Category: Constitutional Law


NRO and the First Amendment

Andy McCarthy has an interesting comment on the First Amendment on the National Review’s blog. He argues in part:

[Some argue that] “The remedy for bad speech is more speech.” This, effectively, is the Holmesian “marketplace of ideas” trope that is just an excuse for not thinking. If someone’s bad speech is a fatwa that sets a WMD attack in motion, my ability to speak out against the fatwa will be cold comfort to the dead. The First Amendment does not countenance commands to murder, and Speaker Gingrich is entirely correct to challenge us to think through these principles.

I’ve said many times that I’m no con law maven. But I don’t get this point. As McCarthy admits, Brandenberg would seem to allow regulation of “commands to murder”: they are “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Moreover, McCarthy seems to believe that an “original understanding of the First Amendment” would lead to a different understanding of the text. What can he mean by that? Reversing the incorporation of the Bill of Rights?


we may be in for some executive privilege fights …

This story (an excerpt of which is pasted below) may well be a harbinger of things to come — as Democrats prepare to take over committee chairpersonships, fights over documents that congressional committees request and that the administration does not want to turn over may become common. Will Congress cave upon the mere invocation of terms like “executive privilege” and “national security?” Or will they do their job as a co-equal branch of government, actually probing whether and when national security needs for secrecy exist and when it’s appropriate to demand documents, even to issue subpoeanas or to threaten contempt sanctions? For anyone curious about the constitutional ramifications of executive privilege tussles between Congress and the President, I’ve written about the issue at some length in this linked paper.

Democrats demand CIA detainee documents

Posted 11/17/2006 8:28 PM ET

By Laurie Kellman, Associated Press

WASHINGTON — A Senate Democrat who will chair its Judiciary Committee next year asked the Justice Department to release newly acknowledged documents setting U.S. policy on how suspects in the war on terrorism are detained and interrogated.

“The American people deserve to have detailed and accurate information about the role of the Bush administration in developing the interrogation policies and practices that have engendered such deep criticism and concern at home and around the world,” Sen. Patrick Leahy, D-Vt., wrote Attorney General Alberto Gonzales.

. . . .


So THAT’S why Secrets Were Kept from Congress, Statutory Law Was Circumvented, and Journalists May Be Prosecuted …

I recently wrote an article about the NSA warrantless surveillance controversy and its connection to government secrecy and the separation of powers for a Minnesota Law Review symposium. In the course of my research and writing, it struck me how very much the controversy exemplifies: (1) the propensity of executive branch officials to invoke “national security” and information classification as talismans to shut down all further argument and inquiry, and (2) the effectiveness of such invocations.

As I explain in the article, the administration’s defenses against the argument that its warrantless surveillance program violates the Foreign Intelligence Surveillance Act [“FISA”] can be stripped down to one essential assertion: It would have been too dangerous to let “the enemy” know that they could secretly be spied on through a warrantless surveillance program. **(At the very end of the post, I summarize why I deem that assertion crucial to the administration’s argument)**

MORE AFTER THE JUMP (including some unintentional humor by A.G. Gonzales) …

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Pay the Poor to Be Citizens

money.jpgA colleague suggests that there might be a relationship between a series of seemingly random observations:

  • A sudanese cell-phone billionaire announced a prize for good governance, to be awarded to current African leaders when they step down from office. According to news reports, “each leader awarded the prize will receive $5 million spread over 10 years after leaving office. If still alive when the initial prize is exhausted, prize-winners will receive another $200,000 annually until they die.”
  • The Arizona Voter Reward Act, which would establish a $1,000,000 prize whose proceeds would go to a randomly-selected voter, is on November 7th’s ballot. The state’s Chamber of Commerce is opposed: Harvard’s Info/Law project is more open minded. Most think the law would be plainly illegal preempted by federal law even if passed.
  • Jury pay rates are embarassingly low, if meant to be compensatory. Some jurisdictions are funding pilot projects to study if pay raises will increase compliance with jury service.

Here is the question for debate: is there any meaningful way to distinguish the African prize (which many legal commentators no doubt would celebrate) from the voting and jury service problems? Or, more provocatively, are the powerful the only people who we will allow to make money from being good citizens?

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Legal Scholarship and the Nixon Effect

nixon.jpgLegal thinking often seems to be cyclical. Constitutional law scholarship provides (to my ignorant outsiders perspective) a clear example of this. In the 1960s and 1970s the law reviews were filled with articles exalting the role of the courts as guardians of liberty and searching for various jurisprudential philosophers’ stones that would allow the courts to bestow items from the liberal wish list upon the nation e.g. constitutionally mandated rights to welfare payments, etc. The country, however, had the bad manners to proceed along its own political path without reference to the concerns of the legal academy and five GOP presidents to two Democratic presidents later, the federal judiciary is filled with conservatives. Academic panegyrics to judicial modesty and minimalism according sprout like mushrooms. There is, of course, the temptation to see such a cycle in crassly political terms, and perhaps have the bad manners to suggest that left-of-center constitutional law professors are simply modifying their jurisprudential theories in the face of right-of-center election results.

Private law scholarship is also prone to its own intellectual cycles. In the 1970s, Grant Gilmore was confidently predicting the Death of Contract and Farnsworth and his associates were putting the finishing touches on the second Restatement, which confidently set out to deliver us from the horrid formalism of Williston’s work. The gentle establishment liberal sanity of the Legal Process movement seemed to reign supreme, troubled only by the pesky legal economists, whose influence Morton Horton Horwitz assured us peaked in about 1980. Fast forward twenty-five years, and one can read defenses in the Yale Law Journal of formalistic contract interpretation that Williston never imagined of in his headiest pre-Realist dreams. Of course here too, there are crassly political explanations. Flinty-hearted Chicago-school economists are no doubt more attracted to private law subjects like contracts or corporations rather than the intricacies of substantive due process. Furthermore, more than one aspiring conservative legal academic has been advised to go into business law by Federalist Society elders on the grounds that it constitutes a kind of safe preserve for right wingers. Finally, the results at the elections have given ambitious projects for say consumer protection the same surreal feel as articles arguing that the courts should announce a constitutional right to welfare payments. It ain’t going to happen, so why bother?

For all of the fun involved in spinning out political stories to account for the cycles of legal thought, however, there is a simpler academic imperative at work. There is a sense in which young scholars have no choice but to slay their elders. Writing an article saying “amen” to the reigning theoretical consensus is probably not the route to tenure and academic fame. Hence, the discredited ideas of one generation are going to inevitably find their champions in the next generation for the simple reason that no scholar wants to write articles saying “Me too.”

Think of it as the Nixon effect. When he left office the intellectual consensus on Nixon was overwhelmingly negative. Not surprisingly, Nixon’s reputation has risen with time for the simple reason that no one is interested in a new book suggesting that Nixon is a crook, but a book suggesting that Nixon wasn’t so bad after all will get some attention. Not to worry. In the fullness of time, a consensus in favor of a more positive view of Nixon will develop, and some young Turk historian will make his reputation by pointing out that at the end of the day Nixon was a lying, paranoid, un-indicted co-conspirator.


Expertise and the Blawgosphere

TortureRack.jpgA recent, well-publicized, comment thread over at the VC caught my attention. In it, Professor Ilya Somin explained his silence on the habeas/torture legislation as a combination of humility and utility maximization:

I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others. I do not regard the VC as a forum for me to air all aspects of my world view, or even all of my views on contentious political issues. Little purpose is served by my simply repeating the same points on torture, detention or any other issue that have already been made by dozens of others.

Moreover, I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse. In this regard, my general expertise on political information helps me keep tabs on my lack of expertise on specific issues.

Marty Lederman commented:

The odd thing is figuring out why many of the VC bloggers have not been *interested* in becoming more informed about these questions, and about this legislative initiative — *not* because they are bloggers or even legal bloggers (heaven knows we don’t want every legal blog to pretend to be expert in such questions), but because many of them are committed *libertarian* bloggers who are obviously impassioned and informed about many other arrogations of state power and threats to individual liberty.

It is a debate with some bite, I think, for this blog. We aspire to be a general interest law blog, with mostly serious content. But we have demonstrated little collective interest in the habeas/torture problem. Sure, we’ve had a few posts, but nothing like the sustained attention given by Balkinization, or Opinio Juris. The question I wonder about is whether a blog that claims to be a general interest legal forum has a duty – if it is to be respected – to weigh in the big legal questions of the moment.

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Will the real Constitution in Exile please stand up?

Regular blawgosphere readers are probably familiar with the arguments between Cass Sunstein, Jeffrey Rosen, and others (on the one side) and Randy Barnett, David Bernstein, and others (on the other side) over the existence and impact of something called the Constitution in Exile movement.

For the uninitiated, an extremely simplified version of the debate thus far looks like this: Sunstein alleged that right-wing activists (his term) are interested in reviving the Constitution in Exile; he then made substantive critiques of Barnett, Richard Epstein, and others, implying that they were part of the Constitution in Exile movement. Barnett responded, arguing that the Constitution in Exile was a straw man, and that neither he nor any of his colleagues used the term; he then made the broader argument that there was no “movement” because of the differences among conservative academics.

The argument has played out so far in a number of places — see, e.g., Volokh Conspiracy posts in this chain; Debate Club here; see also Co-Op notes from AALS session with Sunstein and Barnett; see generally Sunstein, Radicals in Robes, and Barnett, Restoring the Lost Constitution.

A minor, but potentially interesting new wrinkle comes with the publication earlier this year of (New Jersey Superior Court) Judge and Fox News analyst Andrew Napolitano’s book, The Constitution in Exile. Napolitano argues for limits on federal power, increased state autonomy, and return to an earlier vision of the Constitution.

How does this change the equation? Well, as noted above, Sunstein’s original assertion was that “right wing activists” seek to “restore the constitution in exile.” Barnett made at least two counter-arguments. The first was broadly descriptive — nobody actually believes in a constitution in exile. The second was more narrow — it’s wrong to classify Barnett himself (or Epstein, or Bernstein, or others) as believers in a constitution in exile.

The publication of Napolitano’s book absolutely proves the weaker of Sunstein’s assertions. Are there “right wing activists” who believe in a Constitution in Exile? Yes, there are.

Does this undercut Barnett’s other arguments? Probably not. All things considered, a publication from a single state judge is probably not evidence of a broad movement; it is certainly not evidence of a Constitution-in-Exile movement espoused by legal scholars such as Barnett and Epstein. (As one Volokh commenter states sarcastically, “If a Constiutional scholar of that caliber wrote a book with that title, then it must be true!” See also Eric Muller’s earlier Co-Op guest post — citing Napolitano by name — noting that legal academics typically don’t pay much attention to popular-press books.)

Interestingly, though, the book has drawn positive reviews from a number of popular conservative commentators — Rush Limbaugh, Sean Hannity, Bill O’Reilly, and so forth. So to some degree, some of Sunstein’s original claims — that there is ongoing discussion among right wing activists about the Constitution in Exile — are being made accurate, even if not exactly in the manner he probably originally intended them.


When Congress Is Undemocratic

Capitol 2a.jpgRecently, several senators have been accused of putting a “secret hold” on a bill designed to curtail pork-barrel spending. According to Reuters:

Any member of the Senate may place a secret “hold” on legislation, which prevents it from being brought up for a vote until concerns about the measure are resolved.

A lot of attention thus far has been spent trying to out the senators who used this option. But not that much attention has been paid to this Senate rule that allows for a “secret hold.” This rule strikes me as immensely undemocratic.

Congress is often touted as the most democratic branch. After all, this is where the people through their elected “representatives” are to enact their preferences into law. But Congress (especially the Senate) often functions with a set of arcane rules that are more befitting to a secret society than the voice of democracy. The “secret hold” rule allows just one senator to block consideration of a law — and to do so without any accountability. There’s also the seniority system, which rewards longevity with more powerful committee assignments, helps entrench incumbents. Voters who bring in a new congressperson lose the plum committee assignments held by an ousted senior incumbent.

Of course, there’s the filibuster — perhaps the most well-known and oft-criticized Senate rule. But at least the filibuster rule allows a supermajority to override it, so it still can be deemed democratic — just not majority wins.

Rules like a “secret hold,” however, undermine Congress’s ability to act like a democratic deliberative body. Perhaps it is time for Congress to reform itself and begin using a more democratic rulebook. I’m far from an expert on Congressional rules, so I’ve only cited a few rules that I find undemocratic. Can anybody provide other examples of undemocratic rules?


Tied Up in the Tenth Circuit

tied_up.jpgI have been litigating a case in the Tenth Circuit that produced an unusual result. I lost before the panel, but a strong dissent from Judge Ebel convinced the Tenth Circuit to rehear the case en banc. Twelve judges sat on the case. On May 17, 2006, just a week after the en banc argument, I received the Court’s per curiam opinion announcing that it was evenly divided, 6-6. The Court thus affirmed the district court and vacated the panel opinion without issuing any law for the circuit. This frustrating result has created a mini-debate among those I have consulted about filing a cert. petition in the Supreme Court. Some of the experienced Supreme Court practitioners with whom I have discussed the case are convinced that the 6-6 split increases the likelihood that the Supreme Court will grant cert., while others believe that the lack of any precedent on this issue in the Tenth Circuit detracts from its cert-worthiness. I would be very interested to hear from anyone with an opinion on the matter whether they think the Tenth Circuit’s tie vote makes this case a better, or worse, candidate for Supreme Court review. (Obviously, getting the Court to grant review is always a long shot; I’m just interested to know how people think this odd result from the en banc court will affect my chances).

For those who are interested, here is a little background information on the case: My client, Cornelius Peoples, filed suit in the Kansas District Court against prison guards employed by Corrections Corporation of America (CCA). Mr. Peoples, a federal prisoner, alleges that guards at CCA’s Leavenworth, Kansas, facility failed to protect him from attacks by other prisoners even after he repeatedly requested that he be removed from his cell block for his own safety. Claiming a violation of his Eighth Amendment rights, he brought suit under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Although it’s clear that Mr. Peoples could have brought a Bivens action if he were incarcerated in a government-run prison, the circuits are divided on the question whether prisoners can sue private prison guards for constitutional violations. It has been an interesting case to litigate, but I am sorry that I have not been able to get a better result for my client.


Specter Looking to Sue President Bush Over Signing Statements

Apparently Arlen Specter “plans to introduce legislation this week that would give the U.S. Congress the right to bring a lawsuit against Bush’s ‘signing statements.'” The move comes on the same day that the ABA’s taskforce on the matter issued its report and recommendation. To date President Bush has used the device more than 750 times. For a recent discussion of the matter and some links to Richard Esptein’s defense of the device go to this page on the ACSblog.

From the ABA’s press release:

Presidential signing statements that assert President Bush’s authority to disregard or decline to enforce laws adopted by Congress undermine the rule of law and our constitutional system of separation of powers, according to a report released today by a blue-ribbon American Bar Association task force.

The task force is bipartisan. The list of members is: Neal Sonnett, William S. Sessions, Patricia M. Wald, Mickey Edwards, Bruce Fein, Harold Hongju Koh, Charles Ogletree, Stephen A. Saltzburg, Kathleen M. Sullivan, Mark Agrast, Tom Susman, and adviser Alan Rothstein. Their bios may be found here.