Sunday, January 29, 2006

What is up with the stuffed lion?

Why is there a stuffed lion peering out from behind Charles Black's legs in his painting just outside the library's L3 main entrance? Is it in fact a lion? Is it stuffed? Does Black know it's there? Is he in any danger?

(Also, what's the rainbow book he's holding? What's the title?)

Book of Job, Pain, and The Word

Robert Cover's article, "Violence and the Word," noted below twice, continues to knead my mind. He suggests that the pain inflicted by the justice system on its captives is fundamentally isolating: that our law-speaking is not interpretation because that would require, literally, a speaking-between, a construction of interpersonal reality with language. The justice system's victims are mute and deaf in a torrent of violence and pain. Pain destroys the victim's world, and his ability to share our reality. Legal interpretation is defined by its ability to truly destroy its victims (rather than merely metaphorically destroy us, like literature interpretation).

This seems opposed to the Book of Job. This book is, at heart, a lament. A lament is a sharing through words of sorrow and pain. God, the law-sayer, has tested Job for his own purposes. But Job does not retreat into his pain: he interprets it, and shares it with Eliphaz and others. Job's importance is that he keeps talking. His words are false, but he does not give up, even in his devastation. He makes his claim, and in stating the claim he makes it possible for God to interpret his words back to him, to tell him about his assumptions. Job is afraid of two possible consequences of his legal complaint: that God will destroy him, or that God will ignore him. God succeeds in avoiding these two horns: he reinterprets Job's pain for him,and restores Job's integrity on new terms.

How does the Book of Job apply to the victims of the justice system, who are carried away in chains by an avalanche of threatened violence, who know that between them and freedom the whole murderous explosiveness of the state's power is arrayed? How can their voices not be cut off? How can they not be isolated from others by the imposition of penal pain? How can they join in the common meaning of their sentence, so that it is truly an interpretation of the law to the most relevant person? How can the victim, in his pain, be neither destroyed nor ignored, but restored to integrity?

Cover's conclusion is chilling:
Between the idea and the reality of common meaning falls the shadow of the violence of law, itself.
Cover died at the age of 42 after teaching at YLS for ten years.

Victim's rights and Aristotle's catharsis

I would like to suggest that the victim's rights movement is playing with fire. Dubber notes in "The Victim in American Penal Law", 3 Buff Crim L Rev 3, that the victim's rights theory of punishment depends on the identification of the community with the particular victim. The victim becomes an icon; empathy then generates a "phenomenology of reflex punishment." Suffering is re-experienced by everyone through narrative, and the victim is entitled through her pain and confusion to demand punishment through the power of the community. The perpetrator is thus excluded from the community, and the community "purges itself of deviant elements and thereby heals itself as it salves the victim's pain."

There are a couple of easily spotted problems. First, this would not obviously give any recourse to victims who are not sympathetic to the community. In a homogeneous society, outsiders that make the community uncomfortable are placed outside the law, and those that the community likes are made into, and protected as, mascots. Not a good choice. What if the perpetrator is in fact closer to the heart of the community than the victim?

Another problem is the psychology of the model. It is closely modeled on Aristotle's theory of catharsis, in which recognizable elements of our lives are exploded in incomprehensible ways that create a sense of astonishment, and a sense of the depth of life. The most powerful example is the ceremony of the death penalty, with its humdrum emphasis on ordinary elements (food, clothing, walking, body position--all elevated by the knowledge of context), and culminating in an act of great destruction. In the victim's rights model, the community asks the question, "how could this have happened to someone just like me?" and answers it with a ritual sentence that channels the victim's vengeance into the communitizing apparatus of the state.

What's so wrong with this? Well, there's a distinction in theology often drawn between two different types of authority, exousia and onomati, and I think this should be useful in political theory as well. Onomati is power derived from a name or an office, from robes or a staff or title. Exousia is power that comes from the very essense of the actor, power that is wielded by definition, or because of internal coherence.

In the construction of a tragedy or other vehicle for catharsis, the author wields exousia. He forms the characters, acting as a God, and the characters' ends are imposed on them by the logic of the situation, and their internal essences.

In executing a sentence, the state acts with onomati. Each actor--prosecutor, bailiff, judge--has a title and a role that is created or conferred, and the state cannot look into the heart of the perpetrator, or understand the forces that have brought everyone to this pass. It is not the author of those forces; the community is not the creator of human nature or itself. Communities are bound to be humble in their application of violence. Punishment is not a show to generate a feeling of ekstasis in an audience. The victim's rights model of penology is more like schadenfreude.

Friday, January 27, 2006

tonight's poem

I am sorry.
I am sorry.
I am sorry.

men and women, and who controls the remote

An article by one of my favorite economics-fashionista-libertarian writers is best summarized as:
"Expressed loosely...being smart makes women patient and makes men take more risks."
If this doesn't at least intuitively grab you, you've never been on a date.

Thursday, January 26, 2006

Repentance and recidivism

Is it hard to justify a recidivist law from a retributive point of
view? I don't think so.

Retributivism can center especially on who the person is. [By the way:
is retributivism largely person-centered on person's-conduct-centered?
I don't know.) Deterrence is other-centered; rehabilitation is also
person-centered, but it considers primarily his future, not his past.

But retributivism, while largely past-looking, can to some degree
capture a bit of present flux: repentance.

Repentance can change who the criminal is. In an elegant paper called
"Revising the past: On the metaphysics of repentance," (available from
ssrn), Dan-Cohen argues that repentance works a real change in the
world. It moves the boundaries of a person's responsibility, leaving
the wrongful deed somehow outside, thus demanding forgiveness.

Two things happen here. First, we can take recidivism to be a serious
sign of lack of repentance. Perhaps we presume a certain middle-ground
of repentance; then when those in prison who show themselves
super-repentant get out a bit early. But symmetrically, those who
commit another crime can be viewed as bearing a heightened burden for
their wrongs, because they have re-voluntarily affirmed them.

The second consequence is odd. If someone repents, and a metaphysical change is
worked, then in some sense the old person no longer exists. How can we
continue to punish the person? This is a problem of the persistence of
identity over time despite change. I don't know anything about that.

Hanging horsethiefs

It was raised in crimlaw that there is a tension between how severely
we can punish an individual and how effective deterrence can be.

Our discomfort with the motto "You aren't being hanged for stealing a
horse; you're being hanged so others don't steal horses" stems from
unease at "using" someone to make a point. (Conduct-based) retributive
justice says you should be punished for, and proportionate to, your
wrong, not in order to convey benefits to others (who will be

These two can be brought a bit closer together, though. When you are
punished under a retributive theory, you get punished for the knowable
consequences of your action. One of the consequences of stealing
horses is that you're corrupting others. Consider moral entrapment:
luring someone into doing something wrong. (Say, seducing a married
woman.) It is only a small generalization to extend this wrongful act
["seducing" someone into commiting crimes] into attracting others to
crime, even though you don't know the particular person being
attracted. Leaving a stack of money on your unlocked car's seat can be
criminalized, even though you don't know who'll take the bait.

Thus, retribution can in some sense incorporate the issues of
deterrence, and can even think prospectively. A judge might say:
"Besides taking this horse, future people will take horses because of,
in part, your actions. Thus, your punishment is increased."

Whether this is enough to account for hanging a horse-thief, I don't

Saucy intruder...

...would be a good name for a blog.

It's from Pierson v Post, asking who would bother hunting foxes in the first place if "a saucy intruder, who had not shared in the honours or labours of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit?"

Why did all those civilizations collapse in 1250 BC?

Aliens--or maybe the Sea People.

Wednesday, January 25, 2006

Milgram's shock experiment

A quote from Cover's "Violence and the Word" about the psycho-sociology of how we shift our view of our own actions from "autonomous" to "agents" in different situations. This is in re the meta-experiment where people told themselves it was okay to shock a student during a professor's learning experiment.
The most developed part of the theory relies heavily on the
distinction he draws between acting in an "autonomous" state and
acting in an "agentic" state. Milgram posits the evolution of a human
disposition to act "agentically" within hierarchies, since the members
of organized hierarchies were traditionally more likely to survive
than were members of less organized social groups. Concurrently, the
"conscience" or "superego" evolved in response to the need for
autonomous behavior or judgment given the evolution of social
structures. It is this autonomous behavior which inhibits the
infliction of pain on others. But the regulators for individual
autonomous behavior had to be capable of being suppressed or
subordinated to the characteristics of agentic behavior when
individuals acted within an hierarchical structure.

Can we face up to life's ugliness?

Dubber--I just realized his name is Markus D. Dubber, which explains all his references to German criminal codes and Hegel--cites in his casebook his own article "The Pain of Punishment," 44 Buff L Rev 545, discussing how we shift responsibility for the death penalty and its incredible violence by dividing the jobs up and selectively choosing our focus.

Juries say they are "bound" to impose the penalty if certain criteria are met, disclaiming responsibility; the jury must believe on the other hand that the criminal had complete discretion and free will when he commited his crime. Judges are viewed as interpreters of the law, rather than focusing on what they do, and what consequences flow from their words. (See especially the incredible article by Robert Cover, "Violence and the word," 95 Yale L J 1601, and his book, which I should read, on how judges legitimized slavery despite its obvious evil: "Justice accused: anti-slavery and the judicial process".) Tasks are broken up into parts, none of which is sufficient, but each of which is necessary, so that personal responsibility can be diffused (remember Kitty Genovese).

This is all very true, and very painful. But it lacks the argumentative final step to make it damning. Why does dividing responsibility to avoid direct moral contact make some activity necessarily bad? Calabresi has often noted that we just don't want to know about the weighting that companies do with our safety. Not to say they shouldn't do it; just that the knowledge itself is corrupting of our value of human life. Why can't an execution be viewed as similarly corrupting? A prosecutor must individually review child pornography evidence to convict the perpetrator--but why not divide when the task is divisible? Why are we required to face the magnitude of an execution full on, when wielding such horrible power can harm us? Bravery is a virtue, but can prudence in institutional design lower the burden on those who are not heroes?

Perhaps a more direct analogy is that of seeing your cow on its way to becoming a steak. It's not pleasant; but there is a colorable argument that the process is not immoral either. It is an easy position to say that everyone should have to make a trip to a slaughterhouse before they can eat steak. What's the backing for this, though, besides an intuition about fully understanding our life? Would most of us choose full understanding, like Faust, no matter what the consequences?

I can think of one powerful reason why allowing the shifting of moral responsibility is wrong: the reason is that the argument above is too dangerous. We can't be trusted with this shifting; it can let us perpetuate institutions that would cease if we were forced to confront them.

But it also might destroy institutions that are too difficult to bear, but that are valuable, right? Slavery is a clear case of moral distance enabling moral harm; slaughterhouses are perhaps a case of moral distance enabling good meals; and the death penalty is somewhere in the middle. Again, we are forced back to discuss substance when a salvo turns out to be contentless.

Moral luck

David Friedman has an excellent couple of posts on the issue of moral luck up. Stith mentioned this in crimlaw when she noted that people's intuitions are mixed up about whether the lucky drunk driver should be punished the same as the unlucky (and murderous) one.

I wonder if it's useful to think of this in terms of the division that Anglo-American law seems to have settled on for how criminal law is justified in its distribution v severity. Only blameworthy folks get locked up; that's a retributive idea, which seems to rule the intellectual roost on the distribution of who gets punished. Most other crim law processes, however, seem to be governed by ideas closer to consequentialism or proportionality.

So both drunk drivers are subject to potentially equal retributive punishment: they fall in the distribution of wrongdoers, which is retrospective. But it would seem that it is wrong to punish both equally: it would fall afoul of proportionality, which governs how severe punishment should be; or maybe it is better on consequentialist grounds to not overdeter mildly tipsy people by punishing them as severely as manslaughterers, or for some other consequentialist (and therefor prospective) reason.

I don't know. This gets back to what is equal which has become my new Big Question. Should we be comparing behavior, or behavior+consequences? If retribution is in part based on the moral wrong of harming someone else, can't it include a behavior's consequences, and thus distinguish between the two drivers?

The right to be punished

A quote is hidden (Read...) below, from Dubber's description of Hegel's theory in 16 Law & Hist Rev 113, "The right to be punished". I am pretty sure that in one of Plato's dialogues, the Phaedo I believe, Plato says basically the same thing--that the criminal wants to be punished, and has acted so his punishment is the logical entailment of his act. This seems like the germ of Hegel's insight, of course worked out with more pomp and germanicity by Mr. Hegel. (Click on "Read..." to see more)
Although both Fichte and Kant had previously postulated a right to be punished, it was Hegel who built his theory of
punishment on that right. His account, however, added little to the principle of self--government captured in the Kantian
categorical imperative. n15 It appears in the first section of the Philosophy of Right, Abstract Right, where Hegel worked
out the theory of law that Kant had outlined in the Rechtslehre. n16

For Kant, to be free meant to be autonomous, that is, both to be governed by no one else's rules (no mere means to
another's end) and to be governed by one's own rules (not willkurlich). n17 It was the great hope (and the assumption)
of Kant, and the Enlightenment more generally, that the distinction between these two sets of rules would become
meaningless. The relevant community would expand beyond parochial boundaries to include all rational beings who were
governed by rational rules that were both their own and those of every other member of the community.

The community of criminal punishment in particular was to be an aspirational community of rational persons.
The great humanitarian core of Kant's and Hegel's philosophy of punishment lay in the demand to treat offenders as
identical to their judges because they shared the same baseline formal rationality. That rationality Kant had defined as the
universalizability of one's acts. n18 Similarly, to the Hegel of Abstract Right, rationality meant "self--conscious [*118]
universality." n19 Thus, to treat an offender (or for that matter any other person) as rational meant to assume that his acts
followed norms that could be applied to every other rational being. n20
According to Hegel, the offender's right to punishment arose from the application of the norm governing his criminal
act to every rational being, including himself. n21 Punishing him thus treated the offender as rational in two senses:
first, by assuming the universalizability of his act, and, second, by applying the universalized norm to him as a rational
person. But, as Hegel saw it, the norm governing the offender's criminal act was merely the violation of a universal norm
manifesting the "neminem laede" of Kantian legal theory, that is, a norm safeguarding the autonomy of the immediate
victim of the crime and all other rational persons. To apply this violation of a universal norm to the offender as though it
were itself a universal norm meant to beat the norm at its own game, to call its bluff, so to speak.

When all was said and done, the authority of the law had been reaffirmed (by confidently ignoring the pernicious
substance of the norm governing the criminal act and treating it abstractly as but one instance of a universalizable norm),
and so had the offender's rationality. Punishment, the violation of the universal norm also protecting the autonomy of the
offender as a rational person, had affirmed the offender's autonomy as a rational person. The paradox of punishment lay
in the affirmation of the offender's autonomy by his autonomous deprivation of that autonomy. In Hegelian terms, the
negation of right that is punishment had exposed the negation of right that is crime as fleeting and had thereby reaffirmed
right. n22 Two wrongs had made a right, which, in Hegel's words, was also the offender's right because it governed all
rational beings and therefore also the offender. n23

Thus, according to Hegel, the offender's right to punishment emerges as another manifestation of the principle of
autonomy. In the condensed phrase of the English Hegelian J. D. Mabbott, "retribution is the agent's own act." n24 As the
objective applicability of penal norms to the offender reflected his autonomy as a rational person, so did their subjective
application to a particular offender. If the offender did not confess and thereby recognize the application of a given penal
norm to himself as an actual reflection of his rationality, the [*119] jury as a reflection of the "criminal's soul" could
ensure at least an indirect self--application of the norm. n25 Finally, even the penal norm itself was to be grounded in
the offender's autonomy by assigning its definition to representatives of the state community, to which the offender also
belonged. n26

too-cool Imax movie: mars!

Coming soon: 3-d imax of mars.

Were the ancients stupid?

In Whitman's class, someone was arguing that there's no such thing as primitivism, since clearly the ancients were maximizing something. I don't think this is right: the modernism-primitivism debate must be about something bigger than maximization. It's even bigger than whether they were maximizing wealth or not. It's even bigger than rational choice theory. I mean, unless the ancients were really dumb then they didn't have intransitive preferences and couldn't be turned into money pumps.

In fact, what this is about is so big that I have no idea what it's about.

Another dimension

It is truly wonderful to stumble upon a violent debate one did not even know existed:
The rules of the game: oikonomy or chrematistics?
In the 1960s and 1970s a debate took place in economic anthropology between two
schools, one of which called itself “formalist” and the other “substantivist.” The first school
argued that formal methods of economic analysis, involving price-maximisation, were
applicable to “primitive” (small-scale, pre-literate) societies, so long as non-material benefits
were appropriately quantified; although not using the term, the attitude might broadly be
described as what has come to be known as rational choice theory.8 The other school asserted
that such societies were inherently different from those capitalist societies whose behavior
could be described by formal economic analysis; such societies had to be analyzed in their own
terms, by reference to the prevailing mechanisms of distribution: the exchange of gifts,
centralized chief ly redistribution, and only in certain cases market transactions.9 (Click "Read..." to see more.)With
hindsight, both had their good points and their faults: while it is wrong to treat pre-capitalist
economies as any more “irrational” than capitalist ones, formal economics offers no insight
into why certain goods are thought valuable (in capitalist as much as in pre-capitalist ones, it
might be added); and while economic transactions have varying degrees of “embeddedness”
in social institutions, the profit motive is rarely absent from social life. One school runs the
risk of ignoring motivation, the other of ignoring competition. In anthropology, the debate
is largely over, but it continues in ancient history and more especially in classical archaeology.

The continuing Auseinandersetzung within Aegean studies should not be surprising, for
that is where the debate began. The predecessors of substantivism were the “primitivists,”
who asserted the radically different nature of the ancient Graeco-Roman economy, by
comparison with the “modernizers” who interpreted it in terms of conventional economic
motivations.10 The immediate ancestry of the 1960s debate goes back to Max Weber and
Johannes Hasebroek (primitivists) and Michael Rostovtzeff (modernizer) in the present
century, and beyond that into the 19th century with the oikos debate begun by Karl Rodbertus,
and continued by Karl Bücher and Eduard Meyer (primitivists and modernizer respectively).
At issue was the self-sufficiency (autarky) of the primary unit of consumption, the household
(oikos), as a model not only for the Roman estate but also for the national economy: for it was
on this model of prudent household management (oikonomia) that the discipline of
economics (then “political economy”) had its origins and to which it owed its name.
Nineteenth-century writers were captivated by evolutionary ideas:11 up to the medieval period,
Bücher believed, no community had progressed beyond the stage of geschlossene Hauswirtschaft.
That rulers had attempted to accumulate supplies of precious metal was not doubted, but this
belonged to a quite different sphere of activity, chrematistics — the negotiation of valuables,
which was seen as quite unrelated to subsistence (and hence the substantivist economists’
emphasis on separate “spheres of exchange” for food supplies and primitive valuables like
stone axes or shell bracelets). What we now regard as “the economy” was not thought of as
an integrated system of exchanges. The idea of a “commercial” production of commodities
such as textiles, wine or olive oil (in exchange, for instance, for metals or precious stones) was
not considered a possibility in the ancient world. With hindsight, we can now see that the
principle was an important one but the dating was wrong. Long-distance exchange does
indeed begin with rare and precious items, exchanged one for another; and in the course of
time there is indeed an increase in convertibility, through the differentiation of production
and the emergence of standard media of exchange (usually metals): but any urban economy
has a manufacturing component which requires some mobilization of commodities in
response to demand, and the primitivist description even of Bronze Age economies is quite
anachronistic. In principle, if not in scale, the modernizers were right.

Tuesday, January 24, 2006

okay i am incredibly lame

but you can find out "Which canon of interpretation are you?" over at the Law & Alcoholism site.

neutrality and equality

"Neutrality and equality are near cousins; they have most of the same attractions and most of the same inadequacies." 39 DePaul L Rev 993, Laycock, Formal, Substantive, and Disaggregated Neutrality Towards Religion.

If this is true, then the discussion of equality below--arguing that the concept is powerless to attack the underlying question of when something is equal--applies equally to neutrality, and the concept is largely empty. That means folks who argue for neutrality in religion will just find that their disagreement is kicked down to the more fundamental level of what is to be compared, and so you might as well not start with neutrality at all, unless it's a sort of hors d'oeuvre or something.

sola scriptura vs church fathers

I am very ignorant: do the Puritans believe in sola scriptura, and try to avoid institutional tradition in interpreting the Bible? I would assume they are reputed to do so; but I don't understand the types of Protestantism, as I find out every day.

What then, to make of this passage:
The Puritans tended to admire the early church fathers and quoted them liberally in their works. In addition to arming the Puritans to fight against later developments of the Roman Catholic tradition, these studies also led to the rediscovery of some ancient scruples. Chrysostom, a favorite of the Puritans, spoke eloquently against drama and other worldly endeavors, and the Puritans adopted his view when decrying what they saw as the decadent culture of England, famous at that time for its plays and bawdy London.
Now, admittedly, this is from Wikipedia's article on the Puritans. But I suspect it's not far off--I mean, one could verify if Puritan writers quote a lot of John Chrysostom, right? (Catholics certainly love him, although no doubt for different reasons.)

Does this seem kind of puzzling? Quoting a church father against drama, without any Biblical support? Is it the mere lateness of the tradition that condemns medieval Catholic tradition? I ask this in the nicest ecumenical spirit!

(I assume there's no injunction against drama in the Bible; certainly the Jews had their own form of storytelling and dramatic performances, which would form a sort of original-meaning argument that it was allowed a fortiori for early Christians as well.)

wealth-maximizing norms

Okay: stunning paper by Ellickson. This guy is the dude. Dukeminier mentions his paper, "Wealth-Maximizing Norms: Evidence from the Whaling Industry," 5 J. Law, Econ. & Org. 83 (1989). (Available from Hein.)

If any of you have not been to the Mystic Seaport, I highly suggest it. When the whaling industry died out, the seaport just atrophied, unchanged, and was thus protected from modernity until its age became an asset. It was then basically pickled, and is now an extremely charming huge-scale museum of what Nantucket probably looked like during Moby-Dick days.

Ellickson argues against the old-fashioned view that property is created by the state, a view he notes is associated with Hobbes and (!) Calabresi. (Heee!) Instead, he thinks that social norms, without heirarchy, can be generated from scratch, and generally maximize wealth, as long as the participants are sufficiently close-knit.

Whalers were indeed a tight bunch, largely concentrated in geographically-isolated Nantucket, and having strong Quaker ties and mores. Whaling customs were invariably upheld by courts, so that these customs didn't just mimic law, they created law. There wasn't a lot of litigation, so the norms were pretty successful in making a first cut of property rights that satisfied everyone.

These norms minimized transaction costs and deadweight losses. That is, the first approximation to property rules tried to equalize the whaler's income with his contribution to whales captured. (Thus minimizing deadweight strategic behavior.) The second cut to the property norms simplified these rules, creating bright lines to avoid squabbles. This would reject ambiguous Livingston-like standards like "the whale's yours if you were in hot pursuit and had a reasonable prospect of catching it."

The final norms, historically summarized, are given on p. 30 of Dukeminier. The article finishes with an interesting discussion of how overwhaling affects his hypothesis.

This became a chapter in Ellickson's book, Order without Law.

Praying for death

Patrick Henry, agitating for a bill to pay for Christian educators to bring the US out of a post-Independence slump, was opposed by Madison and Jefferson. Madison said that their primary task would be "to overcome the tremendous influence which Henry's oratory exerted in the Virginia Assembly." His oratory seemed so strong that Jefferson wrote, "What we have to do, I think, is devotedly to pray for his death."

Seems a bit of an extreme punishment for the "Give me a funding bill or give me death" rhetor.

Saturday, January 21, 2006

Large dogs v. beagles

Says Livingston in Pierson v. Post: "If a beast be followed with large dogs and hounds, he shall belong to the hunter, not the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles only, then he passed to the captor, not to the first pursuer. If slain with a dart, a sling, or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him."

He appears to be only partially joking: he notes the virtues of this method of making the rules so arbitrary they are hard to question. I personally think this is hilarious.

Friday, January 20, 2006

Is Roe v. Wade a bill of attainder?

Does the judicial decision Roe v. Wade (or, rather, legislation putting it into action) attaint fetuses?

This argument certainly won't convince anyone who's not already against Roe. It relies on fetuses having personhood and the rights that flow from that. And if you're a person, then you probably wouldn't need to rely on the attainder clause: you would just have, probably, a substantive due process right not to be murdered or somesuch.

Even if fetuses are persons and don't have such rights, it might seem that Roe-enacting legislation isn't an attaint. I would tend to agree. But Akhil Amar makes a series of arguments in his paper, Romer's Rightness, 95 Mich. L. Rev. 203, that seem to make the opposite case.

He starts with the classic case: the legislature puts out a bill saying, "Kill Mr. X." This is also an attaint if they say, "Mr. X can be killed by anyone without penalty." Withdrawing protection is just as bad as doing the killing yourself. It's even an attaint if the bill says, "Mr. X and his relatives can be killed by anyone without penalty." This is because the bill lists a group where inclusion is defined by status, not conduct. You don't voluntarily enter the group, and you can't move in or out by choice. It's fixed.

So wouldn't Roe be such a bill of attainder? It withdraws protection from a status-defined group.

The people Prof. Amar is defending in Romer's Rightness, are, of course, gays. Gays are probably a less clearly defined group than fetuses; also, the division between conduct and status isn't as sharp for gays as for fetuses.

My overall opinion is that whether the argument works in either case depends on how broad you can go before it's not a clearly-defined "named" group, and how sharply we divide between status and conduct. I suspect Amar would think you can go pretty far. I would want to know if most scholars think that.

Monday, January 16, 2006

Binding congress and legislative veto: a connection?

Consider fast-track legislation, which binds congress to an up-or-down vote on certain pre-defined future bills or proposed treaties. Of course you can always kill the fast-track rule itself, but with certain political costs, and then you can't use the process when your guy is in power.

How is this different from a legislative veto?
Under a fast track scheme, Congress can let the president (or an administrative agency) make the initial policy decision, the implementation of which is conditioned on passage of an administration-drafted confirmatory statute via an expedited up-or-down vote. Under fast track the legislature must still affirmatively endorse the executive's chosen policy, but the special procedure guarantees that the measure comes up for a vote quickly, thus overcoming the procedural roadblocks that beset the ordinary legislative process. An effective fast track regime thus reduces the inertia that stands in the path of passing a law. In terms of congressional effort, approving the confirmation statute when it automatically comes up for a vote is not that much more burdensome than refraining from adopting a legislative veto resolution - or, at any rate, approving the fast track confirmation statute is certainly easier than passing normal legislation - and so fast track and the legislative veto approach a rough equivalence.
So the two can have similar effects, but fast-track satisfies bicameralism and presentment, while it might run more afoul of future-binding problems. Hmmmmmm. The above paragraph from Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J. L. & Politics 345.

Kate Stith and the budget

Interesting paper ( 76 Calif. L. Rev. 595 ) by Stith about fiscal stuff, including a discussion about whether you can bind future congresses spending-wise. Under Graham-Rudman-Hollings you can't exceed certain sequestration limits...but you can always repeal Graham-Rudman-Hollings. Interestingly, I see from a footnote that Kahn has also written about this: Kahn, Gramm-Rudman and the Capacity of Congress to Control the Future, 13 HASTINGS CONST. L.Q. 185, 219-31 (1986).

Can congress bind future congresses?

An article from the "wrong" Amar is at FindLaw.

Summary. Probably no court would accept a challenge to strike down a future-supermajority requirement because of the political question doctrine--although courts have decided congressional rules before (Chadha and Powell). He asks the critical question:
Recall that the Constitution stipulates that "each House may determine the Rules of Its Proceedings." "Each House" probably means "a majority of each House." But which majority? The majority now, or the majority when the rule was enacted? After all, a majority of the Senate passed the current version of Rule XXII, which requires 67 votes for any rule changes.
He concludes that despite the Senate's somewhat countermajoritarian origins, entrenchment is probably a bad thing. On this he quotes Blackstone
"'Acts of Parliament derogatory from the power of subsequent parliaments bind not. . . Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present parliament.'"
He notes that to do otherwise would be undemocratic--although he neglects what G.K. Chesterton has called "the democracy of the dead".

Finally, he agrees that this same argument applies to the constitution. The Senate filibuster debate is a miniature version of this. You need to follow Art V to change the constitution--but you really only need a majority to abandon it. You could in theory abandon it, and then reinstate it with a small change, avoiding Art V. This would be what in contract-land they call "mutual rescission" but we all know this makes a mockery of all that America and baseball stand for. Anyway, you'd need to admit that you have something new--a sort of "constitution-prime".

Far be it from me--

--to dabble in fashion, but:
The web's best fashion blog, Manolo, is hosting the Carnival of Couture. Check it out.

The only other site that could remotely be called fashion that I ever check at all is Virginia Postrel's The Scene. Of course she mixes up substance with style--in fact her most recent book is called The Substance of Style. She was also the executive editor of the crazy libertarian magazine, Reason, which has an update about the NSA spy fiasco.

Importantly, do not forget Fafblog. They have a great interview with Alito that sheds a lot of light on his views.

Polygamy and gay marriage

Starting to do a little reading on this. There's now a few pretty good cases and papers in the hidden-section. (Click "Read..." to see more.)
  • Reynolds v. US, 98 U.S. 145 (1878) [early SC case outlawing polygamy.]
  • Meyer v. Nebraska, 262 U.S. 390 (1923) [statute outlawing teaching of foreign language overturned; lots of discussion of marriage]

  • Emens, "Monogamy's Law", 29 N.Y.U. Rev. L. & Soc. Change 277

  • Sunstein, "The Right to Marry", 26 Cardozo L. Rev. 2081 (2005)

Emens, "Monogamy's Law", 29 N.Y.U. Rev. L. & Soc. Change 277
See, e.g., Davis v. Beason, 133 U.S. 333 (1890) (rejecting a First Amendment habeas challenge to convictions for polygamists' attempt to register to vote and oath that they were not polygamists); Murphy v. Ramsey, 114 U.S. 15 (1885) (rejecting procedural challenges to the application of the Edmonds Act which denied polygamists the right to vote, even if they were only engaged in plural cohabitation); Reynolds v. United States, 98 U.S. 145 (1878) (affirming the criminal conviction of a Mormon for practicing polygamy and rejecting the argument that Congress's prohibition of polygamy violated the defendant's rights under the Free Exercise Clause); see also Potter v. Murray City, 760 F.2d 1065, 1069-70 (10th Cir. 1985) (rejecting a free exercise and privacy rights challenge to a police officer's termination for polygamy, on the grounds that Reynolds is still good law and that "protecting the monogamous marriage relationship" is a compelling state interest); cf. Romer v. Evans, 517 U.S. 620, 634 (1996) ("To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable." (citations omitted)); id. at 649-50 (Scalia, J., dissenting) (noting that "to the extent, if any, that [Davis] permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, it has, of course, been overruled by later cases. But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law." (citation omitted)). But see, e.g., Wisconsin v. Yoder, 406 U.S. 205, 247 (1972) (Douglas, J., dissenting) (predicting that under the reasoning of the majority opinion "in time Reynolds will be overturned"); Keith E. Sealing, Polygamists out of the Closet: Statutory and State Constitutional Prohibitions Against Polygamy Are Unconstitutional Under the Free Exercise Clause, 17 Ga. St. U. L. Rev. 691, 737-57 (2001) (arguing that laws forbidding polygamous marriage are unconstitutional under the Free Exercise Clause because marriage is a fundamental right and therefore religious polygamy is a hybrid situation requiring strict scrutiny under Department of Human Resources v. Smith, 494 U.S. 872, 881 (1990), or because current antipolygamy statutes and state constitutional provisions were enacted out of antipathy to a particular religion and substantially burden a central tenet of that religion while furthering no compelling governmental interest, under Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547 (1993)).

Sunstein, 26 Cardozo L. Rev. 2081 (2005)
"The task is to produce a conception of the scope of the right that lacks the arbitrariness of the minimal understanding and also the extreme breadth of the maximal one. I suggest that for courts, the best way to carry out that task is by reference not to the Due Process Clause, which is founded on tradition, but the Equal Protection Clause, which calls traditions into sharp doubt. The question is whether a state has an adequate justification, under the appropriate standard of review, to deny certain people access to the expressive and material benefits of marriage. The maximal understanding is certainly not compelled by equal protection principles, but the minimal understanding runs into serious difficulties, above all in the context of prohibitions on same-sex marriages. I contend that in principle, bans on same-sex marriage do run into real problems under the Equal Protection Clause, but that federal courts should be extremely reluctant to invalidate such bans for prudential reasons involving their limited role in the constitutional order. The issue of same-sex marriage is best handled through democratic arenas and at the state level (plausibly including decisions of state courts)."
Sunstein's "solution":
2. Relevant Differences: Bans v. Nonrecognition

Is there a difference, for constitutional purposes, among criminalizing a marriage, making it void, and making it voidable? In principle there should be. One reason that marriages are voidable is that there is a problem with consent; and if one of the parties complains that consent was absent, there is no constitutional problem with taking the complaint seriously. And if a state refuses to recognize certain marriages, it might be doing so because of its desire not to confer the economic benefits of marriages in circumstances in which such benefits are not justified. A state might believe, for example, that two-person marriages provide the only plausible justification for many or most of those benefits. If a state refuses to confer the economic benefits of marriage for this reason, but fails to criminalize purely private marriages, the issue is surely different from what it would be if a state imposed a criminal ban. I am not suggesting that criminal bans on polygamy are unconstitutional; 78 I am suggesting only that a refusal to license marriages is less intrusive than a criminal ban.

In many cases, a state might believe, not that those who participate in certain marriages should be subject to criminal sanctions, but that it does not want to confer expressive legitimacy on those marriages. It might believe, for example, that same-sex marriages do not deserve the same social approval as opposite-sex marriages; hence many people think that same-sex couples should be permitted to enter into civil unions but not into marriage. It would be possible to think that states have an adequate justification for rendering marriages void, but not for banning them, if performed by private organizations, religious or otherwise. A prohibition on private religious ceremonies allowing, for example, same-sex marriages, would raise serious questions under the Free Exercise Clause; and a ban on private ceremonies, even without a religious component, would raise questions of substantive due process.

To say this is not to say that existing criminal prohibitions are generally or even mostly invalid. In general, the ban on incestuous marriages could be defended by pointing to the risk of coercion and the danger to any children who would result. 79 But it is easy to imagine some cases in which any such defense would be weak - as, for example, where the would-be spouses are both adults and do not plan to have children. Perhaps bans on polygamy could be defended by pointing to [*2103] the risk of exploitation, especially of the women involved. 80 It is easy to imagine a claim that if polygamy is permitted, women will be subordinated as a result. But this claim might be contested, and in any case it is doubtful whether Loving and Zablocki should be read to require a careful judicial inquiry into that question. That doubt makes it necessary to turn to the question of the scope of the right to marry.
Not really sure where that leaves you. I personally think the exact same arguments that are applied in Lawrence v. Texas to gays almost certainly strike at prohibitions of polygamy. I find it odd, for one thing, that a lot of people who are in the business of trying to de-demonize gay marriage feel pretty comfortable knocking polyamory. Thomas Sowell has commented that identity politics usually leads to "mascotting", where groups are condescendingly treated as cuddly plush toys needing protection ("oh, you wouldn't want to club a baby gay person!"). It seems that the same mascotting can work in reverse: polygamists are treated as mascots, all right, but for the enemy team.

More to come...

Who wants a law degree from Princeton?

So walking up on L4 which I do regularly (because the bathroom is up there (which is an argument for drinking less coke (or just studying up on L4 to start with))) I walked past a book that I thought said "Princeton Law School" and I started but kept going (on a mission, you know!), but when I walked back past that shelf, all I saw was a book that said Principles of Law School and now I am tormented by the idea there's some book about a law school at Princeton and someone checked it out while I was in the bathroom. (The circulation desk tells me it is not so (ha just kidding).)

Okay this is the worst post ever. I admit it some of these posts are computer generated. But not this one.

Solutions and binding

Just an interesting point from p.21 of Tribe's introductory essay to the mammoth American Const Law:
the Constitution is not to be taken as a definitive "solution" to the deep questions of political philosophy, after the fashion of the arguments of Hobbes, Locke, Rawls, and others. [He completely leaves out Nozick, the nasty brute.] It must instead be defensible as a binding instrument--even as it is understood to be subject to critique and change.
He gives two interesting examples of how this can be thought of.

First, assume we're all pigeons. That is, consider pigeon behavioral experiments: if a pigeon pecks a bar, it gets a little, immediate reward. If it refrains from pecking, it gets a much larger but delayed morsel. Most pigeons peck. They peck even if they know they'd get more later: it just is too tempting. It's possible to design an experiment, however, where the pigeons can pre-commit to not pecking. And they do! This is much like locking the fridge so you don't raid it at midnight. Our utility functions are hyperbolic: they "bulge" out at the present and tail away into the future. If we can pre-commit to not engage in certain activities (chastity belts!), the "truer" longer-timeframe self is happier, even if this self pisses off the momentary self (chastity belts!).

A second, more accurate analogy (since the pigeon problem has a sort of deus ex machina--humans) is Odysseus tying himself to the mast to hear the sirens but not jump in the sea. Reminder to self: find key to that damn belt, and read the stuff on this Tribe lists.
  • Sunstein, "Legal Interference with Private Preferences", 53 U. Chi. L. Rev. 1129
  • Ely, "Ulysses and the Sirens"
  • Schelling, "Enforcing Rules on Oneself", 1 J.L. Econ. & Org. 357
  • Schelling, "The Intimate Contest for Self-Command", 60 Pub. Interest 94

maximax and maximin

What is political accountability? What is democracy, and what does it mean to be countermajoritarian? When is that bad?

Rebecca L. Brown--in "Accountability, liberty, and the constitution", 98 Colum L Rev 531--attacks the historical trend of thought that places majority rule at the heart of the constitution (Amar's pride and joy). This trend requires special justification for deviations such as judicial review. She admits that plebiscitary democracy (majority-rule voting on every bill) would be a utility-maximizing scheme if it were not captured by special interests. She says, instead, that our document established a tyranny-minimizing scheme.

So rather than trying to maximize something good (maximax), the constitution tries to minimize the maximum possible loss (minimax). Thus, political accountability is not majority rule, but the recurring chance to give elected officials the boot. (Note, however, the grand designs of the preamble...) This minimax is best expressed by the formula at right. The article also has the best bumper-sticker slogan: "Honk if you are tired of constitutional theory."

Early congressional actions

David Currie's awesome book series, "The Constitution in Congress", discusses the subject of constitutional interpretation outside the supreme court. The first book, "The Federalist Period," also has special importance because the actions of the first few congresses, filled with folks who'd also drafted the constitution, seem to have special importance.

These actions cut both ways in two cases we studied. In Dred Scott, Taney is pretty off base saying that congress can't constitutionally forbid slavery in the territories. The Northwest Ordinance was reaffirmed under the constitution in 1789, and it prohibited slavery everywhere around the Great Lakes and west of the Ohio river.

On the other hand, Prigg v Pennsylvania finds Story arguing that the Fugitive Slave Clause can be enforced by congress. One of his strongest arguments is that the Fugitive Slave Act was passed in 1793, by folks who had reason to know. This cuts directly against Amar, who, for example, cites Marshall's presence at Valley Forge as important in his understanding of the National Bank's necessity, and uses the fact that the first congress supported the bank as indicative of their understanding of the constitution.

Some of this stuff is in 24 Rutgers L J 613, Sorting out Prigg.


I cannot wait until the next shipment of gold from Fort Knox comes so they can distribute it to us 1Ls. I need it ver' badly. I am tired of eating ramen.

UPDATE: thanks go to GG, who subsidized my Subway habit today.

Two words I love

UPDATE: this post gets a surprising amount of traffic from google asking "How do I pronounce Tiebout?" Since it would be embarrassing for you if you took the advice below, here's the answer: it's "tee-boo," with the accent on the first syllable.


"The economics of federalism" by Ribstein is out--it's an intro essay (10pp) to a book. He actually comes out in favor of Amar's spillover test. Garr. As monty python says, "I fart in your general direction!" But it's very interesting, and a great way to reference The Tiebout Theory at a cocktail party. First I have to figure out how to pronounce Tiebout, though. I think it's french, so none of the consonants are pronounced, so it's something like "ieou".

Besides the Tiebout argument (saying public goods will not be underproduced by state govts as long as there are no spillover effects), the paper also has other good pro-federalism points.

  • First, the possibility of "exit" reinforces the power of "voice". Exit and voice are better together, like peanut butter and chocolate.
  • Second, "market preserving federalism" can encourage states to credibly commit to a self-enforcing structure of limited govt that preserves rights and markets.
  • Third, states can be laboratories, as Brandeis noted in New State Ice Co., 285 US 262. States will have a better understanding of local preferences and which inputs (eg capital v labor) to government outputs are cheap, and local agents have less incentive to be self-dealing. On the other hand, innovation can be costly, and may be underproduced if other states can free ride (as noted by Susan Rose-Ackerman) unless some institutional mechanism allows a first-adopter to internalize a fair bit of the gain.
  • Fourth, state govts may be closer to the optimal size than a unified govt. The costs of bargaining among a bigger group may be even bigger than the spillover costs saved.
On the negative side of federalism:
  • Spillovers. Arrgh! States won't provide for the common defense because they can free-ride, or may permit activities like pollution that harm other states.
  • States may try to attract the more-mobile wealthy, while ignoring the needs of the less-mobile poor. Thus, "exit" has both a positive and negative side.
  • Mobility isn't always that high. It's hard to exit. If capital and labor are differentially mobile, distortions can result.
It also notes an interesting theory of Brennan and Buchanan: the "Leviathan theory" that views government as a tax-maximizing monopolist who will do anything for more money, with the single constraint that if he taxes too much, people will withhold their labor. Federalism would thus lower total govt intrusion. On the other hand, rent-seeking competition between govt units could increase the total size of govt. Anyway, interesting summary of stuff.

Short and sweet answers... all your conlaw questions: Larry Tribe's "American Constitutional Law".

Go to the Circulation desk, and grunt "Give me Tribe!" The call number if that doesn't work is KF4550 . T785. There are a few copies on permanent reserve, so you can get one for a few hours or maybe up to a day, or you can check out an older one upstairs on L4.

It summarizes everything. The discussion on Curtiss-Wright, for example, is lucid and kind of scary. It's like reading papers for people who don't have time to read papers anymore.

Exam in less than 24 hours! As Scooby says, "ruh-roh!"

Wages of crying wolf

Can't recommend this highly enough. Genius Pony and I were laughing about it a couple of days ago: chock full of funny barbs. Unless you have no sense of humor about how cruddy the reasoning in Roe is, or have already drafted a dissent to it hoping Amar asks that on the exam, this is great stuff.

82 Yale L J 920 (from Hein online, also)

Old article on legislative veto

To see what the arguments for and against legislative veto were before Chadha, check out "Constitutionality of the Legislative Veto" by Stewart, 13 Harv J. Legis 593. (Available from Hein online.)

Mostly pro-leg.veto. Argues that separation of powers can't protect us if agencies are independent, and focuses on congress's core authority (control over prospective rule-making) to show that some leg.vetos are likely constitutional. Agencies are basically just mini-congresses, and congress should be able to set their policy. Application to particular individuals (like Chadha) are more problematic if they interfere with the textual grant of "faithfully executing the laws", but most leg.vetos should be okay.

Short and good.

Executive privilege and separation of powers

A new paper from Kitrosser. May be timely! Combs through Articles I and II to see if the president can resist statutorily mandated disclosure of secrets. No answer. Then discusses secrecy and the importance of accountability.

Sunday, January 15, 2006

The Right To Privacy And The Ninth Amendment

so the wind is howling, and i can't fall asleep because of it. so i'm reading more conlaw and thinking about stuff. here's a not-so-original thought that i had as i reread griswold and roe and thought about the so-called "right to privacy":

the constitution is not a rights-creating document, but rather a government-creating one. the declaration of independence, as well as common sense, teaches us that the rights of the people exist independent of and prior to the formation of united states. the people established the united states to create a more perfect union of sovereign states as well as to promote the general welfare, to insure domestic tranquility, and so on. but the framers of the constitution and the bill of rights took special pains not to enumerate the rights of the people, but rather to enumerate the powers of government.

contrast article I, section 8...

"the congress shall have make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states."

...with section 1 of the fourteenth amendment...

"no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

...with the ninth amendment.

"the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

it seems clear to me at least that the constitution is supposed to define the limits within which government (first federal, and now state too) must operate concerning the rights of the people, whether or not those rights are specifically enumerated in the constitution. if this is indeed the case, then the right to privacy already exists "in the constitution" despite the fact that the word isn't there. (see the ninth amendment.)

when government passes a law, the burden of proof is (or at least should be) on the state to show that the constitution grants it the power to legislate and that its legislation is consistent with any express or implied constitutional limitations on that power. so government does have the power to abridge the right of privacy, but only so long as it meets those two criteria. it should be the first job of legislator, an executive, or a judge to determine whether or not a particular law can pass the test.

with respect to the federal government, the powers are clearly limited to article 1, section 8 and the empowering clauses of post-civil war amendments (13, 14, 15, 19, etc). the power of state government is closer to plenary, subject to limitations in individual state constitutions. but article I, section 10, most of the bill of rights, section 1 of the fourteenth amendment, and numerous other provisions in the constitution place specific and general limitations on government power.

but this doesn't change the fact that unenumerated civil rights and liberties that exist independent of the state (such as the "right to privacy") are necessarily incorporated in the constitution via the ninth amendment. the real question to be answered is whether the people have granted their government the power to abridge those rights and liberties, and in what way.

Saturday, January 14, 2006

Tocqueville on term limits

A footnote to a paper on Thornton that I cannot find at present had the best argument for limiting terms. Tocqueville says that democratic rulers (congressfolk) lack the sense of history and self-control that aristocratic rulers can tap into; democratic rulers are also less adept in the science of legislation.

But while congressfolk frequently therefore legislate in ways that actually undercut the very cause they serve, that cause is at least their own. Since they are of the people,
Democratic laws generally tend to promote the welfare of the greatest possible number; for they emanate from the majority of the citizens, who are subject to error, but who cannot have an interest opposed to their own advantage.
Amar says we will have professional legislators no matter what: I think we can find ways, including term limits and competitive elections, to keep congressfolk as close to the people as possible, so that the above quote holds true.

We federalists have soft, luxuriant hair

It's true.

This is about the funniest discussion of federalism I've seen in quite a while, and while that's a low bar, the article also qualifies as insightful and well-written by any standard.

In contrast to Lithwick's attempt at ecumenical dialogue, you might want to check out the subtly titled article, "A Heart, No Matter How Small: To find Alito's, take out your magnifying glass."

Age -- ideology -- justice

  1. 85 (L) John Paul Stevens
  2. 72 (L) Ruth Bader Ginsburg
  3. 69 (M) Anthony Kennedy
  4. 69 (C) Antonin Scalia
  5. 67 (L) Stephen Breyer
  6. 66 (L) David Souter
  7. 57 (C) Clarence Thomas
  8. 55 (C) Samual Alito
  9. 50 (C) John Roberts
I guess I hadn't noticed that the liberals were so old. Clinton appointed Ginsburg when she was already getting a bit long in the tooth, while Clarence Thomas was a very young appointee: only 43. Looks like conservatives will hang on to the court even if Alito is Bush's last appointment and the conservatives lose the next presidential election.


Go Steelers! Let's see if one of the NFL's best defenses can shut down another Manning. (The first wasn't too hard.) Despite the Colts' incredible run--and their coach's tragic story--I think Seattle showed Indy is vulnerable to an aggressive defense. I know the Iron City boys are underdogs even for this game, but I hope they go all the way.

Let's hope we see Hines Ward doing this a lot tomorrow.

Badges and incidents of citizenship

I have a stupid question. The 13th has been used to empower congress to stop all sorts of only distantly slave-related abuses because of the "badges and incidents" phrase and the empowering clause. (See Jones v. Mayer). The 14th should be the same way, Amar says, because the empowering clause reads the same, and so congress should be able to define rights in tandem with the courts, protecting the "badges and incidents of citizenship". (Although to make the analogy better, it should be "of uncitizenship", since slavery is bad and citizenship is good.)

But it doesn't matter that the empowering clauses read the same, right? There's no "badges and incidents" phrase in the substantive sections of 14. He explicitly wants to inject a badges-incidents power into the 14th by a broad reading of the empowering clause--he wants to use a necessary-proper-type clause to generate a new enumerated power. Hmm.

Also, he argues that the empowering clause uses the word "enforce" (Congress can enforce...), and so congress should be a co-enforcer with judges. But isn't to enforce more like applying rules laid down by others? For example, in Powell v. McCormack, Powell has to go after the enforcer of the rules (the sgt-at-arms) rather than the authorizer of the rules (the Speaker of the House), because of the Speech clause. And when we speak of cops enforcing the law, we don't mean they have a definitional power of crime, right?

I don't know where I stand on all this. I don't really like Boerne or Oregon v. Smith or even, really, the majority opinion in Katzenbach v. Morgan (Harlan has good arguments to my ear). Who knows. Anyway, Intratextualism, 112 Harv. L. Rev. 747 , 822 (1999), has a lot on these subjects.

Animus vs. moral disapproval

So under Romer, Kennedy said mere animus against a group (whether protected or not) failed the equal protection rational basis test: it might be a reasonable law, but it's not for a legitimate state interest. (The test as typically enunciated has both those elements at least implicitly, and frequently when it's failed the latter prong is what does the killin', right?)

Oddly, I think this implicitly reaffirmed Hardwick's holding that moral disapproval was a good enough basis to criminalize sodomy. Certainly there was a factual question over whether Amdt 2 was based on animus or was a kulturkampf, as Scalia put it. Overturning Amdt 2 because it showed animosity was a bigger factual finding but less jurisprudentially adventurous; Romer overturning Amdt 2 because mere moral disapproval isn't valid would have required less factual assumptions and been a far bigger holding.

Now what about Lawrence? Recall that the Lawrence majority struck down the Texas anti-sodomy law on substantive due process grounds, not using equal protection arguments, as O'Connor wanted. Lawrence stated that one could not demean gays, and that such an intimate and personal activity deserves privacy protection. Lawrence reconceives Bowers as merely the statement that there was no due process right to homosexual activity, rather than standing for the idea that moral disapproval is sufficient. But then it overturned both.

How useful and important is the ability to make laws that express moral disapproval? It gets bandied about by both sides: liberals say hate crime laws are symbolically important because they express the community's disgust; punitive damages are praised for the same reason; conservatives say legalizing marijuana would express tacit approval. Is the right to make such laws naturally abused and heirarchy-reinforcing, as Balkin says? Is it important to the foundation of society?

By the way: Scalia says in Romer that class (homosexual people) can be a stand-in for conduct (homosexual acts) when criminal sanctions are not at issue. Amar in 95 Mich L Rev 203 ("Romer's Rightness", on Romer and attainder, about which more later) says this is a vicious mean despicable dumb thing to say.

Kennedy in Lawrence (at 538): "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual."

Of course, one of them is reasoning from class to conduct (and so Amdt 2 sought to disadvantage gays without showing an actual gay act), while the other reasons from conduct to class (gays as a class cannot be subject to moral disapproval). But it's unclear what moral difference the direction makes. The moral difference is that one ruling shields a disadvantaged class from discrimination, and the other one doesn't. Why Amar took such umbrage at Scalia's linkage, rather than his substance, is beyond me, unless the reason is deep in his theory of attainder.

The non-retrogression principle

A good question was asked during Amar's review session, relating I believe to the 14th amdt and the role of congress under section 5 in providing remediation or in determining the substantive rights themselves--both of these especially in relation to the judicial role. If congress extends a protection past what the SC says is necessarily protected by the constitution, can congress later take away that protection?

There's a good paper on this, saying the Romer v. Evans and some other cases seem to indicate that there's a "non-retrogression" principle that says the judiciary will effectively constitutionalize protections generated by congress, refusing to later relax them even if congress changes its mind.

Take a look: 86 Calif. L. Rev. 1211.

Old Yale dean comes out in favor of Alito

Kronman supports Alito! Yale Law School's dean from 1994 to 2003 warmly describes Alito as smart and humble, and committed to the rule of law. This is particularly interesting: Alito has learned
to be respectful of the past --- that all-affecting attitude we
sometimes describe, too narrowly I think, as the rule of stare decisis.
Kronman thus links stare decisis, which is being harped on by liberals worried about Roe, with a certain type of broader conservativism, a bigger picture of history, that would not necessarily sit well with a number of liberal goals.

Kronman describes Alito as being a disciple of Bickel, the somewhat liberal judicial-restraint advocate (and YLS professor). Alito himself says he most admires Justice Harlan (the second, I assume), a thoughtful conservative.

(Return to Opinion Work Product.)

Summary: Desperately Ducking Slavery (Dred Scott)

Desperately Ducking Slavery, Graber, 1997
14 Const. Commentary 271

Take away point: Dred Scott was pretty plausible at the time. No
current constitutional theory, transplanted back, would likely have
avoided the result. All theories can generate evil results. Special
application to me: a lot of arguments I like are made by Taney, yet
they lead to an evil result. Enumerated powers, anti-special-class
legislation, originalism, etc. So maybe not only could originalism
*not* get Brown, it couldn't even avoid Dred Scott. Click on Read....

That means that an honest and strict evaluation of the document itself
is more important than ever, and the only good way for change is using
Article V and not trying to cook up good results using the Framers'
"special wisdom". This is a fundamentally anti-Amar point, I
think. It's documentarian. I don't think Amar really is.

14 Const. Commentary 271

Contemporary constitutional theory rests on three premises: Brown was
right, Lochner was wrong, and Dred Scott was horrible. While a few
disagree with the first two statements, no one likes Dred Scott
(DS). The paper gives strong examples of its villification.

Each school of contemporary constitutional thought claims DS
embarrasses rival theories. Pro-restraint: Taney didn't defer to
elected branches. Originalists: Taney didn't respect original
meaning. Aspirationalists: Taney was *too* tethered by original
meaning and precedent. Every theorists: DS would have been different
under *my* theory!

But, in fact, DS was plausibly decided under any theory.

This paper isn't intended to rehabilitate the Taney court, but to show
that all modern theories are results oriented. Everyone says their
theory gets right results, but usually they have to stretch a lot.

The consensus that DS was wrong (and Brown right) inhibits serious
discussion of constitutional evils. It minimizes the original
document's imperfections, and ignores the discussion of what to do
when your constitution sanctions evil results.

I-----The DS decision

The precise holding isn't totally clear: all nine wrote an opinion!
Conventionally, though, it stands for (1) blacks can never be
citizens, and (2) slavery can't be prohibited in the
territories. (Only three of Taney's colleagues endorsed (1), and (2)
might have been mere dictum since (1) meant DS couldn't have been
brought in first place.)

Institutionalist critics ("which branch should decide?"), like
Sunstein and Bickel, say the court should have left it to the
legislature. Historicists like Bork and Currie say Taney relied on his
own idea of justice instead of the document. Aspirationalists like
Thurgood Marshall say the court should have tempered the document with
broader notions of constitutional and human rights.

All these guys want to beat up their opponents. Why care, though? The
Reconstruction amdts made this moot. But everyone wants to show their
theory would have minimized the negative impact of slavery even in the
original document, and so is in accord with the Framers' "special
wisdom." Plus, we don't want any more DS-like cases to recur.

II-----Critiquing the critiques

Both majority and dissenting opinions have their share of dubious
assertions, and neither side should be held to be the patron saint or
demon of any current constitutional theory. Using any theory, DS is
plausible. No contemporary approach of the judicial function is immune
to reproducing DS. Taney's constitutional claims were in fact quite
mainstream, as we'll see.

II-A: Institutionalists (Sunstein, Bickel)

Taney in DS was not in fact countermajoritarian. DS is made out to be
the victory of most extreme pro-slavery people. The opposite is the
case: had DS come out differently, *then* it would have been

The paper lists the evidence for this, including Lincoln saying he had
never complained about DS on black citizenship, and didn't favor
letting blacks be citizens of Illinois. Furthermore, DS was probably a
solid compromise that made war less likely (as Taney probably
intended). Buchanan and the Lecompton-Kansas fiasco were bigger

II-B: Historicists (Bork, Currie)

Taney explicitly, and somewhat successfully, built his theory on the
original intent of the Framers, despite modern attacks to the
contrary. The dissents had bigger originalist problems.

II-B-1: black citizenship

While the dissent points out that some blacks voted in 1787 (and so
original intent must have included the possibility of black citizens),
Taney rebuts this: not all voters are citizens. A state can give the
right to vote to free blacks, but that doesn't necessarily make them
citizens of that state, much less of the US.

Abraham Lincoln and his attorney general agreed! "Suffrage and
eligibility have no necessary connection with citizenship."

While blacks have no rights whites are bound to respect, whites can
gratuitously give blacks the right to vote. Blacks may have some legal
rights, but no constitutional rights. Black voting was not a right of
a citizen, but a communal grace.

Other restrictions indicate free blacks weren't citizens. In NH (the
most anti-slave state), only whites could be members of militia: this
traditionally means the black isn't part of the state.

Disabilities suffered by women were not the same as those suffered by
blacks. There's a *reason* for the female limitations: they get their
rights from males, and instead of political power they have domestic
power. Blacks had no protectors, and had no special sphere of
power. Blacks couldn't exercise civic duties because they were "unfit
to be citizens", not because they had some special contribution to the
polity (like raising kids) that was inconsistent with political

Taney was, though, wrong in saying blacks had never been regarded as
citizens of any state. The Curtis dissent is right that some free
blacks were citizens of MA during the ratification. But the question
is: did the ratifiers intend and sanction black citizenship? If the
average ratifier thought blacks were unfit for citizenship, then the
presence of some black citizens in MA doesn't change anything.

The main point is that blacks appeared to be in sort of a middle
ground. Both the majority and dissenters suppressed a bit of the
historical record. But the majority probably had the better arguments
historically. For example, the naturalization power in Art I Sect 8
said congress had exclusive power to create citizens. States could not
create citizens by manumitting them. The idea that if you're born in
America you're a citizen was not well established.

II-B-2: slavery in the territories

Taney made a plausible case that congress couldn't outlaw slavery in
the territories. This is an enumerated power argument: congress isn't
granted that power. While the feds can protect property, they can't
define what it is, and so can't distinguish between slaves and other

This is an old issue of "special legislation". It was well accepted
that the territories were to be shared in common, so that all could
use them. Restricting slavery gave the territories to northerners,
effectively, which was unequal.

Also, everyone agreed that Americans had an unenumerated right to
bring their property into the territories. The dissent only disputed
that slaves were property like other goods. But it was also usually
accepted that the constitution protected slave property as strongly as
other property. And from an originalist perspective, Madison had said
people should be able to bring slaves to the territories.

The dissent attack these ideas pretty well, like demolishing the
efforts of the majority to explain away the earlier ban on slavery in
the Northwest Territory. But the dissents had just as many weaknesses
as the majority, like the fact that southern states would not have
consented during ratification to territories being anti-slavery, and
whether restricting slavery was a "necessary and proper" exercise of
power. [It seems to me the dissents win on this, probably.]

III-C: Aspirationalists (Marshall, etc.)

The problem here is that which values you think are important makes a
big difference. Southerners constantly extolled slavery as great,
trying to protect and nurture it. A proslavery aspirationalist
constitutional theory would likely have been even more susceptible to
DS-type cases.

IV-----The tyranny of examples

DS shows that in the wrong hands or in the wrong circumstances, all
theories may yield unjust conclusions. Institutional arguments turn
bad when the populace support evil goals. Historical arguments turn
bad when the original document framers constitutionalized evil
practices. Aspirational arguments turn bad when interpreters have evil

Friday, January 13, 2006

State constitutions as independent protectors

Here's another paper summary.


Before the Depression, a state judge's need to consult federal law was episodic at
best. In 1933, lots of new fed laws and agencies sprouted up, gaining
steam in 1937. But even then, state judges didn't care about federal
law--these fed agencies were administered by fed judges. (Click "Read...".)

But recently (i.e. approaching 1977), fed rights law has changed state
courts. The Reconstruction amendments have been enforced against
states more thoroughly. Although no strong economic protection (like
Lochner) remains, every other area, civil and criminal, of state
action has been transformed by the 14th amdt. But state constitutions,
too, should be protecting liberty.

14th amdt decisions fall into three categories.

I: Brown and Baker v Carr: invalidating state legislative
classifications that impermissibly "impinge" on fundamental rights
(voting, travelling, the decision to bear children) or operate to
disadvantage of protected groups.

II: Due process guarantee: need hearing before being deprived of
liberty or property interest. These include driver's licenses,
welfare, convicts' rights to hearings before parole revocation,
reasonable expectation of continued employment for public tenured
employees, etc.

III: Enforcing *specific* guarantees of Bill of Rights against
states. This category has affected state judges the
most. Incorporation was very slow in coming, and did not start until
1897, when the takings clause was applied to states. In 1925, the
First Amdt was first used to restrain states. In 1961, the
exclusionary rule was applied.

Then, a huge explosion happened. From 1962 to 1969, nine specific bill
of rights subjects were applied to states. Eight amdt, sixth
(assistance of counsel), fifth (self-incrimination), miranda, speedy
and public trials, double jeopardy, etc.

This gave full effect to principle of Boyd v US, where Justice Bradley
said rights provisions should be liberally construed. Since our govt
is more powerful than ever, we need more protection than ever.

PROTECTION THAN FEDERAL COURTS. During the 60's, when the huge
expansion was taking place, state courts didn't need to worry; but
now, federal courts are slowing the expansion or curtailing it.

For example, pregnancy is not a sex-based classification (Geduldig v
Aiello, 1974), those barred from judicial forums due to poverty have
no claims, one can be branded a criminal without a hearing, and
prisoners have had their liberty interests curtailed. The federal
warrant requirement has been weakened, the first amdt has been held
not to apply to shopping malls (although this was later changed,
right?), no one has an expectation of privacy in his bank records,
less-than-unanimous criminal guilty verdicts have been accepted, and
so forth.

State courts have rejected some of these limitations. California, for
example, held that Miranda protected a statement used to impeach the
accused if it was given before the warning, and said:
declare that the decision to the contrary of the US Supreme Court is
not persuasive authority in any state prosecution in California. We
pause to reaffirm the independent nature of the California
Constitution and our responsibility to separately define and protect
the rights of California citizens despite conflicting decisions of the
US Supreme Court interpreting the federal Constitution."

Jersey held that the subject of a search needed to know he could
refuse consent, contrary to the feds, despite the exact same phrasing
of the right in the Jersey and US constitutions. Hawaii and California
test searches incident to arrests as subject to a reasonableness
standard rather than being automatically allowed by the
arrest. Michigan has granted a right to counsel at any court

State courts are even anticipating challenges based on federal
rulings, saying explicitly that they have based their decisions on
their state constitutions. When federal law is then decided
contrarily, their decisions stand.

This pattern reminds us that the Bill of Rights was modelled off state
constitutions to start with. And prior to incorporation, state
constitutions were the primary limit on govt abuses.

But we must not allow fed courts to say "well, state courts will
protect you". Both should be sources of strong protection. Madison
would have approved: recall that an originally proposed amdt was to
force states to have jury trials. This was only fully realized when
the 14th amdt was passed. Independent tribunals of justice "will be
naturally led to resist every encroachment upon rights expressly
stipulated for."

Deep fish

I've been rereading the "Thirty Questions for Alito" from below, and I think I've found my favorite, from Stanley Fish:
In a famous debate half a century ago, the legal theorists H. L. A. Hart and Lon Fuller differed on the question of whether Nazi law in Germany was, in fact, law. Hart argued that morally iniquitous laws that have a valid form - laws that have emerged as the result of following legitimate procedures - are still laws, even though we might want to say that they are bad laws. Fuller contended that a legal system devoted to evil aims could not be called law because there is "a necessary relationship between substantive justice and procedural justice." With which of these theorists are you in agreement? Are law and morality finally one or can they be distinguished? Were the laws denying the vote to women in America real laws or spurious laws?
I would be scared to try to answer this on an Amar exam, because there'd be so much to say, and it would be so difficult; but paradoxically I imagine it would be the most rewarding questions to tackle.