Author Archive for thomas-crocker
The Life of the Law Still Requires Logic
posted by Thomas Crocker
Justice Holmes famously declared in The Common Law that “the life of the law has not been logic; it has been experience.“ Justice Alito, in his majority opinion in Kentucky v. King would appear to agree with Justice Holmes, with an added proviso. Justice Alito, like Holmes, emphasizes experience. In emphasizing experience, the majority opinion focuses not on the experience of the private individual subject to searches, but on the experience of police who must respond to the myriad factual situations they daily confront without time to engage in fine-grained legal analysis of where the limits of the Fourth Amendment reside. But, in so doing, the opinion jettisons logic altogether, producing a rule at odds with itself, at least when viewed from the perspective of the rights-holder rather than that of the potential rights-violator.
In what follows, I will briefly sketch why.
1. The Court provides the following rule to govern the case: “Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.” The alternative rule—the one that I think would be a more reasonable account of Fourth Amendment limitations on state power—is stated and rejected as “unreasonable”: “[A] rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.” If the latter would “unreasonably shrink” an “exception,” already something of an odd construction, then what would count as a violation of the Court’s rule? (And to register the oddity of worrying about shrinking an exception, is not the burden usually on the “exception” to justify its reach, after all the rule is supposed to be the norm, and the exception the abnormal—or is the fact that the Court is worried about protecting the exception against “unreasonable” applications of the rule mean that the rule and exception are now really in an inverse relation?). How would the police ever engage in or threaten to engage in a violation of the Fourth Amendment under circumstances that would lead to a warrantless, forcible entry, especially during a narcotics investigation?
Let’s posit that warrantless, non-exigent, forcible entry after knocking and loudly proclaiming “police, police, police” would count as a violation of the Fourth Amendment. Let’s dispense with another possible scenario: if police failed to knock and announce, with or without a warrant, and forcibly entered, then there would also be a Fourth Amendment violation. But, this situation could not be a police-created exigency since there was no announcement of their presence through which they could be “engaging or threatening to engage” in lawless conduct. This conduct is simply kicking in a door, and therefore another clear Fourth Amendment violation. So knocking and announcing is a necessary condition for police created exigency. But once police presence is announced, especially in a drug case, are there any practical circumstances under the Court’s rule that will count as a Fourth Amendment violation? Is there any circumstance in which the police-created exigency (where exigency need be no more than police fear that “evidence” might be destroyed) will not count as an exigency justifying warrantless entry? The short answer is: No.
May 30, 2011 at 1:15 pm
Posted in: Constitutional Law, Privacy (Law Enforcement)
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Shhh . . . If We Don’t Talk About It, Might It Cease to Matter?
posted by Thomas Crocker
In a case that involves the most private of places—the home—where the Fourth Amendment has been said to draw a firm, but bright line at the threshold, the Supreme Court held that police officers may enter without a warrant when they fear the occupants might be destroying the very thing they otherwise needed consent to inspect. An important value protected by the Fourth Amendment is privacy, but the word “privacy” makes an appearance only once in Justice Alito’s majority opinion in the recent decision in Kentucky v. King. Privacy’s appearance comes in the highly problematic concluding section of the opinion: “This holding provides ample protection for the privacy rights that the Amendment protects.” Justice Alito makes this conclusory statement despite the absence of any discussion in the opinion of the privacy rights at stake. The opinion is instead replete with discussion about the needs of law enforcement. This pattern of competing narratives—the importance of providing clear rules to enable police practice in contrast to focusing on the value of protecting privacy—seems to be tilting more towards the former to the exclusion of the latter, as I have explored in depth elsewhere. Sometimes the issue is presented as requiring courts to balance the needs of law enforcement with the privacy rights of individuals. But it is difficult to do such balancing when the only appearance “privacy” makes is in an unsupported conclusion that privacy rights have been given “ample protection.” How they have been given such protection remains unspecified.
What is even more interesting is the grammar of the sentence in which “privacy” appears. Notice that the reference is to “the privacy rights that the Amendment protects.” Justice Alito, as we have seen, does not tell us what those rights are “that the Amendment protects” (whatever they happen to be). Indeed, his statement is consistent with “the privacy rights that the Amendment protects” being a null set. In that case, it is naturally quite easy for the opinion to be consistent with the “privacy rights that the Amendment protects.” It doesn’t protect any. Consistent with Justice Alito’s failure to mention the value of “privacy” in his more forceful dissent in Arizona v. Gant (where Justice Stevens, writing for a majority, balanced law enforcement needs against a robust understanding of the privacy rights at stake in favor of a rule that protected more privacy), one has the sense that at least some members of the Court think that if we don’t talk about privacy, it might cease to matter. After all, the concept is not explicitly mentioned in the text. Shhhh . . . .
May 27, 2011 at 9:53 am
Posted in: Constitutional Law, Privacy, Uncategorized
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Universities and the So-Called Customer
posted by Thomas Crocker
After a longer than expected hiatus while I transitioned to new institutional setting in Germany, I have some thoughts to share about the plight of higher education, which has been much under discussion lately (see this overview of a number of recent books on the topic). I have this creeping sense, as I do about a number of other things such as politics or income inequality, that things are changing around me in significant ways, but I lack the perspective to see enough of them or sufficient insight to understand what they mean or how to affect their direction. Recently, the authors of a study—which has generated its own discussion about the failures of education—wrote an Op-Ed that both cites to the statistics demonstrating that “a large number [36 percent after four years] of the students showed no significant progress on tests of critical thinking, complex reasoning and writing,” and attributes a cause to this failing. In “Your So-Called Education,” they cite as a significant cause the turn away from educational spending by colleges and universities to expenditures on counselors, administrators, recreation centers, and the like. In the process, a particular view of education has taken hold:
“The situation reflects a larger cultural change in the relationship between students and colleges. The authority of educators has diminished, and students are increasingly thought of, by themselves and their colleges, as “clients” or “consumers.” When 18-year-olds are emboldened to see themselves in this manner, many look for ways to attain an educational credential effortlessly and comfortably. And they are catered to accordingly. The customer is always right.”
Yet, as the Chronicle reports, there are political forces agitating to entrench this losing practice further, seeking to empower the student, not the professor, in order to “make students the actual customers for higher education.” They propose seven solutions without identifying a real problem in need of solution. Texas looks to be the next battleground to test this issue, but less ideologically driven voices have also called for changes in line with the so-called “customer’s” wishes. More focus on teaching, less emphasis on research, and superficial calls for reducing costs by ending tenure (as if tenured professors were the source of ballooning higher education costs rather than the recreation centers, the administrators, the counselors, etc.) are components of a new view of higher education—one that is deeply problematic. And, one that is at odds with giving serious consideration of the future of the social sciences and humanities.
May 21, 2011 at 9:11 am
Posted in: Education
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Private Manning and the Law Professors
posted by Thomas Crocker
Are there some core claims about the rule of law that every lawyer, and more particularly, every law professor knows? To give an affirmative answer to this question would seem to be relatively unproblematic. Moreover, a paradigmatic example of such shared knowledge is the principle that accused criminals are innocent until proven otherwise. In a recent interview, President Obama challenges the universality of this claim. Speaking about Private Bradley Manning’s continued pre-trial detention, he said: “We’re a nation of laws. We don’t let individuals make their own decisions about how the laws operate. He broke the law.” Of course, the Commander in Chief cannot proclaim that “he broke the law” and also affirm the principle that every law professor knows. One of these is inconsistent with the other.
Professors Bruce Ackerman and Yochai Benkler published an open letter in the New York Review of Books with signatures from many law professors (including the present writer), calling for the administration to justify publicly the precise grounds for Private Manning’s extraordinary conditions of detention (which include forced nudity, regular sleep disruption, and solitary confinement) and to end any procedures not justified. In so doing, they remind President Obama that he “was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as commander in chief meets fundamental standards of decency.” The question sets up the opposition between what every law professor knows and what President Obama, the former professor, does. The assumption is that President Obama views the initial claim—innocent until proven guilty—as unproblematic. There is another sentence in his claim that no one else has discussed that provides an interesting clue about the viability of this assumption. President Obama also said “We don’t let individuals make their own decisions about how the laws operate.” Who is the “we” who has power to “let” or not, and who are the individuals whom “we” do not “let” make their own decisions about laws?
April 26, 2011 at 10:27 am
Posted in: Uncategorized
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South Carolina’s Light Bulb
posted by Thomas Crocker
South Carolina is contesting federal authority—again. And, once again, it is not alone. Legislators are considering a Bill that would permit local producers to manufacture and sell incandescent light bulbs so long as both the production and sales occur within the state. The Light Bulb Freedom Act passed the House with overwhelming support. The claim is that a purely local economic activity would be beyond the power of Congress and federal agencies to regulate. This is a clear constitutional loser. (But I also think the challenge to the health care mandate is a clear loser as well). What is unclear to me is why, in the second decade of the new millennium, these basic issues of federal power presumed largely settled during the New Deal and subsequent civil rights legislation have been placed in question again. These are not relatively tertiary issues about whether the Tenth Amendment provides any limitations on federal power to “commandeer” state officials. The light bulb is about core federal power. Rep. Bill Sandifur (R) sums up the view: “This bill is about taking a stand against government intrusion in our everyday lives. I am championing this bill because I believe that we must fight for limited government, personal freedoms, and the free market.”
That a supposedly local economic activity would be beyond the reach of congress is an issue that was settled in Wickard v. Filburn, and reaffirmed more recently in the California medical marijuana case, Raich. South Carolina is clearly wasting its time, but why? One reason may be that the State fosters political attitudes resistant to federal power that remain substantially unchanged since pre-Reconstruction times. The opportunities to resist may be truncated, but the attitudes are unreconstructed. South Carolina legislators are also entertaining the idea of printing their own precious metals-backed currency. Such notions sustain a fantasy of state independence from long established national monetary policy.
April 19, 2011 at 3:07 pm
Posted in: Constitutional Law, Uncategorized
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What “a Mess”–The KSM Trial
posted by Thomas Crocker
After announcing in November, 2009 that Khalid Sheikh Mohammed (“KSM”) would be tried in federal court in New York, Attorney General Eric Holder announced last week that KSM would now be tried in a Military Commission at Guantanamo. This stark reversal, which also follows a failure to close the Guantanamo detention facility in the first place, continues to make true the description President Obama gave to the detention policies he inherited: “We’re cleaning up something that is, quite simply, a mess—a misguided experiment . . .” In some respects, the cleanup is as big a mess as the original because the continued detention of persons at Guantanamo combined with the inability to conduct trials in the U.S. means that the administration is continuing practices it does not think are in the best interests of the U.S. At this point they have no choice. Holder reiterated his belief that “the best venue for prosecution was in federal court.” That being no longer possible, the experiment therefore continues.
Holder also stated that Congress had “taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.” One aspect of this on-going mess is how checks and balances have worked in surprising ways.
An executive branch chastened by the Supreme Court into seeking congressional approval for Military Commissions not only obtained stronger constitutional support for newly constituted Commissions, but has now been forced by Congress into utilizing them, if—and this is a big if—the executive branch wishes to enforce laws violated by the detained individuals (as opposed to detaining them indefinitely). The President’s power has been limited, but not in a way that channels it into ordinary governing form. Rather than rely on Article III courts as the default, the President must now utilize Military Commissions in ways that interfere with prosecutorial discretion. The irony here is that the end result—military trials—is an outcome favored by Dick Cheney and other presidential unilateralists achieved by a means—tying the AG’s hands—restrictive of presidential power that they ordinarily contest. Such a result may make little practical difference regarding the substance of policy to future Cheney-inspired executive officials. But for the present Attorney General this is an extraordinary situation. He must proceed with a legal course of action that he thinks is decidedly inferior (untested venue, unresolved evidentiary issues, undesirable signals internationally, etc.) where a better course should be available (tested, resolved, and legitimate Article III courts).
April 11, 2011 at 12:46 pm
Posted in: Uncategorized
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Moral Idiocy
posted by Thomas Crocker
If you are like me, you all too often encounter arrogant incompetence in our once-lauded service economy: wrong answers delivered with the conviction of certainty, or incomplete services rendered as if they were fully performed. If you are like me, you are also sometimes puzzled at the wide circulation of political falsehoods parading as truth but held as articles of faith. What accounts for these and other phenomena of error and indifference?
In his “pop” philosophy book, Shop Class as Soulcraft: An Inquiry into the Value of Work, Matthew Crawford examines the entangled relationship between moral virtue and intellectual virtue. Crawford is a motorcycle mechanic and philosopher, and draws much from Robert Pirsig’s similar encounters with others who hold themselves out as mechanics, but who lack the virtues necessary for commitment to their craft.
Recounting an episode in which the putative mechanic took no care in what he did, and did his work badly, causing further damage to the motorcycle, Crawford writes:
Here is the paradox. On the one hand, to be a good mechanic seems to require personal commitment: I am a mechanic. On the other hand, what it means to be a good mechanic is that you have a keen sense that you answer to something that is the opposite of personal or idiosyncratic; something universal. In Pirsig’s story, there is an underlying fact: a sheared-off pin has blocked an oil gallery, resulting in oil starvation to the head and excessive heat, causing the seizures. This is the Truth, and it is the same for everyone. But finding this truth requires a certain disposition in the individual: Attentiveness, enlivened by a sense of responsibility to the motorcycle . . . The truth does not reveal itself to idle spectators.
Pirsig’s mechanic is, in the original sense of the term, an idiot. Indeed, he exemplifies the truth about idiocy, which is that it is at once an ethical and a cognitive failure. The Greek idios means “private,” and an idiotes means a private person, as opposed to a person in their public role—for example, that of a motorcycle mechanic. Pirsig’s mechanic is idiotic because he fails to grasp his public role, which entails, or should, a relation of active concern to others, and to the machine. He is not involved. It is not his problem. Because he is an idiot.
I want to share some thoughts about moral idiocy after the break.
July 2, 2010 at 1:52 pm
Posted in: Uncategorized
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McDonald’s Living Constitutionalism
posted by Thomas Crocker
The Supreme Court’s awaited case in McDonald v. Chicago answered affirmatively the question whether the right announced in District of Columbia v. Heller would apply to the states. In so doing, the opinions raise a number of questions about constitutional method and interpretation. I want to focus on the opinion’s living constitutionalism. Others such as Reva Siegel and Jack Balkin argued that Heller, which announced the existence of a personal right to gun ownership in the home, was itself an opinion employing living constitutional methodology: it canvassed post-enactment state constitutional provisions, post-enactment commentary, post-enactment state court cases, and ignored/distinguished prevailing Supreme Court precedent to the contrary. Hardly the evidence required for a so-called “originalist” interpretation. The right being established, Justice Alito’s task was to say whether it could be “selectively” applied to the states.
Contrast the following two statements from Justice Alito’s opinion in:
(1) “ During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia,” motivated Federalists and Anti-Federalists alike to believe that “the right to bear arms was fundamental to the newly formed system of government.” (slip op. 21).
(2) “By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense.” (slip op. 22).
How do we move from the first rationale to the second? The answer requires us to examine Justice Alito’s living constitutionalism.
June 29, 2010 at 3:56 pm
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Why We Have a Senate
posted by Thomas Crocker
The passing of Senator Robert Byrd brings with it the acknowledgment of the federal largesse he brought to the state of West Virginia. From Senator Byrd, we heard no complaints about federal earmarks or redistribution of wealth. As the Times relays, Senator Byrd used his position in the Senate to aid the lives of West Virginians, improving the infrastructure and institutions of his state. To do this, he was an unapologetic practitioner of wealth redistribution. In 2004, for every dollar West Virginians spent in federal taxes, the state received $1.83 in federal funds (see the Tax Foundation Report here). Not a bad deal for West Virginia, and one that is only possible because other states receive less than they pay. Because political opposition to the idea of wealth redistribution is primarily aimed at the conferral of benefits on individuals, we do not often hear much complaining about the redistribution of federal funds at the state level (which may or may not trickle directly down to individuals). For a Senator whose early career was marked by claims of states rights, Senator Byrd became comfortable not only with Civil Rights legislation, but with the development of a strong federal role in creating a more equitable distribution of national benefits. Some states have more to offer the nation than others, and in order to counteract the effects of maldistribution, powerful Senators such as Robert Byrd champion the interests of the state they represent.
I wonder how much Senator Byrd’s achievements on behalf of West Virginia serve as a partial response to Sanford Levinson’s provocative and powerful argument that the Senate is a anti-democratic body whose time is passed. For all the bridges to nowhere powerful Senators have funded for their states, and from which their Governors have benefited, the Senate, which begins as an institution tethered to preserving the interests of their state legislatures, becomes in part an institution committed not only to locality but to the very idea of one nation indivisible. No doubt, as Levinson drives home, there is something deeply undemocratic about the Senate’s maldistribution of voter representation where California’s 36 million (who receive $0.79 on the dollar) get the same representation in the Senate as North Dakota’s 650,000 (who receive $1.73) or Alabam’s 4.7 million (who receive $1.71). The proof will be in the details, but it may be that the skewed distribution of democratic representation, may make possible a beneficial redistribution of wealth and resources that makes possible a more cohesive national unity. The Senate helps make relevant to Californians what happens in West Virginia or South Carolina. If any of this is plausible, then one irony is that the Senate does more to undermine the idea of “states rights” or “states autonomy” than it does to promote it, by demonstrating the political and practical interdependence of each state on the others. We tolerate the redistribution of wealth, aided greatly by the Senate’s equal representation of states who have less to offer the national body, because it is untenable that some have so much while others have so little. Senator Byrd undoubtedly improved the lives of West Virginians through his commitment to the practice of redistribution. And for this, we all benefit.
June 28, 2010 at 10:39 am
Posted in: Uncategorized
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Civilian Control and the Unitary Executive
posted by Thomas Crocker
Who sets military policy under our constitutional system? The answer is one that is (largely) free from any ambiguities of constitutional interpretation: the President is Commander in Chief. Beginning with the President, our constitutional tradition has firmly entrenched the idea of military policy chosen by politically accountable civilian actors. Although controversial expansive domestic law enforcement powers have been asserted by the past Administration under the Commander in Chief power to conduct activities such as electronic surveillance of Americans outside of statutory authorization, there has never been any doubt about the President’s authority over military policy. In this, the executive is truly unitary. This unity is why General McChrystal’s comments, and those of his staff, are so abrasive. They suggest a lack of respect for this fundamental feature of our system and a division within the executive branch that should not exist. Add to that, the increased politicization of military officers, and we get a glimmer of shifting attitudes and priorities within our constitutional system that we would do well to confront.
Writing in the L.A. Times, Bruce Ackerman proposes creating a presidential commission on civil-military relations tasked with formulating a new canon of military ethics to clarify principles of constitutional governance in the modern world, and writes about these issues in his forthcoming book. Given the enormous amount of national resources the military consumes, and given the ability of policy to follow resources, the militarization of our politics risks distorting the order of priority in constitutional governance. Do military officers exist to serve civilian leaders and national policy, or do civilian leaders and national policy exist to serve military interests? The answer should be clear, but the more military officers become active in everyday politics—and I take McChrystal and his staff to be openly doing just that in its most bare-knuckled form—the more we risk inverting the proper answer. I would not be the first to observe that the rationality of war has a way of organizing the rationality of everyday political practice. Military interests all too easily can become the interests of all political policy. Civilian control of the military, however, at least guarantees that such rationality will be employed by politically accountable actors, making possible alternative ways of organizing our collective political life. General McChrystal’s actions, and those of his aides, challenged these settled constitutional governing principles. It is therefore good for the nation that McChrystal resigned today—but this is not enough. I think it is important to implement something like Ackerman’s proposal to avoid relying on faith that McChrystal’s case is sui generis and does not reflect growing attitudes and tendencies within the military that might further distort the rationality of our politics and the integrity of our constitutional system.
Update after the break.
June 23, 2010 at 5:31 pm
Posted in: Constitutional Law, Military Law
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South Carolina, Stimulus, and Federalism
posted by Thomas Crocker
South Carolina has been notable for its newsworthiness of late—not much of it flattering as Jon Stewart has colorfully appreciated. South Carolina’s current woes and weal bring together a pointed issue about federalism and federal stimulus that should give some pause to the rush to again save the salaries and jobs of teachers nationally, which some in Congress want to do.
Let me say from the outset that as a general matter I support federal expenditures for teachers, and in many ways think that because education is a national good, the federal government should play a much larger role in public education. A child undereducated in South Carolina, a description that unfortunately applies to far too many children, can cause problems for the later adult who may live in Massachusetts. Education is closely linked to our national economy, even if education is not (ordinarily, at least for now, but see . . .) itself an economic activity as a Supreme Court majority claimed, and even if public education is closely tied to its local community. So Congress should fund teachers when States are unable to do so—right?
June 17, 2010 at 5:17 pm
Posted in: Constitutional Law, Education
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The Future of the OLC
posted by Thomas Crocker
James Madison reminded us that enlightened statesmen will not always be at the helm. One solution to this problem is to design institutions to fulfill checking functions, which in turn requires those institutions to be staffed with, well to a large extent, enlightened statesmen who are competent and serve with integrity. No different than elected officials, institutional staff will not always be enlightened either. One such institution, the Office of Legal Council, which provides binding legal opinions for the executive branch, has struggled to conform to enlightenment ideals. Indeed, a predominate enlightenment ideal was the abolition of torture by governing officials (see Lynn Hunt’s historical account). Yet, as we all know, this very office provided legal authorization for practices all but a very few consider torture, and even more, argued that existing legal limits on the use of torture would not bind the President in exercise of his Commander in Chief powers. One of the criticisms of the office as it operated under Jay Bybee and John Yoo was that it no longer served its function as an independent institution designed to ensure that the President fulfills a constitutional duty to “take care that the laws be faithfully executed.” Rather, the office began to provide the President the advice he wanted to hear. Or, in the words of Anthony Lewis regarding the infamous torture memo: “The memo reads like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison. Avoiding prosecution is literally a theme of the memorandum.”
Dawn Johnsen, President Obama’s pick to lead the OLC, was compelled to withdraw because the Senate refused to act on her nomination. She writes a compelling case today in the Washington Post for filling that post soon. She, with others (including the current acting Assistant Attorney General, David Barron), advocate returning the office to its independent role in providing accurate legal analysis for the executive branch. With others, she has articulated a statement of the key principles necessary for restoring the independence and integrity of the OLC. If we cannot have more robust institutional reform of the kind Bruce Ackerman suggests—a Senate confirmable executive tribunal whose members serve as independent judges for the executive branch—we can at least have a fully functioning independent institution as Johnsen argues. Without reform that begins with leadership of the kind Johnsen would have provided, we are left vulnerable to the next unenlightened official to staff the institution.
June 11, 2010 at 4:28 pm
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Saving Lives
posted by Thomas Crocker
Former President George W. Bush commented recently: “Yeah, we water-boarded Khalid Sheikh Mohammed,” adding, “I’d do it again to save lives.” Much has already been said about the fact that KSM was waterboarded 183 times, and whether this constitutes a war crime warranting prosecution. Bush’s comment certainly reopens that issue, but I want to focus on what it means to say regarding torture, that “I’d do it again to save lives.”
One response is to contest the factual assumption of the claim—that torture of KSM actually saved lives. David Luban’s analysis of the claim, for example, suggests that it is highly doubtful. But let’s assume that there is some factual basis for the claim that torture of KSM saved lives. But let’s also agree on the consensus that waterboarding constitutes torture, as Attorney General Holder has made clear. I want to comment on two further aspects of Former President Bush’s statement regarding necessity and the social imaginary.
What principle might justify Bush’s claim? Can we reconstruct Bush’s enthymeme? Begin with the general principle that the President has a textually explicit duty through the Oath Clause to preserve and protect the Constitution, as well as an implied duty to protect the American people. We can say that saving lives against security threats is a constitutional duty. It is also clear that members of international terrorist organizations pose a threat to American lives. Assuming that waterboarding is an effective technique, then waterboarding members of such terrorist organizations like KSM protects American lives. According to this argument, the duty to protect American lives leads to the necessity of waterboarding.
But is this duty to be pursued by any means necessary? Are there limits to the means by which the President can pursue the goal of protecting the American people?
June 10, 2010 at 5:12 pm
Posted in: Uncategorized
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Thinking Transcendentally
posted by Thomas Crocker
The mortgage crises follows a pattern of reasoning analogous to that sometimes followed in the national security context. When it comes to national security, we are warned that the Constitution is “not a suicide pact.” This catch-phrase is used for the argument that in times of national security threats, constitutionally protected civil liberties should not be used to constrain the necessary actions of executive officials. Why? Because security is a necessary condition for the enjoyment of civil liberties. Without security, so the argument goes, we can have no liberty. Thus, when times are tough, we should not allow constitutional commitments to get in the way of allowing officials to act as necessary to protect national security. (I critique a specific application of this argument here).
Similar reasoning seems to be at stake in the present financial crisis. In nearly as direct a catch-phrase, we are warned that leaving financial obligations untouched as they are would be an economic “suicide pact,” leading to unpredictable, though likely dire, consequences for the country as a whole. (Bernanke: action is “urgently required to stabilize the situation and avert what otherwise could be very serious consequences for our financial markets and our economy.”) In times of threat to the overall security of the economy, background beliefs in individual economic decisions and legal obligations (more or less, some version of laissez faire capitalism) should not be deployed to constrain the necessary actions of executive officials. Why? Because structural security of the economy is a necessary condition for the good of us all. Thus, when economic times are particularly tough, we should empower executive officials to act as necessary to protect economic security.
Both of these rationales depend on a form of transcendental argument: the necessary condition for the possibility of X (enjoying liberty), is Y (the provision for security). My central question is: Can We Think Transcendentally about Something Other Than Security?
September 24, 2008 at 7:01 pm
Posted in: Current Events, Law and Inequality, Politics
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Democracy’s a Riot
posted by Thomas Crocker
Taking a break from watching Wall Street turmoil, I notice that the NY Times reports today that Minneapolis is engaged in a post-game analysis of its heavy-handed police tactics surrounding the recent Republican National Convention. A pattern has emerged, at least since the 1999 Seattle protests: protect property and control crowds by any means thought necessary and worry about the constitutional consequences later. As the Times reports, more than 500 lawsuits are ongoing in the wake of the 2004 Republican convention in New York. But more than the usual public disorder violations, it seems that more serious charges of felony riot are being initially levied even against journalists in Minneapolis. The Times story provides: “‘At some point even a journalist has to recognize that they are in violation of the law,’ Tom Walsh, a St. Paul Police spokesman, said as the arrests were taking place. ‘Are they going to get arrested or are they going to cover it from a distance?’”
Tom Walsh has identified a key issue relating to democratic participation in light of police tactics at public gatherings: must individuals choose between facing arrest, or participating in (or reporting on) democratic interaction only from a distance? At political events—where public discussion and dissent might occur—government authorities have increasingly insisted on distance, in the name of order and property protection. Distance is a concept at home with the rhetoric of “out of touch” employed by both presidential candidates. A conundrum emerges, so it seems. “Out of touch” suggests that a candidate has not interacted with ordinary people closely enough to understand the issues and problems they face. Yet, when the people try to approach, to close the distance in an unscripted, more immediate personal encounter, they risk arrest and riot charges. No doubt, when public encounters are used to disrupt legitimate democratic participation by others, the need for public order prevails. Order, however, is how authorities justify maintaining democratic distance. When the public is prevented from drawing near on the grounds that officials wish to avoid “verbal tumult, discord, and even offensive utterance,” as Justice Harlan puts it in Cohen v. California, being advised that one can participate in democracy only at a distance, is a sign of democratic weakness, not strength (to invert Justice Harlan’s formula—“That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength”). In light of the demand for distance, I think governing officials need reminding that sometimes democracy’s a riot, and that’s a good thing.
September 17, 2008 at 5:16 pm
Posted in: Constitutional Law, Current Events
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In Whose Tongues?
posted by Thomas Crocker
After a couple of weeks of intense interest in Sarah Palin, Sen. John McCain’s choice for a Vice-Presidential running mate, we are still learning about who she is. As Dan Solove points out, one of the consequences of McCain’s choice is that a lot of time in the remaining election season may be focused on getting to know Gov. Palin, rather than on clarifying the issues and the views of the presidential candidates. Perhaps more than expected, the choice of Sen. McCain’s vice-presidential running mate matters, making this discussion unavoidable (even if regrettable given the time constraints). First, obvious age and health questions surround Sen. McCain’s candidacy, making his choice of running mate more pressing. As Frank Rich points out, that message was embedded in Gov. Palin’s invocation of Harry Truman in her acceptance speech. Second, the everyday role of the vice presidency has been redefined under Vice President Cheney, opening up the possibility for this unknown to play a greatly augmented role in crafting federal policy. Finally, the renewed enthusiasm among the Republican Party base suggests something about Gov. Palin’s worldview that some both find exciting and substantively consequential for a McCain presidency.
These revitalized voters are reported to be religiously-motivated voters, more specific than the general “values-voter.” (Is it even possible to be a “non-values voter”? After all, voting is always about values, the only questions are whose values and which ones). What do they expect from Gov. Palin, and what do they see in her? What conception of church-state relations does she have? How might her specific religious beliefs inform her worldview as a Vice President or President? Tracing her roots in the charismatic beliefs of the Assemblies of God Church, and her comments this summer to the Wasilla Assembly of God Church, I offer some reflections.
September 15, 2008 at 9:09 am
Posted in: Constitutional Law, Politics
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Dworkin, the Bard, and Boumediene
posted by Thomas Crocker
Catching up on my reading from the August 14 issue of the New York Review of Books, I was struck by a passage from Ronald Dworkin’s review of the Supreme Court’s decision in Boumediene v. Bush. Dworkin explains Justice Scalia’s dissent as based on an historical view of the extension of the habeas writ. According to Justice Scalia, the writ “could not possibly extend farther than the common law provided when that Clause was written.” Dworkin writes:
Was Scalia right to make the history of the Constitution decisive? We can read the suspension clause in two ways. We can take it to declare, as Scalia did, that the United States should never deny any prisoner the rights he would have had if he had lived in England or America in 1789, except in rebellions or invasions. Or we can read it to state a constitutional principle: that except in those cases government must allow anyone it imprisons the right to challenge his imprisonment in court. Like other constitutional principles, this requirement could not be read as absolute. It would not require habeas rights when it would be impossible or particularly burdensome to grant them—for example, if a prisoner would have to be flown to a US court from a battlefield abroad.
That qualification would not, however, allow government to escape habeas responsibility by building its prison camps in a foreign territory that is as much under its control as any base in this country. As Kennedy said, “The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.” Scalia’s historical reading demeans the Constitution and insults those who made it. It is absurd to translate their clear declaration of principle into a rule pointlessly limiting prisoners’ rights to those enjoyed at some fixed and essentially arbitrary date. Kennedy adopted the second, principled, reading. The scope of the constitutional right to habeas corpus, he said, should be determined by what he called a “functional” test: the right should be available unless it would be, in his words, “impracticable and anomalous” to grant it—as it would be in the midst of military operations. (emphasis added)
I want to share some reflections on the italicized sentence, and in particular the following claim: “Scalia’s historical reading demeans the Constitution.” Is Dworkin right? Is the Constitution the kind of thing that can be demeaned? Does Justice Scalia demean the Constitution? I would like to suggest that the answer to all three questions is “yes.”
September 4, 2008 at 6:02 pm
Posted in: Constitutional Law
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Speech and the Politics of Presence
posted by Thomas Crocker
Democracy exercised in the presence of riot police. Free speech adjacent armored vehicles. Perhaps this is an overly dramatic way of describing otherwise unremarkable events of little consequence in the city of Denver during the Democratic Party convention. After all, relatively small protests in Denver will not amount to much practically speaking. Feared public disorder failed to manifest itself, and the poorly named “recreate 68” group failed to generate large crowds of protesters. If this failure means that the mayhem of 1968 has been avoided, then this failure is good for democracy. We want public political places to be occupied by persons exercising mutual respect, not engaging in violent confrontation. We also want public places to foster the presence of democratic participation. And that’s the problem with the reported large numbers of riot police in Denver. Public order is one thing, but public order with a heavy police presence is another. To state my concern simply: free speech requires a place in which one can speak, free from the dominating presence of the state; where fears of disorder allow government agents to dominate public places, then we suppress speech by suppressing the place of speech. Where we speak can sometimes be as important as what we say.
These pictures from the NY Times tell the story: a “free speech” cage constructed for “free speech,” a convention location completely fenced for security, riot-gear police controlling public space. These kinds of “free speech” tactics have become a staple at President Bush’s venues, rendering dissent invisible, and were used at convention sites in 2004, surviving judicial challenges. Timothy Zick has written about this problem here at CoOp in posts like this one, and I have written about this issue here. There is something discordant in the idea of free speech located in a guarded cage. There is also something discordant about a public sphere ringed by riot police. Yet, there is also something that has become increasingly ineffectual about politics in public – at least spontaneous public politics.
August 29, 2008 at 1:37 pm
Posted in: Constitutional Law, Politics
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Student Control
posted by Thomas Crocker
In a world of increased occasions for forms of social control, the university is extending its reach. In an AP story today we learn that universities are broadening the scope of their campus behavior codes to apply to student conduct off campus, in an effort to cultivate humanity, to borrow from Martha Nussbaum. One purpose is to make students better citizens within the community. From the article:
We have a responsibility to educate our students about being responsible citizens,” said Elizabeth A. Higgins, Washington’s director of community standards and student conduct, whose office has ‘educated’ 19 students since the extended code of conduct took effect in January.
The scope of these codes can be quite broad, as the article reports that the University of Colorado code “regulates any conduct that ”affects the health, safety or security of any member of the university community or the mission of the university.” The article further reports that Seattle University “has put its students on notice that cyber-patrolling will continue this year.”
Universities have a unique institutional role with regard to their students, and the impact of student conduct on surrounding communities can be significant (with both positive and negative externalities). Extending the scope of behavior monitoring to off-campus sites and to the internet does, however, reduce the realm of personal privacy and provides another occasion in which institutional control over behavior applies beyond the institution’s own parameters. Even if the purpose of this sort of cultivated humanity is to produce good citizens, it is unclear to me that more extensive monitoring is the way to achieve that goal. Without spaces to develop a sense of serendipitous self-determination, cultivating humanity may be more like growing corn – we get more homogenization and a good food supply, but we may also get more corn than we bargained for. Besides providing another occasion when one can mention Foucault’s work on forms of social control, it may be that universities are merely catching up with other institutions such as private companies who expect certain kinds of behavior from off-duty employees. Is it likely that law schools will increase the monitoring of their students off-campus or on-line any time soon as well?
August 22, 2008 at 2:24 pm
Posted in: Education, Privacy
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Presidential Politics and The Future Court
posted by Thomas Crocker
At last night’s Faith Forum with Rev. Warren, we got another look at the two candidates’ views of the Supreme Court. Asked which sitting Supreme Court justice they wouldn’t have appointed, we got mostly predictable answers, though not entirely so.
Sen. McCain named four Justices. He named Justices Ginsburg, Breyer, Souter, and Stevens – the four who often vote together, and the press designates as the “liberal wing” of the Court. He claimed that nominations to the Court “should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the Bench. Some of the worst damage has been done by legislating from the bench. And by the way, Justices Alito and Roberts are two of my most recent favorites.”
Sen. Obama named three Justices. He first named Justice Thomas, referring not just to disagreement with his Constitutional interpretation, but also to his relative inexperience at the time of his nomination. He added Justice Scalia on grounds of constitutional disagreement as well. Most interesting is his explanation for not nominating Roberts (whom he voted against). Sen. Obama stated: “One of the most important jobs of the Supreme Court is to guard against the encroachment of the executive branch on the power of the other branches. I think he has been a little bit too willing or eager to give an administration, whether mine or George Bush’s, more power than the Constitution originally intended.” This was certainly more thoughtful than merely repeating the standard cant about strict adherence. What are the implications of these contrasting views?
August 17, 2008 at 3:26 pm
Posted in: Uncategorized
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