Obsidian Wings

Church And State

by hilzoy

There are some difficult questions about how to draw the line separating church from state. This (h/t Carpetbagger), however, is not one of them:

"A judge who made headlines four years ago by wearing the Ten Commandments embroidered on his judicial robe is facing a complaint filed by the American Civil Liberties Union over a prayer he led in February in a Monroe County courtroom. (...)

At a status conference before the judge in February, McKathan told the 100 people attending the hearing that he was not afraid to call on the name of Jesus Christ, witnesses said, and ordered all in attendance to join hands and pray. (...)

Witnesses said the judge prayed aloud for several minutes and dropped to his knees."

If you actually check the complaint (pdf), the parties to the suit were all members of a church whose financial records were at issue, and the judge seems to have been leading them in prayer in the hopes that it might produce some Christian spirit of compromise and conciliation. The problem with what he did, in other words, was not that he was making illegitimate assumptions about their religious views, or using his power to force them to pray to a God they might well not have believed in. Nor was it simply that a judge ought not to make such assumptions at all, since the risks of forcing someone to profess a faith she does not hold outweigh any possible benefits; or that any action that gives the impression that the government as a whole supports a particular religion should be avoided at all costs; or that people should not order other people to pray with the authority of the state behind them. It's not even this extraordinary statement (from the complaint):

"Judge McKathan stated that at this status conference he was acting as a religious leader, but that if they did not resolve the matter in church, all parties would have to return to court and he would act as a judge."

Here's how the people who complained saw it:

""His conduct wasn't what the people needed," Williams said. "We had actual church service more or less, but got no legal progress. That's why we have separation of church and state."

Williams said if McKathan had held an actual hearing, the church rift might have been resolved long ago."

They did not come before a judge seeking pastoral counsel. They came before a judge seeking, well, a judge. They didn't want to possibly return to court and have their judge "act as a judge"; they wanted him to act like a judge from the outset. They had every right to expect to find a judge, rather than a "religious leader", presiding over their courtroom. Judge McKathan disappointed them.

I imagine some people will construe this as a case pitting Christianity against secularism. They will be wrong. There is nothing Christian about failing to do your job.

Hamdan Verdict

by hilzoy

From the NYT:

"A panel of six military officers convicted a former driver for Osama bin Laden of one of two war crimes charges on Wednesday but acquitted him of the other, completing the first military commission trial here and the first conducted by the United States since the aftermath of World War II. (...)

The panel rejected two specifications that would have supported a conviction for conspiracy. One asserted that Mr. Hamdan was part of the larger conspiracy with senior Qaeda leaders and shared responsibility for terror attacks including the 2001 terror attack.

The second conspiracy specification rejected by the panel asserted that Mr. Hamdan was part of a conspiracy to kill Americans in Afghanistan in 2001 with shoulder-fired missiles.

But the panel voted to convict Mr. Hamdan of five of eight specifications that made up the charge of providing material support for terrorism. The specifications included accusations that he drove Mr. bin Laden, served as his bodyguard, was a member of Al Qaeda and knew its goals."

So: after seven years, we have convicted Osama bin Laden's driver of, well, being his driver and bodyguard. That was totally worth setting up a brand new court system that throws out what have always been basic American legal standards.

Moreover, all that stripping away of rights got us nothing, since Hamdan had always admitted being bin Laden's driver and bodyguard. However, creating a whole new court system not only ensures a whole raft of appeals that would have been unnecessary had we used standard civilian or military courts, but also left open one huge problem: it's not clear that any of the things Hamdan was convicted of were actually crimes at the time he committed them. Marty Lederman:

"Under current U.S. domestic law, this alleged conduct would be a crime. Between 1996 and late 2001, however, such conduct was probably not criminal under U.S. domestic law. In any event, Hamdan was not tried for violating U.S. domestic law -- he was convicted for violating an alleged law of war.

This raises at least two huge legal questions. First, the charges themselves require that there have been an "armed conflict" during the period in question -- and the laws of war only permit trial of offenses committed within the period of an armed conflict. It's not clear which, if any, of Hamdan's alleged acts occurred after September 11, 2001 -- and it also is uncertain whether the conflict that triggers the laws of armed conflict commenced before 9/11/01, when al Qaeda engaged in other terrorist acts against the U.S. Four Justices in Hamdan thought the armed conflict did not begin until September 2001 (see note 31 of the Stevens opinion); but it remains an unresolved question.

Second, it is not clear that Hamdan's conduct of "material support" to terrorism (and, in Specification 2, to al Qaeda), in the form of of transportation and "body guard" services, was conduct that violated the laws of war in the period from 1996 to 2001. Judge Allred ruled (see page 2 here) that if such conduct was not a war crime at the relevant time, then Congress is barred by the Ex post Facto Clause from designating such conduct as a war crime after the fact. Were these forms of "material support" to terrorist acts -- or, even more broadly,to an organization that commits terrorist acts (Specification 2) -- a violation of the laws of war between 1996 and 2001? A very interesting and important question. See pages 3-6 of Judge Allred's opinion, in which he holds that even though there is no recognition of such a war crime in any international instruments, or U.S. field manuals, and even though the Congressional Research Service found no historical support for it, there is some evidence of similar "support" conduct being tried by military tribunals in the Civil War, and thus it was within Congress's broad authority under the Law of Nations Clause to determine that such conduct was a war crime when Hamdan acted. Whether that holding is correct will be a major issue on appeal."

More interesting analysis here and here (h/t Lederman.)

So, in a nutshell: after seven years of legal wrangling, we have convicted someone who is by no stretch of the imagination a terrorist mastermind of driving bin Laden and being his bodyguard, acts which might not have been crimes when he committed them. And for this we tossed out significant chunks of our legal traditions. What a deal.

Fighting Monsters at DOJ

by publius

I think we can all agree now that the Bush administration’s politicization of DOJ was a disgrace. I didn’t think anything about DOJ could surprise me anymore, but the Goodling emails were so bad that they did. It’s just an all-around disgrace.

But the entire sordid affair got me thinking about Steven Teles’s excellent book “The Rise of the Conservative Legal Movement.” It’s a fascinating book, but I always thought there was a bit of whitewashing. Specifically, I think Teles tended to ignore the darker side of the legal conservative movement — as symbolized by Goodling. (What I’m really trying to say is that he only looked at one side of Harvey Dent’s face in writing the book).

But first, let’s look at the good side — i.e, the non-burned-and-exposed-bone side of the face. I’ve always had a love/hate relationship with legal conservatism. Unlike other parts of the conservative movement, I respect it intellectually. There are hacks, sure. But they take ideas seriously — and they actually demand competence (compare, e.g., Roberts v. Miers).

Teles provides some hard evidence justifying this point of view. The easy explanation is the conservative movement is one giant business-fronted movement. But it’s not. Teles shows how the movement only succeeded after it replaced business hackery with conservative idealism. These people took their ideas (e.g., individual freedom) seriously — that’s what motivated them.

But there’s a darker side to the movement too — one that Teles didn’t spend nearly enough time on. As intellectually sophisticated as the legal conservative movement is, it’s also motivated by a passionate, visceral and borderline-creepy hatred of liberals. (Take any recent Scalia opinion on some social issue — it’s clear that liberal hatred is driving a big part of the ship).

When you spend some time reading legal conservative sites, you’ll see a lot of ressentiment swirling around the Great Liberal “Other” — and it’s all mixed together with defensiveness, victimhood, and inferiority complexes. It’s a dangerous brew — the kind of brew that causes people to justify doing bad things.

And that’s where Monica Goodling comes in. When she went to sleep at night, I doubt she was riddled with guilt. She wasn’t thinking “another good day of imitating a Third World banana republic Monica.” In her own head, I’m sure she thought she doing the right thing. Rationalization, after all, is a wonderful thing. People don’t generally think they’re bad — unless they’re the Joker and just don’t care.

Anyway, the pathological liberal hatred is what allows people like Goodling to justify doing all kinds of bad things. Goodling didn’t see herself as evil. She saw liberals as evil — thus, it was critical to get the Christian Soldiers in there, law be damned. The liberal elites were destroying her country.

In making this criticism, let me be clear that I’m not talking about her law school. The Harvard Federalist Society breeds the same level of liberal hatred that Regent does. It’s a systematic flaw in the broader movement — one based in part on the fact that the movement has been constructed in opposition to the liberal “Other.”

Legal conservatives can be very persuasive when they focus on text, structure, and even originalism. But they lose me completely when they lapse into their babbling about evil activist judges who want to free child molesters and steal your guns and eat your baby. For me, the anti-liberal animosity taints the intellectually respectable parts.

I suppose this same concept extends far beyond law. Imagining that you’re fighting monsters turns you into a monster. If all liberals are evil, then I’ll ignore the law and hire people without “spotted owl” and “homosexual” on their Lexis/Westlaw search result. If Democrats are destroying the country, I’ll have the U.S. Attorneys abuse their office and prosecute political opponents. If all Muslims are terrorists, I’ll ignore the fact that our latest “precision bomb” killed a bunch of kids in Baghdad. If all Muslims want to kill us, then that justifies detaining and maiming innocent people.

In other words, what Nietzsche said: “Beware that, when fighting monsters, you yourself do not become a monster.” It’s good advice.

FISA

by hilzoy

I hate, hate, hate the FISA bill. I hate, hate, hate that Obama voted for it and its cloture motion. The fact that he voted for the three amendments (1, 2, 3) is some consolation, but not nearly enough.

(McCain didn't even show up. The last time he voted in the Senate was on April 8.)

I've been trying to think of something more interesting to say about this, but I seem to be out of words. Though in case anyone is interested in my take on the 'punish him?' question, I will do whatever I can to help him get elected. Heck, I maxed out for Kerry, and he was a much worse candidate. I will also devote some energy to electing better Congresspeople, and keep trying to convince people that this matters. In the long run, a citizenry who care enough about the Bill of Rights that this vote would have been a political disaster is the best guarantee I can think of that this will not happen again. Madison did not count on the virtues of politicians, and neither do I.

Kennedy v. Lousiana, Take Two

by publius

It happens from time to time, but my initial post on Kennedy v. Louisiana was wrong. I disagree with the decision. That said, I think it’s a plausible decision – and it certainly doesn’t justify the hyperventilating cries of illegitimacy from conservatives that seem to accompany every decision that they disagree with (more on that in my next post).

But it’s a bad opinion. It’s not merely that the methodology is shaky. Even assuming you accept the methodology, the Court’s result doesn’t seem consistent with that methodology.

To back up, constitutional law decisions always have two key parts: (1) the result; and (2) the reasoning (i.e., the methodology or doctrine or framework). For instance, imagine the Supreme Court said (a) Gitmo detainees have habeas rights; (b) because Publius says they do and he’s infallible. That’s the correct result, but the reasoning is a wee shaky. More to the point, the methodology adopted will lead to bad things, even if we like the result it produced in this particular case.

It’s easy to lose sight of it in political debates, but constitutional law is often a battle of competing methodologies. And if you want to be cynical, certain Justices favor certain methodologies because they generally produce results they like. Originalist methodology, for instance, was heavily motivated by hostility to the Warren Court. True, originalism sometimes produces results conservatives don’t like, but those are the operating costs of adopting politically favorable methodologies.

So with the result/reasoning distinction in mind, we can better understand the problem with Kennedy. It’s not only that the methodology itself has some serious problems. It’s that the methodology suggests a different result. It gets a bit denser below the fold.

Kennedy v. Louisiana

by publius

The Court today held that imposing the death penalty for child rape was unconstitutional. I haven’t read the opinion yet, so this post is subject to change. But as grotesquely heinous as child rape is, I think it’s the right call. I’ll talk about doctrine in more detail later, but I think death (i.e., the victim’s death) is an appropriate bright-line rule for determining when to apply capital punishment.

If humans were omniscient, then I’d have less of an issue. But they’re not. And once you open the door to allowing people to be executed for actions short of death, it introduces an enormous amount of uncertainty and unfairness into the system. For instance, if an 18 year-old has sex with a 15-year old, could that be “child rape”? More to the point, would a racist prosecutor in say Georgia have a pretext to seek capital punishment? And even if that example is flawed, the general point still stands.

Anyway, more later after I actually read the opinion.

[UPDATE: I'm almost finished with the opinion, and I'm changing my mind. I obviously like the result and I think the policy argument above is important. But the Court's methodology is extremely sloppy, and it's very expansive. But I'll elaborate on this later tonight -- this case deserves more than one post].

Some Thoughts on Executive Privilege

by publius

I’m certainly no expert on executive privilege. But in thinking about when the privilege should apply, it’s important to distinguish between two different types of communications: (1) intra-advisors’ communications; and (2) communications with (or among) agency officials. The claim for executive privilege is much weaker in the latter, which of course is the category that the EPA documents fall into.

To clarify, the first category consists of communications between Bush and Cheney and their inner core of advisors — i.e., people who work directly for the President and Vice President. This group would include people like Miers, Rove, Bolton, and Gonzales (first-term only). Regardless of how distasteful this crew may be, you can understand why executive privilege makes more sense here. You want to encourage frank communications — plus, there are separation of powers issues.

However, the second category — communications with or among agencies — is much different from both a policy and a constitutional perspective. Agencies, unlike the Presidency, are legislatively created. Congressional oversight is part of the deal. And that oversight is a good idea given that agencies are more removed from political accountability than the President himself.

The upshot is that courts shouldn’t recognize executive privilege in the latter context, but should arguably respect it in the former. Thus, Rove’s conversations with Miers are off-limits (unless a future President wants to waive the privilege). However, Rove’s conversations with U.S. Attorneys and DOJ should not be protected. Same deal with the emails that apparently say, “Cheney says don’t let them do it.” It’s an agency email so it should be released. Otherwise, every single email within an agency could be privileged by merely cc’ing Dick Cheney.

Finally, Waxman should keep on them. The contempt orders won’t be enforced right now. But all that’s going to change hopefully in a few months. These people are ignoring subpoenas as if there were no consequences for doing so. They should realize that some very real penalties wait just over the horizon and the era of non-accountability is almost over.

Telecom Immunity Passes

by hilzoy

From the Washington Post:

"The House today overwhelmingly approved a sweeping new surveillance law that effectively would shield telecommunications companies from privacy lawsuits for cooperating with the Bush administration's warrantless wiretapping program.

Ending a year-long battle with President Bush, the House approved, 293 to 129, a re-write of the 1978 Foreign Intelligence Surveillance Act (FISA) that extends the government's ability to eavesdrop on espionage and terrorism suspects while providing a legal escape hatch for AT&T, Verizon Communications and other telecommunication firms. The companies face more than 40 lawsuits that allege they violated customers' privacy rights by helping the government conduct a warrantless spying program after the Sept. 11, 2001, attacks. (...)

One hundred eighty-eight Republicans and 105 Democrats voted for the bill."

Here's a list of the Yeas and Nays.

In the meantime, for your amusement and delectation, here's Chief Justice John Marshall in Little v. Barreme, a case from 1804. Congress had passed a law that "authorized the seizure on the high seas of vessels of the United States bound or sailing to any port or place of the French Republic." President Washington then issued this order to his naval commanders:

"You are not only to do all that in you lies to prevent all intercourse, whether direct or circuitous, between the ports of the United States and those of France and her dependencies in cases where the vessels or cargoes are apparently, as well as really, American and protected by American papers only, but you are to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to or from French ports do not escape you."

A commander captured a Danish ship, the Flying Fish, which was sailing from (not to!) a French port. Question: did the fact that the President had authorized the seizure of American ships sailing to and from French ports, even though the Congress had authorized only the seizure of American ships sailing to French ports, make the seizure of the Flying Fish OK? Chief Justice Marshall:

"I confess the first bias of my mind was very strong in favor of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers, and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is that the instructions cannot change the nature of the transaction or legalize an act which without those instructions would have been a plain trespass.

It becomes therefore unnecessary to inquire whether the probable cause afforded by the conduct of the Flying Fish to suspect her of being an American, would excuse Captain Little from damages for having seized and sent her into port, since had she actually been an American, the seizure would have been unlawful."

Personally, I'd be a lot more inclined to let military personnel off the hook for violations of a law that they might well not know about. (I'm assuming that this does not encompass violations of the laws of war.) Chief Justice Marshall, who (unlike me) actually served in the military, and who was a lot more familiar with the framers' intentions, apparently disagreed. It's an interesting contrast. (H/t CharleyCarp.)

***

UPDATE: I do very much want to know why Barack Obama didn't say a word throughout all this.

FISA: Why It Matters

by hilzoy

Digby's commenters seem to have been asking her "why the blogosphere is so obsessed with FISA and the civil liberties stuff when it's clear that both sides are equally corrupt". I like her answer, but I'm going to give my own. I won't bother about the "both sides are equally bad" part: it's not true, on civil liberties especially, and if anyone thinks it is, I suspect I won't convince them.

We have a very good Constitution. It's not perfect -- I'd eliminate the electoral college in a heartbeat -- but it's very good. And the fact that we have it is an astonishing piece of good fortune. It would have been so easy for the framers of the Constitution to turn out to be a bunch of mediocre hacks, or for Washington not to have stepped aside after his second term, or for the union to have fallen apart in its infancy. It would have been easy for the country not to have survived the Civil War intact, or for FDR to have initiated a tradition of court-packing (leaving us with a 67 member Supreme Court, full of all the additional justices required for each new President to get a sympathetic majority), or for any number of other crises to have permanently disfigured our Constitutional system. Instead of which, we have a workable political system.

Moreover, it is a system based on individual liberty. We have never implemented that system perfectly, and for most of our history we were nowhere close to perfection. Our Constitution enshrined slavery, and even when we had fought a civil war and granted theoretical freedom to African-Americans, we did not bother to do the difficult work of actually making sure that those freedoms were more than theoretical. We were content, for far too long, to allow our fellow citizens to be deprived of the most basic civil rights, lynched, and held in what might as well have been slavery. Periodically, we have allowed the government to curtail our freedoms, generally under the influence of fear. But our Constitution has allowed us, slowly but surely, to address the challenges we have encountered, together, as one country. Moreover, even at our worst, it has held up an ideal for us to aim at, and reminded us of how far we fall short of what we should be. And while for much too long we did not secure the freedoms guaranteed in our Constitution to everyone, the arc of our history has, in the words of Martin Luther King, bent towards justice.

But there is nothing inevitable about this. The Constitution is, after all, just a piece of paper. It cannot stick up for itself. It needs defenders. It has put in place a structure that makes it more likely that it will find some: when one branch of government exceeds its limits, another acquires an interest in checking it; when all branches conspire together, the people can demand that their rights be respected. No Constitution can do more than this. And this cannot possibly be enough if the people who should defend the Constitution are unwilling to do so.

Our form of government is a gamble on the proposition that while people will, from time to time, be too preoccupied with their own affairs, or too lazy or venal, to protect the Constitution, we are a decent enough people not to let threats to our form of government persist long enough to destroy it. As I said, nothing ensures that this will be true. Fortunately, every citizen is in a position to help ensure that it is. All we have to do is notice, and care, and act. Protecting our Constitution is, always, up to us.

***

Our system of government is built on the separation of powers: Congress passes laws, the Executive implements those laws, the Courts interpret them, and all of us, including the President, obey them. This system is currently under threat. Our President and his advisors believe three things which are wrong individually, but disastrous when combined. These are:

(1) The President can do whatever he wants during wartime, whether or not it violates the laws.

(2) It is always wartime, and the battlefield is everywhere, both at home and abroad.

(3) The President has the right to keep what he is doing completely secret. No one -- not citizens, not Congress, not anyone -- has the right to force him to reveal what he and others in the Executive are doing.

As I said, each of these is wrong individually, but the combination of all three is absolutely toxic. And the secrecy is crucial: if no one knows what the Executive is doing, no one can challenge it.

The FISA controversy puts all three principles together. The President claims that the War Powers he discerns somewhere in Article II of the Constitution give him the right to violate the FISA law, and to enlist the help of the telecoms. The Democrats offered a long time ago both to grant the basic fixes in the FISA law that the President wants, and also to allow the government to substitute for the telecoms in the various lawsuits against them. The latter amendment would have allowed the lawsuits to proceed without the telecoms being in jeopardy. It failed, with only one Republican voting in favor.

If the FISA "compromise" passes, it will mean that a President just needs to authorize some program, and say that he thinks it is legal, and telecoms cannot be sued for going along with it, even if it violates the law. Given a President who claims to believe, as Bush does, that whatever he wants to do is legal so long as it is an exercise of his War Powers, this is a recipe for disaster. Moreover, these lawsuits are the only way in which anyone can get redress, since the courts have ruled (pdf) that no one has standing to sue the government unless she can show that her communications have been intercepted. It's also the only way in which citizens can discover what this program involves, so long as Congress refuses to do its job -- not that Congressional investigations would necessarily have helped, since the administration has shown very little willingness to share information about this program with Congress.

***

George W. Bush and his administration have done everything they can to undermine the separation of powers. This bill would retroactively say that that's OK, and would in addition prevent us from suing corporations that went along with the President's request to break the law. That is a request he has no right to make, and legal liability is the best way of ensuring that he does cannot do in practice what our Constitution forbids him.

It's our Constitution. It's up to us to defend it.

FISA "Compromise"

by hilzoy

I haven't written about the rumors that a "compromise" on telecom immunity was in the works, since it was just a rumor, and I wanted to see what, if anything, actually came of it. Now I know:

"After more than a year of partisan acrimony over government surveillance powers, Democratic and Republican leaders have agreed to a bipartisan deal that would be the most sweeping rewrite of spy powers in three decades. The House is likely to vote on the measure Friday, House aides said. (...)

The new agreement broadens the authority to spy on people in the U.S. and provides conditional legal immunity to companies that helped the government eavesdrop after the 2001 terrorist attacks, according to congressional aides in both parties.

The deal, if adopted, would bring the spy activities of a controversial National Security Agency surveillance program permanently under the law. That would allow the government, in certain circumstances, to eavesdrop on U.S. citizens without a specific warrant. It would also expand government spy powers to monitor communications between the U.S. and overseas to collect intelligence on topics beyond terrorism. (...)

Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed."

To recap: there are some minor fixes to the FISA law that everyone agrees should be adopted. The sticking point is whether companies that helped the government engage in surveillance that broke the law should receive immunity for their actions. It seems to me clear that the answer is 'no'. First, people who break the law should be held accountable. Second, we're not talking about some private citizen who might understandably have been inclined to give the government the benefit of the doubt on questions of law, but about large companies with serious legal departments. Third, since our government does not seem inclined to tell us exactly what it has been doing, discovery in these lawsuits has been about the only way in which we have found out anything at all. Shutting down these lawsuits might prevent us from ever finding out.

Most importantly, though, when the government asks someone to break the law, they hold a lot of the cards: the prestige of the Presidency, the power to exclude companies from federal contracts, and so on. Just about the only reason someone might have to say no, other than conscience, is the fear of legal liability. By immunizing these companies, we make it much more likely that the next time some President who thinks he has dictatorial powers asks a company to break the law, it will do so. And that's just wrong.

But that's what this so-called "compromise" does. You can read the bill here (pdf). I haven't had time to slog through the first part, but I have read Title II, "Protections For Electronic Service Providers". It's just dreadful. It says:

"[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that . . . (4) the assistance alleged to have been provided by the electronic communication service provider was --

(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States; and

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful."

So all a telecom company has to do is show that it got a request for assistance in fighting terrorism during a particular period, and that one of several members of the government said that that activity had been authorized by the President and is legal. If it can show this, the court has to dismiss the case. It doesn't matter whether or not the activity in question actually was legal. The courts can't look into that question, as long as the telecom can produce a statement from one of several people in the government saying that it was legal.

This would be a stupid law to pass even in more normal times, when we might hope that government lawyers would really try, in good faith, to determine whether some program really was legal or not. But it's an insane law to pass now, when the administration takes the view that the President has the authority legally to set aside any statutes he wants in the service of national security. This administration has held that it has the right to detain United States citizens indefinitely and without charges, and to set aside treaties it has signed and statutes by which it is bound, whenever it wants to, and that this is all "legal" because on their reading of the Constitution, the President's war powers allow him to do whatever he feels like if he can convince himself that it's relevant to national security. (I wish I were exaggerating.)

At a time like this, requiring that telecoms produce some statement from the administration saying that what they're being asked to do is legal is tantamount to saying: go ahead, break the law; as long as the administration says it's OK, that's fine by us.

That's just wrong. If you agree, call your Representative and say so.

"So Called Quote Habeas Corpus Suits"

by publius

Marc Ambinder has been spending a lot of time lately defending John McCain. But this post on habeas was too much. Ambinder claims that “on the question of what should be done to the Gitmo detainees, the candidates' rhetorical differences are greater than their policy differences.” That’s wrong. Really really wrong.

First, and before I get to policy differences, the larger problem is that Ambinder is ignoring the fact that political rhetoric matters. McCain has adopted the worst sort of demagoguery on the habeas case. He claimed the decision was one of the worst in history. He also referred to writs of habeas corpus — one of the oldest civil liberty protections in Anglo-American law — as “so-called, quote, Habeas Corpus suits.”

In doing so, McCain is providing support for the political movement to deny the detainees all legal rights. It doesn’t matter what he privately thinks or what he said years ago. Today, when it matters, he’s siding with the “no rights” crowd — and his actions have consequences. (And for the record, the point of protecting those rights is not to release terrorists but — say it with me people — to determine if these people are terrorists in the first place).

But that aside, Ambinder’s also off on the policy. It’s frustrating to even have to say this, but McCain and Obama have major policy differences on the Gitmo detainees.

First, Ambinder claims the McCain’s gripe is procedural rather than constitutional. That distinction, however, doesn’t make much sense. He writes:

[McCain’s] concern now [] is procedural, rather than constitutional: the detainees' having access to habeas in our federal courts would create a tangled web of lawsuits, would expose intelligence secrets, and would needlessly draw out these legal proceedings.

Ugh, where to start. It’s true that there’s a difference between rights and remedies. It’s also true that habeas is a procedural remedy to vindicate a pre-existing right (e.g., due process). The problem, though, with Ambinder’s statement is that this particular procedural remedy (habeas) also happens to be a guaranteed constitutional right. Indeed, its purpose is to prevent precisely what Bush is doing. Thus, McCain’s problem with “procedure” is necessarily a constitutional problem. And the fact that constitutional rights are messy is, you know, the point. I mean, I guess the Fourth Amendment would be ok and all if didn’t make police do messy things like get warrants. It just really drags out the process needlessly.

Things get worse in the next part though:

McCain believes that it’s OK for foreign-national detainees to have habeas corpus rights, even if they are somewhat restricted[.]

No he doesn’t. I mean, he may say that. He may even think that. But he’s acted in a completely different way.

Rights don’t exist if you eliminate all procedures to vindicate those rights. Otherwise, the rights become only words on paper, rather than living breathing liberties that must necessarily be enforced.

In short, actions speak louder than words. And in the world of action, McCain has been a consistent opponent of habeas. In fact, he’s consistently voted to completely strip ALL habeas protections from the Gitmo detainees. For instance, he has (1) supported the DTA; (2) supported the MCA; and (3) filibustered a bill to restore the habeas rights eliminated by the prior two laws. Collectively, these votes completely eliminated habeas remedies and replaced them with kangaroo courts. Maybe Ambinder could take a stab at squaring these actions with McCain’s words and press releases.

Guns N' Justices

by publius

Via Volokh, I saw this excellent overview of what to look for in the Heller Second Amendment case by Professor Mike O'Shea at Concurring Opinions. The decision could come Monday.

There's a lot to chew over, but the upshot is that the Court seems poised to recognize some sort of individual right. The critical question will then become how broadly the Court reads that right. If it's broad enough, it could jeopardize a significant amount of federal gun legislation.

And that of course is the problem with overturning decades-old precedent -- it undermines everything that's been built "on top" of it (e.g., legislation, other precedents), thus creating a lot of collateral damage. That doesn't necessarily mean it's wrong to overturn settled precedent. It just means that there are good reasons to avoid doing so even when you think the initial case would have come out differently if you were considering it on a blank slate.

More Boumediene

by publius

In response to the last post’s comment thread, I want to clarify some points about the adequacy of D.C. Circuit’s appellate review (I’ll address Roberts skepticism later). Some of my arguments were not clearly written, so let's take another stab.

The basic dispute in the comments turned on whether the Court’s decision about the D.C. Circuit’s appellate review was procedurally proper (i.e., had it been properly teed up?) or whether the Court jumped the gun because of real-world skepticism of the D.C. Circuit and the Bush administration.

I opted for the latter, arguing that the Court reached (and decided) the issue of DTA/MCA appellate review in part because they had gotten fed up with the D.C. Circuit. In the case below, the D.C. Circuit had held that detainees had no constitutional rights — therefore, the lower court had found it unnecessary to review whether the CSRT procedures were a valid habeas “substitute.” Normally (as Roberts noted), the D.C. Circuit would get the first crack at analyzing these procedures under the statute.

The Court, however, went ahead and found them inadequate. Personally, I thought this decision was motivated by (1) impatience with the lengthy illegal detention; (2) the all-but-absolute knowledge that the D.C. Circuit wouldn’t find any problems; and (3) the problems the D.C. Circuit had in Bismullah.

In the comments, people argued that the Court didn’t jump the gun at all, and that I was giving short shrift to the D.C. Circuit’s previous holdings. Their arguments were (1) the D.C. Circuit had already held that detainees didn’t have constitutional rights (thus making the review pointless); (2) that the D.C. Circuit’s decision in Bismullah showed that it was an inadequate substitute; and (3) that the adequacy of the appellate review had been properly briefed below (even if not reached in the ultimate opinion). Thus, the upshot is that reaching this issue was more firmly grounded than I had suggested.

My main response is that the D.C. Circuit didn’t actually reach this precise issue below. Boumediene is a habeas action — it’s not part of the CRST process created by the DTA/MCA. Also, the D.C. Circuit’s decision was premised upon the (absurd) idea that Gitmo is foreign soil. Thus, the Court could have easily said “your assumption is wrong, now consider the question with proper premises.”

But anyway, I think the dispute in the comments is beside the point because we end up in the same place. The Court was right to reach the issue, and it was right to declare the appellate review inadequate. The decision was either right as a purely doctrinal/precedential matter AND/OR it was right because sending it back down to the D.C. Circuit hacks wouldn’t have changed anything and would have increased the delay.

To revise my earlier post a bit, if you do assume that the Court was motivated by realist, real-world policy concerns (e.g., skepticism of the D.C. Circuit), I think the Court was absolutely correct to reach the decision it did. The government had been evading the rulings, and the D.C. Circuit (and Congress) were willing accomplices. Casting a blind eye to this behavior would allow illegality to hide behind empty formalism.

More posts to come.

Boumediene: When Justices Stop Being Polite, and Start Getting Realist

by publius

Boumediene deserves about a dozen posts, but here’s my initial take — the opinion is legal realism made flesh. Legal text and doctrine didn’t determine the Justices’ votes today— outside considerations of policy and politics did. And as I’ll explain, that’s not necessarily a bad thing (indeed, it was probably unavoidable).

[As a disclaimer, I’m assuming some basic knowledge of the opinion. If you want a summary, check out Hilzoy’s fine post or the invaluable ScotusBlog.]

To me, the most interesting question — and the crux of the whole decision — was the sufficiency of D.C. Circuit’s ability to review the Combatant Status Review Tribunals (i.e., the “courts” that determine if you’re an “enemy combatant”). Because Roberts’ dissent focuses on this issue in detail, he comes closest to obliterating the majority’s logical foundation.

To back up, there are really two separate procedures at issue here. The first is the CSRTs themselves that make the initial enemy combatant classification (they are not Article III courts). The second is the appellate review of those classifications. Regarding the latter, Congress (in the DTA and MCA) provided for a limited appellate review of the CSRTs by the illustrious D.C. Circuit alone. By law, the court can only determine (1) whether the CSRTs followed the President’s designated standards and procedures, and (2) whether “the use of such standards . . . is consistent with the Constitution and laws of the United States.”

That last part is crucial. If the D.C. Circuit review provides sufficient protections, then it’s a valid “substitute” for habeas. (Habeas, after all, is just a procedure to vindicate other rights). If it’s not, then Congress has unconstitutionally “suspended” habeas corpus.

And on this question, Roberts’ argument seems pretty persuasive at first glance. He explains that if there are constitutional problems with the CSRT procedures, then the D.C. Circuit gets the first crack at them. What’s more, the D.C. Circuit by the very terms of the statute is free to reach the same conclusion that the Court did. There’s nothing, Roberts says, that the Court held today that the D.C. Circuit couldn’t have held. Thus, the Court is jumping the gun, throwing out a statute before the D.C. Circuit has considered any procedural challenges.

To repeat, the million dollar question is whether the D.C. Circuit could provide any relief that the detainees would be constitutionally entitled to.

The Court ultimately answered "no" — i.e., it held that the D.C. Circuit’s constitutional review was unconstitutionally narrow. That conclusion, however, seems hard to square with the language of the statute. As Roberts explained, the D.C. Circuit was explicitly authorized to review the constitutionality of the procedures.

On a purely abstract level, I think Roberts gets the best of this argument. But that said, I still think he was ultimately wrong, largely because of real-world considerations.

Boumediene For Dummies

by hilzoy

As publius noted, the Supreme Court has ruled in Boumedienne et al v. Bush (pdf). Herewith, a quick and dirty rundown of the issues. As befits someone with no legal training, I have stuck to the straightforward issues, leaving complexities to others (cough, publius, cough.) I'm basically trying to explain this to non-lawyers like myself.

***

Boumediene and the other petitioners are detainees at Guantanamo. They want to know: do they have the right to file a writ of habeas corpus -- that is, to ask the government to justify their detention?

There are two sources of habeas rights: the Constitution and statutes. Considering statutes first: the Court finds, not surprisingly, that the Military Commissions Act stripped Guantanamo detainees of all statutory habeas rights. That was one of its points, and it was why I was so opposed to it.

However, statutes have to accord with the Constitution, and the Constitution says (I.9): "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." That sounds pretty definitive: the Military Commissions Act contained no finding that the United States has been invaded, or is in the midst of a rebellion, nor is there any evidence that either condition obtains. So that settles the matter, right?

Well, no. To see why, note that what the Constitution says is that absent either condition, "The Privilege of the Writ of Habeas Corpus shall not be suspended". What, one might ask, is this privilege? Who enjoys it, and where, and in what circumstances? Plainly, if I were detained by the FBI here in Baltimore, I would be covered. Equally plainly, if some Chinese citizen were detained by the Chinese government in Beijing, she would not have, in virtue of that fact, the right to file a petition of habeas corpus in US court.

So here are two questions the Court needs to answer: who has habeas rights? And where do they extend? The court's answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

As for the second question (where?), the Court looks at its own precedents, which concern such fascinating questions as: to what extent does the US Constitution extend to territories and possessions? It also looks at the British common law from before the Constitution was adopted, to see what the framers of the Constitution and those who adopted it might have understood "the" Privilege of the Writ of Habeas Corpus to involve. Did it extend, say, to people detained by the British in India, which was not then part of the British empire? What about Ireland and Scotland? And so on and so forth. The Court concludes that these cases do not settle the issue one way or another.

The government argues that people detained in Guantanamo do not have habeas rights, because the US government does not have legal sovereignty over Guantanamo. (The lease agreement with Cuba apparently says that Cuba retains "ultimate sovereignty" over Guantanamo.) Petitioners argue that the US nonetheless exercises complete control over Guantanamo, and so habeas rights should extend there. The Court sides with the petitioners, and its language is quite striking:

"The Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain."

Or, in short: if we accept the government's argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.

This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important.

There is a further question: granted that the detainees have habeas rights, they might not be entitled to a habeas petition now had they been afforded some procedure that was an adequate substitute for habeas proceedings. The Court would normally punt this one back to District Courts, but it declines to do so, on the grounds that due process for these detainees has already been delayed too long, and the separation of powers questions this issue raises are too important.

The Court says: the procedures provided under the Detainee Treatment Act are not adequate substitutes for habeas since (p. 60) "we see no way to construe the statute to allow what is also constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings."

***

It's also worth noting that this decision was 5-4, with Roberts, Scalia, Thomas, and Alito in dissent. If Bush had been able to fill one more vacancy, and if he had (as he has in the past) chosen someone who shares the Cheney/Addington view of executive power, this decision would have come out differently. That is, to me, a terrifying thought. Because Publius' headline is accurate: with this decision, Court Reaffirms Existence Of Constitution. But had one vote changed, they would have given the Executive the power to avoid it at will.

Court Reaffirms Existence of Constitution

by publius

The Supreme Court just ruled that Gitmo detainees have a right to challenge their detention in federal court. Much more later.

Roberts and Alito Followup

by publius

For you law-dawgs out there interested in my Roberts/Alito post, Scott Lemieux has a more pessimistic take (which could very well prove correct though).

Glimmers of Hope from Roberts and Alito

by publius

I’ve now had a chance to dig into last week’s Supreme Court opinions — CBOCs v. Humphries and Gomez-Perez v. Potter (pdfs). Both cases extended civil rights protections to claims of retaliation (I’ll explain below). What’s most interesting about the opinions is that they illustrate why Roberts and Alito are quite different from the more reactionary Scalia/Thomas wing. In fact, I think these opinions suggest that Roe v. Wade may (MAY) be safer than it appears, even under a McCain presidency.

First, some exceedingly brief background. The cases above involved two civil rights statutes — Section 1981 prohibits a certain type of racial discrimination, while the ADEA prohibits age discrimination. The precise question was whether these two statutes cover retaliation for complaining about these forms of discrimination.

For instance, if your boss says, “I’m firing you because you’re too old,” that’s clear discrimination. But let’s assume the boss had fired someone else for that same reason. And let’s say that, in response, you complained to other managers about it and they fired you for your efforts (i.e., they retaliated). In that scenario, have you been “discriminated” against “on the basis of age”?

That’s what the Court had to decide — How broadly should the statutes be construed? The upshot is that construing the text broadly would make it easier to bring discrimination claims. Construing it more narrowly, by contrast, would make it harder.

In both cases, the Court found that the statutes covered retaliation — so it was a win for the forces of good. But the alignment was interesting. The race case was 7-2, with Roberts and Alito joining the liberals. The age case was 6-3, because the majority lost Roberts (but Roberts’ dissent is still quite different from the Thomas/Scalia one).

To be grossly general for the sake of the non-lawyers, the two cases pitted textualism versus stare decisis (i.e., respect for precedent).* The textual basis for retaliation claims is fairly shaky. There are plausible readings that get you there, but it’s a very close call. There are, however, several prior cases that extend these protections to retaliation claims. The dilemma for Roberts and Alito is that they were being asked to uphold prior decisions they presumably disagreed with, ideologically speaking.

But they upheld them anyway — in doing so, they were “acting against interest.” It would have been very easy for Alito and Roberts to say “no text, no claim.” But instead, they endorsed these prior cases, warts and all (warts from a conservative perspective, that is).

Indeed, Alito endorsed this precedent in both cases. And while Roberts dissented in the age case, his dissent was rooted in the unique textual structure of that individual statute (frankly, I think he was probably right). Notably, he did not go along with Scalia and Thomas who claimed that “discrimination” never encompasses retaliation.

I think we can take a few tentative lessons from these opinions. To be sure, I don’t want to read too much into one day's worth of decisions. These may well be outliers. But disclaimer aside, here goes:

Yay For California!

by hilzoy

I am thrilled about this:

"The California Supreme Court, striking down two state laws that had limited marriages to unions between a man and a woman, ruled on Thursday that same-sex couples have a constitutional right to marry.

The 4-to-3 decision, drawing on a ruling 60 years ago that struck down a state ban on interracial marriage, would make California the second state, after Massachusetts, to allow same-sex marriages. (...)

The decision was rooted in two rationales (...)

The first was that marriage is a fundamental constitutional right.

“The right to marry,” Chief Justice George wrote, “represents the right of an individual to establish a legally recognized family with a person of one’s choice and, as such, is of fundamental significance both to society and to the individual.”

Chief Justice George conceded that “as an historical matter in this state marriage has always been restricted to a union between a man and a woman.” But “tradition alone,” he continued, does not justify the denial of a fundamental constitutional right. Bans on interracial marriage were, he wrote, sanctioned by the state for many years.

In a second rationale from the interracial case, the court struck down the laws banning same-sex marriage on equal protection grounds, also adopting a new standard of review in the process.

When courts weigh whether distinctions among people or groups violate the right to equal protection they generally require just a rational basis for the distinction, a relatively easy standard to meet. But when the discrimination is based on race, sex or religion, the courts generally require a more substantial justification.

Discrimination based on sexual orientation, the majority ruled on Thursday, also requires that sort of more rigorous justification. The court acknowledged that it was the first state high court to adopt the standard, strict scrutiny, in sexual orientation cases."

Six of the seven justices on the court were appointed by Republicans.

This is a wonderful, wonderful thing. I am a complete sucker for marriage. I think everyone should have one. The idea that our governments decide to prevent people from having them -- that there are couples out there who love each other and want to get married and can't, not for comprehensible reasons like a ban on incest, but just because of flat-out bigotry, or because of the imaginary threat that same-sex marriages pose to heterosexual marriages -- is just plain wrong. Moreover, I think it's wrong not just substantively, but legally: distinctions based on sexual orientation ought to be suspect, and in this case the state does not have a compelling interest in drawing one.

Yay for California, and yay for its Supreme Court.

The Scalia! It Burns!

by hilzoy

I had missed this delightful bit of Constitutional interpretation from Antonin Scalia until Jim Henley pointed it out:

""I don't like torture," Scalia says. "Although defining it is going to be a nice trick. But who's in favor of it? Nobody. And we have a law against torture. But if the - everything that is hateful and odious is not covered by some provision of the Constitution," he says.

"If someone's in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression 'cruel and unusual punishment,' doesn't that apply?" Stahl asks.

"No, No," Scalia replies.

"Cruel and unusual punishment?" Stahl asks.

"To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don't think so."

"Well, I think if you are in custody, and you have a policeman who's taken you into custody…," Stahl says.

"And you say he's punishing you?" Scalia asks.

"Sure," Stahl replies.

"What's he punishing you for? You punish somebody…," Scalia says.

"Well because he assumes you, one, either committed a crime…or that you know something that he wants to know," Stahl says.

"It's the latter. And when he's hurting you in order to get information from you…you don’t say he's punishing you. What’s he punishing you for? He's trying to extract…," Scalia says.

"Because he thinks you are a terrorist and he's going to beat the you-know-what out of you…," Stahl replies.

"Anyway, that’s my view," Scalia says. "And it happens to be correct." "

You might have imagined that the Eighth Amendment prohibited the federal government from, say, deciding to pull your toenails out one by one before you're actually convicted of a crime, not just afterwards, but apparently Antonin Scalia disagrees. Likewise, I suppose the Fifth Amendment doesn't prohibit self-incrimination, as I had always supposed; it says that a person cannot "be compelled in any criminal case to be a witness against himself", but before his trial, when he's not a witness but a suspect, perhaps anything goes. Reading over the Bill of Rights, I also note that while the Fifth Amendment says that a person cannot "be deprived of life, liberty, or property, without due process of law", it does not say that if you have had a trial, or some other form of due process, and that trial ends in your acquittal of all charges, you can't be deprived of life, liberty, or property anyways. After all, you did have due process, and that's all the Constitution really requires, right? It says nothing about your having to be convicted of a crime.

Constitutional interpretation is so much fun if, as John Stuart Mill said in another context, "we suppose universal idiocy to be conjoined with it."

(Note: this is the same Scalia interview in which he said, about Bush v. Gore: "Get over it." To which I can only reply: No. Not in this lifetime. And no one has less right to ask me to than Antonin Scalia.)

[UPDATE: I gather, from comments, that Scalia's view that nothing done before conviction counts as "punishment", as that term is used in the Eighth Amendment, is true. If so, I regret having assumed the opposite. It still strikes me as bizarre that things that we cannot do to convicted criminals can, apparently, be done to unconvicted detainees; that we cannot deprive them of life or liberty without due process of law, but can, apparently, pull their toenails out or shoot electricity through their genitalia. I don't see how the Fifth Amendment gets around this, especially if you're being tortured for information not about your own crimes but about someone else's. No doubt I'm just missing something, though.]

Eugene Volokh -- Polygamist Raid is "Child Abuse"

by publius

Eugene Volokh sure spends a lot of mental energy discrediting the efforts of the state to protect young children from a life of systematic statutory rape. There are several good nuggets, but this was my personal fav:

So many of the 17-year-olds may have gotten pregnant with no law being broken, and in fact within a legally recognized marriage. Of course, many might have gotten pregnant at 14 or 15, or at 16 outside marriage and with an adult. And naturally if any of these pregnancies were the results of forced sex, that would clearly be a very serious crime.

I like the "if" and "forced sex" bit. Maybe I'm just a prude, but any sex with a 14 or 15-year old by a grown man (particularly in that setting) is forced sex in my book.

He also makes a big contrarian deal about the fact that the AP article states that 31 out of 53 girls on the compound aged 14 to 17 are pregnant or have had kids. Because 17 is the age of consent, the AP is ignoring critical information, Volokh says. In fact, it may be describing "perfectly legal behavior." Even if that's true, 3/4 of this category (14, 15, and 16) are clearly below the age of consent. (And I suspect the remaining 22 aren't virgins). In fact, the category is even larger than that. Girls who have had a baby at 17 more likely than not had sex at 16. Given that (statistically) most of the girls in this group are underage, I don't understand devoting the thrust of a post to this point.

If you want to argue against state intervention, then do it without hanging it on this rather slender pretext.

If You Change Your Sex, Are You Still Married?

by hilzoy

The NYT has a story about a married couple who became New Jersey's first same-sex marriage when, 25 years after their wedding, Donald, the husband, became Denise. They stayed together: "“We’re one of the few of our friends who are still in our original marriage,” Denise Brunner said." But they face some legal problems, since no one seems to have a clue what to make of their marriage:

"The Brunners say they have no interest in obtaining a civil union — they consider it a downgrading of their relationship — but they do worry about their status.

What if the Internal Revenue Service questions their joint tax returns? What if they retire to North Carolina, a state that they say is less legally friendly to transsexuals and same-sex couples? What if they were taking their daughter Jessica to college in Pennsylvania, and were in a car wreck that left Denise unconscious — would the authorities accept Fran as her wife?

“Are they going to recognize that she can make the decision for me?” Denise asked. “We don’t know that, and that’s not the time I want to contest that in court.”"

Green Light for Voter ID Laws

by publius

A split Court today upheld Indiana’s blatantly partisan law requiring voters to show photo ID at the polls (background here). The upshot is that Republican-controlled legislatures just got the green light to enact requirements that disproportionately affect people without valid state-issued photos (e.g., elderly, poor, college students).

The 6-3 coalition (pdf) upholding the law was somewhat strange. Stevens joined Roberts and Kennedy for the “lead opinion,” while the Three Horsemen concurred in a separate opinion. At first glance, it seems strange that Justice Stevens would join the conservative Justices, but I think there’s a method to his madness.

To back up, I think the constitutional issue here is actually a close call. While the law stinks, I’m skeptical of the Court wading in here. The reason is that striking down the law requires the Court to ignore the superficially reasonable justifications Indiana can offer in its defense (e.g., eliminating voter fraud).

I mean, everyone knows why the law was passed — and that voter fraud is a sham. But in terms of finding (and establishing through judicial procedures) specific evidence of intent to suppress votes, well that’s tough to come by. Legislators aren’t as dumb as they used to be.

It’s also difficult because the plaintiffs here filed a broad facial challenge, which requires the Court to hold that the law is unconstitutional in every conceivable case. For me, it’s troubling to grant the Court such wide power to “look behind” the legislative rationale (remember that McCain could very well add a few more Justices who will be reviewing and "looking behind" Democratic congressional legislation).

But that leads back to Justice Stevens. Whatever else you might think about him, Stevens is the most politically savvy Justice. My take is that Stevens knew it was a lost cause — Kennedy must have signaled that he would uphold the law. Thus, Stevens managed to maintain the viability of more narrow “as applied” challenges by upholding the law on more narrow grounds.

In other words, Scalia and pals would have shut down all possible challenges if they could have had a 5-4 opinion all to themselves. By picking off Roberts and Kennedy, Stevens maintained the ability of plaintiffs to bring “as applied” challenges. Or to be more cynical, he kicked the can down the road hoping for a better Court in the future.

One other interesting point that Rick Hasen made is that Scalia’s test would probably justify poll taxes if they were enacted today (despite a footnote distinguishing them). In his concurring opinion, Scalia relies heavily on the fact that the voter ID requirement was a generally applicable law. Thus, the fact that it disproportionately affects individual voters isn’t that big a deal (in the absence of discriminatory intent, that is). He writes:

[W]hat petitioners view as the law’s several light and heavy burdens are no more than the different impacts of the single burden that the law uniformly imposes on all voters.

That’s exactly the logic of a poll tax though — it would be generally applicable and would have a disproportionate effect on poorer individual voters. In the past, the discriminatory intent behind these laws was more clear. But it’s unclear whether Scalia would find such intent if a poll tax were passed today with more savvy legislators.

UPDATE: Scott Lemieux has more (and more).

Cert the 9th Circuit Before It Kills Again

by publius

The Ninth Circuit made a potentially big decision yesterday – Fair Housing Council v. Roommates.com -- that could significantly increase website companies’ liability for content posted by their users (I’ve posted the decision below the fold as an iPaper). Eugene Volokh and Susan Crawford both have interesting things to say about the case. Volokh thinks it’s both correct and fairly inconsequential. I’m not sure I agree. To me, this case illustrates the stark divide between law-in-theory and law-in-practice. As a purely theoretical matter, I tend to agree with Volokh that the decision isn’t a big deal. But when you consider the practical implications, I think it becomes quite harmful.

First, some background. Let’s say that, in the comments section here, Gary Farber accuses “Cleek” of having poor indie-rock sensibilities. Outraged, Cleek sues Typepad (the host of our blog) for defamation. Typepad, however, didn’t actually say anything about Cleek's music tastes, it just made blog space available for others to provide comments.

In this case, Cleek would be out of luck because of 47 U.S.C. § 230. Section 230 grants immunity to websites and service providers for content posted by other parties that use their sites. Thus, you can’t sue Yahoo for offensive statements made on chat boards, nor can you sue Google for content that its search engine pulls up. It’s a good law, and it’s been interpreted quite broadly over the years to avoid “chilling” Internet activity. For instance, Blogger wouldn’t exist if the company could have been sued for every random comment on blogspot sites.

With that in mind, the next relevant law is the Fair Housing Act. To be grossly general, it prevents housing brokers from discriminating on the basis of, among other things, sex and family status. Because brokers can’t refuse to sell to families, they generally can’t even ask whether you have children.

Enter Roommates.com. As the name suggests, this site allows people to find and provide housing. To get started, the site's users must enter information about themselves in various prompts (they were drop-down windows as I understand). Some of these questions involved children and gender (e.g., “Children present” or “Children not present”) that would normally be illegal.

Long story short, Roommates got sued under the Fair Housing Act. Roommates responded that they are immune under Section 230 because its users were the ones who actually entered the information. The court disagreed, finding – and here’s the key – that the structure of the question prompts was itself illegal content creation. In other words, the question prompts themselves were illegal because they required people to answer illegal questions. Critically, the court went on to find that the site’s search engine also lacked immunity because its results were based on these illegally-structured question-and-answers. (This is a very brief description, so read the opinion below the fold if you want more detail).

As a purely theoretical matter, the decision seems harmless enough. As Volokh explains, Roommates was “channel[ing] the speech in likely illegal directions.” Also, as Crawford notes, the logic of the case could be limited to the more egregious facts of this case. If it is so limited, the decision won’t be that big a'deal.

The problem, though, is that the case will create big problems in the real world. Specifically, it will be impossible to cabin the case’s logic to these specific facts. Vague holdings, like children, tend to grow more expensive through time. If the Supreme Court lets the decision stand, I predict that it will significantly increase litigation and chill Internet activity (e.g., sites like Roommates will be much less efficient as prompts become bulletin boards).

My Gripe With "Living Constitutionalism"

by publius

Orin Kerr slyly asks whether Yoo’s torture memo would be accepted under Jack Balkin’s “living constitutionalism” (If you want background, Balkanization has a series of fascinating posts debating this theory). The short response to Kerr, though, is that Balkin’s theory isn’t that “any change is ok.” Kerr’s jab does, however, illustrate a different problem with the “living constitutionalism” theory – specifically, its “brand” problems. In other words, it’s not the theory’s internal logic that bothers me, but the marketability of the narrative. Granted, focusing on such superficial concerns is a bit silly. But we are living in a postmodern world, and I am a postmodern, um, girl.

My fundamental gripe with “living constitutionalism” is that it sounds defensive. More precisely, it seems conceptually rooted in a larger narrative that has been defined by conservatives. In more popular circles, the great conservative legal narrative has been that the Constitution is largely unchanging, and should thus be “interpreted” according to the “true” meaning of the text as it was originally understood. No politics here, no sir’ee Bob.

The critique of liberal judges, by contrast, is that they “legislate from the bench.” Unlike purely objective conservative judges like Scalia, liberal judges read their policy preferences into the text. In this way, they achieve results that liberals could not otherwise achieve at the ballot box. (ed. You mean like Bush v. Gore? No, they were just interpreting there).

Anyway, it’s all a bunch of crap. Constitutional text is indeterminate, and so Justices across the political spectrum have throughout history interpreted text in a manner consistent with their political and policy preferences. They have also adopted interpretative methodologies that (with occasional exceptions) align with their politics. This is all to be expected – Justices are appointed by political officials. (On an aside, and for that reason, the idea that their nomination process should not be politicized strikes me as naïve).

The Great Borkian Fraud then is that conservatives managed to cloak their policy preferences in aesthetically compelling narratives – textualism and originalism. Their policy preferences magically transform into “the plain meaning of the text” or “the original understanding of the Framers.” Liberal judges’ decisions, by contrast, are “legislating from the bench.” Hippie hatred thus provides the foundation of not only American foreign policy, but modern constitutional jurisprudence as well.

All that said, I have a grudging admiration for their efforts. Like Marx and Freud before them, the Borkians have created a universal philosophy that can provide a superficially “objective” answer to any question. The logical and aesthetic power of these narratives has, frankly, pummeled legal progressive narratives in the court of public opinion in recent years. Far too many Americans believe that progressives love nothing more than to change the Constitution in hippie ways, while conservative judges remain dutifully faithful to our Framers’ text.

With this background in mind, you can see why I chafe a bit at the term “living constitutionalism.” To me, it reinforces what has proven a quite successful conservative narrative. The phrase – despite Balkin’s goals and intentions – lends itself quite easily to charges of “liberals want to change the Constitution for political reasons.” To embrace that label (which I consider distinct from the quite impressive nuts-and-bolts of Balkin’s theory itself) is to implicitly reinforce the Borkian critique. In doing so, it gives conservatives too much credit. It implies that conservatives reject a living Constitution, when just the opposite is true. It’s just that they call “living constitutionalism” “fidelity to the original understanding.”

In a sense, though, I respect what Balkin is attempting – it’s rather daring. He’s taking a critique, loading it up with theoretical punch, and turning it back on conservatives. It’s similar in this respect to his embrace of the “originalism” narrative. He’s stealing the narrative and trying to make it his own.

While he’s forgotten exponentially more than I know about constitutional law, I chafe at adopting even the originalism label. These conservative narratives can’t be co-opted – they need to be completely transcended, particularly originalism. With the exception of communism, never before has such a silly theory attracted such intelligent followers. Reading extended, excruciatingly-detailed dialogues about originalism on conservative legal blogs is more like a black comedy. (For instance, from what I can gather, the only texts that are ever at issue involve matters of “construction” rather than “semantic meaning” – so what’s the point? The “four years” clause is never litigated, but “due” process is. To borrow from Larry David, it’s a debate about nothing).

Frankly, I don’t understand why we need constitutional theories at all. They all seem necessarily Procrustean to me. In fact, the phrase “constitutional law” is itself misleading because it covers such an immensely diverse field of topics. Maybe the best “theory” is no theory. Maybe it’s best to do away with them altogether and adopt a “disaggregation” strategy.

Think about foreign policy – we don’t have (in practice) a unifying theory telling us how to deal with different parts of the world. The actions of China call for different responses than the actions of say Burma or Egypt or the Taliban. In foreign policy, we divide the world up into smaller parts and pursue the policy that best fits that unique part of the world.

Why can’t we do the same in constitutional law? (Maybe we already do). Why don’t we spend more time talking about our theory of Fourth Amendment law, or our theory for searches incident to arrest, and less time trying to integrate this diverse field into one unifying theory – or even worse, trying to squeeze this specific area of the law to fit (Procrustian-style) some broad abstract theory.