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Author: Robert Tsai

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Cliven Bundy and Popular Sovereignty

If you’ve been following the ranchers’ fight against the federal government and seen the latest news that armed ranchers have come to the aid of Cliven Bundy to keep the Bureau of Land Management from seizing his cattle grazing on federal lands, you will have noticed some commentators who praise their stand as a kind of “civil disobedience” (the National Review has even compared Bundy to Gandhi!). Others–including Senate Majority Leader Harry Reid–say Bundy is engaged in simple lawlessness, as he’s not paid ranching fees for decades and is flouting multiple federal court orders. Either answer, of course, is too simplistic.

In fact, the Bundy standoff is best understood as an organized effort to assert popular sovereignty.  But what kind of theory of power and community does the saga represent? In my quick and dirty take (subject to further refinement), rancher sovereignty appears to be a combination of the legacy of pioneer constitutionalism, a tactical resort to states’ rights, and a healthy dose of contemporary radical localism.

The aspect of rancher sovereignty that has received the most media attention is states’ rights. In some of Bundy’s statements, he has said that the land belongs to Nevada, but notice that it’s always done to undermine the federal government’s claim to the land.  He probably does believe that, relatively speaking, the state has more of a claim to the land than the feds. However, the rest of his statements and actions suggest he is only tactically relying on states’ rights.

In fact, rights foundationalism is most important to rancher sovereignty. Bundy contends that his family has made productive use of the land since the 1880s, and the fact that his labor has mixed with the land gives rise to a fundamental liberty/property right to continue using that land as he sees fit. That individual right, he asserts, trumps countervailing federal law and the Nevada State Constitution (to the extent it recognizes the supremacy of federal law). This sounds bizarre to anyone who has taken Constitutional Law I, but I assure you that this conception of rights is fairly widely shared. It derives from a natural law view of rights, one that has been deeply inflected by the American frontier experience. The belief system that once made sense in the world inhabited by ranchers living on open lands, when legal rules were openly flouted and productive use of land could ripen to legal title.

Moreover, there is a strong dose of radical localism.  Apparently, having lost repeatedly in the federal courts, he has turned to filing documents with not only state officials, but also the Clark County Sheriff, county commissioners, and even the district attorney.  These documents give emergency notice of a “range war against the police state” and demand the protection of state and local laws against the power of the national government.  Bundy states:

First I’m fighting this thing on paper. Then I’ll go after the contract cowboys. And then if I assume they’re (BLM) ready to go (confiscate the cattle) then I’ll go after them with the media, with ‘we the people’ and whatever else it takes….What I am organizing are lots of groups. They’ll come from hundreds of miles away. They’ll be multiple users; the hunters, campers, off-roaders, miners, sightseers, Tea Party people.

But it’s clear to Bundy that the sheriff is the most important actor in this constitutional theory. “The sheriff is the only one with the policing power and arresting power in Clark County,” he states. “The Clark County sheriff has more constitutional policing power in Clark County than the president of the United States and his army.”

Again, this statement will look absolutely ridiculous to anyone who practices law in the courts, as it inverts the entire structure of government created by the 1787 Constitution.  But that’s the point of the ideas of radical localism that persist among some members of the Tea Party, Patriot movement, and those who call themselves “sovereign citizens.”  Elevating the sheriff is the best way to subvert the hierarchical features of mainstream constitutionalism.  According to this theory of government, the county sheriff (not the U.S. Attorney General) is the highest law enforcement officer.  Some practitioners try to tie this view to older historical accounts of the township and shire; others are content that the sheriff evokes older American rule of law traditions.  Bundy himself in one interview has said he and his supporters refuse to accept the authority or jurisdiction of the BLM–and may even go so far as to deny the legitimacy of the federal government as a whole.

I said earlier that Bundy’s reliance on states’ rights was largely tactical, but there are tactical benefits to radical localism as well.  The approach aligns seamlessly with practical efforts to subvert the conventional constitutional order by taking over key local offices through elections and, failing that, appointing oneself as sheriff and deputizing true believers.

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Making Changes to Fundamental Law

Thanks to Deven, Gerard, and everyone else at Concurring Opinions for the warm welcome.  I plan to blog a bit about the new book, America’s Forgotten Constitutions, as well as some matters related to ongoing research.

A few words about the conception of the book.  It combines American history and legal theory in a way that I hope tells us some new things about events and ideas that have already received some scholarly attention.  It also analyzes some events in constitutionally significant terms when they previously have not received such treatment (e.g., the world federalist movement, the recent drafting of an Aryan constitution).  In doing so, the book seeks to shed light on certain recurring theoretical questions about our constitutional process, writ large.  The primary organizing themes are the dual meta-principles of written constitutionalism and popular sovereignty, combined by the Framers of the U.S. Constitution and unleashed on the population.  I’m interested in how average people adapt these basic principles to forge new relationships and communities, develop novel procedures for authorizing a constitution, and defend extra-legal tactics.

The book’s ambition is to go beyond current treatments of “popular constitutionalism”–so we can have an honest discussion about the energizing and dangerous aspects of our political tradition.  I pick eight examples where Americans wrote constitutions at various important moments in time, in order to explore these questions.  The colorful cast of characters consists of squatters, native Americans, slaveholders, abolitionists, socialists, world federalists, black nationalists, and white separatists.  I explore how the functions of writing and notions of sovereignty mutate after the Founding period.

Allow me to begin by suggesting that these constitution-writing episodes push us to reevaluate what we think we know about the procedure for making constitutional law.  Just to get the ball rolling, much of the literature identifies the following ways of altering fundamental law (let’s note but for now bracket the crucial lurking question of the relative legitimacy of each approach):

1.  Making foundational law during a true revolutionary moment, marked by political breakdown or some other break in historical time, when procedural questions are up for grabs along with substantive commitments.

2.  Formally amending a constitutional text (in the U.S. Constitution, according to the process outlined in Article V) without rejecting the continuing legitimacy of the legal order created.

3.  Creatively using conventional national institutions (say, by one party winning successive elections, enacting transformative laws, making key judicial appointments, winning landmark decisions through litigation).  Again, this is done without rejecting the authority of the overarching legal order.

4.  Gaining control of key bureaucracies (White House, OLC, DOD) or forging government-private relationships (such as Federalist Society-DOJ-Judiciary).  These social networks may not be lasting, but the goal is to achieve major shifts in substantive law rather than to overthrow an entire system.

5.  Creating a social movement that signals popular discontent, shapes public debate, forces national institutions to rethink governing commitments.

What are the protagonists in my stories doing?  For the most part, options # 2, # 3, and # 4 elude their grasp.  Typically, they compose a small group holding marginalized ideas, so it is not realistic to dominate any particular political party, win successive elections, or gain ideological control of key institutions.  Even where, as with the Confederates, they enjoyed a degree of access to formal power at the national level, they have given up on the possibility of making fundamental law within the conventional rules.  Option # 5 is possible for a few of my groups, but in the main they find themselves on the outliers of oppositional movements and trends.  In fact, the act of writing a constitution signals their differences with other dissenters in terms of state-building goals and tactics, not to mention the depths of their despondency that legal change through conventional means is possible.

None of my popular legal theorists believes that anything in the 1787 Constitution or our political tradition requires preapproval to write a new constitution; it merely dictates how rewrites of the existing one must be accomplished.  The right to write is inherent and fundamental.  They also agree that the people have the power to alter the basis and terms of political community.  Where they tend to differ is over tactics and procedures.

For some–let’s call them the classical revolutionaries–they believe themselves to be engaged in process # 1.  They confidently point to ample evidence of political breakdown, and argue that they are justified in authoring a new governing document and coming up with completely new protocols for deliberation and ratification.  This best captures the slaveholding statesmen who formed the Confederate States of America, though their theory of consent is vigorously disputed by Lincoln and other defenders of the 1787 Constitution.

At first blush, the classical situation also seemingly captures John Brown’s proposal for a new republican form of government and the Republic of New Afrika’s constitution created by the followers of Malcolm X after his assassination.  In both cases, people’s conventions determined that the original Constitution did not bind them, either because it was irreparably broken due to slavery and racial subjugation, or because the Framers never gained the rightful consent of the governed (i.e., slaves and former slaves).

Here’s where it gets complicated.  Most people don’t agree the country faces a true revolutionary moment.  Each dissident group gains supporters, but never enough regular folks to threaten the national legal order as a social movement, or enough elites to control any formal levers of power.  Each struggles with the question of violence as a tool for constitutional change, ultimately concluding that under extreme circumstances targeted violence is justified by the political tradition.  Force, they believe, can be constitutionally used to liberate slaves or defend against private and public acts of violence, inequality, and degradation.  Each group has national aspirations: in the case of John Brown, he hopes his constitutional vision will supplant the tottering slave-holding vision propped up by the High Court; for Imari and Gaidi Obadele, the goal is to convince the U.S. to give up the former slaveholding states so a black republic can be established.

As they await better conditions for revolutionary consolidation, created by themselves or others, they decide to start living out their constitutional principles.  In other words, their constitutions are not simply pieces of paper to be discussed one day if enough people are intrigued.  This shift toward social implementation is somewhat seamless for their respective communities because they espouse a strong dose of what I call “ethical sovereignty”–the notion that true legal authority derives from shared moral beliefs.  They begin to sustain law-based communities despite lacking control of territory and not completing the tasks of authorizing and implementing their constitutions.  In fact, while they see themselves as pursuing strategy # 1, I think both groups at some point transition into a different strategy of constitutional change: modeling an alternative community.  The Republic of New Afrika lasts longer than John Brown’s group, mostly because Brown decided to force the action at Harpers Ferry, and his execution decimates that nascent law-based community.  But New Afrikans are also better at it in that they reach more deeply into the recruitable population.

Once we see that dissenters can use imperfectly authorized constitutions to model alternative communities (let’s now call it strategy # 6), we start to notice other things.  Modeling derives from the same basic principles of popular sovereignty and written constitutionalism.  Modeling can stand alone or supplement any of the other strategies for constitutional change.  Innovative use of state and local laws (not simply national laws and institutions) can facilitate the formation of alternative constitution-based communities (more on this in a future post).  Suddenly, we start to notice a lot more groups of people writing constitutions, for all sorts of reasons and to varying degrees of success.

 

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Theory as Recipe

I appreciate Jim’s and Linda’s clarifications of their project.  If intellectual thought is always a mixture of ideas that have come before, we might think of constitutional theory as a recipe.  What Jim and Linda have cooked tastes pretty good, and I want to know how much of what got tossed into the pot.  I’m curious how much and what kinds of liberalism, republicanism, and feminism are a part of their theory: how these ideas interact, which parts seem stronger in which contexts, and why.  Their response suggests that their recipe is equal doses of all three, but I’m not so sure.   I might not be the only one.

Mark Graber, in his post, read the book to mean something like: 4 parts liberalism (understood as congruence with contemporary liberal policy preferences), 4 parts feminism (either congruence with political party or intellectual community), 1 part republicanism (understood as facilitating dialogue and permitting maximum policy and moral preferences to sway outcomes).

I read their “mild form of perfectionism” (p. 118) as something closer to: 2 cups of liberalism (understood as liberal defense of rights as foundational to citizenship), 4 cups of civic republicanism (structuring debates over rights), 2 heaping tablespoons of feminism (where relevant to citizenship perfecting activities).  I treat the book as an effort to bridge not only intellectual divides but also partisan ones, i.e., not simply liberal preferences masking as legal theory.

The authors object to any description that their theory is procedural, and that’s fine.  I merely offered that term as one way of understanding how civic republicanism might be working in their theory.  And I meant it in the same way that John Hart Ely’s theory has sometimes been described as procedural, though of course it, too, yielded substantive constitutional norms and sought to shape outcomes.  But for Ely (and I thought perhaps for Jim and Linda as well, though I may be mistaken), even substantive rights have to be ultimately brought back to foundational organizing principles (deliberation, virtue, responsibility).

Perhaps this shows my own inclinations, but I gravitated toward the “shared sovereignty” discussions as most interesting because the approach accords with my own sense that (1) rights must be articulated, but (2) judicial definition of rights can and should be done in ways that, to the extent possible, preserves the ability for communal dialogue (understood broadly) to continue.  It also strikes me as fertile ground for further frameworks, adjudicatory principles, and justifications to be developed that might maximize those civic virtues that can foster responsible exercise of rights and robust debate over the meaning of the good life.  Jim’s and Linda’s pullback from these parts of the book–that they are not celebrating such solutions and are not trying to maximize any particular civic virtues–leaves me puzzled and mildly disappointed (though possibly through no fault of their own).

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The Language of Civic Republicanism

It’s an honor to participate in this online discussion of Jim’s and Linda’s book, Ordered Liberty, which offers a theory of liberal constitutionalism that seeks to mediate tensions between rights, responsibilities, and virtue.  Their work is always engaging, learned, and timely.  I’m pleased to have the opportunity to share some thoughts about it.

There are many provocative concepts worth pushing on, but I thought I might begin by observing that it is possible to read their thoughtful book as requiring the use of civic republicanism as the primary language through which to fight over constitutional rights.  If this is correct, I would begin by asking the question: what work does the language of civic republicanism do in their theory?

Jim and Linda posit that fostering responsibility for oneself and responsibility to others (family and community) characterizes the general project that may be undertaken by the state.  At times, this “formative project” is called “securing the capacities for democratic and personal self-governance.”  So, again, how much lifting does the ideology and rhetoric of republicanism accomplish?

One possibility is that civic republicanism organizes constitutional debate.  It operates as a set of rules of exclusion, putting certain kinds of arguments off limits while including other kinds of arguments if they are properly constructed.  Departing from communitarians and natural law theorists, Jim and Linda believe that moral arguments are permissible in constitutional debate so long as they have been translated into the language of civic republicanism: a speaker doesn’t refer to comprehensive moral doctrines, but instead resorts to some set of liberal values, or virtues.

If civic republicanism merely organizes a conversation, then it may be doing little more than establishing a range of possible outcomes, all of which might be compatible with the goal of inculcating some agreed-upon set of virtues and responsibilities.  The authors’ discussion of home schooling suggests that, after taking the extremes off the table (a right to home school without qualification/ no right to home school), there are any number of possible policy arrangements that might inculcate responsibility and virtue.  Similarly, in discussing BSA v. Dale, Jim and Linda don’t quite come out and say the case was wrongly decided or rightly decided, but are content to suggest ways in which the opinion might have taken autonomy and responsibility better into account.  This hesitation could be treated as evidence that, once extreme solutions are taken off the table and the language of virtue and responsibility is used in some minimally proficient way, their theory is indifferent to which outcome is selected so long as the choice is defended in the right vocabulary.  This vision can, in a slightly different light, resemble a procedural approach to constitutional law.

But it may seem unsatisfying for a constitutional theory not to help us choose among attractive possibilities.  Can we imagine a civic republicanism that does more work, one that more strongly shapes particular outcomes?  In other words, can the framework of virtues and responsibilities aid us in sifting through possibilities and identifying better solutions from among plausible ones?  Perhaps, but in a pluralistic community we would need to know something more about particular responsibilities (to whom), which virtues should be maximized (since in reality many different virtues may be at stake and in tension), and whose virtues should be prioritized (more on this later) before we could assess which outcome would best facilitate a virtue-based agenda.

Perhaps what Jim and Linda offer is something short of a comprehensive theory (the authors seem skeptical of grand theories and perfectionist approaches) but more than a rule-bound approach.  It is a demand that constitutional discourse occur under certain grammar rules, coupled with a handful of meta-principles.  At times, Jim and Linda seem to be arguing that civic republicanism (at least the version favored by the authors that takes both rights and responsibilities seriously) yields substantive meta-norms.  For instance, their critique of Sunstein’s theory of minimalism suggests they favor a strong adjudicative norm of judicial engagement.  They don’t seem to think that judges should avoid controversial cases simply out of a fear of backlash; to the contrary, they believe (as I do) that judges must undertake to articulate rights as part of a duty to ensuring deliberative politics.

The authors praise solutions that neither spell out absolute rights nor deny individual autonomy.  They especially like solutions of “shared sovereignty” grounded in the idea that multiple communities have a claim on individuals (see, for example, their discussion of cases involving the rights of schoolchildren or abortion), and solutions that foster dialogue among different branches of government (see their analysis of the gay marriage rulings).  All of these strategies of decisionmaking may encourage deliberation, though in ways that individuals might occasionally fear, precisely because they challenge one’s worldview.  What I am less certain of is what civic virtues are being maximized through shared sovereignty solutions.  Is it an ideal mindset associated with citizenship?—for instance, Jim and Linda sometimes speak of “reflective” judgment.  Perhaps the best legal decisions foster certain habits of citizenship, e.g., considering a viewpoint different from one’s own, consulting all communities with a stake in the outcome?  Or are shared sovereignty solutions preferred on the view that multiple decisionmakers might increase the chances of better, more informed decisions, or at least culturally supported ones?

So, the upshot is this: how thick or thin, and how substantive or procedural in nature is the language of rights, virtues, and responsibility?

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Hallucinogenic Tea with Chief Justice Roberts

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Earlier, I posted on the interesting position taken by the new Chief Justice on the Gonzalez v. Oregon case, which involved the Controlled Substances Act. There, he joined Justices Scalia and Thomas in a reading of the federal law that would have effectively ended Oregon’s experiment with physician assisted suicide. Now, in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal, he authors a major opinion reading the Controlled Substances Act (CSA) narrowly to allow a church to import hallucinogenic tea. What gives?

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The Meaning of “Well Settled Law”

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Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: “well settled law.” One of the most interesting exchanges occurred during the Alito hearings over this very phrase:

Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”

He said, “It depends on what one means by the term ‘well settled.’”

This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.

It would be a mistake to see Alito’s equivocation as merely a product of confusion over terminology. Indeed, Alito’s hesitation to accord Roe the status of “well settled law”–he finally said only that it must be accorded “respect” as “very important precedent”–cannot be understood in an internally coherent way.

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Hail to the (New) Chief: Death With Dignity-Part III

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So, what might be gleaned from the New Chief’s silent joining of Justice Scalia’s dissenting opinion in Gonzalez v. Oregon? First, as to be expected (at least for now), he is influenced more by his experiences as a former executive branch lawyer and member of the political elite than he is by any popular backlash against the unitary executive model.

Second, national interests trump state interests–even where there is ambiguity in the federal statute. His own questions at oral argument, particularly his concern for the uniformity and supremacy of federal law, suggested this outcome. Federalism is messy, and it appears he is unwilling to countenance too much muss. He, like Scalia, is willing to read Congress’ enumerated powers broadly (and the core of state’s rights narrowly in advance of national interests)–even when the strongest interest appears to be in cultivating moral standards. This is bad news for proponents of interstitial federalism.

Third, his willingness to sign Scalia’s dissent in toto–and thereby subjugate his own ego in a high-profile matter–shows that he is as savvy as his confirmation hearings suggested. The practice of writing separately has almost become a custom with the Rehnquist Court. He is willing to buck this trend, to allow Scalia to speak for this coalition on this day with a single voice, and to build his alliances carefully–starting with his natural friends.

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Death With Dignity–Part II

Justice Kennedy’s opinion affirmed Oregon’s statute, and overturned Attorney General Ashcroft’s interpretive rule claiming that the use of controlled substances to assist suicide is not a medical practice and therefore unlawful under the CSA (Controlled Substances Act). Technically, the case involved whether the Attorney General’s interpretation should be accorded any deference; here, the Court concluded “no.”

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But I have to think that Oregon is very, very lucky regarding the timing of the case.

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Supreme Court Upholds Oregon’s Death With Dignity Act

In a 6-3 decision, the Court today upheld Oregon’s physician-assisted suicide law. With the Court’s makeup in flux, there was much speculation that if the conference vote was 5-4, the case might be held over for reargument. It appears that the key was that the federalism position won over Justice Kennedy, who was visibly torn at oral argument. Assigning him to write–a privilege of the most senior Justice in the majority–helped to keep him on board. A decisive majority meant there was no reason for Justice O’Connor not to participate. Off to class–more analysis later.

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Just Do It: Sports v.s. Academics

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So, another sportswriter has gotten under the skin of University of Oregon President Dave Frohnmayer. Awhile back, Sports Illustrated shined a national spotlight on the football program’s lavish digs.

Here is ESPN’s account of Phil Knight’s (read: NIKE’s) alleged influence on the track program and the university generally, prompting Frohnmayer to fire back.

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