All Posts Tagged With: "jurisprudence"

John McCain is, if nothing else, one smarmy SOB:

Senator Obama is obviously confused about what the United States Supreme Court decided and what he is calling for. After enthusiastically embracing the Supreme Court decision granting habeas in US civilian courts to dangerous terrorist detainees, he is now running away from the consequences of that decision and what it would mean if Osama bin Laden were captured. Senator Obama refuses to clarify whether he believes habeas should be granted to Osama bin Laden, and instead cites the precedent of the Nuremburg war trials. Unfortunately, it is clear Senator Obama does not understand what happened at the Nuremburg trials and what procedures were followed. There was no habeas at Nuremburg and there should be no habeas for Osama bin Laden. Senator Obama cannot have it both ways. In one breath he endorses habeas for terrorists like 9/11 mastermind Khalid Sheikh Mohammed and in the next he denies its logical conclusion of habeas for Osama bin Laden.

Whaaa? Obviously if Osama bin Laden were tried in an international tribunal like Nuremberg, the United States would have no jurisdiction over him whatsoever and he would be provided a different set of protections under international law. Alternatively, if he were afforded habeas corpus in an American court, it would be one of the easiest habeas hearings in the history of habeas hearings, given that there is ample evidence that Osama bin Laden (and Khalid Sheikh Mohammed, and all the other well-known terrorists that McCain is trying to use to scare people into voting for him) has declared war on the United States and is, in fact, an enemy combatant. The reason President Bush has used Guantanamo as a weird little sanctuary in which no protections are necessary at all is so that he can detain a bunch of people for whom there is not evidence establishing enemy combatant status. But if that’s the case, we shouldn’t be detaining them!

The problem here is that McCain seems very unwilling to articulate any limiting principles on the exercise of the government’s authority to detain suspected terrorists nor on what we do with them once they are detained. Instead, he seems quite willing to paint a picture for the American people of well-known terrorists running free to wreak havoc if the rule of law is applied to them, despite the fact that affording these people the protections of any body of law at all would still allow for their detention in some form or another.

Of course, it’s well-established that McCain is an independent-minded, straight-talking maverick, so while these scare tactics may look awfully similar to those employed by President Bush and Karl Rove, they’re clearly very different.

Earlier today I participated in a debate on constitutional interpretation at my law school. What seems like long ago now, my friend Josh Rohrscheib and I once debated jurisprudence in the Daily Illini. In that article, I adopted the Ira Carmen position of essentially converting the judge’s role into that of a functional social scientist. Our own Lawrence Solum has a great description of Originalism, with a good summary of where the academic literature currently stands on it. I am going to invite the other three participants in the debate to contribute their thoughts to this post (Ken Logsdon, Jake Briskman, and Omar Jafri). Logsdon presented the pro-Originalist position, while I presented the rebuttal to Living Constitutionalism, which I have pasted below. I cannot defend Originalism, because I do not genuinely adhere to it, but I can attack the moral aristocracy created by Living Constitutionalism, which is what I do in the polemic that I delivered:

The problem with Living Constitutionalism isn’t so much with its fair and moderate reading of the Constitution, it is more so with its admittedly rare tendency to produce results which do not comport with the evolving standards of the community. This debate largely comes down less to that of interpretation and more to that of how we view the role of the judiciary in our democratic structure of governance. Living Constitutionalism is useless at its best and vile at its worst. It’s useless because mechanisms exist to channel and convert the evolving sentiments of the public into law. It’s vile because of the license it grants to a few justices to undermine democratic legitimacy by determining the scope of rights and of federalism. In 1987, Supreme Court Justice Thurgood Marshall delivered a lecture, “The Constitution: A Living Document,” in which he argued that the Constitution must be interpreted in light of the moral, political, and cultural standards of the epoch, which is essentially what is argued for here today. The question though is who gets to be the barometer of the contemporary moral, political and cultural standards? Our opponents propose that barometer be the justices in some cases, rather than the people themselves as expressed through their legislators. It’s a curious concept that a justice would be able to better divine the moral and political attitudes of an electorate than the statesmen elected to gauge that very subject. Rights are something we all enjoy that are so fundamental to who we are as a society that we have decided to remove them from the table of debate and to not allow democratic consideration of them. So I can see three basic mechanisms by which a citizenry can express its preferences for expanding into new avenues of constitutional rights and the balance of federalism: 1) What Ken has laid out through the PI Clause, which would maintain democratic legitimacy, 2) The usual legislative process, which is equipped with great fact finding tools that the judiciary is not equipped with, and 3) the Amendment process. Liberals should fear living constitutionalism as well.

Just as liberals like Hugo Black and Yale’s Akhil Amar can be Originalists, so too can conservatives forge new rights under the mask of living constitutionalism. When justices begin pulling rights down from the fleecy golden Platonic clouds (paraphrasing Carmen), it makes it possible for rights to collide. These Platonic pipelines to the ethereal truth begin running into each other. Suppose that you have Justice Alito come along and say I think that moral philosophy and my gauge of the evolving standards of the community tell me that all potential fathers should have an equal say in the abortion decision. 50/50. Suddenly we have contradictory positions based upon the same jurisprudence, and so rather than trying to persuade us to adopt living constitutionalism, you should be doing the opposite, you should be urging us to stick with Originalism, you don’t want us having that kind of power, trust me…just as we don’t want you having that kind of power either. It’s all well and good when living constitutionalism is employed by someone on your side, but it becomes pernicious and poisonous when someone who does not agree with you begins to employ it, which of course, under your framework, they would be free to do. Just think of Scalia’s smirking glee.

Rehnquist’s Living Constitutionalism article in the Harvard Law Review quotes Lincoln eloquently summarizing the frustrations of the electorate after Dred Scott, “[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” The harm that CJ Taney inflicted upon the court’s reputation and judicial legitimacy took about a generation to repair, according to Rehnquist. Judicial decisions which usurp the democratic function have the effect of generally lowering the credibility of all subsequent Court decisions, after all, credibility is the force of the judiciary.

Probably the best analogy to Roe is Lochner. The right to contract is analogous to the right to privacy. The Social Darwinism and economic libertarianism of the day was thought by the justices to be the prevailing and evolving standard of the community. In his famous dissent, Holmes said, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” Lochner was an awful decision and a prime example of living constitutionalism employed by people liberals would disdain: economic libertarians. Holmes was saying that the Constitution defines the rules the game, the peculiar political philosophies of abortion or economics or biology are questions that ought only be answered by the legislatures. The Constitution does not purport and cannot sufficiently answer those political questions even when divined and decoded by the most eminent Platonic philosophers. Many living constitutionalists wish to disown Roe by labeling it as living constitutionalism misapplied or misunderstood, many pro-choicers admit that it is a bad decision. But you cannot disown Roe, without disowning living constitutionalism, you have to accept the good with the bad. When you grant that broad sweep of authority you fling open the flood gates to poorly wrought decisions.

Looking forward to inevitable Constitutional issues…biology and politics. The state should be able to stop a woman from giving birth to a zebra in the future, or to stop super human children from being born, which will absolutely be possible in our lifetime, ehh I’m not sure about the zebra, but the Einstein+Michael Jordan child is reasonable. It is a small constitutional step from Roe to a future justice saying, “A woman has the right of privacy to do what she wants with her body regarding biological manipulations of a fetus.” Of course, such engineering would have enormous effects on society at large and would not just affect the woman and her privacy. When you expand the breath of rights guaranteed us you risk building a foundation for future rights that may disquiet and discomfort you.

This is not to say that Originalists cannot disagree. During “the court’s 2003-2004 term, Scalia and Thomas voted together in only 73 percent of cases, and six other pairs of justices agreed with each other more often than Thomas and Scalia did.” The key however is that is narrows the band of discretion allowed a justice, which if you view the band of discretion as straddling the line of the best outcome, then reducing the variance will tend to produce results closer to the best outcome a greater percentage of the time.

The Judiciary is a bastion of unwavering law. The legislature is a bastion of wavering law. If liberals were happy with the legislative outcomes of this country, they would have no use for living constitutionalism. Living Constitutionalism is an expression of liberal legislative frustration. Frustration that the rest of the country doesn’t envision the same vast panoply of rights. Living Constitutionalism states that sometimes the democratic process breaks down and is incapable of properly guiding the country, which is ultimately a theory that states “these people don’t know what’s best for them and so the educated elite need to dictate it to them because they will eventually, in 20 years perhaps, realize that it’s best for them.” The problem is, that they could be wrong about the proper moral and social avenue for America. When you grant a justice the authority but not the fact finding tools to act as a legislature, it seems to me that you unnecessarily encroach on the legislative territory. I beg for examples as to when this encroachment would be necessary given the Originalist framework we have proposed.

Whoever pulled this prank off is my new best friend.

Check out this short piece by Dahlia Lithwick of Slate on the Bush Administration’s Dumbest Legal Arguments of the Year.

This post by Scott Lemieux at The American Prospect about how pro-lifers are often reluctant to sanction women who get abortions the same way they sanction murderers directly relates to the video Lally posted earlier in the week. It also, in my opinion, pretty adequately lays out why this point is entirely valid and therefore not “mean” to lay at the feet of those who advocate banning abortion (though I’m not really sure why any point, valid or invalid, directed at people who are standing on the street protesting can be considered “mean,” even if they are kind-looking old women). A brief snippet:

One can, it’s true, have pro-life moral premises that stop short of claiming that a fetus is like a baby and conclude that criminalizing abortion makes no sense because it’s a highly ineffective way of protecting fetal life that also entails gross inequities and negative effects on the health of poor women who seek abortions. (Although this is obviously not true of arguments that consider fetuses legal persons, for example.)…At any rate, while “pro-life” moral premises do not require criminalization, it remains completely irrational to exclude women who obtain abortions from criminal punishment altogether while punishing doctors.

It’s very straightforward:”pro-lifers” who believe that women should not face any legal sanctions for obtaining abortions that are otherwise criminalized 1) don’t take their own underlying moral premises seriously or 2) don’t consider women moral decision-makers responsible for their actions. There is no third option.

And I’d point out to Billy that the arguments being refuted here aren’t being made by “average people on the street,” or whatever group it is he thinks should get a free pass from society to become activists for a cause without having thought seriously (or at all, really) about the consequences of their proposals. Lemieux is countering serious writers and thinkers whose jobs entail making arguments about policy.