The conservatism of Elizabeth Drew

Sandy Levinson

I've been swamped this past month, and even now don't really have the time I'd like to return to posting on my favorite Blogsite, especially since I have a number of pent-up postings on such topics as Haley Barbour's pardons, what it means to call reason the "slave" to the passions, and other such topics. But I couldn't restrain myself when I read Elizabeth Drew's Can We Have a Democratic Election? in the current (February 23) New York Review of Books (available only to subscribers, I'm afraid). I agree with much of what she says about the corrosive impact of SuperPacs (and the roles played by such billionaires as Sheldon Adelson). But I am most interested in--and dismayed by--her attack on those who would go after Citizens United by trying to amend the Constitution. It's not that I necessarily support all of the proposals that are out there; many are undoubtedly dubious and, perhaps, even pernicious in their implications. But that really isn't the basis of her argument (or what triggers this post). Instead, she writes, "To submit the Constituiton to the political process is to put in danger of being opened up to the popular movements of the moment." To call for a constitutional amendment, she writes, "sets a very bad precedent. The Founders in Philadelphia wisely [my emphasis] made it difficult to change this core document.... They sought to protect the Constitution from being subject to shifts in popular opinion...."

I won't rehearse all the arguments I've made over the years as to why Article V is the worst single feature of a dysfunctional constitution and therefore distinctly "unwise." What is important is to note how deeply "Madisonian veneration" continues to display itself, so that Elizabeth Drew, a smart and insightful journalist, literally can't imagine that every state constitution within the United States and every national constitution outside the United States may be "wiser" inasmuch as they make it less difficult to change their respective constitutions, even at the cost of allowing "popularl opinion" to exercise some role in deciding how we want to structure basic institutions or even what rights are most worth protecting. It is ironic that someone so (properly) interested in the attack on democracy being leveled by contemporary Republican would-be hegemons in state governments (with regard to various legislation designed to reduced turnout by potential opposition voters) is so indifferent to the anti-democratic aspects of her own embrace of the wisdom of the framers.
Posted 3:24 PM by Sandy Levinson [link] (4) comments

Iguanas and the Rule of Law at Guantánamo

Guest Blogger

Liza Goitein

Two weeks ago, I made my first trip to Guantánamo Bay, Cuba. I went as a representative of one of several non-governmental organizations invited to observe the military commissions that the government has established to try terrorist suspects it does not wish to try in federal court.

A few days before the trip, the Office of Military Commissions e-mailed me a twelve-page Power Point presentation of information for travelers. It appeared to have been written primarily for military personnel and was sprinkled with indecipherable jargon and acronyms, but as I anxiously skimmed the bullet points for my marching orders, my eyes fell upon this clear directive:

“It is illegal to harm, kill or eat an iguana.”

At last! The rule of law has come to Guantánamo!

There were no caveats, no exemptions, no loopholes, no equivocations. To my knowledge, the Office of Legal Counsel has issued no opinion concluding that the statute prohibiting the harming of iguanas does not constrain the President when acting as Commander-in-Chief—as it did when construing the equally clear language of the statute prohibiting torture. Nor has that office, to my knowledge, shown the same creativity in defining “harm” that it showed in defining “torture,” when it opined that a person hasn’t been tortured unless he experiences the kind of pain associated with “organ failure” or death. The government has not argued that Congress surely did not intend the law to extend to Guantánamo Bay—as it did when detainees sought to avail themselves of the statutory right to habeas corpus.

As others have observed, the impressive 20-pound lizards who roam the island are experiencing a very different Guantánamo than the nearly 800 detainees who have been imprisoned there since 9/11. For those detainees, the story of Guantánamo can be boiled down to a series of efforts on the part of the government to avoid the clear application of the law. As the Supreme Court has repeatedly rejected these efforts—holding that the President cannot create ad hoc military commissions without congressional authorization, that due process requires giving U.S. citizens a meaningful opportunity to contest their status as “enemy combatants,” that detainees have a constitutional right to challenge the basis for their detention—the government’s efforts to avoid the law have become more limited, less brazen. But they have not stopped.
Read more »
Posted 1:58 PM by Guest Blogger [link]

The Lincoln Conspiracy Trial

Gerard N. Magliocca

I am now writing the portion of the Bingham biography that deals with his role as one of the prosecutors in the military trial of John Wilkes Booth's alleged co-conspirators. When I began my research two years ago, I thought that this would be a terrific stand-alone chapter that would not shed much light on Bingham's constitutional views. I was wrong on the latter point.

One of the crucial issues in the Lincoln case was whether the defendants were entitled to a jury trial with the full protections of the Bill of Rights. After all, they were citizens being accused of conspiracy in the District of Columbia. Why, then, was it lawful to use a military commission to try them? Senator Reverdy Johnson argued to the tribunal that the Constitution did not permit the use of military justice on civilians when the courts were functioning. Senator Johnson holds the dubious distinction of being the man who argued and won Dred Scott in the Supreme Court, but consider what he had to say here:

Basic rights "are more peculiarly necessary to the security of personal liberty in war than in peace. All history tells us that war, at times, maddens the people, frenzies government, and makes both regardless of constitutional limitations of power. Individual safety, at such periods, is more in peril than at any other." Otherwise, those rights "which our fathers thought so vital to individual liberty when assailed by government prosecution, is but a dead letter, totally inefficient for its purpose whenever the Government shall deem it proper to try a citizen by a military commission." To say that a court could not be trusted with such a sensitive case was an attack “upon our civil institutions themselves—upon the very institutions on whose integrity and intelligence the safety of our property, liberty and lives, our ancestors thought, could not only be safely rested, but would be safe nowhere else.”

Ironically, John Bingham, the author of the Fourteenth Amendment's Due Process Clause, rejected this logic: "Who will dare to say that in time of civil war ‘no person shall be deprived of life, liberty, and property, without due process of law?’ This is a provision of your Constitution than which there is none more just or sacred in it; it is, however, only the law of peace, not of war. In peace, that wise provision of the Constitution must be, and is, enforced by the civil courts; in war, it must be, and is, to a great extent, inoperative and disregarded." He went on: “If you cannot, and do not, try the armed enemy before you shoot him, or the captured enemy before you imprison him, why should you be held to open the civil courts and try the spy, the conspirator, and the assassin, in the secret service of the public enemy, by jury, before you convict and punish him?”

The most surprising constitutional point that I've learned in my research thus far is that Bingham's view of due process was that in wartime it meant nothing more than "whatever process Congress provides." He said this both as a member of the House and in the Lincoln trial, which throws a different light on the original understanding of that provision.
Posted 2:41 PM by Gerard N. Magliocca [link] (6) comments

First Amendment Challenges in the Digital Age

Marvin Ammori

Next Friday, February 10, the Stanford Technology Law Review is holding its annual symposium, and this year's topic is an important one: First Amendment Challenges in the Digital Age. Of the three panels, one is devoted to privacy and another to copyright. The third is devoted to a long, ambitious law review article ... written by me. The panel participants joining me to discuss the article are two of the nation's great free speech scholars--Harvard's Yochai Benkler and the University of Virginia's Lillian BeVier. The article is called First Amendment Architecture. In it, I argue that the First Amendment plays an important role in ensuring adequate physical and digital spaces for speech, and that this role is not some exceptional outgrowth of First Amendment doctrine but is central to understanding what the First Amendment "means." While I submitted the paper for publication in February 2011, the subsequent events of the Arab Spring, the Occupy Movement, and the fight over SOPA/PIPA have all highlighted the significance to democratic speech of open physical and digital spaces. I am using the occasion of this symposium panel to blog about First Amendment Architecture. Law review "articles" generally add up to 30,000 words, or 60 pages, and have hundreds of footnotes and use semi-colons; this article is definitely a creature of that genre. My language in the piece is simple I think, but the blog genre is better for discussing the same arguments in bite-sized, digestible pieces. Several people have already blogged about my article briefly (saying nice things even), such as law professors Tim Wu (calling it "important work") and Susan Crawford (calling it "a terrific article"), as well MSNBC host Dylan Ratigan (saying it addresses "important ... First Amendment questions") . This first post is more about the amazing panel and about why I chose to research and write this article. The next pieces will present the article's arguments more fully.Read more »
Posted 9:36 AM by Marvin Ammori [link]

More on Corporations as Slaves

JB

Following my previous post on why for-profit corporations cannot be persons for purposes of the Thirteenth Amendment, Sandy Levinson reminded me of another important fact. Not only can people buy and sell for-profit corporations like slaves, but they can also liquidate them. In the (in)famous 1830 case of State v. Mann, the North Carolina Supreme Court, in an opinion by Judge Ruffin, held that the owner of a slave had complete authority to use violence against a slave, even to take the slave's life. On the other hand, people who were not owners (or in the position of an owner, as Mann was in the case) could be sued for injuring or killing a slave.
Posted 3:31 PM by JB [link]

Corporations and the Thirteenth Amendment

JB

Yesterday Columbia Law Review held a symposium on the Thirteenth Amendment, at which Sandy Levinson and I presented a paper we are currently working on (I hope to post a draft soon).
Posted 10:27 AM by JB [link]

Bad Ads in Mass.

Joey Fishkin

Following up on Mark’s post, a further problem with the Brown-Warren agreement is that not all ads “for” or “against” a candidate make their case effectively. Some are wholly ineffectual and others are actually counterproductive, indirectly reminding voters of why they disagree with the ad’s message.

This creates opportunities for mischief. If I were a really savvy Brown operative (by which I mean, of course, not a current campaign staffer, but perhaps an ex-staffer, college roommate, childhood best friend, or someone else officially “independent”), I’d run the worst, shoddiest, most-likely-to-backfire anti-Brown ad I could, and then watch as (a) the ad does nothing to hurt Brown, and may even help him, (b) Brown claims credit for sticking up for himself amid a barrage of attack advertising that Warren’s side is reprehensibly launching despite their agreement, and (c) oh, and by the way, for every two dollars I spend, the Warren campaign has to give one to charity. Not bad.

Now probably this is one of those “loopholes” to which the Brown-Warren agreement refers briefly at the end—a “sham ad.” But if so, all that does is move the goalposts. Now the game is to come up with an ad that, while pointless and ineffectual, is nonetheless just serious enough not to be considered a “sham.” In theory, even if an ad helps Warren, if it helps her less than 50% as effectively per dollar as the ad she would otherwise have run—for example because it muddies her message or unhelpfully changes the subject—then it actually helps Brown. (Don’t assume it will be easy to distinguish deliberate self-sabotage from earnest boneheadedness. If an agreement like this one had been in place, and if an ad like this one had been an independent expenditure, would you have believed it was for real?) On the flip side, there’s always a danger that a message intended to be ineffectual will instead be wildly popular…
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Posted 4:39 AM by Joey Fishkin [link] (7) comments

What Am I Missing?

Mark Tushnet

According to reports, Elizabeth Warren and Scott Brown have reached an agreement -- the near-final version of which is, with grammatical warts and all, available here -- expressing their opposition to "outside" spending in connection with their campaigns for the Senate. As summarized, the agreement is this: "Brown said his campaign would have to donate 50 percent of the value of any spending on his behalf to a charity of Warren’s choice, and she would have to do the same to a charity of his choosing if he was targeted with an outside ad benefitting her." On its face, this agreement seems to turn control over campaign advertising to outside groups: Say Brown and Warren each have $10 million to spend on their own advertising. All that outside groups have to do to gain complete control over campaign messaging is to spend $20 million (each, for Brown and Warren).
Posted 8:32 PM by Mark Tushnet [link] (9) comments

Favorite Son/Daughter Candidates

Gerard N. Magliocca

Normally I wouldn't post on something that has nothing to do with law, but in this case I can't resist. If Newt Gingrich wins the Florida primary and turns the campaign for the GOP nomination into a long fight, I wonder whether we might see an old-style tactic reemerge; namely, local politicians running in their home state to win delegates and thereby prevent anyone from getting a first-ballot majority. For example, Mitch Daniels could run in the IN primary in May, Mike Huckabee could run in the AR primary in May, Mitch McConnell could run in the KY primary in May, etc.

People could have many motives for doing this. Maybe it's because they don't want any of the current candidates to be the nominee. Maybe it's because they think that they could the nominee of a brokered convention. Maybe they just want bargaining power at the convention. ("That first Supreme Court vacancy would look nice in exchange for my support.") Or maybe they want to serve as a stalking horse for somebody else. Granted, many of the filing deadlines for these later states are coming up quickly or have already passed, but that doesn't prevent an organized write-in campaign from taking delegates.

Is this far-fetched? Sure. Would it be entertaining as all get-out? Absolutely.
Posted 12:09 PM by Gerard N. Magliocca [link] (27) comments

Three Cheers

Gerard N. Magliocca

Given how often the Supreme Court gets bashed for being political or hopelessly fractured, it is worth noting that the Court was unanimous (in result) on two recent cases on hot-button issues--the ministerial exception and redistricting in Texas. Maybe that's a fluke, but some credit should be given to the Chief Justice and his colleagues for finding common ground when they can.
Posted 6:18 PM by Gerard N. Magliocca [link] (12) comments

"The Workers are Animals. Let's Replace Them with Robots."

Frank Pasquale

Among the billionaires at the vanguard of global capital, Terry Gou of Hon Hai (also known as Foxconn) deserves special recognition for his honesty. "Hon Hai has a workforce of over one million worldwide and as human beings are also animals, to manage one million animals gives me a headache," said the chairman. His company has also begun building "an empire of robots" to replace a whining workforce.

To get a better sense of why the "animals" may be complaining, be sure to listen to Mike Daisey's extraordinary report on his trip to Shenzhen, home of a massive Foxconn factory. Here's one excerpt:

N-hexane is an iPhone screen cleaner. It's great because it evaporates a little bit faster than alcohol does, which means you can run the production line even faster and try to keep up with the quotas. The problem is that n-hexane is a potent neurotoxin, and all these people have been exposed. Their hands shake uncontrollably. Most of them can't even pick up a glass.

I talk to people whose joints in their hands have disintegrated from working on the line, doing the same motion hundreds and hundreds of thousands of times. It's like carpal tunnel on a scale we can scarcely imagine. And you need to know that this is eminently avoidable. If these people were rotated monthly on their jobs, this would not happen.

But that would require someone to care. That would require someone at Foxconn and the other suppliers to care. That would require someone at Apple and Dell and the other customers to care. Currently no one in the ecosystem cares enough to even enforce that. And so when you start working at 15 or 16, by the time you are 26, 27, your hands are ruined. And when they are truly ruined, once they will not do anything further, you know what we do with a defective part in a machine that makes machine. We throw it away.

When workers are already treated as machines, perhaps their replacement by robots should be a cause for celebration. But the question then becomes: what do the displaced do for a living? Is there an alternative to exploitation?
Read more »
Posted 9:01 AM by Frank Pasquale [link]

Debating (and Teaching) the Freedom of Expression

Ken Kersch

Oxford’s Timothy Garton Ash has launched a global forum for the discussion of the basic principles of the freedom of expression. Amongst other things, the site sets out draft principles for debate, and – of special value – posts an array of well-chosen “case studies” of free expression controversies from around the world. The site is designed to allow for conversation in an array of languages. Ash (together with LSE Political Scientist Fawaz Gerges and pianist Jonathan Biss) recently participated in an informative discussion of the freedom of expression on the BBC’s Forum program “A World of Ideas.”

In the United States, we’ve had a robust dialogue on the nature and scope of the freedom of expression since at least 1919. Many of the questions raised by Ash will thus be familiar to us -- especially to First Amendment experts. But Ash’s site, and his BBC interview, set things out clearly, in a way that will be useful to many, particularly in our role as teachers. The case studies are well-chosen, timely, and accessible. They may be especially welcome to those interested in stimulating discussion of live, hard-fought free speech controversies 1) from around the world, that 2) have not (yet?) been reduced to judicial opinions.

Posted 12:49 PM by Ken Kersch [link]

Golan/SOPA

Jason Mazzone

Justice Ginsburg, who has never seen a copyright law she doesn't like, writes for the Court today in Golan v. Holder, upholding Congress's power to remove un-copyrighted works from the public domain. Perhaps the only thing right about the Golan opinion is its timing: it arrives on the same day as the web-wide protests against the astonishing threat to freedom of speech that is SOPA.
Posted 5:44 PM by Jason Mazzone [link]

SOPA and the Fight for Control of Online Content

Frank Pasquale

I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other commentary, here's Marvin Ammori, Danielle Citron, Gerard Magliocca, and Derek Bambauer.

Simulposted: Concurring Opinions.
Posted 2:11 PM by Frank Pasquale [link]

If you can't do without Wikipedia . . .

Gerard N. Magliocca

Cross-posted at Concurring Opinions

As I'm sure you know, Wikipedia is dark today to protest the bills pending in Congress that would give content providers new tools to stop copyright infringement. The legislation is awful (when it comes to IP, that's par for the course) and I endorse this protest wholeheartedly. Alleged copyright infringers should have an opportunity to defend themselves--the notion that they can be punished through an ex part proceeding or by simply telling a host that you think somebody is engaged in illegal activity is contrary to due process and to the First Amendment. Moreover, a policy that allows a site to be, in effect, disconnected from the Web is more suited to Beijing than Washington DC. When I lived in China, it would be fun to figure out what websites you could or could not access. (Legal blogs from the US were always blocked back then.) What Congress is contemplating is not as bad, but the underlying principle is the same. The state should not get to decide what websites we can visit--period.

Though I have class this morning, I'll be available after that to answer all questions that you would normally take to Wikipedia. Consider it a game of "Stump Gerard." I accept the challenge!
Posted 8:25 AM by Gerard N. Magliocca [link] (9) comments

Martin Luther King Day Links

Frank Pasquale

To mark the day, a few reflections:

1) Nicholas K. Peart, Why is the NYPD After Me?

Less than two years later, in the spring of 2008, N.Y.P.D. officers stopped and frisked me, again. And for no apparent reason. This time I was leaving my grandmother’s home in Flatbush, Brooklyn; a squad car passed me as I walked down East 49th Street to the bus stop. The car backed up. Three officers jumped out. Not again. The officers ordered me to stand, hands against a garage door, fished my wallet out of my pocket and looked at my ID. Then they let me go. I was stopped again in September of 2010. This time I was just walking home from the gym. It was the same routine: I was stopped, frisked, searched, ID’d and let go. . . .

[L]ast year, the N.Y.P.D. recorded more than 600,000 stops; 84 percent of those stopped were blacks or Latinos. Police are far more likely to use force when stopping blacks or Latinos than whites. In half the stops police cite the vague “furtive movements” as the reason for the stop. Maybe black and brown people just look more furtive, whatever that means. These stops are part of a larger, more widespread problem — a racially discriminatory system of stop-and-frisk in the N.Y.P.D.

2) MLK’s Legacy: The Charleston Hospital Workers’ Strike of 1969:

During the year after her husband’s assassination, Coretta Scott King made several visits to Charleston, S.C., where hospital aides at what was then the Medical College of South Carolina were involved in a protracted fight for decent wages. After a 113-day strike, the union won an agreement that led to wage increases and new grievance procedures.

The campaign was led by Mary Moultrie, a South Carolina native . . . In Moultrie’s telling, the gains that the union won lasted only for a few years. Because South Carolina is a right-to-work state, the union couldn’t manage to maintain much strength. But Moultrie didn’t give up: She was still organizing as recently as 2008.

3) Adam Kotsko, On the commemoration of Martin Luther King
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Posted 1:12 PM by Frank Pasquale [link]

Mitt Romney and the 2012 Campaign

Gerard N. Magliocca

Stephen Skowronek's research on the presidency is a major influence on my work. My conclusion, which I've stated in prior posts, is that the 2008 election was a realignment and that Barack Obama is a "reconstructive" president in Skowronek's model, by which I mean that we are at the beginning of a new party system that will be dominated by Democrats.

Suppose, though, that I'm wrong. (Indeed, Skowronek himself does not think that Obama is a reconstructive president, or at least is unsure about that.) In that case, we are still in the Reagan/conservative era. With that assumption, Mitt Romney looks an awful lot what Skowronek calls a "disjunctive" or end-of-regime presidential candidate.

The traits of a disjunctive president are that he presents himself as a technocrat and comes from outside the typical political base for his party. Examples include (1) John Quincy Adams, an ex-Federalist who got elected as a Jeffersonian Democrat based on his problem-solving skills; (2) Franklin Pierce, an obscure candidate from New Hampshire who ran as a pragmatist in 1852; (3) Herbert Hoover, an engineer who wasn't a Republican until 1920; and (4) Jimmy Carter, an engineer who had never served in Washington. They were also all terrible failures.

Mitt Romney, of course, has never served in Washington and is running based on his business know-how. He also hails from Massachusetts, which is not where modern Republican leaders come from. Indeed, for the last few decades Massachusetts has been the symbol of liberalism run amok (Ted Kennedy, Michael Dukakis, John Kerry). If Romney wins (and that's a big if), he could be following the dismal pattern of disjunctive presidents.
Posted 4:13 PM by Gerard N. Magliocca [link] (29) comments

Justice Accused (circa 2012): Antislavery Constitutionalism … on the Republican Right

Ken Kersch

Just in time for the MLK holiday, I have an article out in the Maryland Law Review on antislavery constitutionalism on the contemporary right:

"Beyond Originalism: Conservative Declarationism and Constitutional Redemption," 71 Md. L. Rev. 229 (2011).

The first two paragraphs, setting out the main argument, are here:

“Almost 150 years after the ratification of the Thirteenth Amendment, the redemption of the nation from chattel slavery has become important--and for many conservatives, central--to the understanding of American politics. Slavery itself may be a thing of the past, but the purported political and constitutional lessons of its initial acceptance and subsequent eradication--once a preoccupation primarily of the liberal/left--are very much on the mind of the modern American right. In a marked departure from the old, more familiar conservative narrative, many of the modern movement's most influential constitutional theorists recount the nation's experience with slavery through a constitutional vision I will call (as have others) "Declarationism." As that term is used in this Article, Declarationism is the view that the Constitution can only be understood and interpreted in light of the principles enunciated in the opening words of the Declaration of Independence, which are held to be the Constitution's beating heart and unshakable foundation.

This Article, argues that contemporary conservative Declarationism offers a dramatic and morally compelling story about the long trajectory of American constitutional development, and serves: (1) as an ideological means of morally rehabilitating and redeeming southern conservatism in the wake of its longtime, but now morally discredited, defense of legal segregation; and (2) as an ideological means of unifying the diverse strands of the contemporary Religious Right. Both, of course, are crucial to the mission of the modern Republican Party.”

Posted 10:40 AM by Ken Kersch [link]

The "Absolute" Ministerial Exception

JB

In the Hosanna-Tabor case, the Supreme Court for the first time recognized a ministerial exception under the First Amendment, insulating church officials from lawsuits by (some of) their former employees. Different versions of the ministerial exception have existed in the circuit courts for many years, but now the Supreme Court has weighed in, in what seemed, at least at first glance, to be a rather uncompromising version of the doctrine.
Read more »
Posted 8:59 AM by JB [link]