Akil Reed Amar

As people are working through our assigned readings this week I would suggest looking at Amar's book listed under the Further Readings.  I've used this text for several papers and found Amar's explanations and definitions to be useful.  The book is widely available at libraries, including the Atlanta-Fulton libraries (and if you don't live in Fulton county you can still use the system as a GSU student).  I've also found a link for a PDF of a followup called "America's Unwritten Constitution" from USC's website.
 http://lawweb.usc.edu/who/faculty/workshops/documents/Amarspaper.pdf

Original Meanings

I have just read "Original Meanings: Politics and Ideas in the Making of the Constitution" for a previous class so my pre-read of this book has already been done. However I think the title is very indicative of some Rakove's goal for this book. It implies that there is more than a single possible interpretation of the Constitution. The second part of the title seems to also express some struggle intellectually that might (we all know there was) have occurred in the process so to speak, in the writing of the Constitution.  Thoughts?

Saturday Night Supreme Court Smackdown: Scalia v. Breyer!!!!!

Okay, not so much Wrestlemania as civilized discussion. But those interested in pinning down disagreements on constitutional interpretation might be interested in this combative discussion between Supreme Court associate justices Antonin Scalia and Stephen Breyer.

Serious students of Supreme Court methodology and judicial philosophy will likely be disappointed in this discussion. Both justices articulate their philosophies reasonably well, but speak in generalities that make make them both appear startlingly naive at times. Breyer, for instance, identifies affirmative action as a hard topic because of its challenges in terms of understanding precisely what "equal protection" means (i.e., is the Constitution color blind or does it allow legislators to promote equality through affirmative action policies?) but offers little in the way of guidance for how justices might solve this riddle. One is tempted at times to conclude, with Scalia, that his philosophy is just the substitution of modern moral outlook for key phrases in the Constitution. If "equal protection of the laws" in the Fourteenth Amendment merely means whatever we want it to mean--if it has no fixed meaning--then we are really at sea (Scalia's phrase).

But this raises the perennial problem of "fixed" meaning in legal texts. Consider Scalia's jaw-dropping statement that Brown v. Board of Education was an easy case. Originalist principles, Scalia argued, would lead one to conclude that segregated schools violated the "equal protection clause" of the Fourteenth Amendment. But his application of original meaning jurisprudence does not lead to this conclusion. Given that some schools were segregated in northern states at the time of the Fourteenth Amendment's adoption and that courts had consistently upheld race-based laws and reconciled them with "equal protection" requirements, any credible application of originalism would allow in 1954 for the continued segregation of educational facilities. Scalia warded this off by suggesting that the text was clear--equal protection of the laws means that you have to treat everyone equally. But formal legal equality was part of the segregationist regime in the United States, and formalist legal principles masked the inequality that is so apparent to us today.

I should note quickly that I am not commenting here upon those journalists who misquoted Scalia as suggesting that segregation was constitutional under the provisions of the Fourteenth Amendment (hat tip to Jack Balkin and Balkinization, linked above). But I think it ironic that misquoting Scalia actually gets closer to the true application of Scalia's jurisprudence. After all, Scalia is to be applauded for demonstrating the limits of his own jurisprudence. Certain laws, he says, may be appalling. Or just stupid. But that does not necessarily mean that they are unconstitutional. I agree. But, I fear, application of this judicial philosophy would have upheld school segregation in 1954. And Scalia ought really to come to terms with it.

Illinois and the Constitutional Crisis

After more than a one-month hiatus, I hope I can now resume steady blogging. Certainly the Blagojevich nightmare in Chicago is a black stain on democracy. More frighteningly, the oh-so-public release of the wiretap transcripts make us feel as if the skirt has been lifted and we have gotten a peak at the "real world" of bruising democratic politics. After all, it is only the brazenness of Blagojevich that surprises us.

The constitutional issue du jour is whether the Illinois Supreme Court can grant the state injunctive relief and prevent Blagojevich from carrying out his office's duties. In a motion filed with Illinois's highest court yesterday, the attorney general filed a request for a temporary restraining order and/or preliminary injunction. The people, through the attorney general, are claiming that Blagojevich is unable to serve "due to disability and should not rightfully continue to hold that office."

What a fascinating course of action! Of course, even the governor's critics are rather stunned at the idea of injunctive relief being sought against the highest executive officer in Illinois. The motion itself is quite weak, relying on Article V of Illinois's Constitution. Any fair reading of section 5 gives the power to the Illinois legislature. Of course, the supreme court is given exclusive and original jurisdiction in the event that no law is in place, but it is a stretch to consider this carte blanche for the Supreme Court to decide when the governor is fit or unfit to serve.

Commentators are already saying that the Illinois justices are traditionally cautious and most likely will not grant this motion. But then again, courts have done stranger things...

Sketch of a Villain

Excuse, if you will, a few disconnected thoughts about the Republican National Convention: about Palin, Huckabee, and (sadly disturbingly) Mitt Romney.

Sarah Palin, the surprise pick for VP, did not surprise anyone with her speech. Well delivered and strong, full of falsehoods and half-truths: everything we have come to expect from a VP. If she survives the ethics investigation in her home state (they are, after all, REPUBLICANS who are investigating her and most likely will fall into line before recommending censure or impeachment for her clear ethics violations), she will get the base foaming at the mouth.

Huckabee made one revealing statement in what was otherwise a boring speech. He praised McCain for never renouncing his country while a POW in Vietnam. If he had just renounced his country, said Huckabee, he could have gone home early. This is not the way I understand the story. McCain did break under torture and did sign a statement saying he was a war criminal and an air pirate (or whatever they shoved under his nose). His heroism came from his refusal to leave the camp before POWs who had arrived before him were released. I find such a story tremendously moving, as it does recommend McCain's character. Sadly (for Huckabee or whoever wrote his speech) it doesn't comport well enough with the "country first" theme of the Convention.

Mitt Romney is fast emerging as the Republican villain. His speech was replete with meaningless platitudes. He tried to whip up a frenzy over radical Islam, suggesting that George Bush did the right thing by labeling certain countries part of an axis of evil and starting a war in one of them. (This got surprisingly few cheers, by the way.) He took a backhanded swipe at Michelle Obama. And he castigated as liberal the establishment at Washington--an establishment that has been resoundingly republican for the last fourteen years. And there is simply something frightening about a man who says that the Democrats are the party of "Big Brother" yet scolds the Supreme Court (apparently a liberal bulwark, in Romney's pea-brained world) for upholding habeas corpus against the doctrine of unlimited executive power.

For the constitutional scholar, Mitt Romney is the villain. He is the partisan without thought-out principles. He promotes power rather than limits on power. His understanding of foreign affairs is mean spirited and, sadly, seems to animate a small portion of our population. His principles are on the edge of unacceptability--he ought to be tossed out by any legitimate political party, not given a prime spot at a speaking convention.

My only consolation was that no one seems to care about him much. They didn't in the elections and they didn't last night at the convention. So much the better for America and the Constitution.

If Mitt Romney represents anything like the future of the Republican Party, we are in trouble. I anxiously await McCain's speech...

Introducing the New VP

What matters the VP pick? In modern politics, VPs were thought to be ticket balancers, meant to draw on geographical regions or voter blocs to help a party to win the election. Certainly this explained the choice of VPs in 2000, where Joe Lieberman gave the Democrats a northern flavor and Dick Cheney helped shore up Bush's conservative appeal. But Cheney's tenure has proved a sea change in presidential politics and constitutional relations. Famously secretive and resistant to traditional checks and balances, Cheney has elevated the vice presidency to new heights in terms of influence and policy decision-making. It makes us all look twice at who the VP candidate really is.

So, in 2008, Obama picked someone to reassure us all that he would collect seasoned political thinkers when he arrived in office. The choice was almost too measured, too safe. It didn't excite anyone. It didn't change anyone's mind (if the polls are to be believed). For McCain, the issue seemed just as urgent. At 72 and already evincing some disturbing lapses on the campaign trail (although he has kept a runner's pace that belies his age), everyone knows the VP choice would be important. The VP, after all, is one heartbeat from the presidency.

So he chose . . . Sarah who? It was a surprising move, to say the least. But, considering the framework of analysis above, it makes perfect sense. McCain needs to appeal to young voters. To women voters. He has been excoriated for being out of touch, and this gets him in good with the youth (as does, by the way, appearing with Daddy Yankee).

But given the kind of campaign that McCain and his supporters are running, the choice seems strange, and almost schizophrenic. McCain castigates his rival for not having the appropriate experience, and he chooses a 40 year old newbie as a potential successor. McCain runs ads aimed at disaffected Hillary Clinton supporters, then winks and nods at them as he trots out a woman to stand behind him. In short, this smacks of cynicism, clumsy politics, and--although it is probably much too early to tell at this point--desperation.

Sarah Palin is an unknown to me, and the VP pick (let's face it) should not be too important in terms of voting for a president. But it is the first glimpse of how a president would select advisers and cabinet members. We all know and remember the disasters of the Bush White House, which managed somehow to best the Clintons at cronyism and tried to turn the Justice Department into a kennel of conservative fighting dogs. It matters, in short, who these presidential candidates choose in the second position because we need to be assured that the president who comes to office will make wise decisions.

So, sorry McCain. This choice is a bit of the strange and a pinch too cynical to be of value. And I doubt you have really fooled anyone.

History, blood, and war

Whoever believes that history is solely an academic enterprise—one conducted for scholastic exercise or personal pleasure without relevance to our contemporary lives—might want to take time to read the Supreme Court’s monumental decision released today in Boumediene v. Bush. It is yet another 5-4 decision by the Roberts Court, one in which the crucial swing belonged yet again to Justice Kennedy. Contrary to expectation, the Court swung away from the hard right philosophy of Scalia and Roberts and confirmed the sanctity of habeas corpus against congressional interference. But perhaps most surprising about the decision is not the jurisprudential victory of the liberal wing, but rather the crucial importance of historical narrative in both the opinion of the court and the major dissenting opinion. It is testament to the importance and power of history as a legitimating force.

Although complicated, the facts leading to Boumediene v. Bush may be somewhat succinctly stated. The 2001 Authorization for Use of Military Force (AUMF) passed by Congress in the wake of the September 11 attacks gave President Bush authority to seek retribution on Afghanistan’s Taliban-led government. In the subsequent war, prisoners were kept in Afghanistan prisons or shipped to the American Naval Station at Guantanamo Bay. These prisoners of war were styled “enemy combatants,” a status crafted by the executive branch to bolster claims that the POWs were not to be granted any of the rights determined by the Geneva Conventions. The Supreme Court ruled in Hamdi v. Rumsfeld (2005) that this situation was intolerable, and that the executive branch could not make such a determination by itself. Congress responded with the Military Commissions Act (MCA) of 2006, which (along with providing legislative backing to the executive branch’s military commissions) stripped federal courts of habeas corpus jurisdiction.

So, when several detainees petitioned for writs of habeas corpus, Boumediene among them, the D.C. Court of Appeals dismissed the petitions because Congress had stripped the court of its jurisdiction. It was precisely this issue that came before the U.S. Supreme Court in Boumediene v. Bush. And the Supreme Court’s firm answer (if predicated on a very slim majority) is that habeas corpus is a judicial power that Congress cannot suspend unless within the bounds of the Constitution.

Although the opinions are awash in technical legal argument, both the opinion of the court and the dissenters rely on competing historical narratives. Justice Kennedy, both the swingman and the author of the majority opinion, constructed a sweeping historical narrative of the writ of habeas corpus that spans eight centuries. Relying on the amicus brief filed by legal historians, Kennedy described the principle of habeas corpus as originating on the field at Runnymede in 1215, of growing up in tandem with the king’s power in the fourteenth century, and emerging in the seventeenth as a judicial check on the absolutist pretensions of the Stuart monarchs. The various political and military conflicts between king and parliament in the seventeenth century are cast by Kennedy as crucial in the development of habeas corpus as a check against arbitrary power. The victory of parliamentary forces and the constitutional settlement of 1689 reaffirmed the common law rights of trial by jury and habeas corpus and created a lasting tradition for Anglo-Saxon constitutionalism in the face of arbitrary power. American patriots breathed this same rhetoric in the Revolutionary period a century later, and insured in their Constitution that neither Congress nor the executive could suspend habeas corpus except in very clear cases (rebellion or invasion).

Kennedy’s narrative is generally correct, even if it lacks a certain amount of historical sophistication. It is right where it matters most—for instance, in identifying the writ of habeas corpus’s change from a prerogative writ concerned with power (and solidifying the king’s power in the fourteenth century) to one concerned with liberty in the seventeenth century. And Kennedy’s narrative is aspirational, one that recognizes the substance of American revolutionaries’ very real commitment to liberty and their desire that the Constitution be interpreted in this way.

Compare this with the narrative sketched by Antonin Scalia. To quote from his dissenting opinion: “America is at war with radical Islamists.” This is a war he traces back to 1983 and the bombing of the Marine barracks in Lebanon that killed 241 American soldiers and which moves to American soil in 2001. The enemy (always referred to by Scalia in the singular) “has threatened further attacks against our homeland.” He adds that one need only to “board a plane anywhere in the country, to know that the threat is a serious one.” We have sent our armed forces “against the enemy, in Afghanistan and Iraq.” For Scalia, the decision reached by the Supreme Court today “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

This is Scalia’s narrative—blood, war, and executive power. Accusing the Court of playing a “bait-and-switch” game with the president, he has linked the judicial check to a war apparently begun in 1983 in Lebanon and which has presumably a beginning, middle, and (eventually) an end. But the ambiguities and distortions that lurk behind Scalia’s ham-fisted history belie his argument. Hezbollah (the perpetrators of the 1983 attack on the U.S. Marines barracks) and Al Qaeda are two very different organizations that come from rival Muslim sects. They do not cooperate. Linking such attacks on U.S. troops abroad is at best a callous display of ignorance. At worst it is intellectually dishonest. At the very least, his refusal to consider the civilian casualty count in the Middle East—those who have born the brunt of our war on terror as well as the brunt of terrorist attacks. Such facts are apparently nuisances to Scalia. So much the worse for historical truth.

Nonetheless, Scalia’s positioning of historical narrative before legal argument in his dissent is an indication of just how important historical narrative is. Why else would he begin his dissent with such a narrative? His legal analysis is formal and chilly, and it fails to persuade in the face of basic constitutional principles, let alone the litany of human rights abuses that we are perpetrating in an attempt to “protect” us. Scalia must know this, otherwise he would not need to justify his legal reasoning with an historical narrative that places Boumediene v. Bush into the context of a perpetual war (a war going on 25 years long, if Scalia’s narrative is accepted). Only then can the government’s extreme action of suspending habeas corpus and trying foreign nationals by military commission make sense. But the colossal failure of his historical narrative intellectually and morally indicates that not all narratives are equal. And our ability to receive them critically and to reject them when they fail is a key component in the survival of constitutional democracy.

Was Dred Scott Right?

Dare we ask the question? More fiercely controversial than Roe v. Wade, more volatile than Brown v. Board of Education: Dred Scott v. Sanford is without a doubt the most reviled case in the Supreme Court canon. Even George W. Bush, a president not known for his strong credentials in constitutional law, felt comfortable invoking Dred Scott during the 2004 debates to illustrate how important it was to appoint judges who understood the Constitution. In the respectable (and perhaps not so respectable) constitutional literature, Dred Scott is always invoked similarly, to illustrate precisely what is wrong with Supreme Court decision making. But does that mean it was decided wrongly?

Mark Graber, a political scientist at Maryland, has recently argued that maybe Dred Scott was decided rightly. In his provocative book, Dred Scott and the Problem of Constitutional Evil, he has suggested that our scholarship on the subject is tainted and that we have overlooked the obvious--that the decision in Dred Scott was at least as possible a constitutional outcome for a hard case as was its opposite. The book has generated a buzz in the academy and continues to rattle conservatives and liberals alike who are concerned about its shaking of fundamental truths in constitutional law.

Most intriguing for me in this is one of the book's fundamental premises: that constitutional law in the main is indeterminate. This is not new to Graber (the critical legal studies movement has been singing this tune for some time) but it has never been put in starker terms. The only equivalent is Michael Klarman's recent work on Brown v. Board of Education, in which he advances the controversial thesis that Brown was NOT responsible for the Civil Rights Movement except indirectly, and that it had little effect on American society. Along the way, Klarman argued that the Constitution supported both the "separate but equal" standard advanced in Plessey v. Ferguson and the "separate is inherently unequal" standard of Brown v. Board. If the Constitution was not clear on this subject, Klarman argued, what was more important was the society in which the justices made their decisions.

In short, both seem to argue that it is EXTRAJUDICIAL factors that determine how hard cases are made, and both are compelling arguments for this case. But along the way, we must confront the problem: was Dred Scott decided correctly? Could someone read the Constitution in 1857 and properly conclude (moral issue aside) that the color of someone's skin determined his or her legal rights in perpetuity? That citizenship was reserved to white men? That slavery was protected by the Bill of Rights?

History is a moral discipline as well as an intellectual one. And that means we ought to take seriously questions that make us uncomfortable. Graber has posed such a question. Is he right?

Civil Liberties and the Unitary Executive

What Would Jefferson Do? This is not really a question that seems to animate the Bush administration, whose intellectual muscle has expressed a decided preference for the thinking of Alexander Hamilton (pictured, or, more properly, caricatured, below). Hamilton, of course, appreciated the energy of the executive and rarely tired in promoting the powers of the president. Famously, he advocated the creation of a large standing army under the chief executive's control, and opined (somewhat disingenuously) under the pseudonym "Pacificus" that the framers of the Constitution had intended to leave the whole matter of foreign affairs in the hands of the President. Neither the legislative nor the judicial branch, he suggested, could interfere with the President's power.

Madison may have chided Hamilton in print (Hamilton had argued quite the opposite in the Federalist Papers) but few people are taking notice these days. The conservative Federalist Society continues to promote an originalist argument for the idea of the "unitary executive" and the Bush administration has perpetually struggled to augment its powers and exert executive privilege whenever questioned.

Nowhere is this more disconcerting than in the area of civil liberties. In addition to warrantless wire tapping and the blatant disregard for habeas corpus, the administration has on several occasions suggested that federal officers can deploy torture techniques in violation of federal law.

In Jack Goldsmith's new book, reviewed here by David Cole for the New York Review of Books,
we catch a glimpse of the cosseted world of the Bush and Cheney administration, where dissent (even from conservatives) was not tolerated and lawyers relentlessly worked to shield the President's men from the rule of law. Goldsmith found himself often on the wrong side of the administration's policies. But he occupied a privileged position being head of the Office of Legal Counsel, which provided interpretations of federal law for the executive branch, and thus could not be ignored. When Goldsmith suggested, for instance, that all Iraqis were protected by the Geneva Conventions, the administration had to take note. And, unlike other critics of the Bush administration, Goldstein's account is all the more compelling because it comes from a true believer. As David Cole writes:

Goldsmith's account is credible not only because he was an insider, but because he shares so many of Addington's views. Like his classmate at Yale Law School and onetime friend John Yoo, another Office of Legal Counsel lawyer who worked closely with Addington to justify the administration's most extreme assertions of unilateral power, Goldsmith made his reputation as a scholar with articles highly skeptical of international law, human rights, and international institutions. While serving in the legal counsel office at the Department of Defense, he wrote a memo for Donald Rumsfeld dismissing international law as a tool of the weak. He accused other nations and nongovernmental organizations of creating a "web of international laws and judicial institutions that today threatens USG interests," and recommended that the United States "confront...the threat." And Goldsmith is equally critical of domestic legal constraints; in The Terror Presidency he characterizes post-Watergate legal limits on executive power—the very limits Addington and Cheney so resented—as "one of the Bush administration's biggest obstacles in responding to the 9/11 attacks."

Cole's review is elegantly written, informative, and critically beautiful. And on a subject we need to pay more attention to during our coming presidential elections.

Dworkin on the Roberts Court

In an essay penned for the New York Review of Books, Ronald Dworkin lays out a persuasive argument in layman's terms about the disposition of the current Supreme Court. Dworkin points out that a series of 5-4 decisions, anchored by the right-wing bloc of Scalia-Thomas-Alito-Roberts and joined by Kennedy (pictured to the left), have undermined almost all the constitutional principles at work in women's rights, racial justice, and freedom of speech issues. While minutely examining the doctrinal defenses of these decisions (and finding them wanting), Dworkin points to a disturbing sub-rosa rationale. He writes:

In their Senate confirmation hearings Roberts and Alito both declared their reverence for precedent; they might be reluctant openly to admit that they deceived the Senate and the people. It is therefore not absurd to suppose that this series of odd decisions covertly overruling important precedents is part of a strategy to create the right conditions for overruling them explicitly later.

Dworkin's argument, as well as his explication of the different opinions in the school assignment decisions that so recently undercut Brown v. Board of Education, is enormously important for anyone interested in race and law, as well as how Supreme Court justices make their decisions. Dworkin ably covers not just school assignment, but also freedom of speech issues (Bong Hits 4 Jesus Case), reproductive rights, and the McCain-Feingold campaign finance reform bill. The article is here. (Note to my students at Georgia State: I will give extra credit to anyone commenting on this post with a critical reading of Dworkin's article.)

Slavery, Antislavery, and the Coming of the Civil War

In this intriguing essay, Ariela Gross previews her new book on the role of proslavery and antislavery contests over law and constitution in the antebellum era. She makes the case that the law operated on two levels: the everyday level, where disputes were mediated and slavery was protected; and the national level, where disputes about the constitutional status of slaves in the territories, fugitive slaves, and other heady issues led to considerable conflict between proslavery and antislavery forces. The essay is here.

Did slavery violate the 5th Amendment?

Among the questions we can reasonably ask about slavery in the United States is whether the institution violated basic constitutional freedoms embodied in either the document's spirit and design, or in specific provisions of the bill of rights. In this article, Kaimipono Wenger makes the theoretical argument that slavery was an intrinsic violation of the takings clause of the 5th Amendment. The article does not proceed from historical premises (the argument relies more upon legal reasoning and logic than historical inquiry) but it broaches an important issue about slavery and the construction of the constitution.