Friday, March 11, 2005

Sarbanes is Done

CNN reports that senior Maryland Senator Paul Sarbanes (D) will not be seeking re-election in 2006. Co-author of the Sarbanes-Oxley corporate accountability bill passed in the wake of the Enron scandal, Sarbanes has been a fine Senator and a dedicated public servant. He will be missed greatly on the Hill.

Sarbanes' retirement has some interesting political implication. Though everybody expects the Democrats to keep the seat, the $1,000,000 question is which Democrats will go after the Senate spot, and which ones will challenge incumbent Republican Governor Robert Ehrlich. There are several prominent and popular Democrats who are suspected of harboring loftier ambitions, including Baltimore Mayor Martin O'Malley, Montgomery County Executive Doug Duncan, and 8th District Congressman Chris Van Hollen. In addition, CNN floated NAACP President Kweisi Mfume as a possible contender, someone I didn't know lived in the Old Line State but would also present a stiff challenge. My personal preference would be to see Van Hollen as Senator and O'Malley as Governor, but who knows the permutations of candidacies that will arise before 2006.

Bernstein on Alterman

I first blogged on Eric Alterman's obscene suggestion that British Muslims were justified in boycotting Holocaust memorials because of the Israel/Palestine dispute here, in the context of the trivialization of genocide. Essentially, Alterman argues that because the Holocaust contributed to the creation of Israel (which Arabs dislike), they are justified in ignoring the suffering in perhaps the greatest human rights atrocity of the 20th century. Now he's brought it up again, but this time I'm not even going to try and top David Bernstein's takedown of it.

Thursday, March 10, 2005

Original Sins

Feddie of Southern Appeal responds to Legal Fiction's attack on the jurisprudence of "original intent." Since I also am of the opinion that original intent makes no sense, I'll respond to his arguments here.

Since Feddie's analysis is interspersed between sections of Publius' original post, it is hard to provide a summary of his argument with block quotations. But the thrust of his argument is essentially that original intent is the only just form of constitutional interpretation because it is objective. We take a situation, ask "what would James Madison do?" (WWJMD), and rule accordingly. Other systems are inadequate because they are subjective: they entail unelected judges determining what "is" justice, due process, speech, etc.. Furthermore, he argues, the originalist position is superior because it is the most representative of what the people voted for in the first place. If "the people" were told that they were voting for X, it is unfair to then expand X into X, Y, and Z. Finally, he argues that the extensive debate record and deliberation that went into drafting and ratifying the constitution proves that there is a deducible original meaning to its clauses, for the state's certainly wouldn't have agreed to cede so much of their powers to the central government if they didn't know what the terms of the bargain were.

There are a few problems with that however. The first problem is that Feddie is being just as subjective in elevating objectivity to the paramount value of the judicial system. I'm not contesting that objectivity is usually a good thing, but there are any number of values that are "good things," Feddie just assumes that objectivity should trump them all. The constitution doesn't agree though, for good reason: not all of the goals of the constitution can be encompassed via completely objective standards. That's why we have the "necessary and proper clause." What is "necessary and proper" to carrying out Congress' I.8 powers is subjective, debatable, and most importantly it is temporally variable. It was not necessary and proper for congress to impose limitations on local commerce in 1820 to regulate interstate commerce. However, by 1940, with our far more integrated and interconnected economy, then such actions may very well have been necessary to regulate ISC. The point isn't that the meaning "changed," it's that the meaning was always contingent on specific social situations which (as situations are apt to do) DID change. The N+P clause is thus a perfect example of the constitution allowing for subjectivity in our governmental limits, which is probably why originalists are so uncomfortable with giving it any vitality. But without that clause, the founders knew that the constitution would quickly become as impotent as the Articles of Confederation. Guilty beyond a "reasonable doubt" is another case of generally accepted subjectivity in our judicial process: it is impossible to provide objective benchmarks for what that term means, and trying to do so would defeat the purpose of the standard at all. We allow subjectivity in our judicial decisionmaking all the time without question, not because we adore judicial fiat but because we realize that the infinite number and permutations of relevant facts make every case unique and thus require some bit of discretion if we're going to achieve justice in the end. Whether to give a defendant 10 years or 20, whether or not negligence was "gross" or not, whether or not someone is "competent" to stand trial, all of these are subjective determinations, but ones that are necessary to the functioning of our constitutional system, and I highly doubt the framers would dispute that. But once we accept that subjectivity is an acceptable state for our judiciary to be in, then Feddie's case unravels, because it provides no warrant for even why the framers would prefer us to look at the "framers' intent," aside from "objectivity is a good thing."

A second problem with Feddie's claims is it assumes that the text and the framers' intent are compatible. To use Publius' structure, it assumes that what the framers wanted is within the "bounded indeterminacy" of the text. However, his jurisprudence gives us no guide at all on what to do if that isn't the case. Two examples are illustrative. The 1964 civil rights act includes a clause protecting discrimination based on "sex." That clause was added at the behest of Virginia Senator Howard Smith, whose purpose (and we are quite sure of this) was to cause the bill to fail. He hoped that giving equality to women as well would pick off enough supporters of the bill to keep it from getting through the Senate. Needless to say, the plan backfired, but under an originalist approach we are still left in a conundrum. The "intent" of the clause was to make the entire bill inoperative, but that intent has absolutely nothing to do with the clause as written! What are we supposed to do? And if the intent of the framers is the only way to discern the meaning of the text, then how are the Court's supposed to interpret the clause at all? These are intractable problems. If Feddie thinks that you can dodge that one because it was only one person with that view, then I'd submit "Laci and Conner's Law" as an alternative. As I noted here, the manner in which that bill was passed makes it clear that the "purpose" of the bill was either a) to try and set the stage for banning abortion or b) to make Democrats look really bad on election day. Neither one has anything to do with the text of the bill, but they still remain the "intent." Another example is the very one Feddie uses: obscenity. He says the framer's clearly didn't consider it to be speech. Those are lovely sentiments, except for the fact that there is no objective way to interpret the word "speech" without including obscenity as well, at least if we are going to generally incorporate books and artwork into "speech," which we do. Cast aside the fact that what is "obscene" is subjective (ah yes, that again), and temporally specific ("Ulysses," anyone?), but it is contradictory to what is present in the text--which does not even suggest that speech can be restricted because it gives pastors an erection. As I've argued previously, if the framers intent and the text are not in congruence, that doesn't mean we magically morph the meaning of the text to match the framers' expectations, all it means is that the framers contradicted themselves.

Finally, while I think the above two points are enough to defeat originalism, I also don't think that Feddie really warrants his claim that the constitution clearly has a unambiguous and static meaning that the electorate was aware of upon ratification. He wrote:
" If the men who wrote and ratified the Constitution did so, as Publius suggests, with the understanding that the fundamental meaning of the document's text would evolve over time, then why all the fuss? Why spend all of that precious time debating the meaning of the words to be used in the Constitution if the framers' understanding of those words made no real difference? Why use common law terms of art throughout the document if the framers/founders had no intention of incorporating the then existing (and corresponding) jurisprudence into the Constitution? And do any of y'all honestly believe that the ratifying States would have given up the bulk of their powers to the federal government in the absence of some consensus about the common meaning/understanding of the Constitution's text?"

However, to once again go back to Publius' standard, it is at least as reasonable to think that the debate was over the boundaries of our "bounded indeterminacy" as it was over some very precise static meaning. After all, if you're going to have an indeterminate text, what is considered "in" and what is considered "out" is certainly an important issue for debate. Feddie finds it inconceivable that anyone would vote for such a text. I don't see why that is: Feddie himself thinks that the constitution would be better if it banned the death penalty, couldn't the people have had the foresight to realize that new generations might have new moral insights which would expand and build upon the principles which they laid down? Feddie seems to think that the proper way to do this is via amendment. I disagree. I think the constitution should not be construed in such a way as to make it obsolete every thirty years. It strikes me as eminently reasonable to argue that though the abstract values of the constitution are eternal, granting these values any vitality requires the recognition that the situations and applications on which they are contingent are fluid and changing. And perhaps I have an overly bright view of the founding generation, but I think they took that view as well.

Wednesday, March 09, 2005

Uncivil Procedures

Those who like to deny that the level of partisanship has reached unacceptable proportions *cough*Powerline*cough* would do well to read, or at least skim (it's quite understandably 147 pages) this report by New York Representative Louise Slaughter on the procedural ethical violations undertaken by this congress. I won't ask you to read the whole thing, indeed, all I'm going to do is summarize and highlight just the first third of the report.

The Fall and Further Fall of "Open Rules"
Matthew Yglesias (hat tip: Kevin Drum) excerpts just one of the charts from the report, showcasing the dramatic decline of bills offered under "open rules" (which let the minority party at least offer amendments to be considered and voted on under the "5 minute rule") since the GOP has taken charge of Congress. Starting at around 45% of all bills when the GOP took control of Congress (a number which they pledged to raise to 70%), now less than 25% of all bills are offered under open rules. The consistent, unjustified use of closed rules is egregious to begin with, but Republicans have taken it way beyond even its logical horizon. Republicans enforced closed rules on the "constitutional amendment (H.J. Res. 83)...that would allow Members to appoint their temporary replacements in the case of a disaster," refusing to hear alternatives presented by Reps. Lofgren, Larson, and Rohrabacher (pg. 21). Rohrabacher, it should be noted, is a Republican, which, hardly from saving the GOP from charges of partisanship, merely accentuates the ironfist by which the house leadership governs the chamber.

A shortlist of amendments prevented from even receiving a vote because of Republican tactics include "Rep. Spratt's amendment on the Defense authorization bill to speed up the dismantling of weapons of mass destruction in the former Soviet Union (H. Res. 247), Rep. Lantos' amendment to give tax credits to American businesses that continue paying their employees who get called into active military duty in Iraq (H. Res. 681), or Rep. Collin Peterson's amendment on the Intelligence authorization bill to increase the intelligence community's resources for counterterrorism activities (H. Res. 686)" (pg. 26). The objection to these tactics doesn't hinge on the relative merit of these bills, I'm sure Tom DeLay has a perfectly reasonable justification for why he does not want to help secure nuclear material in the Soviet Union, a task that both John Kerry and George W. Bush agreed was a integral part the highest national security issue America faces today, curbing nuclear proliferation. The point is that a deliberative democracy requires all voices to be heard. If the majority party doesn't want these ideas made into law, then they can vote them down. That's one of the perks of being the majority (and is something that distinguishes Democratic use of the filibuster in the Senate, more on that in a moment).

This is an Emergency?
Republicans have also drastically increased the amount of bills that are considered "emergencies." When you hear about members of congress being forced to vote on bills they haven't been able to read, this is what they're talking about. Normally, members are given at least 48 hours notice of any meetings and given any relevant materials (such as, oh, the bill) at least 24 hours in advance. Emergency rules dispense with all of that, preventing House Members from examining the bills they are voting on. Clearly, there are bona fide "emergencies" that the House must consider, and the report concedes as much. But I'd submit that the number of bills that actually fit that category is less than the 33% labeled such in the 107th congress. I say "I'd submit" because the GOP leadership clearly disagrees: in the 108th congress that number rose to 60% of all legislation debated (pg. 33-34). 40% of all the rules considered were held in sessions after 8 PM or before 7 AM, lending the term "vampire congress" to the body. The GOP has been particularly adapt at using this process after Joint House-Senate Committees, which seek to iron out differences between House and Senate passed bills. Republicans have granted blanket waivers to ALL objections that might be made under House rules, including the rules that allow Representatives three days to read any changes, and rules that prohibit House representatives from proposing changes that go beyond the scope of the bill the House originally passed. In 24 of the 28 Conference Report Rules, the rules were labeled "emergencies" (pg. 38-40). Given the length of some of these reports, this is simply unconscionable. The Energy Bill's report (H.R. 6) was 571 pages long; Representatives were given 10 hours to read it. The Prescription Drug/Medicare bill (H.R. 1) was 852 pages long (and filed at just past 1 AM); Congressman were given 20 hours. The Fiscal Year 2005 Omnibus Appropriations Bill (H.R. 4818) was 1,645 pages long; representatives were given 7 hours to read it over. You might remember that bill as the one where Rep. Ernest Istook (R-OK) slipped in a provision allowing congressional staffers to see the confidential tax returns of any American citizen. Oh, and the 9/11 commission recommendations (S. 2845)? 244 pages in four hours (pg. 41).

Yes, the Filibuster IS different
I'm sure that my Republican pals will respond to at least some of this by referencing the Democrat's use of filibusters in the Senate to block a few of Bush's court nominees. There are several flaws in the analogy, however. The first is prevalence: Democrats have used filibusters to block 10 of Bush's 229 nominees, or slightly over 4%. The cases I've documented above are occurring 60% or 70% of the time. Democrats have used their tactics as a rare exception, Republicans have (literally) made anti-democratic tactics into the House Rules. Second, Democratic tactics don't lead to any change in law. Filibustering doesn't change the composition of the Federal Courts, it maintains the status quo. Republican tactics, however, are being used to get laws passed, to change the status quo. This is a major qualitative difference. Indeed, one could very well argue that judicial appointments are a special case that demands a more deferential standard to the minority party. This is because judicial appointments are permanent. You can repeal a law, but you can't remove a judge. Democrats cannot, via the filibuster, take any positive action with regard to the judiciary, only the executive can. The filibuster thus only serves to moderate President Bush's preferences, it cannot be used to enact the Democratic Party's own. The GOP tactics in the House, by contrast, make positive, proactive changes to our nation's statutory law and thus need to be evaluated under a far stricter standard than the filibuster. Third and finally, the Democrats are the minority party. Congressional rules are designed to make sure they have a voice in the procedure. The power imbalance between the majority and minority parties justifies some differential treatment if the minority party is to be able to influence the process. I don't even think that we're really asking for any special treatment at all, to be honest though. I have no problem with Republicans using filibusters to stop bills they dislike (assuming that a bipartisan coalition of Democrats and moderate Republicans had a majority to get it passed) and I would have serious problems with Democrats somehow preventing the GOP from debating it's proposed amendments (though as the above discussion makes clear, the GOP isn't so much interested in debating anything as railroading through whatever special-interest sop it has on the agenda at any given moment). But any realistic appraisal of congressional rules has to give the minority party at least some rules in its arsenal to combat majoritarian abuse, and the filibuster is one of the oldest of these procedures.

The tactics of Tom DeLay and Company cannot be justified by mere partisan differences or shrugs of "that's politics." They represent the complete and utter breakdown of what it means to live in a deliberative democracy. I have no problem with legitimate, even passionate disagreement on the issues. But that presupposes that the majority party is even going to allow the discussion. Right now, they're not, and it's America's reputation as democracy's leading light that suffers.

Powerline Collects Another Notch

Powerline keeps on racking up the awards. The Week just named them the bloggers of the year. Editor & Publisher has the report. Peter Beinart was also awarded "best columnist," which is so deserved that I can't even express it. Congratulations to all!

Tuesday, March 08, 2005

Beyond Jews and Christians

Sepia Mutiny, by way of Blog De Novo, points us to the only Amicus Curae filed by non-Judeo-Christians in the upcoming 10 commandments case. Like the ACLU brief, it is an utter smackdown. This one is better though, because it presents an argument that not only is irrefutable, but really doesn't cut against the common wisdom. The ACLU brief argued that the 10 commandments aren't really a major part of our historical legal tradition, which may be true but certainly isn't going to be accepted by the population at large. The Hindu American Foundation brief, however (which was filed jointly on behalf of Hindus, Buddhists, and Jains), merely asserts that a document with roots in Judaism and Christianity cannot be said to be neutral to Hindus, Buddhists, Jains, or other religions outside the tradition. Many of the specific injunctions and prohibitions mentioned in the decalogue are antithetical to the core spiritual beliefs of these religions.

Powerline says that "a moment of serious reflection should make it clear that putting up a statue representing the Ten Commandments does not amount to making a 'law respecting an establishment of religion,' which is what the First Amendment prohibits." But as this amici makes clear (and in my opinion, as that "moment of serious reflection" should too), posting a six foot by three foot 10 commandments statue right in front of the Texas Capital building clearly is "respecting an establishment of religion." There simply is no principled way to conclude otherwise. I don't even have to go into any extra-textual analysis to come to that conclusion, the rhetoric in the amendment is clear here.

According to the Oxford Essential Dictionary, we get the following definitions: "Respect," as in "with respect to" (the way it is used in the amendment), "regarding." "An" is an indefinite article, as opposed to "the" which is definite and implies singularity. "Establish" is "1. set up on a permanent basis, 2. achieve permanent acceptance for (a custom, belief, etc.) 3. validate; place beyond dispute." "An" implies that there are many ways to establish religion, it isn't just laws that say "everybody has to worship Jesus." "Respecting" means that we interpret the clause broadly, laws that are "related" to the establishment of religion are prohibited as well (I think that can be interpreted to mean laws that a reasonable person might conceive of as promoting religion). And finally, "establish" is to "validate or place beyond dispute," which is exactly what law does. In a Democratic society, law represents what is right or proper in society. Even when there are no punitive sanctions attached, when the law says one "should" act this way or affirms that a given life-path is the governmentally sanctioned one, that carries significant moral weight.

A "moment of reflection" would clearly place the 10 commandments on the wrong side of the establishment line. They clearly are at least "related" to the promotion of religion, and a fair amount of them serve solely to affirm a particular type of religious dogma. The only way to uphold their placement in our governmental centers is to entirely ignore the text of the 1st amendment, replacing the language of the document with majoritarian norms. Needless to say, this is precisely the type of judicial activism Powerline claims to abhor. But apparently the text of the constitution is only worth looking at when it affirms values Powerline agrees with.

Schweitzer for President?

Kos is giving the early nod to Montana Governor Brian Schweitzer if he chooses to run for President. A Democrat who won in one of the reddest of red states, Schweitzer holds views that might be quite appealing to the persuadable red-staters. He's pro-gun, an old-school economic populist, and holds conservationist environmental views that resonate deeply with hunters and fishermen. The Washington Monthly did a whole cover story on his rise to political power, which is a great primer in how the Democrats can compete again outside their coastal base.

I obviously think its a bit early to be naming 2008 contenders, and "economic populism" always worries me. Still, it is very clear that Schweitzer is a savvy politician and someone to keep an eye on. Everytime I read about him, it seems like he's doing something sharp. Could he be the one in 2008?

Monday, March 07, 2005

Pragmatic Textualism

I actually agree with a lot of what this Legal Fiction post says. It articulates a legal theory called "pragmatic textualism," which refuses to extend the constitution beyond what is actually written down, but similarly refuses to abide by originalist notions of what the text "means." As the author explains:
To me, the Constitution consists of words and nothing else. Text is the essence of what it is. But as any linguist would tell you, a word never has a single determinant meaning. Instead, it has a range of plausible meanings. The word "cool" can mean very different things, even though the actual text of the word itself remains the same. Words also change through time, and changes in background context can also change the meaning of the word. The text of the Constitution is no different. Words like "cruel," "unreasonable," "speech," "commerce," "cruel and unusual," and "search" lack a clear determinant meaning. That's not to say they are wholly indeterminate, but rather that there is a range of plausible meanings."

I've been somewhat enamored of this method of thinking since reading Democracy and Distrust by John Hart Ely. Although Ely and LF are really arguing different things, they both are based off rejecting originalism, a stance I agree on. But after what is a pretty persuasive analysis throughout, LF then makes a claim that almost seems like a parodied response to his own argument:
When you get away from this idea that we cannot stray from the brooding omnipresence in the sky that is the "original understanding," you can begin to inject more pragmatism and more democratic deliberation into matters that effect hundreds of millions of American lives. Obviously, we cannot stray from the text. "Cruel" can never mean something that only one state outlaws. But once we are within the bounds of the plausible, we can engage in policy analysis and other pragmatic inquiries to determine what the meaning should be. If "cruel" could plausibly mean "A" "B" or "C" then is it so wrong to ask what the right answer should be, when the answer could be any of the three? This is pragmatic textualism-- constitutional interpretation's Third Way. Its motto is:
When choosing among textually justified outcomes, it is emphatically the province and duty of the judiciary to say what the law should be, not what it is.

I understand what he's trying to say here. The Court's can't say what the law "is" because text is indeterminate. But his logic forces the question: why shouldn't the legislature be the one to choose between the different indeterminate meanings. That would be the democratic thing to do, and as long as the legislature stays within the bounded indeterminacy, I think it makes sense to assert that it should be a democratic branch who makes the call. I know Scalia would make that argument, and I'll admit it carries some weight with me.

I personally think the text should be and is intended to be interpreted broadly, both in terms of the powers granted to the government by the text and the powers denied to it by the text. This seems most in accordance with how our constitution was set up--the founders wanted a stronger system than the Articles of Confederation, but they were still very cognizant of the potential for oppression latent in any government. A non-originalist interpretation should stay faithful to that legacy, giving broad latitude to where the government is given jurisdiction (inter-state commerce, for example), but being zealous in the defense of the rights government is not permitted to impinge upon.

Sunday, March 06, 2005

Thank You, Justice Kennedy

This LA Times article reminds me to write a post on Justice Anthony Kennedy (link via How Appealing). There is no doubt Kennedy is a Conservative, albeit a moderate one. However, his own political leanings not withstanding, what I like about Kennedy is that it is clear from his opinions that he has a passionate commitment to justice for all Americans, not just those politically favored. Unlike his swing vote colleague Sandra Day O'Connor, whose predilection for Solomonic rulings is turning into somewhat of a joke, Kennedy is willing to take a stand when he feels the constitution mandates it. That Kennedy, a devout Catholic, wrote some of the most stirring and life-affirming opinions in the past half-century on gay rights (Romer v. Evans and Lawrence v. Texas) is proof that he is a man of legal principle and integrity. And I still feel that his opinion in Lee v. Weisman represents one of the greatest pieces of 1st amendment jurisprudence of our times. Since his opinion in Roper v. Simmons, Kennedy has been attacked as a "would-be legislator, a dilettante sociologist and a free-lance moralist, disguised as a judge", his opinions examples of the "Supreme Court's imperialism". Conservatives need to remember that the constitution doesn't permit every policy they find preferable or advantageous. Some things do violate our constitution. It is certainly debatable what those things are. However, I personally find Kennedy's obvious and passionate devotion to justice to be inspirational, not scorn-worthy.

Texas Justice

The Volokh Conspiracy points us to a lovely Texas case where a plantiff's attorney secured a $28 million judgment for his clients...with his girlfriend on the jury. Once the news got out, the judge dismissed the woman but refused to declare a mistrial, despite other issues of professional misconduct likely present in the case as well.

Apparently, this is actually the rule of law in the state. In Armstrong v. Williams, a Texas State Court of Appeals upheld a life sentence for a murderer who was convicted with the Prosecutor's girlfriend on the jury, and expressed "no opinion" on whether or not the Prosecutor violated the Texas Disciplinary Rule of Professional Conduct 3.09, a special rule for prosecutors (Texas has rules for prosecutors?).

Ahh...Texas. I can always count on it to uphold the strictest standards of justice. At least this isn't the infamous sleeping lawyer case, where Texas Courts (thankfully overruled by the 5th Circuit Court of Appeals) held that a defendant's right to a fair trial wasn't violated when his lawyer consistently dozed off through his proceedings. I believe the Texas Courts argued this could have been a "tactic" by the lawyer.