tushnet

Posted 10:12 PM by Mark Tushnet [link]

Legal Scholarship (1): In the Law Reviews

Mark Tushnet

Posted 9:47 PM by Mark Tushnet [link]

Dead in the Water

Gerard N. Magliocca

The President's legislative agenda, that is.  Fresh from its reelection, the Administration faces the very real prospect that it will get nothing significant through Congress this year (or next).  Remember gun control?  That went nowhere.  Immigration reform?  On ice in the House of Representatives.  A big budget deal?  Nope.  Climate change legislation?  Forget it.

So what happened?  Maybe this is Sandy's dysfunctional Constitution at work.  Maybe it is the problem the bedevils most presidents in their second term--they lose clout because they are lame ducks.  I think, though, that there are a few special factors at work now that were not present for prior presidents.

1.  The 2010 Gerrymander:  Republicans did very well in the midterm elections.  More important, they did very well in a year that determined congressional redistricting and that was loaded with elections for governors in big states (Texas, Florida, Ohio, Pennsylvania, Michigan, Wisconsin).  This was an odd conjunction that (I think) was unprecedented.  The result is that the subsequent redistricting was very favorable to the GOP.  Even though Democrats received more votes in congressional races nationwide in 2012, the Republicans held the chamber.  Nobody seems to think that Democrats have a chance of doing better in 2014.  Thus, the House has a greater margin to resist presidential leadership.

2.  The Senate filibuster:  The view that it takes 60 votes to get any significant (non-budget) legislation through the Senate is now a widely accepted norm.  That was not true (except for civil rights laws) until  the Bush 43 Administration.  This, of course, makes it much harder to get things passed.

3.  Chief Justice Roberts' opinion in The Health Care Cases:  If you look at what the Chief did in Sebelius, one could conclude that he saved the Republican majority in the House and some Senate seats.  I tend to think that a decision striking down the Affordable Care Act would have energized the President's supporters and given him a powerful issue in the campaign.  You can make the opposite argument, of course, and I'm not sure history offers any clear guidance on that question.  But it's something that I'm looking into.
Posted 10:11 AM by Gerard N. Magliocca [link] (111) comments

National Security and the Speech and Debate Clause

Bruce Ackerman

Posted 2:05 PM by Bruce Ackerman [link] (34) comments

The New Originalism and the Uses of History

JB

I have just posted my latest article, The New Originalism and the Uses of History, on SSRN.  Here is the abstract:



Central to the New Originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to figure out the Constitution's original communicative content, while construction builds out doctrines, institutions and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction.

The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history.

First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone.

Second, although people often associate historical argument with originalist argument, the actual practices of lawyers and judges demonstrate that non-adoption history is as important as adoption history to constitutional construction.

Third, there is no single modality of “historical argument.” Instead, history is relevant to many different kinds of constitutional argument. One important task of this article is to rethink the familiar model of modalities of argument offered by Philip Bobbitt and Richard Fallon; and to offer a different version that better reflects the multiple ways that lawyers and judges actually use history in constitutional argument.

Fourth, according to the New Originalism, arguments about adoption history can offer mandatory answers only with respect to questions of interpretation; they cannot do so for questions of constitutional construction. That is, New Originalists accept an originalist model of authority only with respect to questions of interpretation, not construction. Yet New Originalists, like most lawyers, often make appeals to adoption history in constitutional construction. This raises the obvious question why American judges and lawyers should use or accept arguments from adoption history in constitutional construction and only sometimes find them persuasive. The originalist model of authority by itself cannot answer this question.

Fifth, we can solve this puzzle by paying careful attention to how lawyers and judges actually use adoption history. In constitutional construction, “originalist” argument is not a single form of argument. It involves many different kinds of argument, and it often appeals to ethos, tradition or "culture heroes" -- honored authorities who are treated as objects of respect, wisdom and emulation.

In fact, in constitutional construction, arguments from adoption history are often hybrid; they appeal to multiple modalities of argument simultaneously. Most arguments about the founding period usually also make implicit appeals to one of three modes of argument: national ethos, political tradition, or honored authority.

This hybrid nature gives arguments from adoption history their distinctive character in constitutional construction. Despite the dominance of original public meaning originalism in originalist theory, lawyers actually use adoption history quite differently than academic theory prescribes.

Sixth, precisely because originalist arguments (in constitutional construction) generally appeal to ethos and tradition, they will normally not be persuasive unless the audience can plausibly accept the values of the adopters as their own or can re-characterize them so that they can plausibly accept them as their own. When these values appear too alien or irrelevant, lawyers generally avoid making originalist arguments. Thus, lawyers do not feel an obligation to consult adoption history in every case; and when they do, they do not accept the results of adoption history as binding on them if there are other considerations.

Seventh, in constitutional construction, adoption history is a valuable resource available to originalists and non-originalists alike. Indeed, once they understand how originalist-style arguments actually operate in the construction zone, non-originalists and living constitutionalists should have no qualms about appealing to adoption history and making originalist arguments. Using such arguments does not undermine living constitutionalist theories of construction in the least. Refusing to employ adoption history serves no important theoretical principle and has no significant rhetorical advantages; indeed, all it does is limit lawyers’ ability to persuade their fellow citizens through calling on shared traditions and invoking powerful symbols of cultural memory.


Posted 10:55 AM by JB [link]