Category: Current Events

8

Methods of Execution and the Search for Perfection

113px-The_deathThe recent botched execution by lethal injection in Oklahoma raises a point that I often discuss with my Torts students.  The evolution of capital punishment is largely a futile search for a humane way of killing people.  I say futile because every execution method can go wrong or become stigmatized in a serious way.

Back in the day, executions were supposed to be horrible.  (Consider the Cross, burning at the stake, boiling in oil, drawing and quartering, etc.)  Once people decided that this was torture, then society moved through different options, each of which was considered as a progressive or liberal improvement at the time.

1.  Beheading:  The condemned does not see the ax falling on his head, and it was all over after one blow.  Except when it took several blows because the executioner was a klutz.  That was then a really painful death.

2.  Hanging:  No need to cut anything or shed blood.  Except if the rope was too short (then the head got ripped off).  Or if the rope was too long, people took a long time to die in agony.

3.  Firing Squad:  The condemned can wear a blindfold and it should be over quickly.  Unless the firing squad does a poor job.

4.  The Guillotine:  This was a big improvement over an ax.  It makes far fewer mistakes and is relatively painless.  Once it got associated with the Terror of the French Revolution, though, that was off the table.

5.  The Electric Chair:  When it was introduced, “Old Sparky” was supposed to be a great improvement.  After all, it was a machine and did not involve cutting.  Except when the voltage was too high and burned people, or too low and didn’t kill.

6.  The Gas Chamber:  Hitler’s Germany made this technique impossible to use again.

7.  Lethal Injection:  That was supposed to be painless and foolproof.  Except when the IV is not done correctly or the chemicals are administered in the wrong proportions.

0

Self-Defense and the Fourteenth Amendment

negroes_with_guns-01

Dance and sing you black creatures

of Mother Africa.

Move to the sound of the drums

of your forefathers.

Hold on to your drums and beat

them in defiance of the slavemaster and

let their thundering sound awaken those who sleep.

–Mabel Robinson Williams, Transition (1966)

 

Mabel Robinson Williams passed away last week.  Williams may have been most famous for being married to Robert F. Williams, the controversial former head of the NAACP in Monroe County, NC, but she was an intriguing theorist and fierce activist in her own right.  She recalled that her father slept every night with a pearl-handled pistol under his pillow in case the Klan’s night riders attacked.  As an adult, she served as Secretary of the local NAACP, co-founded a newsletter called The Crusader, organized a mutual aid society called CARE, and helped run Radio Free Dixie.  Mabel called herself a “co-warrior” and “helpmate” to Robert, even as she served as a nurse’s aid and later operated a day care.  When her sons joined a picket against a segregated swimming pool, she sat in the car with guns, keeping one eye out for armed whites.  She and other female members of a rifle club trained to protect their families against the Klan.  Once, Mabel came out of her house with a shotgun and chased off deputies trying to arrest her husband.

Husband and wife worked together on Negroes With Guns (1962), which articulated a theory of self-defense of constitutional rights.  The Williamses “did not advocate violence for its own sake,” nor did they urge “reprisals against whites.”  Instead, they argued that armed self-reliance was compatible with the tactics of peaceful protest promoted by Martin Luther King, Jr. to promote legal change (but they blamed proponents of non-violence for inflexibility in demanding that blacks renounce their right to self-protection).  In their view, armed self-defense was justified because of a “breakdown of the law” in failing to protect black families from armed whites.  As they tell it, Brown v. Board of Education unleashed not only generalized racial unrest in the South, but also a wave of violence directly against NAACP members and their allies.  “[T]here was no such thing as a 14th Amendment to the Constitution in Monroe, NC,” because local officials refused to enforce the law and protect the life, liberty, and property of black families.  Federal and state officials, too, were nowhere to be found.  In fact, many in the community believed that state and local officials were conspiring to deprive black Americans of their constitutional rights. Black self-defense filled this gap in the constitutional order.

Any limited theory of armed self-defense became greatly complicated by the pair’s embrace of Marxist revolutionary ideas about the worldwide liberation of the oppressed.  Negroes With Guns predicted a day when racial violence in the United States became so pervasive that “non-violence will be suicidal in itself.”  It cited with approval the legacy of John Brown favoring the “righteous use” of weapons to “destroy those things that block [the American Negro's] path to a greater happiness in life.”  Linking armed tactics with revolutionary ends blurred the lines between constitutional preservation and constitutional usurpation–a recurring problem that faced all black power groups during this period.  In theory and practice, it became difficult to draw clear lines between self-defense and the armed instigation of foundational change.

After a protest turned unruly and Robert Williams was charged with kidnapping a white family (he claimed to be protecting the family from a mob), the pair fled.  While in exile in China, Robert briefly held the Presidency of the Republic of New Afrika, founded by the followers of Malcolm X after his assassination.  Professor Pero Gaglo Dagbovie recounts that in later years, Mabel became a community historian and keeper of an oral tradition of the Black Power period.  This tradition includes not only the major events that transpired during a tumultuous period of American history, but also popular interpretations of the law.

5

Contested Ideas About Consent

One of the challenging things about studying popular constitutionalism is that theories of power, community, and tactics can be all jumbled together.

For instance, from what I can gather, Cliven Bundy appears to be a rancher who holds a strong, individualist view of property rights and espouses a theory of government in which the local somehow trumps the national (and likely the state as well).  Tactically, he favors the use of private force in defense of constitutional rights and powers (he also believes that he is entitled to the assistance of local and state authorities to resist the federal government).  For now, his statements justifying the use of force seem to be limited to repelling invasions of property (his cattle, money) and personal security (his body, the safety of his family), so they can be plausibly defended on self-defense grounds (in natural law or other ethical terms, not based on statute or a written constitution).  His vague call for a “range war” muddies his claim to principled use of extralegal tactics and opens him up to charges that he is advocating organized violence against the state, so you can bet his next words and actions will be carefully scrutinized (recall that John Brown was tried for insurrection, and black nationalists were often accused of such crimes).

What’s harder to figure out is Bundy’s theory of consent.  Every popular constitutionalist must present a coherent theory of consent to rebut arguments that simple lawlessness is being advocated.  Secessionists favored the “compact theory” of consent, which holds that each state agreed to the formation of the U.S. Constitution and that each state could withdraw its consent.  Abraham Lincoln and defenders of the Union rejected this approach, saying that the people in the several states gave their consent and that only the people as a whole could dissolve the bonds of political community.

John Brown argued that groups of Americans (slaves, freedmen, and abolitionists) joined by their conviction and shared tragedy could disaffiliate from the existing form of government without committing treason.  From there, group-based theories of consent flourished.  Modern black nationalists and white separatists argue that racial or ethnic identity provides the basis for giving or withdrawing consent.  Typically, disgruntled Americans signal their disaffiliation through a public act: meeting in convention and signing a public declaration.

What makes sovereign citizens and their ilk different is that they often argue that each individual has the power to withhold the consent of the governed. For many observers, this is a theory of consent that descends into anarchy.  There is also a more selective, and sometimes mysterious, quality to the extent of their disaffiliation. Often, such figures “declare independence” when pressed, during criminal trials or litigation over taxes or property rights. Others, without any prompting, file documents in traditional government offices announcing their unorthodox legal views, sometimes over and over again.

Bundy has said he “respect[s] the federal government” but also that it “doesn’t have its place in the state of Nevada . . . and Clark County, and that’s where my ranch is. The federal government has no power and no ownership of this land.” Unless someone sees an open and notorious act of disaffiliation from the federal government, at this point it looks like he is engaged in selective (issue by issue?) rejection of jurisdiction, backed by an account of political structure that is clearly subversive but not fully implemented.

The task of ascertaining one’s constitutional theory is further complicated when more mainstream figures start using the language of popular sovereignty.  It can be hard to figure out how much an elected official believes and how much the official is simply catering to attitudes that are perceived to be widely shared by constituents.  See, for example, this candidate for Governor of South Dakota, who favors state nullification of unjust federal laws, admires Bundy, and shares his belief that sheriffs are the highest law enforcement officials in the land.  Lora Hubbel plainly has not disaffiliated from state government, holds radical localist views of government, supports extralegal tactics, and holds the federal government in antipathy (but it’s unclear whether she believes she owes allegiance to the U.S. government).

So, the next time you hear a political aspirant, activist, or lawyer deploy arguments about popular sovereignty, ask that person: (1) what is the basis for making such claims; (2) what tactics are justified; and (3) to what government(s), exactly, does he or she owe allegiance?

4

“Clear Eyes, Full Hearts, Vote No.”

120px-Floodt~1According to The New York Times, that’s the message that Northwestern is sending to its football players, who vote Friday on whether to form a union.  While the University and its boosters are not doing anything improper in expressing their anti-union views, many of the arguments that they are advancing are nonsense.  Free agency in professional sports and allowing professionals in the Olympics were both met with similar objections that they would ruin the purity of the sport.  Instead, they made both sports better for the fans and fairer to the athletes.  The same would be true if the Northwestern players vote yes.  If nothing else, that would force the NCAA to start getting serious about making reforms.

I’ll add one other note.  Students on campuses around the country protest on behalf of many causes here and abroad when they feel that people are being exploited.  When it comes to football and basketball players on their own campuses, though, you don’t hear anything.  I guess that cuts too close to home.

3

Corporate Leadership and Politics

Recently there was a brouhaha over the hiring (and then firing) of Brendan Eich, the CEO of Mozilla.  In 2008, Eich gave a personal contribution to the campaign for Proposition 8, the California constitutional amendment banning same-sex marriage.  Same-sex marriage supporters responded to Eich’s hiring with criticism and threats of a boycott before the company essentially rescinded the offer.

While you can look at this case as an example of free speech or intolerance (or both–there is plenty of intolerant free speech), I want to suggest that this sort of thing is an unintended consequence of Citizens United.  In a world where corporations can give large sums to political campaigns, the political views of a company’s CEO are highly relevant.  Suppose the new head of Microsoft was a fervent supporter of [some cause or candidate] and decided to back [some cause or candidate] with $1 billion from the company’s cash hoard.  People on the other side of that issue would have every reason to organize against that person as the CEO.  Now it is unlikely that a publicly-traded company would pick a political activist as its leader, and the Board of Directors (not to mention shareholders) would probably take a dim view of such large political contributions. But I can understand where the concern would come from.

I am not saying that this is why Eich was raked over the coals.  In his case, people were attacking him for his past behavior, not for what he might do in the future.  But they could have been worried about the future.

 

 

1

There & Back Again: John Rizzo & Yuri Nosenko

John Rizzo gave thirty-four years of service as an attorney for the Central Intelligence Agency, serving with distinction under eleven directors and rising to acting general counsel.  Yuri Nosenko, who died in 2008, was a lieutenant colonel in the KGB, a Soviet defector, and suspected double agent.

RizzoNosenkoWhat do they have in common?  A late night, one-on-one, vodka-soaked discussion of Nosenko’s three years of unremitting torture by Rizzo’s employer. The torture produced nothing, neither confirmation that Nosenko was a Soviet mole nor confidence that he was not.  In his new memoir, Company Man, Rizzo asserts that this meeting left an indelible impression on him as a young lawyer. But just how did he put that experience to use when he evaluated the legality of the “Enhanced Interrogation Program” that landed on his desk in the CIA General Counsel’s office after 9/11?

His answer is not found in his memoir.  But he did give an answer last week, when I asked him this question at an outstanding symposium on the future of national security law held at Pepperdine Law School.  The conference was organized by Professor Greg McNeal ably assisted by 3L Shelby Doyle and her team of student editors at the Pepperdine Law Review.

Comrade Nosenko’s story, and Mr. Rizzo’s answer, follow after the break. Read More

Latour on Agnotology

Bruno Latour reminds us of a rather important development in modern times: the ascent of an “unlearning” industry. He sheds new light on the “marketplace of ideas” metaphor:

[I]n the United States alone something like a billion dollars . . . is being spent to generate ignorance about the anthropic origin of climate mutations. In earlier periods, scientists and intellectuals lamented the little money spent on learning, but they never had to witness floods of money spent on unlearning what was already known. While in times past thinking critically was associated with looking ahead and extracting oneself from an older obscurantist past, today money is being spent to become even more obscurantist than yesterday! “Agnotology”, Robert Proctor’s science of generating ignorance, has become the most important discipline of the day.

Doubt can be a profitable product.

5

Third Annual Robotics and Law Conference “We Robot”

hdr-we-robot-2014-1Michael Froomkin, Ian Kerr, and I, along with a wonderful program committee of law scholars and roboticists, have for three years now put on a conference around law, policy, and robotics.  “We Robot” returns to the University of Miami School of Law from Stanford Law School this year and boasts an extraordinary roster of authors, commentators, and participants.  Folks like Jack Balkin, Ann Bartow, Kenneth Anderson, Woodrow Hartzog, Mary Anne Franks, Margot Kaminski, Kate Darling, and David Post, among many others.  Not to mention a demo from a roboticist at the University of Washington whose lab built the surgical robot for the movie Ender’s Game.

I’ve discovered that academics in other disciplines habitually list the acceptance rate of papers.  We Robot III accepted only twenty-five percent of the papers under submission, which compares favorably with the strongest and longest-running conferences in computer science, electrical engineering, and human-computer interaction.  Indeed, judging by the abstracts at least, the papers this year are very exciting, taking on difficult and timely issues from a range of perspectives.

On behalf of our community I invite you to register for and attend We Robot, April 4-5, 2014, in Coral Cables, Florida.  I also hope those who enjoyed We Robot I and II will chime in below, if inclined!  Thank you,

The We Robot III Planning Committee

0

UCLA Law Review Vol. 61, Issue 2

Volume 61, Issue 2 (January 2014)
Articles

Negotiating Nonproliferation: International Law and Delegation in the Iranian Nuclear Crisis Aslı Ü. Bâli 232
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing Jonathan Hafetz 326
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection Daniel Schwarcz 394

 

Comments

California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy Charlie Sarosy 464
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline David Simson 506

 

 

 

8

One Constitutional Tradition that Should End

Article II, Section 3 of the Constitution provides that the President “shall from time to time give to the Congress information of the State of the Union.”  For some time now, this requirement has also included an official “reply” to the State of the Union by someone from the other party.  This is modeled, I suppose, on the practice of having the Prime Minister and the Leader of the Opposition debate the Queen Speech’s each year that opens Parliament.

Frankly, I think the State of the Union reply is a silly practice that should end. Can you think of any good replies to a State of the Union?  I can’t.  Can you think of any terrible ones? I sure can.  No other presidential speech receives an official “reply.” Why should this one?