Why Is There No Stare Decisis for Methods of Interpretation?

There's an interesting discussion going on over at Balkinization about whether theories of interpretation matter. For example, see the posts of Brian Tamanaha and Sandy Levinson.

I've always wondered about a related question. The judiciary adheres to stare decisis for many principles of law, but it seems to allow a free-for-all when it comes to interpretative method. Interpretative method (for both the Constitution as well as statutes) is left to the discretion of each individual judge or justice. So one judge might be an originalist, another might be a textualist, and yet another might adhere to the "living constitution." On the Supreme Court, for example, its institutional opinions -- those of the majority -- seem to shift from one interpretative method to another depending upon which justice authors that opinion. Why isn't the method of constitutional or statutory interpretation governed by stare decisis?

Stare decisis is justified based on the need for stability and consistency in the law. We frequently hear lofty pronouncements by courts about the great value of precedent. But these same values that underpin and justify stare decisis seemingly also apply to interpretative method. Wouldn't constitutional law be more stable and consistent if all the justices were to adhere to stare decisis about what method (originalism, textualism, etc.) should be used to interpret the Constitution? Why not bind justices in this way?

Of course, if methods of interpretation don't matter in the end, if cases are just decided on ideology and interpretative methods and theories are just elaborate window-dressing, then my question doesn't matter all that much. But if these methods do carry some influence or weight, if they do matter at all, then why do they remain so unsettled? Why not bind them with stare decisis? Perhaps justices might feel too constrained. If Justice Thomas couldn't be an originalist because of stare decisis, would this impinge upon his own individual prerogative, his unique judicial style? But stare decisis is about constraining justices based on what past justices have decided. So why not bind justices in this manner?

Is there a good argument for why stare decisis should not apply to interpretative method?

Image credit: David Lat (who has photos on my favorite photo site, Stock.xchng)

Posted by Daniel J. Solove at 12:03 AM | Comments (12) | TrackBack

The Internet Archive Protects Privacy for Libraries

Wired reports that the FBI subpoenaed the Internet Archive and demanded that Brewster Kahle (the Archive’s founder) provide records about one of the library's registered users, asking for the user's name, address and activity on the site. The FBI used a National Security Letter (example) to make the request. As Wired explains this type of letter does not require judge’s review before issuing it and often (almost always) has a gag order “forbidding the recipient from ever speaking of the subpoena, except to a lawyer.” The Archive, EFF, and the ACLU went to court and had the subpoena quashed.

As I argue in Property, Persona, and Preservation, given that our information is more and more technologically mediated, we need better systems to preserve our information. This case raises a related issue of once preserved what can be done with the information. Here, the Archive is preserving the information and then as a library allowing people to use that information. But because of the method of access, the FBI was able to ask for great detail about who looked at what information and when. Julie Cohen’s A Right to Read Anonymously: A Closer Look at "Copyright Management" In Cyberspace offers an explanation as to why the Archive’s win is so important. In short, reading anonymously involves identity of the reader and how we foster “freedom of thought and expression.”

In addition, the Wired article points out that despite the settlement the details of what was sought for example, the “kind of information the target was looking at or uploading -- such as animal rights information or Muslim literature” were kept secret. There may be reason for such secrecy. Still, when Congressional audits show that “hundreds of thousands of NSLs” have been issued, the use has not been tracked, the FBI “can only estimate how many NSLs it has issued,” each time an NSL has been challenged, it has lost (only three times according to the article), but one needs the help of a major public interest law group to fight the subpoena, something is wrong.

One disturbing thing is that no one knows exactly how these NSLs are being used or managed or if they do, they can’t talk about it. That situation reminds me of the private military context where the government also had little sense of how many and under what terms the PMCs were used. In other words, lack of oversight often leads to abuse, but then many know that, right? Another problem is that again like the PMC context, it seems quite difficult to have any sunshine fall upon this process. Why not have a judge look at such a letter? It seems the information is not going anywhere. Quite the opposite; remember it is preserved.

There is more to say on secrecy but for now I recommend Secrecy: The American Experience by Daniel Patrick Moynihan. I think I have recommended it before and probably Patrick O’Donnell has offered other books on the topic (which is always welcome). But as it is on my mind and an excellent look at how secrecy can help and harm a fight against whoever our enemies may be, I offer it again.

Posted by Deven Desai at 12:45 PM | Comments (2) | TrackBack

Are Administrative Patent Judges Unconstitutional?

The New York Times has run a feature article about my colleague John Duffy, who has written a very influential paper on the appointment of patent judges. John's paper, Are Administrative Patent Judges Unconstitutional?, is available at SSRN. From the abstract:

As amended in 1999, 35 U.S.C. § 6 authorizes the Director of the Patent and Trademark Office (PTO) to appoint all administrative patent judges of the Board of Patent Appeals and Interferences. That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority. The full extent of the problem was revealed in a recent statement to the press by a PTO spokeswoman, who disclosed that nearly two-thirds of the agency's administrative patent judges were appointed under the new statute. If administrative patent judges are being randomly assigned to three-judge panels, then a simple probability calculation shows that more than 95% of Board panels are likely to include at least one unconstitutionally appointed judge.

According to the New York Times:

Law professors are sometimes influential, but in a general way. Their insights can help shape the law, over time and at the margins.

But John F. Duffy, who teaches at the George Washington University Law School, is a different kind of law professor. He has discovered a constitutional flaw in the appointment process over the last eight years for judges who decide patent appeals and disputes, and his short paper documenting the problem seems poised to undo thousands of patent decisions concerning claims worth billions of dollars. . . .

The problem Professor Duffy identified at least arguably invalidates every decision of the patent court decided by a three-judge panel that included at least one judge appointed after March 2000.

John's paper began as a blog post. It is now a short paper on SSRN. It is quite an achievement to turn an entire field upside down in just 11 pages!

Posted by Daniel J. Solove at 01:51 AM | Comments (2) | TrackBack

Context for the Voter ID Case: Machines Old and New

Having written compellingly on the topic, Rick Hasen has a good roundup of materials on the recent Voter ID case decision. John Fund (via Jonathan Adler at the VC) suggests that Justice Stevens's experience with the Daly machine may have led him to be sympathetic to fraud-prevention measures. It strikes me that more recent history provides just as (or perhaps more) relevant context for deciding the case. Consider this excerpt from Steven Rosenfeld's essay in the book Loser Take All:

The Brennan Center for Justice at New York University Law School has found that 25% of adult African-Americans, 15% of adults earning below $35,000 annually, and 18% of seniors over sixty-five do not possess government-issued photo ID. . . .

Jim Crow has returned to American elections, only in the twenty-first century, instead of men in white robes or a barrel-chested sheriff menacingly patrolling voting precincts, we are more likely to see a lawyer carrying a folder filled with briefing papers and proposed legislation about "voter fraud" and other measures to supposedly protect the sanctity of the vote. . . .

While various studies -- such as a 2006 Election Assistance Commission report by Tova Andrea Wang and Job Serebrov, and a 2007 study by Lorraine Minnite of Barnard College -- have found modern claims of a voter fraud "crisis" to be unfounded, that has not stopped states from adopting remedies that impose burdens across their electorate and on voter registration organizations. "Across the country, voter identification laws have become a partisan mess," Loyola University Law Professor Richard Hasen said in an Oct. 24, 2006 Slate.com column. . .

***

According to a Brennan Center and Lawyers' Committee for Civil Rights Under Law report, there were four "connected pieces of strategy" to politicize the enforcement of voting rights by the Department of Justice from 2004 through 2007: "fomenting fear of voter fraud;" "dismantling the infrastructure of Justice;" "restricting registration and voting;" and "politically motivated prosecutions." . . .

[In 2004,] thousands of African-Americans wait[ed] for hours outside in a cold rain to vote the previous November in Ohio's inner cities. Many elected Democrats and voting rights attorneys saw the delays as intentional voter suppression resulting from partisan election administration. To some, it stirred memories of the segregated south.

I'm glad Justice Stevens has a long historical memory--perhaps that's the upside of an aging Supreme Court. But current events are key here. With the recent Voter ID case, the old Ely-an ideal of a "representation-reinforcing" Supreme Court takes one more step into the twilight.

Photo Credit: Uncounted: The Movie.

UPDATE: For the case's privacy implications, check out Bill McGeveran here; for the inadequacy of current remedial schemes, see Howard Wasserman.

Posted by Frank Pasquale at 04:36 PM | Comments (0) | TrackBack

One more thought on methods of execution

Medellin v. Texas is the recently decided case involving a Mexican national on death row in Texas and a dispute about when the international commitments of the country as a whole bind individual states within it. In particular, one of the key questions was whether a decision by the International Court of Justice was “self-executing,” or if instead further Congressional action would be required to impose obligations on the state of Texas. (The U.S. Supreme Court decided that the ICJ judgment was not self-executing.) After the Court announced its opinion, a colleague said to me, “Of course, none of this would be a problem if we only had self-executing prisoners.”

Gallows humor, literally. Interestingly, though, self-executing prisoners are not entirely unknown to history. As made famous by Socrates, hemlock was a standard method of execution for a time in ancient Athens: the condemned would be presented with a cup of hemlock and “persuaded” to drink it. Hemlock stands in stark contrast to the other methods of execution reported in Danielle Allen’s study of Athenian punishment: stoning, death by sword, and a form of suffocation or crucifixion in which the prisoner was attached to a board by iron collars. Unlike these gruesome and starkly physical punishments, hemlock seemed to preserve the bodily integrity of the citizen and avoided bloodspilling. It may have also been attractive as a means to preserve at least the image of consent: the executioners and other Athenians could claim that the condemned person consented to be punished.

Now, it’s plausible that the historical Socrates actually consented to self-execution. (He was 70 years old, and by some accounts had something of a death-wish.) But the limited available evidence suggests that most Athenians who swallowed hemlock did so only to avoid a more painful and bloody alternative. And no one pretends that Texas could solve a problem like Medellin just by offering him a lethal cocktail instead of strapping him down and injecting him with one. (I say a little more about Socrates and hemlock, and a lot more about the nonconsensual nature of punishment, in Respect and Resistance in Punishment Theory.)

In contemporary discussions of the death penalty, some seem to believe that it is especially important that the state kill the prisoner rather than the prisoner kill himself (or die of natural causes--thanks to Doug Berman for this link). When Gary Gilmore was on death row in Utah, he overdosed on drugs that his girlfriend had smuggled into the prison. State officials rushed him to the hospital, pumped his stomach, and only later—once he’d been brought back to health—executed him.

Allen’s book reports that those who introduced hemlock to Athens also moved executions out of the public view and behind prison doors. Not only was no blood spilled, but the public couldn’t witness any bullying that was required to make the prisoner “consent” to poison himself. Hemlock, possibly the first effort to introduce a humane method of execution, appears to have been part of a broader campaign to make punishment more palatable by disguising it and removing it from public scrutiny.

All of this makes me wonder if there aren’t some complicated political side effects to campaigns to ensure humane methods of execution. It’s been argued, and not just by me, that special legal procedures in capital trials might actually entrench support for capital punishment by giving it the appearance of orderliness, predictability, and rationality. Might a new jurisprudence of execution methods do the same thing?

Of course, opponents to the death penalty are usually pursuing many different goals. It’s rational to hope that the death penalty is abolished, and at the same time to try to ensure that as long as capital punishment is legal, it take place in the most humane way possible. But it’s worth noticing that success on one front might undermine progress on the other.

Posted by Alice Ristroph at 06:10 PM | Comments (1) | TrackBack

Want to Vote? Identify Yourself

The Supreme Court has just upheld Indiana's law requiring voters to have photo identification. The case is Crawford v. Marion County Election Board (thanks SCOTUS blog for the coverage). This area of the law is quite complicated. I suggest reading the SCOTUS coverage and Rick Hasen's commentary. Prof. Hasen wrote an amicus supporting the challengers of the law. His introduction to the detailed post demonstrates his ability to see the result and analyze rather than rant about the decision:

Today’s much anticipated decision in Crawford v. Marion County Election Board is a significant win for those who support stricter voter identification laws, even if they support such laws for partisan purposes. It will encourage further litigation, because it relegates challenges to laws imposing onerous burdens on a small group of voters to “as applied” challenges, but those challenges will be difficult to win. The lack of a majority opinion, moreover, injects some uncertainty into the appropriate standard for reviewing other challenges to onerous election laws. The Court’s specific split in this case will blunt charges that this is a politicized 5-4 decision — and it is significant that the Court, once again, has failed to cite to its opinion in Bush v. Gore. More on each of these points below.

So read the full post. It details some implications of the decision and the oddities of the 6-3 split in this case.

Image: A New York polling place, showing booths on the left, published in 1912
Author: E. Benjamin Andrews
Source: WikiCommons

Posted by Deven Desai at 03:32 PM | Comments (2) | TrackBack

What is a judicial fiat, anyway?

Justice Scalia’s strong words in Baze v. Rees, directed at Justice Stevens’s concurrence in the same case, attracted praise at the Volokh Conspiracy (and from Dave Hoffman here) last week. In Baze, Justice Stevens announced that he now believes the death penalty to be cruel and unusual punishment and a violation of the Eighth Amendment. Justice Scalia replied that “[p]urer expression cannot be found of the principle of rule by judicial fiat.” To which my esteemed colleague former-Judge-and-now-again-Professor Paul Cassell (guest-blogging at Volokh) replied, “Amen.”

I’m surprised that most discussions of the Scalia-Stevens dispute (like Scalia’s own concurrence) fail to mention the last paragraph of Stevens’s opinion, or the way Stevens actually voted. After explaining his view that capital punishment is unconstitutional, Stevens concurred in the judgment that Kentucky’s method of execution was constitutionally permissible. Here’s how Stevens concluded:

The conclusion I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents … I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court’s judgment.

What constitutes judicial fiat? Is the argument that a judge musn’t even say that he thinks a practice violates the constitution, even if he is then going to recognize and follow precedents to the contrary?

When I read Stevens’s concurrence last week, the last paragraph reminded me of one of then-Judge Cassell’s opinions. In 2004, as a federal judge in the district of Utah, Cassell authored a widely noted opinion in United States v. Angelos (345 F. Supp. 2d 1227). Weldon Angelos was a first-time offender convicted of selling marijuana. The government applied a federal firearms statute with severe mandatory minimums, thus ensuring what was almost certainly an effective life sentence for Angelos. Judge Cassell wrote, “[t]he court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational.” But out of deference to Congress and to existing constitutional precedents, Judge Cassell “reluctantly” applied the unjust, cruel, and irrational mandatory minimum and sentenced Angelos to 55 years and a day.

A fiat is (besides an Italian car) an authoritative (and maybe, an arbitrary) order, one that translates automatically to action. The word fiat comes from Latin for let it be done. The funny thing about Stevens's concurrence is that he didn't let it be done -- or rather, he let executions rather than his own will be done. He refused to let his own judgment that capital punishment is unconstitutional translate to a vote against capital punishment in Kentucky.

At any rate, seems odd to impugn Stevens for judicial fiat without at least mentioning the way he voted in Baze.

Image of Fiat’s brilliant red Barchetta courtesy of www.leepurr.co.uk.

Posted by Alice Ristroph at 10:45 AM | Comments (12) | TrackBack

The Road to Hell

Two notes about Baze v. Rees, the Supreme Court decision that upholds Kentucky’s method of lethal injection and almost certainly ends the quasi-moratorium on executions.

First, the plurality and concurring opinions are full of references to torture. Why would that be? Well, if the cruel and unusual punishments clause of the Eighth Amendment doesn't prohibit all death sentences (several Justices are clearly of this view), and if it doesn't require that prison sentences be proportionate to the crimes for which they are imposed (at least Justices Scalia and Thomas are of this view), and if it doesn't impose limits on prison conditions or specific acts of force inside a prison (Justice Thomas has taken this position, and Scalia seems to agree with him), the Eighth Amendment starts to seem pretty inconsequential. To show that this amendment is not an empty provision, it’s helpful to identify something it does prohibit. Like… torture. Justice Thomas’s concurrence in Baze begins with a list of gruesome practices that, in his view, are prohibited by the Eighth Amendment, such as burning at the stake, “gibbeting,” and “emboweling alive.” The Eighth Amendment does mean something after all: punishments are cruel (and unconstitutional) when they involve torture.

But I wouldn’t conclude that the Justices who say the Eighth Amendment prohibits torturous punishments would necessarily find current practices of allegedly investigative torture to violate the constitution. Instead, I’d expect to see the argument that torture without a specifically punitive intent doesn’t implicate the Eighth Amendment at all. In Kansas v. Hendricks, the majority took a similar approach to find that indefinite confinement for sex offenders did not violate the ex post facto or double jeopardy clauses — those clauses apply to punishments, and Leroy Hendricks’s confinement, the majority reasoned, was not intended as punishment.

Which leads to a second observation about Baze, and about Justice Thomas’s concurrence in particular: good intentions provide a lot of constitutional mileage. Where do they take us?

According to Justice Thomas in Baze, Kentucky’s execution methods don’t violate the Eighth Amendment, whatever pain they do or don’t inflict, because the state didn’t adopt these methods with the intent to inflict pain. “A method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain…” Referring again to burning at the stake, disemboweling, and drawing and quartering, Thomas writes

[W]hat defined these punishments was that they were designed to inflict torture… they were intended to produce a penalty worse than death…. The evil that the Eighth Amendment targets is intentional infliction of gratuitous pain… (emphasis in original).

Back over on the torture front, good intentions are John Yoo’s trump card as well. But here it's not whether a public official intended to torture, but what he hoped to accomplish, that counts. Asked whether any law would prohibit the president from crushing the testicles of a terrorist’s child, Yoo replied, “I think it depends on why the president thinks he needs to do that.” Audio of the exchange here, or read Yoo’s memos for his more developed argument that self-righteous torture, torture inflicted with good intentions for the safety of the country, is legal.

In general, I suspect that the Eighth Amendment will remain pretty ineffective if its protections turn on judicial constructions of the state’s punitive intent, penological purposes, and other good intentions. I have more to say on these issues in a forthcoming article called State Intentions and the Law of Punishment (not up on SSRN yet, but I’ll post it soon). Moral philosophers — and many legal doctrines — tend to reject the notion that the permissibility of an act turns on the actor’s good intentions. Why should the permissibility of state violence turn on the state’s intentions?

Dave Hoffman raises other interesting questions about Baze v. Rees.

Posted by Alice Ristroph at 06:22 PM | Comments (6) | TrackBack

One train may hide another

Readers interested in criminal procedure, or constitutional law, or law and sexuality, or just a good read with some fascinating historical details, might enjoy David Sklansky’s “One Train May Hide Another”: Katz, Stonewall, and the Secret Subtext of Criminal Procedure. Without rejecting the commonplace claim that the development of constitutional criminal procedure was a matter of racial justice, driven largely by the civil rights movement and efforts to end mistreatment of black defendants, Sklansky suggests that this area of law was also shaped by concerns about “the long, sordid history of the policing of sexuality”--and the policing of homosexuality in particular. Of particular interest, given Larry Craig’s arrest last year, is the discussion of spying in public toilet stalls. Apparently, this practice was a standard police tactic used to detect homosexual conduct and arrest those who engaged in it. Katz v. United States focuses on the public phone booth, but the “secret subtext” may have been a concern about privacy in the public toilet stall.

And, one train may hide another. For me, the appeal of this article is not just the substantive argument, but an introduction to Kenneth Koch’s poem from which Sklansky takes the title phrase. Koch was traveling in Kenya and saw a sign at a railroad crossing: “One train may hide another.” The line inspired him, and here's how his poem of that title begins:

In a poem, one line may hide another line,

As at a crossing, one train may hide another train.

That is, if you are waiting to cross

The tracks, wait to do it for one moment at

Least after the first train is gone. And so when you read

Wait until you have read the next line--

Then it is safe to go on reading.

In a family one sister may conceal another,

So, when you are courting, it's best to have them all in view

Otherwise in coming to find one you may love another.

The whole poem is here. And thanks to Melissa Murray, who recommended Sklansky’s article to me.

Posted by Alice Ristroph at 06:09 PM | Comments (1) | TrackBack

If You Listen to One Podcast This Year. . .

make it "This American Life" on presidential power and the administrative state. I know I've plugged a lot of podcasts on these pages, but this was the most exceptionally clear portrait of the intersection of law and politics that I have ever heard on radio. As an admin law prof who relishes stories of obscure agencies, this segment was particularly compelling to me:

Ira Glass tells the story of a little-known treaty dispute with far-reaching ramifications for our understanding of executive power. The dispute is between the President and one of his appointees...to the International Boundary Commission with Canada. This little-known commission carried out its function without fanfare or incident for over a hundred years, until a couple of retirees in Washington State built a wall in their backyard and, quite literally, set off an international incident.

Other segments, including a Kafkaesque story about ICE (once INS), are positively heart-rending.

Posted by Frank Pasquale at 01:17 PM | Comments (0) | TrackBack

Torture Memo Released and available

For those intereted in reading the torture memos they are now available. There are 81 pages. Part I is here and Part II is here.

Balkinization's analysis of the timing and related issues is worth a read.The ACS blog on the topic has some analysis, papers on the topic, and a best practices document.

The ACLU deserves credit for pursuing this one and making sure that the document became available.

Here is a memo of note from recent past. It is from Hoover to President Bush (Sr.) (before he was President) regarding the aftermath of President Kennedy's assination. After the jump is the first page of the so-called McCollum Memo regarding U.S. views of WWII in 1940, how to aid Britain, and specific thoughts regarding Japan's rise in power. In short, it is good to have this information in the open.

Source: Wikicommons; License: Public Domain

Source: WikiCommons
License: Public Domain

Posted by Deven Desai at 11:10 PM | Comments (0) | TrackBack

Specific Performance and the Thirteenth Amendment

I've put my new article -- "Specific Performance and the Thirteenth Amendment" (forthcoming from Minnesota) -- up on SSRN for your enjoyment. It examines one of those common claims that flits around legal argument, which everyone refers to and no one actually sits down and evaluates, in this case the notion that ordering specific enforcement of a personal service contract would constitute involuntary sevitude under the thirteenth amendment. Not surprisingly, the funnest part of doing this article was the historical research. The language of the thirteenth amendment was lifted almost verbatim from the Northwest Ordinance of 1787, which was then incorporated into the constitutions of Ohio, Michigan, Indiana, and Illinois before the Civil War. It was fairly common for slave owners south of the Ohio to take their slaves across the river and then attempt to circumvent prohbitions on slavery by having the slaves enter into long term "contracts" of service. When abolitionist or anti-slavery lawyers sued on behalf of the slaves -- generally petitioning for a writ of habes corpus against the slave owner -- the courts of Ohio, Illinois, and Indiana found themselves struggling with the problem of how to distinguish an unobjectionable labor contract from "involuntary servitude." Contra other scholars who have looked at the issue, I think that these courts developed a fairly coherent four part analysis for identifying involuntary servitude, and I think that this original understanding can be followed through the ratifying and implimenting debates over the thirteenth amendment and reconciled with the Courts haphazard treatment of the amendment since. Finally, while I do think that the specific performance of some personal service contracts could violate the thirteenth amendment, in a huge class of cases there is no constitutional impediment to holding a party to his or her contract, and I think that there are practical, economic, and moral advantages to doing so.

Here is the abstract of the article:

Black-letter law declares that a contract to perform personal services cannot be specifically enforced. Many courts, scholars, and commentators have claimed that to do so would constitute "involuntary servitude" under the Thirteenth Amendment. This claim, however, has never been the subject of extensive scholarly analysis. This article fills that gap and rejects the conventional wisdom. Neither the original meaning of "involuntary servitude" nor its subsequent interpretation by the Supreme Court justifies a per se prohibition on specific performance of such contracts. The non-constitutional arguments supporting the rule are likewise weak, and substantial policy and moral arguments counsel in favor of specific performance of at least some personal service contracts. Accordingly, this article concludes that the per se rule should be abandoned and that specific performance should be available for the enforcement of personal service contracts on the same basis as other contracts.

Download it while its hot!

Posted by Nate Oman at 12:06 PM | Comments (2) | TrackBack

Guantanamo on 60 Minutes

Reviewing recent books on the U.S. shadow prison system at Guantanamo Bay, Raymond Bonner concludes:

There are still hundreds of prisoners held without charge at Guantánamo, and it will in all likelihood be left to the new administration to deal with them. Until it does so, the United States will maintain its reputation as a country that has flouted the basic principles of justice and set a deplorable example for the world.

A new 60 Minutes story details one detainee's claims about his treatment:

"They used to beat me when my head is underwater. They beat me into my stomach and everything," he says.

Kurnaz says the Americans used a device to shock him with electricity that made his body go numb. And he says he was hoisted up on chains suspended by his arms from the ceiling of an aircraft hangar for five days.

"Every five or six hours they came and pulled me back down. And the doctor came to watch if I can still survive [or] not. He looked into my eyes. He checked my heart. And when he said okay, then they pulled me back up," Kurnaz says.

"The point of the doctor's visit was not to treat you. It was to see if you could take another six hours hanging from the ceiling?" Pelley asks. "Right," Kurnaz says.

My Seton Hall colleague Baher Azmy represented Kurnaz; you can watch him on the 60 Minutes clip here starting at 8:50 in.

And here's a transcript:

[Azmy] dug into the case and found that the military seemed to have invented some of the charges. Military prosecutors said one of Kurnaz’s friends was a suicide bomber, but the friend turned up alive and well in Germany.

"How could they have gotten that so wrong? I mean, you're either a suicide bomber or you're not. There's no in between," Pelley remarks.

"This goes to the utter preposterousness of the government’s legal process that they established in Guantanamo, this tribunal system that was supposed to differentiate from enemy combatant and civilian. So in order to justify that he was an enemy combatant, they simply made up an allegation about someone he was associated with," Azmy says.

But far worse than the false charges was the secret government file that Azmy uncovered.

Six months after Kurnaz reached Guantanamo, U.S. military intelligence had written, "criminal investigation task force has no definite link [or] evidence of detainee having an association with al Qaeda or making any specific threat toward the U.S."

At the same time, German intelligence agents wrote their government, saying, "USA considers Murat Kurnaz’s innocence to be proven. He is to be released in approximately six to eight weeks."

But Azmy says Kurnaz was kept at Guantanamo Bay for three and a half years after this memo was written in 2002.

They kept him, Kurnaz says, by inventing new charges. In a makeshift courthouse, Kurnaz claims that a military judge charged that Kurnaz had been picked up near Osama bin Laden's hideout in Afghanistan while fighting for the Taliban. Ironic, since it was the U.S. that flew him to Afghanistan to begin with.

"Have you ever in your legal career run across anything like this?" Pelley asks Baher Azmy.

"In my legal career, no," Azmy says. "But in Guantanamo, no detainee has ever been able to genuinely present evidence before a neutral judge. And so as absurd as Murat Kurnaz's case is, I assure you there are many, many dozens just as tenuous."

And a U.S. federal judge agreed. She ruled the Guantanamo military tribunals violated the prisoners' right to a defense, and she singled out Kurnaz's case as an example.

Though Kurnaz's book "An Innocent Man in Guantanamo: Five Years of My Life" details his story, the Administration "still considers him to be an unlawful enemy combatant." Denying the accused any semblance of due process makes it quite easy to stick to one's guns. Perhaps the most depressing aspect of Kurnaz's story is that it was a German diplomatic intervention--by Chancellor Angela Merkel--that ultimately freed him. Nothing in the American legal system appears capable of stopping the executive branch from holding someone a prisoner without evidence for years.

Posted by Frank Pasquale at 09:05 AM | Comments (0) | TrackBack

Qualified Immunity and Saucier v. Katz

Thanks to Dave and the rest of the authors here for inviting me to guest this month. I'm really looking forward to it.

I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:

“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”

In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff's constitutional claim before turning to the defendant's assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.

Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III's ban on advisory opinions.

In this article, a follow-on to a piece I wrote in 2002 I argue that if the Supreme Court were to either permit courts to resolve the remedial question first (as it has in the ineffective assistance of counsel context) or to require federal courts to do so (as it has in the habeas corpus context) then lower court judges will inevitably skirt important constitutional questions and the law will be denied definition and clarity. I argue that the merits of claim should be bypassed only where it is clear a priori that the plaintiff will not be entitled to a remedy.

Posted by Sam Kamin at 01:11 PM | Comments (6) | TrackBack

What the Opinions May Look Like in D.C. v. Heller

Predictions based on oral argument are always highly tentative. With that caveat, here's my best guess after listening to the Heller audio on C-SPAN:

A 5-1-3 decision in favor of Mr. Heller.

A five-Justice majority opinion authored by Chief Justice Roberts or Justice Kennedy (so I agree with Orin Kerr on the likely authorship) joined by Justices Scalia, Thomas, and Alito. The opinion will uphold the individual rights view of the Second Amendment, recognizing self-defense as a protected purpose of the right to arms, and invalidating at least some of the challenged provisions of D.C. law. The Court will distance itself from U.S. v. Miller and Miller's suggestion that the scope of protected "Arms" is closely dependent on what constitutes ordinary military equipment. What we'll get is a constitutionalization and moderate expansion of the post-1689 English right to arms. Justice Kennedy particularly seemed to favor this sort of approach.

(Justice Thomas will probably concur separately to assert a very robust conception of the Second Amendment right to arms. If the majority opinion does not address the proper standard of review for Second Amendment cases, Justice Thomas will write separately to urge that strict scrutiny be applied. Justice Scalia may join this concurrence.)

Justice Breyer will write for himself only, in an opinion that will probably be styled as a concurrence in part and dissent in part. He will agree with the majority that the Second Amendment protects an individual right that can be asserted outside of the context of active participation in the militia, but will argue that the right is nonetheless closely focused on civic purposes, not self-defense. Since D.C.'s laws restrict armed self-defense but still permit individuals to keep rifles and shotguns for other purposes, Justice Breyer will reason, D.C.'s regulations are reasonable.

Justice Stevens will dissent, in an opinion joined by Justice Souter and Justice Ginsburg. These three Justices will basically accept D.C.'s position: the Second Amendment may confer an individual right to arms, but it is not a right that can be asserted outside of the context of participation in a state-regulated military organization.

(I am hesitant in assigning Justice Ginsburg to this position. She may agree with Justice Breyer, yielding a 5-2-2 configuration.)

More later.

* * *

Media Note: I'll be appearing tonight to discuss Heller on NRA News's program "Cam & Company" at 9 p.m. EST. You can watch and listen to the program live at that time at this link.

Posted by Mike O'Shea at 02:47 PM | Comments (6) | TrackBack

Where's Lexington and Concord in D.C. v. Heller?

Mike O'Shea has thoughts on tomorrow's argument in D.C. v. Heller below; here are my own. Despite my recent posts on original understanding, I recognize that it's often the most important interpretive method actually used by courts in constitutional cases; and even non-originalists like me might fall back on the original understanding for a clause like the Second Amendment where there's nothing else to go on.

So I'm therefore a little puzzled by the way the D.C. v. Heller briefs downplay what the Framers would have regarded as the paradigmatic case of the confiscation of arms by the government: the Battles of Lexington and Concord, the events that started the Revolutionary War. It's a bit as if briefs on a 1950s statute protecting ports from surprise attacks made only a passing mention of Pearl Harbor.

Briefly, by 1775 the conflict between Britain and Massachusetts was coming to a head. Parliament passed increasingly restrictive acts, and transferred British troops from Nova Scotia to Boston to enforce them, but they had little impact outside of the confines of Boston itself. In 1775, the Massachusetts legislature was meeting in Concord, and had built up a store of arms there to arm colonial militia. General Gage in Boston, under orders from London to do something, sent an expedition to Concord to round up the leaders of the legislature -- people such as Samuel Adams and John Hancock -- and confiscate or destroy the hidden caches of arms. Starting at Lexington, local militias assembled to block the troops' progress, shots were fired, and the war began. In Concord, the British regulars searching the town did in fact destroy cannon and supplies and threw shot into the river.

Surely this story of national government troops being sent to confiscate arms held by people now recognized as heroes would have been prominent in the minds of those proposing that "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." (Indeed, the whole tale of 1770s Massachusetts probably inspired the Third and Fourth Amendments as well.)

The Heller brief focuses the most on this story, detailing the history of pre-war Massachusetts, and noting that the Revolution began with the raid on Lexington and Concord. But what I've described as the "paradigmatic case" of arms confiscation is a little muted. Lexington and Concord in the Heller brief stand, not as the evil that is itself to be prevented by the Second Amendment, but as the occasion for various Framers to indicate their displeasure at the gun confiscation that resulted afterwards in Boston under General Gage:

Americans reacted strongly to the disarmament of Boston. Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775. Gage’s disarmament scheme figured prominently among the “Causes” for armed revolt [listed in the Declaration].

It seems an odd way to characterize the importance of "the shot heard round the world."

I think the reason for this treatment in the Heller brief is clear: Lexington and Concord are a bit awkward for Heller's argument. For one thing, they don't fit well with the "individual rights" theory of Heller's brief, since Lexington and Concord are stories about colonial militias, albeit informally organized ones. But perhaps more importantly, if the lesson learned from Lexington and Concord is that individual citizens can keep arms to resist federal troops, that's too anachronistic even for originalists. After all, what was going on in Concord was not just gun ownership, but the collection of a large cache of arms by (from the British point of view) a large conspiracy against the national government. The colonists even had cannon, the most powerful weapons of the day. Saying the Second Amendment protects that is going a bit too far for comfort:

Respondent does not suggest that members of private paramilitary organizations have a right to commit violent acts under the auspices of acting as a citizen militia. The Framers, who organized the militia under the new constitution, doubtless agreed that citizens should not compete with legitimate government authority.

I'm not so doubtless. If Lexington and Concord were the paradigm case, then what at least some Framers had in mind was exactly that citizens should have the power to compete with legitimate (federal) government authority, just as they had in 1775. Indeed, that seems to be the point behind Madison's reassurance in Federalist No. 46 that the militia would be able to easily oppose federal troops should the national government become despotic.

I'm a little surprised, however, by the almost total absence of Lexington and Concord from the D.C. briefs, particularly the amici historians' brief. Perhaps they concluded that if Lexington and Concord were admitted to be the paradigmatic case, then D.C. loses, but I'm not sure that follows. In any event, the D.C. brief fails to mention the battles at all. Historians Jack Rakove, Saul Cornell, et al. spend much of their brief talking about the debate over control of the militias in 1788-89; the Second Amendment, they say, was part of that discussion:

It is equally unsurprising that the militia remained an object of constitutional concern in 1776. The American revolutionaries were conscious heirs of a radical Whig tradition that regarded standing armies as a bane to liberty, and which celebrated the idea of a citizens militia as the optimal form of military organization for a republic. See generally “No Standing Armies!” The Antiarmy Ideology in Seventeenth-century England (1974). This was a staple theme of eighteenth-century political writing, and its lessons were reinforced when Britain sent its standing army to Boston, first to enforce the Townshend duties (1768-1770) and then to compel obedience to the Coercive Acts of 1774.

Oh, and by the way, that reminds us:

The latter led to the outbreak of civil war in April 1775, when the militia organized by the Massachusetts Provincial Congress resisted the British march on Concord.

It's possible that I'm overestimating the importance of Lexington and Concord -- that I'm reading into it a significance seen in 1837 (the time of Emerson's poem) but not in 1789. Or, it's possible that the cause of the battles was foggy even in 1789 -- people remembered that a battle occurred, but not why. That would explain why the historians passed over it. (Or perhaps it's because actual historical events aren't studied much any more by historians.) But if the arms confiscation history of the battles was in fact salient in the minds of the Framers, then it has to be addressed. And I think Rakove, Cornell, et al. could have made it into a strong point that the Second Amendment is all about militia protection, not urban crime prevention. But they didn't, so Heller has really the only word on the subject.

Posted by Bruce Boyden at 02:26 AM | Comments (2) | TrackBack

Thoughts on the Eve of Argument in D.C. v. Heller

1. Cruz v. Clement. If you believe Robert Novak, the Solicitor General's split-personality amicus brief in Heller resulted from wrangling between the Office of Legal Counsel (which favored a robust individual right) and career attorneys in DOJ (who didn't).

What made the brief disappointing to gun rights supporters was not the DOJ's defense of the constitutionality of current federal gun control statutes -- what else to expect? -- but that the brief didn't even concede the unconstitutionality of D.C.'s flat ban on handguns and draconian restrictions on the use of long guns for self-defense. Instead, it asked the Supreme Court to reverse and remand the D.C. Circuit's judgment to the lower courts for more analysis and/or factfinding.

You can imagine the effect of that request on those who have waited decades for a moment when the Supreme Court finally seems poised to render a square decision applying the Second Amendment right to arms. If DOJ simply wanted to defend existing federal laws, it could have filed a brief that asked the Court to adopt a deferential standard of review (to protect existing federal statutes from attack), but also to affirm the D.C. Circuit's judgment, on the ground that D.C.'s challenged gun laws fail any level of heightened constitutional scrutiny. Most gun rights proponents would still disagree with the call for deferential scrutiny, but the reaction would have been a lot more muted absent the call for remand.

The most plausible explanation I've heard points out that the Department of Justice, in the person of the U.S. Attorney for the D.D.C., acts as the "local" prosecutor in the District of Columbia. Thus, it enforces D.C.'s gun laws itself. Presumably the staff at Justice resisted a litigating position that would involve admitting the unconstitutionality of laws that DOJ's own Assistant U.S. Attorneys are currently enforcing in prosecutions.

Novak's column goes on to claim that SG Paul Clement will depart from the brief during his fifteen minutes of oral argument on Tuesday, taking a more pro-rights stance. We'll see. To make a difference, Clement would have to concede the unconstitutionality of the challenged D.C. laws to the Justices, abandoning the brief's argument that a remand is proper. (The Justices would probably then ask him why DOJ didn't move to amend its brief.)

Such a last-minute surprise seems unlikely. If it happened, it would be a twist in one of the intriguing plotlines of this Supreme Court Term: Cruz v. Clement. Both of the biggest constitutional cases of the term -- Heller and Medellin v. Texas -- pit U.S. Solicitor General Paul Clement against Texas Solicitor General R. Ted Cruz, who helmed the pro-rights Heller amicus brief of Texas and thirty other states. (Heller is a bigger case than Medellin, but Medellin is still huge.)

Most legal conservatives and libertarians are rooting for Cruz in both cases. Cruz is defending positions that correspond well to principled, limited-government conservatism, while Clement is advocating the positions of an executive branch (in the form of BATFE in Heller) with a notoriously inflated view of its power and prerogatives. DOJ's Heller brief equivocates. Texas's brief goes beyond expectations. Texas not only says the words DOJ would not say -- "the judgment of the Court of Appeals should be affirmed," 31 States Br. at 36 -- but actually endorses incorporation of the Second Amendment against the states. See id. at 23 n.6. In effect, Texas and the other thirty states are publicly vowing never to adopt gun laws like D.C.'s, and they are asking the federal courts to hold them to their promise. That is a big deal.

Of course, the U.S. Solicitor General's job is to represent the federal government, and his superiors include the President and the Attorney General. Lawyers often chafe at having their own positions identified with the ones they advocate for their clients. Fair or not, it is hard to see how the events of this Term can fail to increase Ted Cruz's stature with legal conservatives, and perhaps diminish Clement's.

2. Why D.C. really has no state amici. Speaking of the stances of the states in D.C. v. Heller, take another look at the brief filed by New York and four other states as "amici curiae in support of petitioners."

I missed something significant about this brief when I first read it. Several of these states previously joined a pro-control amicus brief filed at the D.C. Circuit level, when the case was called Parker v. D.C.. That brief, written by Massachusetts, aggressively rejected any individual right under the Second Amendment: “Appellants and their amici are simply wrong that the Second Amendment provides an individual right to bear arms. . . . An individual right to possess firearms … is not, and has not been, a federal constitutional right.” States and Cities Brief (Massachusetts et al.), Parker v. D.C., at 2.

Now, however, in the Supreme Court, with New York at the helm, the five states’ brief sharply minimizes the “no individual right” argument. They simply argue the Amendment should not be applied to the states. The resulting brief is short — only thirteen pages of argument. "Come on, O'Shea," you might respond, "that just reflects the division of labor among the pro-D.C. amici." I don’t think so. Because here’s what the five states now say about the D.C. gun ban, on the first page of their Supreme Court brief:

The Amici States do not defend the specific handgun ban at issue in this case and do not as a matter of public policy endorse it[.] [However,] preserving state sovereignty in this area is of paramount importance to the States.

Brief of N.Y. et al. at 1; see also id. at 2 (repeating that "the Amici States do not endorse the handgun ban at issue," but do "urge this Court to reaffirm ... [that] the Second Amendment ... impos[es] restrictions only on the federal government."). That is a big shift from these states' stance in the circuit court, where they made no effort to distance their laws from D.C.'s; just the opposite. Cf. States and Cities Br. (Massachusetts), Parker v. D.C., at 12-13 ("Many states bar gun possession generally, allowing handgun ownership only under certain individual circumstances. ... There is little basis for distinguishing the District of Columbia.").

The pro-control state amici now rely on a theme of federalism and state sovereignty, asking the Court to stick by its 19th-century case law suggesting that the Second Amendment does not bind the states. They cite the Rehnquist Court's landmark federalism precedents in U.S. v. Lopez (1995) and Printz v. U.S. (1997). In both of these cases, individuals brought successful constitutional challenges to federal gun control laws, on the ground that they exceeded Congress's enumerated legislative powers and thereby infringed on areas properly left up to the states. See N.Y. Br. at 8 (Lopez and Printz show that "the Framers left the primary responsibility for firearms regulation with the States."). I wonder what BATFE's lawyers think of that passage in New York's brief?

Since I've emphasized the DOJ's refusal to ask the Supreme Court to affirm the D.C. Circuit's judgment, I should point out that New York and the other pro-D.C. state amici do not ask the Supreme Court to reverse that judgment. Instead, the last words of New York's brief are narrowly focused: "This Court should reaffirm the principle that the laws of the several States are outside the domain of the Second Amendment." N.Y. Br. at 14. But since D.C. is a federal enclave, not one of "the several States," the Court could issue an opinion that grants New York's request (by expressly rejecting incorporation of the Second Amendment) while still invalidating D.C.'s challenged gun laws as violative of the Second Amendment. That would not be an ideal outcome for many gun rights supporters, but it certainly isn't an outcome desired by D.C. either. Thus, there's a sense in which the number of states that have fully endorsed D.C.'s position in this case is zero, whereas all 31 of Heller's state amici not only endorse his position but go beyond it by calling openly for Second Amendment incorporation.

3. Nervous excitement; Heller as the 21st-century acid test of popular constitutionalism. I'll be in the District of Columbia for the next couple of days. Alas, I don't have a seat at the Heller oral argument. Good thing the Court is releasing the argument audio the same day! I'll probably be doing a media appearance while there (internet/radio). More later.

The butterflies in my stomach have already begun. I'm sure I'm not alone. This is not only the most important Second Amendment case in American history; not only the most important constitutional case so far to come before the young Roberts Court; but I think it will also prove a fundamental test of the health of popular constitutionalism. By "popular constitutionalism" I don't mean that the individual rights view of the Second Amendment lacks conventional legal and scholarly arguments -- just the contrary, an extraordinary array of both has been mustered in this case. But claimed constitutional rights (such as the First Amendment freedom of expression), backed by credible legal arguments, often come to be taken seriously by the judiciary through the political efforts of elites -- often one part of the elite in contention with other parts.

That's not what's happened with the Second Amendment right to arms. Its motive force in contemporary America is almost purely populist. That doesn't mean everyone agrees, but there is little political motive for elites to support it except insofar as it reflects the political convictions of the voting public. Indeed, elites -- academic, corporate, journalistic, judicial, executive -- can often seem to be congenitally allergic to the assertion of this right. At almost every level, for the past 40 years, one sees the pattern: State governments are usually more sympathetic to arms rights than federal governments; small towns and rural communities more than metropolises; small business more than big business; radio more than TV (and internet more than either); elected legislators more than executives and judges.

The institutional question Heller raises is: under near-ideal conditions -- strong textual and historical arguments, intensely motivated proponents, a sustained record of success in the state legislatures -- can a populist claim to a constitutional right prevail in the courts? That is, can the claimants obtain judicial acceptance and real enforcement of the claimed right? Or will the lesson of Heller be that in today's America, the generation of judicially enforced constitutional rights is strictly an elite affair, with popular support perhaps also necessary to some degree, but never sufficient to obtain recognition?

P.S.: The image attached to this post isn't of sunset, but dawn.

Posted by Mike O'Shea at 12:37 AM | Comments (1) | TrackBack

The Constitution as Ritual

One of the attractive features of originalism, I think, derives from the belief that sentences simply mean what they originally meant, either to the speaker or to the audience. This is a definitional argument: the definition of "to mean" is "what was originally meant," and thus, by definition, if the Constitution does not mean what it originally meant it does not mean anything at all (in the same way that the set of all square circles is an empty set). I think this argument is mistaken. I think there are other sorts of sentences out there that have legitimate meanings that are not those necessarily assigned by either speakers or audiences (actual or potential) at the time.

Definitional originalism is usually argued for by analogizing the Constitution's sentences to ordinary English sentences spoken in a quotidian context. For example, suppose you're given a map with instructions written on it by a pirate telling you how to find his treasure. (OK, that may not be quotidian, but you could easily change the hypo to make it so: say it's a grocery list.) If you want to find the treasure, you need to know what the words would have meant to the pirate's likely audience. Fail to do that, and you fail to find the treasure.

Of course, if you really want to find the treasure, you need to know what the pirate actually intended, not just how audiences at the time would likely have interpreted the words. This is the point made by Stanley Fish recently in the Cardozo Law Review: the marks and sounds that ordinarily connote meaning are not "communications" at all unless and until they are communicating an intelligent being's intended message. This, of course, is the old, disreputable "original intent originalism." Fish argues, however, that whatever the practical difficulties it may pose, interpretation simply is the search for original intent. For example, if one knows that an alarm bell in a building is being rung by a monkey, it doesn't mean "fire;" it means nothing at all. To paraphrase Hilary Putnam, Fish's theory is that meanings just are in the head. And for the treasure map, it appears Fish is correct, at least if you want the treasure.

The problem with definitional arguments is that there is no good way to argue for them. If one's interlocutors don't buy the premise, then there is little to do but repeat it, perhaps while jumping up and down and waving one's arms around. And it is particularly difficult if the proposed definition doesn't cover the universe of possibilities.

So it is with Fish's argument. If Fish were correct--that the only possible interpretation of a sentence is the one intended by the speaker--then once one receives definitive proof of what was intended, that should end all arguments as to what the sentence meant. But of course that's ridiculous. People have long, drawn-out, and perfectly reasonable arguments all the time of the form: "That may have been what you intended, but that's not what you said!" In other words, the sentence you spoke has a meaning other than what you intended, and I'm justified in interpreting it that way regardless of what you may have meant. This debate is over whether speaker's meaning coincides with sentence meaning--the meaning a reasonable contemporary listener would place on it--and if not, which takes precedence. As near as I can tell from his article, Fish's argument would make all such disputes meaningless babble. That's a problem for Fish.

Most originalists now subscribe to the theory that what Constitutional sentences mean--what they should be interpreted to mean--is what they mean in this latter sense: the meaning that reasonable contemporary listeners would have assigned to the sentences. That is, most originalists now place Constitutional sentences in the same category as ordinary conversational sentences or correspondence, rather than the categories that would work best for Fish: codes, treasure maps, instructions. If the Constitution were a conversation or a speech (but not a treasure map), then focusing on original public meaning would be a perfectly plausible way to go about interpreting it.

However, original public meaning originalists (such as the New Originalists) face a Fish-like difficulty. Namely, there are still more categories of sentences, and the Constitution falls outside the domain where original public meaning holds sway. The Constitution is not a conversation or a speech or a treasure map. It is not even just a statute, as Jack Balkin implies in arguing that original meaning controls constitutional interpretation because it controls statutory interpretation. Rather, the Constitution is a declaration, by "We the People," of the most fundamental principles of the government of our society. It is something more akin to a ritualistic affirmation, a cultural declaration of faith, along the lines of a religious ceremony or a pledge such as the Pledge of Allegiance.

And that puts the Constitution in a different class of communications than mere conversations, messages, instructions, and treasure maps. An affirmation, used as a ceremonial induction into a particular group or community, is continually being re-spoken as new members join. The meaning of the affirmation at any given time is thus the meaning ascribed to it by the relevant community at that time, not at the time it was first written. Take, for example, the responses required of Catholics at Confirmation:

Bishop: Do you reject Satan and all his works and all his empty promises?
Candidates: I do.

Bishop: Do you believe in God the Father almighty, creator of heaven and earth?
Candidates: I do.

Bishop: Do you believe in Jesus Christ, his only Son, or Lord, who was born of the Virgin Mary, was crucified, died, and was buried, rose from the dead, and is now seated at the right hand of the Father?
Candidates: I do.

Bishop: Do you believe in the Holy Spirit, the Lord, the giver of life, who came upon the apostles at Pentecost and today is given to you sacramentally in confirmation?
Candidates: I do.

Bishop: Do you believe in the holy catholic church, the communion of saints, the forgiveness of sins, the resurrection of the body, and life everlasting?
Candidates: I do.

This text is derived from the Nicene Creed, first set down in 325. Suppose at that time the people writing, reading, or speaking the Nicene Creed in 325 all had a different view from Catholics today of what the Holy Spirit was. It would make no sense to say that that understanding governs the Confirmation oath today, and that this is true due to the fact that the creed was written down. Surely what governs the meaning of the Confirmation oath today is what Catholics (as a group) today would understand it to mean, even though Catholics today are not the original drafters of the text.

The Constitution is a foundational set of rules and principles that defines the United States, just as the Confirmation oath is a foundational set of beliefs that defines the Catholic community. Of course, most people do not read the Constitution out loud and swear to uphold it -- some government officials do, but not most ordinary citizens. But I don't believe that changes the character of the document. Whether or not each individual citizen swears to uphold the Constitution, reads it aloud, or even reads it silently, by and large Americans understand its special importance in American political and legal culture and its significance in defining the United States as a nation. As Balkin himself has written, albeit in the course of making a different argument, "[e]ach generation must figure out what the Constitution's promises mean for themselves." They must figure it out for themselves because each generation adopts it anew, as each generation of Catholics affirms the content of the Nicene Creed anew.

In the course of adopting it anew, there is some opportunity for slippage in the meaning that is being passed from the prior generation. Over time, that meaning can come to nullify a clause entirely or change its meaning to the opposite of how the text was originally read. But, contrary to the standard objection of originalists (and the occasional practice of non-originalist judges), that change can't happen overnight, without mass participation. One cannot validly affirm one's own private Confirmation oath. There must be a community change, not a solipsistic event.

It might be thought that, whatever its merits as a description of community ideology, basing the interpretation of the document on the theory that it is agreed to anew every generation would compel the adoption of a similar basis for legitimacy. That is, reading the Constitution as continually reaffirmed requires basing its legitimacy as a binding document on that reaffirmation. And, as Randy Barnett argues, the Constitution's modern legitimacy cannot be based on meaningful consent of the governed. Modern citizens are not given a choice whether to agree to the Constitution or not, except the Hobson's choice of voluntary exile. Barnett argues that the only other option is to base the Constitution's legitimacy on the written text that was originally ratified plus a very constrained ability to construe vague phrases in a way that does not contradict or nullify the text.

But I don't think I'm committed to making that connection. I don't think the mere fact that affirmations are sometimes voluntarily entered into means that their legitimacy necessarily derives from consent. Many, perhaps most, religious adherents would not view membership in their church as something that is truly optional. Leaving the church might be as much of a Hobson's choice as moving to Canada. And yet one cannot be a Catholic and not take the Confirmation oath. Nevertheless, Confirmation is an important ceremony, so important it gets its own sacrament. It is a moment in which members pledge their fealty to a set of beliefs that defines the community. It gains its legitimacy, not from unfettered choice, but from the fact that the entire rest of the community one is formally joining has done the same thing.

Similarly, societal rules do not in general gain their legitimacy from consent. To take a trivial example, the rule that one must form a straight line to buy tickets at a ticket window has not been formally agreed to by anyone. No one asked me if I would prefer that Americans adopt the Beijing practice of forming a semi-circular scrum around the ticket window, which equitably rewards those who are in more of a hurry at the expense of those who have more time. (I'm curious how this will play out at the Olympic events this summer.) Nevertheless, I'm bound by that rule, simply from the fact that I'm an American in the United States. Each generation is similarly bound by the Constitution, as that document and its meaning is adopted by the community as a whole.

Posted by Bruce Boyden at 02:12 AM | Comments (14) | TrackBack

The New Originalism: Answering the Questions Nobody Asks?

Originalism is back in the blogs. Michael Dorf posted a brief column on Findlaw, Who Killed the "Living Constitution"?, followed by a comment from Larry Solum, a rejonder from Randy Barnett, a response from Dorf, and another reply from Barnett. (This follows the flurry of activity a couple of weeks ago on the meaning of "natural born citizen" -- see Jim Lindgren, Solum, Jack Balkin, and Solum). This debate is over "New Originalism," and how much New Originalism differs from Old Originalism or from "Living Constitutionalism" (presumed to be the only other choice -- more on that in some other post).

Balkin, Barnett, and Solum are all "New Originalists" -- originalists who stress, not the original intent of the authors of a particular legal text, which is unrecoverable in many instances, but rather its "original public meaning" -- the meaning that a given sentence would have been assigned by its audience at the time it was drafted. Over the past few years, in a book by Barnett</