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Jack Balkin and Sandy Levinson are right to probe with hypothetical the dimensions of the newly-minted, or perhaps ancient, right of self-defense, or right to own handguns, in one's home, or maybe outside it, or maybe also to own other weaponry, or maybe not, so firmly established in District of Columbia v. Heller (2008) per those clarifying originalist sources understood by Justice Scalia 5-4.
The Candidates Debate -- well, maybe not
My question relates to this indeterminacy and the politics of discussing this case, and the ultimate effect on political and human liberty. Specifically, is the manifold uncertainty raised by the opinion (and its consequent unsettling of state and local law and disregard of federalism that we conservative types used to care about) going to be challenged (condemned) by John McCain as an invitation to legislate from the bench? Critiqued by Barack Obama? Or, as is more likely not to be talked about by either since McCain's complaints about judicial activism are as meaninglessly one-sided as most everyone else's, and Obama is just happy to not have the NRA energized in his direction - and who could blame him?
No Originalism Left Behind -- well, maybe not
As an under-interpreted provision in the Constitution, the Second Amendment provided an opportunity to test the integrity and utility of the original understanding method of interpretation. It failed. The language to be construed: "a well regulated militia being necessary to the security of a Free State, the right of the people to keep and bear arms shall not be infringed." Prior to the Heller, many thought that the second half of the text was to be construed in reference to its preamble. Justice Scalia concludes instead that the first 13 words of the amendment are "a purpose," but not the purpose.
It's only Natural (Law) to Disagree
Dean John Eastman (a first-rate originalist scholar and the co-editor of our casebook) and I have been batting about the originalist legitimacy of this move by Justice Scalia. I'm skeptical given how the preoccupation with state and private militia by the founders as a counterpoint to government tyranny had fit both the history and the text. It also fit structure as an answer to the threat of abuse of Congress' Article I militia organizing authority. Dean Eastman believes Justice Scalia is informing the text with an appreciation of a natural law right of self-defense perhaps a la the thoughts of Professor Akhil Amar here on Slate some months back.
As for "the right of the people" language, both majority and dissent agreed that this suggests an individually enforceable right, but that tells us nothing about its scope -- specifically whether that scope must have a militia-nexus. Of course, sometimes text, history, context and structure are contradicted by longstanding precedent which, by reason of reliance, merits adherence. But here the interpretation in U.S. v. Miller in 1939 arguably saw the Second Amendment as militia-related, and it was a precedent followed by virtually every lower federal court since it had been decided. Justice Scalia argues that Miller holds only that a short-barreled shotgun was not "ordinary military equipment" because it was not the type men bearing arms would be expected to bring when called to militia service, but so what? How does that free the "right" from the militia nexus?
The dissent saw the opinion as legislating from the bench. Wrote Justice Stevens for the four dissenters quoting Miller, "the signification attributed to the term Militia appears from the debates in the convention, the history and legislation of colonies and states, and the writings of approved commentators.'" In light of that, Justice Stevens concluded: "Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well regulated militia. The court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations."
But can it be plausibly argued, as Dean Eastman and perhaps Akhil Amar suggest, that there is another view of originalism in play as well? One which heretofore has been championed largely by Justice Thomas but to which Justice Scalia's opinion in Heller now appears to give credence. That view holds, with substantial evidentiary basis in the founding-era debates, that the Bill of Rights merely recognizes (rather than creates) pre-existing natural rights. I concede natural law originalism has always been my preferred view, but given Justice Scalia's past denunciations of it, is it plausible to see him now as among the converted? He does make reference to 19th century case law approving of the perspective. In this regard, the Court makes several references to this "natural law" view of the Second Amendment right, concluding that the Second Amendment necessarily codifies its more expansive right to self-defense, against both private thugs and government tyrants.
But assuming Justice Scalia is in fact now willing to judicially enforce the text of the Constitution only as informed by the natural law, how exactly does he know that the natural law includes a right to possess a handgun for self-defense? As he himself might have been given to point out in other contexts, when the right was linked to "the militia," he could define it in relation to an historical purpose originally understood. If natural law is the new lodestar, then Justice Scalia needs a defensible conception of human nature. And far from the right being new support for abortion as Jack hypothesizes, would not any serious conception of human nature contest, not affirm, that practice? But staying with just born persons, isn't it possible to see more widespread handgun possession as contrary to any natural law basis for the "right" insofar as gun usage has its own inherent dangers or just simply in light of the number of handgun deaths each year in urban areas, including DC?
Go to Hell(er), Federalism!
Does the new gun right apply against the states? Within a week of the ruling in Heller, five lawsuits were filed seeking to apply the newly designed Second Amendment to nullify gun control laws adopted by local governments in California and Illinois. Each of the cases makes the argument that the Second Amendment is applicable to the state and local governments through the Fourteenth Amendment - an issue the Supreme Court has not considered since 1894, when it said the Amendment applied only to the federal government. In note 23 in Heller, the Court declined to reach the incorporation issue.
The Chicago case, NRA, et al., v. City of Chicago, et al. challenges a restriction very much like the DC ban that had been invalidated - namely, a city code provision that requires registration of firearms, but bars registering handguns. Chicago is within the Seventh Circuit which last found that the Second Amendment applied only to the federal government in 1982 relying upon the Presser v. Illinois (1894). The Circuit Court specifically declined to find that Presser had been superseded by the Fourteenth Amendment and its incorporation of most of the Bill of Rights.
Raising the Standard (of Review)
Beyond applicability to the states or not, the standard of review is uncertain for laws that differ from the District of Columbia handgun ban that was nullified. Justice Scalia seems to eliminate rational basis as an insufficient standard, but not much else.
Depending on the standard of review to be named later, it is supposed that we will learn the answers to the questions that bedevil us now, including why carrying a concealed weapon beyond the home and hearth is not protected and also why licensing laws do seem - so long as they are not disguised as prohibitions - not to offend the "right." Similarly, we will know whether switchblades or mace or tazers are beyond "weapons typically possessed by law-abiding citizens for lawful purposes."
Come, Learn from the Master -- or Go Directly to Jail
Finally, the ever dutiful citizenry will be instructed by its judicial masters as to how far, if at all, the right can be taken outside one's home? The front stoop? One's car parked at the curb? The RV parked out back? In the meantime, I suspect it won't be long before a law-abiding Dick Heller-type fella is charged by a local prosecutor for a crime because he used a gun or other weapon beyond the home, in claimed self-defense, only to find upon posting bond that he did not successfully discern the constitutionally acceptable geographic location.
My friend, Bob Levy at CATO brought this case to enhance human liberty. As I see it, only judicial liberty is being advanced. Indeed, to borrow some florid prose from the one-time author of the opinion itself: "The Imperial Judiciary Lives!" Don't expect it to be talked about in those terms by either of the candidates, however, who in one way or the other will have been silenced, well, at the point of a gun.
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continue reading at Balkinization ...
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C'mon, Orin, you don't give us enough credit with your non-Volokh post. There are plenty of truck-ownin', tobacco-usin', gun-shootin' folks here at Slate. Admittedly, we're a bit of a discrete and insular minority within the Slate family, but I don't think your Heller discussions are unwelcome here.
I'm going through the opinion now, and one thing that leaped out at me was the limiting language that Justice Antonin Scalia chose to use in his opinion. He carves out two very important limitations on the Second Amendment right—so big that they encompass nearly all gun control in existence today, save those most extreme bans like that in DC:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [cites omitted]
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
So, if I understand this right, Scalia's got no beef with "felon in possession" statutes like those at the heart of the Justice Department's Project Safe Neighborhoods strategy. And he's got no beef with states banning assault rifles, machine guns, rocket-propelled grenades, and other instruments of violence that are firearms but may be just a tad bit dangerous for you or me to keep and bear. And I think Scalia's also cool with background checks, registration, and waiting periods If I'm adding up the scorecard right, that means most federal, state, and local gun control in America survives Heller.
What do you think?
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Yesterday, in Giles v. California, Justice Scalia, true to the originalist method, kept to the text of the Constitution and enforced the Confrontation Clause for the benefit of a criminal defendant complaining that his conviction was wrongful because he did not have the ability to cross-examine the out of court testimony of his girl-friend about the defendant's pattern of violent abuse by reason of the fact that, well, he killed her.
Powerful concerns about domestic violence argued to let the testimony into court in Giles, but the Justice held fast even as he was sympathetic to the need to address domestic abuse. The words of the Constitution matter, he said in Giles, and "It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen."
Giles is hard to explain to the average citizen, but it's principled.
Today, Justice Scalia takes the Second Amendment which so unmistakeably by text and context -- not to mention legions of lower court precedent -- protects the right of the people in the States to maintain a well-regulated militia, as against the threat of tyranny represented by a standing army and Congress' Article I power over militias, and by various linguistic tortures, switches round the phraseology until the Amendment advances the contemporary interest of those citizens who favor possessing arms for self-defense within the home. As a matter of human liberty, the right found by Justice Scalia may well advance the values lying behind the words of the Constitution in 2008, they just aren't the Constitution as it was originally understood.
More than once, I have enjoyed the lectures of the erudite and witty Justice Scalia on the importance and legitimacy of original understanding and fidelity thereto. I just hope Justice Stevens is up to carrying on the lecture tour.
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Since we may have a few more minutes before the big news from the last days of the Supreme Court term, I had probably better offer at least a brief response to Eric's last post. As much as I love the imagery of Scalia astride a tank, that's of course not particularly what I was saying.
But as I am generally a fan of the idea of agency expertise, let me pick up on that point. In the administrative-law context, it might not be too overly broad to say that courts "defer" to an extent to some kinds of executive-agency decisions for two main reasons: (1) because agencies indeed often have invaluable expertise, and more critical here (2) because the agency has followed a meaningful, credible (not to mention highly regulated) process consistent with the Constitution and laws. For reasons the Boumediene decision describes, an agency process like the CSRTs wasn't worthy of any kind of deference. This case was made perhaps most powerfully by all of the military experts who told the court, the press, and anyone else they could find that the process should not be trusted.
The far more disturbing part of Eric's post, though, is this: "[N]o one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance." This isn't a statement about the relative competence of different institutions. It's a statement, at least as I read it, that there are a set of things the U.S. government has to do that simply can't be described, defined, or constrained by the rule of law. If that's a fair account of the point, Eric, we'll just have to agree to disagree.
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Phil, I find myself in the awkward position of disagreeing both with Scalia's comments about Boumediene and your critique of them.
You offer three reasons why Scalia's comments are wrong. Your first point, that we are really at war with "a very diverse constellation of [radical Islamist] groups" rather that "radical Islamists" generally, sounds correct to me. But I'm not sure why it is relevant to Scalia's argument. Scalia's shorthand may have been imprecise, but I don't see that as such a critical error to the extent it was one at all.
Your second point, that we might release fewer bad terrorists with court fact-findings than military ones, seems unlikely to me. Presumably the availability of habeas relief only expands the group of people that may be released; I'm not sure how it would limit it. And while the military may make mistakes in releasing people who are dangerous, I would imagine judges will make more. Judges don't have a lot of experience in figuring out which detainees are real terrorists and which aren't. The Constitution may require them to do it, but that doesn't mean they'll be good at it.
Your third point, that extending habeas jurisdiction to potential terrorists may lessen the threat the detainees pose by impressing them with our commitment to due process, also seems unlikely. The detainees have been held for six years, and any legal process will take a few more years; I doubt a detainee who gets out after a decade or so in Gitmo will think well of the United States for its judicial process.
To be clear, I'm not saying I agree with Justice Scalia's argument or the fact he made it. I don't. To begin with, I doubt Boumediene will have much practical effect. I predict it will prove to be a largely symbolic opinion, rather than one that will make a major difference in the real world.
Second, and more important, I think it's quite troublesome when Supreme Court justices devote large chunks of dissents (or worse yet, time in TV appearances) to decrying the practical impact of majority opinions. That only leaves the impression that the dissenting justice based his own vote on policy rather than law. I would rather judges apply the law as they see it and save the sound bites for the elected branches. But with that said, I'm not sure your post "crushed" Scalia's "canards" in quite the way you hoped.
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While deducing from the calendar who is likely to write an opinion from any given sitting is a matter of considerable speculation, there is reason to believe that Justice Scalia may be writing D.C. v. Heller. Should that prove to be true, it is worth recalling Justice Scalia's own definition of originalism, and his particular "originalist" understanding of the Second Amendment, at the time of the oral argument?
First, the general theory:
"The theory of originalism," explains Justice Scalia, "treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. ... I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."
Next, the particular:
Observed Justice Scalia, at the oral argument, "I don't see how there's any, any contradiction between reading the second clause as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State-managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons—that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.
"[Without the Second Amendment] so long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could disband the State militias."
What does this mean for Heller? At the very least, if originalism matters, it should mean that the gun-possession right—whether thought to be individually held or collectively held—is at the very least militia-related. Because:
1. As understood at the time of ratification, the purpose and meaning of the Second Amendment was as a federalist check upon the feared abuse of Congress' Article I militia power as well as the historical risks associated with a standing army. The Second Amendment—like the original understanding of the Establishment Clause in the First Amendment, and the unenumerated rights retained by the Ninth, or the power reserved in the Tenth—is as a protection of the state, or the people within a state, as against the federal government. The Second Amendment has no application to the laws and ordinances of the District of Columbia, which are promulgated pursuant to the plenary power of Congress as delegated to the District.
2. Were the District a state, the Second Amendment would limit the ability of the federal Congress to interfere with the right described therein. What the scope of that right may be is not before the court, however, in this case. While, as indicated, militias at the time of the ratification of the Second Amendment were not all state-managed or -directed, all existing militias nevertheless did depend upon militia-eligible individuals possessing weapons in their homes that would then be made available for purpose of militia service.
3. Besides not residing in a state, Mr. Heller is beyond the militia-eligible age as it was understood at the time of ratification, and so he lacks standing to raise a claim in which the court is called upon to define the scope of the Second Amendment.
4. The court also should not address the question prematurely because the claim presents a difficult issue of constitutional obsolescence. There is no modern equivalent to the state or other militias that existed at the time of the founding where it was either required, or at least expected, that an individual would bring a personal weapon for use during militia service.
5. The court should if possible write consistently with the court's prior decision in Miller and the overwhelming body of case precedent that has assessed the Second Amendment right in terms of whether a militia-eligible person was asserting a right with respect to a class of weapons that would be useful or reasonably expected to be supplied by an individual for militia service.
6. The opinion should also be written consistently with Justice Scalia's longstanding admonition that where the court is called upon to enforce implied rights, or describe the contours of a right inferred from the more general or ambiguous language of constitutional text, that it be stated at the most specific level of generality. Said Scalia: "We must always start from the proposition that "the asserted liberty interest [must] be rooted in history and tradition," and then assess a claim from "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified."
Will this judicially restrained result actually be the opinion? Consider one last colloquy:
JUSTICE BREYER [to Heller's lawyer, Alan Gura]: But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?
JUSTICE SCALIA [to Heller's lawyer]: You want to say "yes." That's your answer.
This is clever oral argument banter, but, of course, unless history is rewritten, the founders cannot be supposed to have justified individual gun possession in support for draft-readiness for a draft that would not exist until the Civil War. And since the historical justification for gun possession bears no relevance to any modern analogue of the actual founding justification (the support of a "well-regulated militia") that cannot really be Justice Scalia's answer, can it?
Why?
Again, let Justice Scalia speak in his own voice: "Originalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself. Scalia, 57 U. Cin. L. Rev. 849, 864 (.1989).
That's all the American people ask for Heller, a judicial result and an opinion faithful to text and history that is "conceptually quite separate from the preferences of the judge himself."
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I'm glad Dahlia chose to open her "Breakfast Table" discussion with Walter Dellinger, Jack Goldsmith, and Cliff Sloan with a note about Boumediene—and Justice Antonin Scalia's absurd sky-is-falling dissent arguing that detainees will exit the habeas process to fight us again on the battlefield. Ever the public intellectual, Scalia took to the Charlie Rose show to offer this apocalyptic prediction:
Something like 30 of the people that the military have released from Guantanamo have returned to the battlefield and killed Americans and others. Do you expect that number to be reduced when judges are making the decision who know less than the military?" He reiterated that "the result of that answer is more people, more Americans will be killed. I think that's almost for sure.
Scalia's wrong, and his canards must be crushed.
First, it should be noted that Justice Scalia conflates and mischaracterizes the enemy in his dissent. In his third paragraph, he lumps together the actions of diametrically opposed terrorist groups, including the 1983 Hezbollah attack on a Marine barracks in Beirut and several al-Qaida attacks since then, to make a grand argument that "America is at war with radical Islamists."
In fact, different groups coming from very different traditions launched the attacks he lists in staccato fashion. It's wrong to list Hezbollah, a Shiite group supported by Iran, and al-Qaida, an extremist Sunni group aided over the course of its history by Pakistan and Saudi Arabia, in the same breath. We are not fighting a monolithic Islamist threat. Rather, we are engaged in a struggle against a very diverse constellation of groups. These groups' diversity creates tactical and strategic opportunities. (See, for e.g., the successful military diplomacy in Iraq which split Sunni moderates from Sunni extremists affiliated with al-Qaida in Iraq.) This may seem like a minor footnote to Justice Scalia. But it is a strategic error of grand proportions. And it's the same kind of strategic glaucoma the White House shows when it visualizes and describes America's global war on terrorism.
Second, there's the point about detainees returning to the battlefield. As I wrote for Slate in October 2004, this, too, is a myth that obscures the real problems at the heart of our Guantanamo regime. The 30 detainees Scalia refers to effectively bulls---ted their way out of Gitmo. The military bought their stories and released them. Scalia sets up a false dichotomy by saying that judges will be to blame for more cases like these 30, unless we keep the military in charge. But the military is responsible for releasing these 30!!! At least with habeas corpus proceedings, or something like them, we might get a better factual inquiry than the sham tribunals being run by the Pentagon at Gitmo today.
But what's most absurd is this: Justice Scalia totally ignores the way Gitmo itself (and the lack of meaningful legal process there) radicalizes the detainee population. The real problem is not that we are now giving some modicum of due process (how much remains to be seen) to detainees. Rather, the problem is that we've created an extra-legal detention and interrogation regime and that this regime's output is a person more radical and prone to violence against the United States than when he entered Gitmo. If anything, the habeas proceedings will mitigate this by providing one small measure of justice to the detainees at Gitmo.
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The court just granted cert in a case in which plaintiff—a detainee who had been held here in the United States in pretrial detention shortly after the 9/11 attacks—is seeking damages against former Attorney General John Ashcroft and FBI Director Robert Mueller (among others) based on claims that his treatment in detention violated his constitutional rights. The government's petition for review in Ashcroft v. Iqbal is here.
Guess Justice Kennedy wasn't kidding when he suggested in Boumediene a few days ago that the court might have to get more engaged in deciding "war on terror"-related cases.
Mr. Iqbal alleged that he was beaten and denied medical care, deprived of food (losing 40 pounds during his detention), subjected to extreme hot and cold temperatures, left in solitary confinement, often shackled, repeatedly subjected to strip and body-cavity searches, and subjected to racial ethnic and religious discrimination of various kinds. The 2nd Circuit rejected the defendants' motion to dismiss the case, and the Justice Department sought review.
On its face, the grant of cert doesn't look good for Mr. Iqbal (who has since been deported to his native Pakistan). It takes only four to grant cert, and I'm going out on a limb in guessing that Scalia, Thomas, Alito, and Roberts aren't huge fans of the Bivens doctrine (affording individuals a right to sue government officials who violate the Constitution). Then there's the conventional wisdom that the court doesn't grant cert to affirm. The 2nd Circuit allowed the case to go forward to permit limited discovery in the case, including the possible deposition of Mssrs. Ashcroft and Mueller on post-9/11 decisions about detainee treatment. If the court had no problem with that outcome, it could easily have waited until the case reached the merits before weighing in. But a lot of the justices have expressed concern about the burden of such discovery on government officials.
Apart from wondering where Justice Kennedy sits on these issues, it seems like a key question is whether the court will stick with its own precedent and recognize that it has to address the substantive validity of Mr. Iqbal's constitutional claims—were his Fifth Amendment rights violated?—before determining whether those rights were "clearly established" enough for a reasonable officer to have known better. (If the law wasn't clear enough for officials to have known better, the officials can invoke "qualified immunity" and stop the suit in its tracks.) Whatever the court decides about the qualified immunity defense, a holding by the Supreme Court on the merits that the Constitution bars this kind of treatment of detainees would be huge (and welcome) news.
And under it all there'll be the great question of whether Justice Scalia should recuse himself from consideration. He did, after all, just recently announce to the international press that he didn't particularly think torture amounted to punishment prohibited by the Eighth Amendment and that the constitutionality of detainee abuse depended on the circumstances (like, say, the days just after 9/11?). Here's betting there's a motion for recusal—and that Scalia stays in.
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Jack, thanks very much for your response to my post on selling liberal constitutionalism. Your post tends to confirm my sense that there are two basic ways to sell liberal constitutionalism: First, try to out-populist the populists, and second, focus on the results.
Here's a reading of Jack's post with my two categories in mind. If I'm not mistaken, all of the moves fall nicely into one of the two approaches. Jack starts with Approach No. 2, results: L" He then moves to Approach No. 1, trying to out-populist the populists: Liberal constitutionalists are together with the people because they share a belief in "basic rights," while Scalia and his ilk are out of touch because they do not share these beliefs.
Jack's post then returns to Approach No. 2, results: Liberal constitutionalism brings about freedom, justice, and equality, while Scalia's type
Of course, different people will disagree about whether Jack's arguments are persuasive. But my sense is that the arguments draw from the two moves I offered above.
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Yes, says Jack, but how can one compare the honesty of a person and a theory? It's like saying that the theory of evolution is more honest than William Paley. Jack might mean that Scalia doesn't apply his theory of originalism honestly, or he might mean that no one can apply the theory of originalism honestly, or perhaps that any workable theory of originalism is dishonest. It's hard to tell. Correlatively, it's not clear whether Jack thinks that any Supreme Court justice who adopted liberal constitutionalism would be honest, or that there is something intrinsically honest about liberal constitutionalism. Maybe Jack means that a Supreme Court justice who honestly applied liberal constitutionalism would be more honest than a Scalia who dishonestly applies originalism, but that would be true by definition. Jack concludes that the principles of liberal constitutionalism aren't even liberal, which makes one wonder whether it can be so honest after all. Sloganeering is hard work.
Jack does have a point about originalism: Whatever claims have been made about it on theoretical grounds, it doesn't appear to constrain judges from striking down laws that offend their ideological commitments. The problem not mentioned by Jack is that this same complaint was a longstanding and powerful objection to the Warren Court justices' living constitutionalism. No one has been able to offer a persuasive defense of these precedents; they are now regarded as simply liberal policymaking—sometimes wise policymaking, but impossible to defend as constitutional decisionmaking. That's why Democrats can't counter Scalia by advancing a constitutional philosophy; they can only invoke a disparate group of judicial decisions that are politically popular and argue that these decisions are vulnerable to conservative retrenchment. The reason that the "evolving" and "living" constitution slogans have become a joke is that everyone thinks of them as sly references to judicial policymaking that has resulted in some of the most ideologically divisive cases in the court's history. Jack's liberal constitutionalism can't escape this problem; indeed, it is probably worse than originalism on this score, as he wrings all the determinacy out of the founding materials, leaving only some dried-out husks of principles that are too abstract to have any force.
Republicans are coasting on the now decades-old reaction to the Warren Court's excesses: "Judicial activism" is still associated with that court's elitist disregard for the political choices of the people, acting through their legislatures, and this charge is still red meat for many conservatives. Scalia does well not because he is charming but because originalism has not yet suffered the fate of liberal constitutional theory and become synonymous with judicial policymaking. Democrats should work on forging an association in the public mind between judicial activism and the rulings of the conservative majority on the court; for the lack of a positive program—for the lack of an appealing product that can compete with whatever Scalia is selling—they can only rue their judicial forbears and take comfort in the thought that originalism's time will come as well. It isn't the lack of a theory that causes Supreme Court justices to decide cases in conformity with their political preferences; it is life tenure.
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Before I respond to Orin's thoughtful post, let me back up to Dahlia's diagnosis for a second - a diagnosis that I think amounts to saying that conservatives have been broadly more successful than progressives in persuading folks that originalism is the right way to approach constitutional interpretation, and/or in making this aspect of the judicial role a voting issue in their party's favor. I'm hardly a pollster, but I'm not sure I buy this take.
A little Googling turned up, for example, this nationwide Quinnipiac poll from last summer finding that an essentially identical proportion of Republicans and Democrats ranked Supreme Court appointments as a very important factor in their presidential voting decisions. Now on the other hand, the poll also showed originalism gaining (and living constitutionalism declining) in popularity as between the two interpretive approaches since 2003. But the gain/loss was in the 4 percent to 5 percent range—a modest recent trend if that. (It's also interesting that even in 2007, a higher percentage still favored taking account of changing times over pure originalism—and to the extent the living constitutionalists are losing support, it's both to the originalists and almost equally to the undecideds. I would no doubt be reading too hopefully into the poll to note as well that interest in originalism was increasing just as the current administration was straying further and further 2003-07 from the original separation of powers we'd known and loved.)
But let's assume for a minute that trend is real - that people are inclining more toward originalist interpretation than they did back in 2003. Hard to say (beyond Scalia's raw mediagenicity) what's behind this. I tend to agree that part of it must be lack of a catchy, coherent alternative message—the presentation of which is, to be fair, always far more challenging for the party not in power. My guess is it's also made more complicated by the lingering willies many lawyers (including moderates in both parties and arguably a higher percentage of liberals) get from Orin's suggestion that the way to win appointments and influence courts "is to forget about theory and instead focus on results. The slogan: Would you want to live in Justice Scalia's world or ours?"
I know whose world I'd want to live in. The thing is, in addition to freedom from Scalia's social vision, that world also includes an interest in the quaint idea (not to repeat myself) that there's still any distinction between law and politics. Orin may be right that a results-driven message sells better than even a divinely packaged theory; indeed, I'd wonder if what attracts at least some to "originalism" is not the method but the substantive image of some simpler time it conjures. But I bet I'm not alone in balking at the idea of pitching an approach to legal interpretation as all about the results.
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Deb and Dahlia, I think Scalia's argument resonates because it is rooted in populism. My sense is that this leaves liberal constitutionalists with two basic ways to sell the competing product. First, try to out-populist the populists. And second, focus on the results.
To see why, let's start with a paragraph by Professor Brown that Deb describes as one of her favorite sound bites about liberal constitutionalism:
The key to democratic legitimacy is the Constitution's ability to provide a structure within which the polity can continue to exerciseits right to self-government, including giving voice to its own commitments of political morality. Thus, it is imperative that the rights-bearing terms of the Constitution be interpreted in a way that can change and expand with the values of each generation. Not only is a dynamic constitutionalism defensible, therefore, it is absolutely essential in order for the Constitution to maintain its democratic legitimacy.
The problem with this, I think, is that "expanding" the "rights-bearing terms of the Constitution" is a complex way of saying that judges should introduce new limits on what the elected branches can do. The basic claim, as I understand it, is that democracy becomes more legitimate when judges remove undesirable options from "the People." But that's a pretty hard argument to make to the public. Notions of democratic legitimacy are usually based on the consent of the governed, not the consent of the judges.
In contrast, Justice Scalia's view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it's up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it's "we the people."
What does this mean for those who want to sell liberal constitutionalism to the public? I think it leaves open two basic options. The first is to try to beat Justice Scalia at his own game: Argue that limiting choices actually leads to better democracy. The idea here is that some limitations on democratic rule making actually enhance democratic rule making. This is a very popular move among academics, although it can be hard to sell to the public. The problem is that it's tough to reach consensus on why limiting choice is good for people and which choices should be limited. Theories abound from John Hart Ely through Justice Breyer and onward, but it's hard to pick just one theory above the rest. (Should we go with "Representation Reinforcement" today? Or "Active Liberty"?) The argument quickly splinters into many distinct academic claims, making it hard to coalesce around a single message.
The second option is to forget about theory and instead focus on results. The slogan: Would you want to live in Justice Scalia's world or ours? I think this is usually the most effective way to sell liberal constitutionalism. The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones. A lot of people will respond, sensibly enough, that good results beat out the potential for bad ones. This approach wins no prizes for theory, but my sense is that it often proves pretty effective in the court of public opinion.
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Deborah. You are reading me exactly right. ACS has done tremendous work on this front, and I am not slagging legal academics here at all. But between John Roberts' whole "umpire" thing and Scalia's little red bat-phone to the Framers, it seems to me progressives are being badly out-sold. At the risk of yet another wretched baseball metaphor, my problem here is with the pitcher, not the pitch.
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In case you living constitutionalists missed it, Dahlia just threw down the gauntlet at the end of her latest account of the many charms of Justice Scalia on his book tour.
The problem, for those of us admittedly charmed but decidedly not persuaded by Scalia's [originalism] argument, is that Scalia has decided to make his case at a moment when there's no one with his charisma offering an opposing view. Justice Scalia's absolute certainty about his own constitutional worldview has benefited over the years from near radio silence from the court's liberal wing. The fuzzy echoes of Brennan's "living constitutionalism"—the notion that the Constitution evolves with social norms—have become too easy for him to parody. Without a really compelling legal theory from the court's liberals, and with his new willingness to be open and expansive for the cameras, it was virtually guaranteed that once Scalia uncorked his considerable charisma, his constitutional methods would appear to be the most plausible approach, if not the only one.
I admit, Dahlia, my first reaction was, yeah, Justice Scalia is camera-ready for sure, but it's hardly fair to say there's no one offering an opposing view. There's Justice Breyer's book, as you mention. And the highly dynamic American Constitution Society (ACS) exists in significant part just for the purpose of developing charismatic opposition. Indeed, when I dashed over for a quick peek at the ACS Web site to see whether it had something to be invoked in its defense, I quickly came to the collection of papers by con law glitterati (including, inter alia, our own Jack Balkin) from a relatively recent symposium ACS sponsored on just what "living constitutionalism" is all about. One of my favorite sound bites was from Vanderbilt Professor Rebecca Brown, who put it with her usual eloquence:
The key to democratic legitimacy is the Constitution's ability to provide a structure within which the polity can continue to exercise its right to self-government, including giving voice to its own commitments of political morality. Thus, it is imperative that the rights-bearing terms of the Constitution be interpreted in a way that can change and expand with the values of each generation. Not only is a dynamic constitutionalism defensible, therefore, it is absolutely essential in order for the Constitution to maintain its democratic legitimacy.
But then I went back and reread your condemnatory paragraph and realized—your complaint isn't so much about substance, it's about salesmanship. No matter how smart Breyer may be, his "imagine a spherical cow"-type of hypothetical colloquialisms are just too rarified to break through the noise. The liberals have plenty of theories, but none has taken an undisputed place at the top. And the occasional Alan Dershowitz-type notwithstanding, profs are just profs. We need a justice or, say, a presidential candidate who can declare one concrete version of living constitutionalism the winner and wrap it up in a stylish new package that serves a progressive constitutional agenda for the new millennium.
Am I reading you right—is it more the who than the what? And then the biggie—is the only remedy in your view a new face on the bench? Or do you think there's just something about sales that liberals haven't learned?
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Justice Scalia continued his media tour this weekend with an appearance on Q&A, C-SPAN's weekly interview series. It is one of the more insightful and interesting Scalia interviews that I've seen, which isn't all that surprising given that Brian Lamb was his interrogator.
My favorite part: Lamb replayed parts of a 1986 interview with Scalia, back when he still was a judge at the U.S. Court of Appeals for the D.C. Circuit. Scalia praised the quality of argument regularly offered by attorneys in cases involving typical D.C. Circuit fare—energy cases, FCC cases, labor cases. Reacting to that clip, Scalia discussed the difference between the D.C. Circuit's more specialized bar and the Supreme Court's general practice and concluded, "Overall, I think the quality was probably better on the D.C. Circuit."
For what it's worth, I appreciate Justice Scalia's sentiment. I once enjoyed the honor and privilege of clerking for the current chief judge, and I was struck by the quality of briefing and argument: The D.C. Circuit bar serves up a steady diet of administrative law cases, and while not all of the briefs I read were impressive (or even coherent), many of them were startlingly good. It takes true talent to transform indecipherable industry jargon and technical detail into an argument suitable for an audience of generalist judges (and clerks). Just about anyone can make a brief about the First Amendment interesting; it takes a true virtuoso to capture a clerk's attention for 50 pages of argument arising from an FCC decision. Those lawyers raise a high bar for the rest of us.
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Like a fair number of other people, I'm completely captivated by Bryan Garner's videotaped interviews with Supreme Court justices on effective brief-writing. There's no shortage of insights to be gleaned from these discussions -- particularly from the Chief Justice. Of all of the interviews, however, Justice Scalia best summarized what's at stake in brief-writing with an anecdote from his D.C. Circuit days (roughly three and a half minutes into his first interview segment):
Let me say first of all how important lawyers' briefs are. One of the happiest events of my life was when I was sitting on the Court of Appeals for the D.C. Circuit, we had a lot of administrative law cases, which tended to be long cases with many briefs, and I remember one case we had, involving standards for automobiles. And there were a lot of intervenors and amici and what-not, and I read brief after brief, and I was really getting pretty punchy.
And I picked up this one brief, and all of a sudden it really captured my attention: Everything was so felicitously put, it was elegant, it was crisp, you could see where the writer was going.
And I said, who wrote this brief? And I turned over the front and it made me so happy to see that it was one of the best lawyers in Washington. And it made me very happy to know that you can tell the difference, you can really tell the difference.
(From what I can tell, he's referring to Center for Auto Safety v. Peck, 751 F.2d 1336 (D.C. Cir. 1985). I won't try to guess which brief was his favorite.)
Brief-writing is the most-enjoyable part of my enjoyable job. What I wouldn't give to someday write briefs that impress judges as much as the unnamed intervenor's brief impressed then-Judge Scalia.
A Side Note: Justice Scalia and his interrogator, Bryan Garner, are collaborating on a book on effective advocacy: Making Your Case.
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In the New York Times this week, Adam Liptak takes a long overdue and somewhat tepid look at the fuzzy math Justice Scalia used in his concurrence in Kansas v. Marsh when he concluded that "The rate at which innocent people are convicted of felonies is less than three-hundredths of 1 percent - .027 percent, to be exact". Scalia sleeps well knowing our system works so brilliantly.
The problem, of course is that .027 percent is a hoax, and reading the piece, I was stuck once again that a justice generally considered to be so bright could get something this important so fundamentallywrong. But one need only look at the study Scalia cites (by Joshua Marquis, a stalwart of the prosecutorial lobby) to understand the error of his ways.
Marquis came up with the number that Scalia adopted much like a toddler solving a problem in a kindergarten math workbook: He took the total number of exonerations, (north of 200 now) picked a gratuitous multiplier (10 purely for rhetorical purposes), and then divided by 15 million—the total number of convictions during the period of years he considered.
As I've previously pointed out, here's why that's a ludicrous methodology:
Comparing exonerations to felony convictions is like arguing that the Ford Pinto was safe because compared to the total number of automobiles sold in the United States, not many of them blew up. The proper way to determine the failure rate of the Pinto is not to use the total number of cars sold as the denominator, but rather the number of Pintos sold. Likewise, the denominator in Marquis' fraction shouldn't be the 15 million felony convictions over the past 15 years, but rather the number of similar cases in which innocence is actually disputed.
Marquis' most glaring error is his failure to acknowledge the fact that most felony arrests aren't contested. In fact, 95 percent of them are resolved by plea rather than trial. Thus in 19 out of every 20 felony cases, there is no contested issue of guilt and no real claim of error.
Only trials in which someone is convicted while maintaining his innocence should be consideredin computing an error rate. Of Marquis' 15 million felony cases, 14.25 million were pleas. When the denominator in his fraction is changed from 15 million to 750,000, the error rate jumps from the arguably ignorable 3 in 10,000 to more like 50 in 10,000.
And Marquis's numbers become even more disturbing with further analysis. Because of the overwhelming demands involved in reinvestigating a crime with an eye toward exoneration, it is almost exclusively defendants sentenced for rapes and murders whose cases get scrutiny from groups like the Innocence Project. The chances that a drug defendant is going to interest them are virtually nil. Thus the only people who have any meaningful access to the possibility of exoneration are a tiny subset of criminal defendants. Murders constitute only 0.8 percent of all felony cases,and rapes less than 2 percent. In other words, less than 450,000 of Marquis's 15 million felony convictions came in cases where the defendant has had a real shot at exoneration.
It is true that murder cases go to trial far more often than run-of-the-mill drug sales or check forgeries. In fact, some 44 percent of murder cases actually go to trial, with an average conviction rate of about 85 percent. But even taking this into account, of the 150,000 murder cases in Marquis's 15 million, only 66,000 homicide defendants maintained their innocence through a trial, of which just over 56,000 were convicted. Using similar trial and conviction rates for rapes yields somewhere south of 200,000 contested convictions in serious cases.
So what are the real numbers? Liptak cites a small Virgina sample of closed rape files from 1973 through 1988, which suggested a false conviction rate of between 6 and 9 percent. Another study, (by my colleague at Seton Hall, Michael Risinger) which looked at death row DNA exonerations among defendants sentenced to death between 1982 and 1989 for murders involving rape suggested that at least 3.3 percent were innocent.
A few percent may not sound like a lot, but imagine a failure rate of just 1 percent elsewhere in our society: If 1 percent of heart stents failed upon implantation, an additional 100,000 people a year would die, If commercial jets had a 1 percent chance of crashing after take-off almost 400 planes a day would fallout of the sky. Quite simply 1 percent is not an error rate we are be willing elsewhere and it's not ok to accept it in our criminal justice system. Of course as I've just finished explaining, the actual number is almost certainly much higher than that anyway.
In the end, whether the actual number of innocent people wrongly convicted is 3 percent or 9 percent, what is certain is that many thousands of innocent people are languishing in our nation's prisons tonight. And that is not a number Justice Scalia or anyone else should be willing to accept.