Monday, November 30, 2015

Soul, Self, and Society

Guest Blogger

Ed Rubin

With a little less than a year to go until Election Day, 2016, the campaign for the Presidency and control of Congress is more that heating up -- it is already in full fever. Having been treated to five full debates on the Republican side, and three on the Democratic side, with more to follow, the contours of the coming campaign are becoming clearer, even if the identity of the presidential candidate, at least for the Republicans, remains in doubt. In a recently published book, Soul, Self and Society: The New Morality and the Modern State (Oxford University Press 2015), I try to explain why the two parties line up the way they do, at least on domestic issues. My suggestion is that our society is undergoing a truly momentous social transformation -- the transition from one moral system to another.

The essence of such a transition is that some members of the society will remain loyal to the older morality, while other members will embrace the new one. No one will have any trouble identifying which of the two political parties are aligned with each of these positions. What I attempt to explain in the book is why the issues cluster as they do, and why they arouse such intense reactions, even when their direct effects are limited. To take just a few examples, the scope of federal economic regulation is entirely unrelated to same sex marriage, and yet people's positions on these issues are strongly correlated. Funding for Planned Parenthood represents an almost invisibly small portion of the federal budget, and abolishing the death penalty would only mean that a few dozen people, rather than having their lives terminated, would now be able to spend the remainder of their time in prison. Yet these issues arouse towering passions and often influence the way that people vote.

Somewhat surprisingly, neither the traditional morality that is currently declining nor the new one that is displacing it has a generally accepted name. In the book, I describe the first as the morality of higher purposes and second as the morality of self-fulfillment. The morality of higher purposes began to develop in the eleventh and twelfth centuries, as the decline of central governments in the Western World (the process that led to feudalism) was gradually reversed. At the same time, the Christian religion, which had achieved dominance by adapting itself to the sensibilities of Early Medieval warrior chieftains, became increasingly more spiritualized. The system of morality that evolved in conjunction with these developments maintained that moral action in the political sphere consisted of serving the king, or the state, and moral action in the personal sphere consisted of striving for salvation in the afterlife. The morality of self-fulfillment is the product of the previous two hundred years, the crucial turning point being the late eighteenth century. It maintains that the government should serve the people's needs and that moral action in the personal realm is to follow rules that enable each person to live the most fulfilling or rewarding life that he or she possibly can.

One reason why two such basic principles have thus far gone unnamed is that most observers have not interpreted the current turmoil as a transition between two conflicting moralities, but rather as the demise of our one prevailing moral system. From this perspective, the old morality needs no further name because it is regarded as morality itself, while the new morality deserves no name because it is not morality at all. This view, somewhat surprisingly, is not only prevalent among those who bemoan the old morality’s decline, but also among those who welcome it.

But this is not an accurate description. In the book, I categorize moral rules (for convenience) as fitting within three concentric circles: one's relation to oneself, one's relations with people one knows, ranging from intimates to friends, and one's relationship to the larger society. Within each area, the new morality of self-fulfillment imposes as many obligations on individuals as the morality of higher purposes, but they are distinctly different ones.

Read more »

Sunday, November 29, 2015

Speech and Authority

Jason Mazzone

Whenever I read about campus agitations I am struck by the willingness of students today to enlist university officials to help them engage in protest and to protect them from any fallout. The latest example (via Paul Caron) is the case of a 2L at Ohio State Law School. The details are sketchy but the basic story seems to be thus: The 2L student published an op-ed in which she described abortion as the "number one killer of Black Americans." The column generated criticism. Somebody (allegedly another student) posted a message to the author's Facebook page which she construed as a threat. In a subsequent column entitled "Standing Up for the First Amendment" the 2L explains that in response to this Facebook message she "went to my law school administrators to express concern about my safety." The result (she says) was that several law school deans met with her and "instead of practicing tolerance for my views and simply looking into my concern . . . lectured me on how my faith-based beliefs about abortion in my writing might harm my legal career" and "picked apart my article line by line, as I sat there visibly upset and in disbelief." Now, the 2L seeks to "inspire[] millennial conservatives on campuses nationwide to stand up for what they believe in and to stop letting bullies silence their views and infringe upon their rights."

It is surely an odd view of the First Amendment on campus that when your speech gets some push back the appropriate response is to hurry to a dean.

Read more »

Free Speech and Equality on Campus

Mark Graber

To be a member of an historically disadvantaged group is to be a member of a group with a contested past, present and future.  Americans cannot stop talking about race, gender, sexual orientation and the like because we disagree on how past discriminations affect the present, we disagree on what policies are necessary to combat remaining discriminations, we disagree on what a future world without discrimination would look like and we think resolutions of these disagreements vital for a just society.  To be a member of an historically disadvantaged group, for these reasons, is to be talked about and scrutinized far more than members of groups whose status on campus and in society is far less contested.  The consequence is inevitable tensions between free speech and equality, particular for those of us who think of ourselves as left-center, committed to achieving a proper balance between values that are not entirely harmonious.

For persons on the moderate left, affirmative action programs and the latest pronouncements from the university diversity office are precisely the sort of matters that ought to be the subject of intense public debate.  They are not truths from which we allow the stupid to dissent only because, as John Stuart Mill suggested, responding their stupidity or bigotry keeps those truths vital.  Rather, numerous issues of race, gender, sexuality, ethnicity and the like are matters on which human reason has yet to resolve certain very fundamental issues.  We may favor affirmative action and think conservatives vastly underestimate the influence of past discriminations on present statuses.  Nevertheless, what might be called the squishy left thinks that reasoning people might disagree on issues as diverse as the use of race conscious measures in college admissions, the explanations for wage gaps between men and women and the proper etiquette for Halloween customs on campus.  Debate over what costumes students should wear is vital for the same reason debate over the best response to ISIS is vital.  Both are matters on which human capacities and policies are likely to be improved through the interchange of ideas.

Persons on the moderate left also recognize that debating what constitutes egalitarian policies (and how, if at all, egalitarian concerns should be balanced against other concerns) generates new inequalities.  Given the state of contemporary knowledge, we will inevitably be talking about some people more than others.  We ask about the status of African-Americans in the United States for more than the status of Norwegian-Americans because throughout American history, at the present time and for the foreseeable future, the status of African-Americans in the United States has been, is and will be more problematic that the status of Norwegian Americans.  We talk about the rights of Mary and Mary’s family far more than the rights of Joe and Mary’s family because throughout American history, at the present time and for the foreseeable future, the status of Mary and Mary’s relationship has been, is and will be more contentious than the status of Joe and Mary’s relationship.  In short, if you are a member of an historically disadvantaged group, the conversation at a university is far more likely to be about your rights, including your right to be a member of that community, than anybody else’s rights, including their right to be a member of that community.  You are scrutinized for more than your peers because your place on campus remains far more contestable than their place. The ultimate cause of that scrutiny may be past discriminations, but its existence is also a consequence of fair dispute over the present significance of those past discriminations.

There is no good solution to this conflict between free speech and equality values for the simple reason that persons of color, women, members of sexual minorities and the like will not have equal status on our campuses and in our society until a social consensus is reached on what constitutes equal status.  Until then, all we can do is attempt to persuade each other, understanding that the first commitment of every university must be to the principle that human advancement is best achieved by good faith persuasive efforts, but knowing that those efforts at good faith persuasive efforts inevitably burden some persons more than others.

Wednesday, November 25, 2015

Confirmed: The Iran JCPOA ain't a treaty (or an executive agreement, for that matter)

Marty Lederman

As I was saying . . .

For more on this, see these two posts from August.

The very practical reason the Supreme Court should decide the DAPA case this Term

Marty Lederman

The parties in United States v. Texas, No. 15-674, disagree about when Texas ought to be required to file its brief in opposition to the federal government's petition for certiorari:  Texas has requested an extension until January 20, 2016.  The United States, on the other hand, has asked the Court to set a deadline of December 29, 2015 for Texas's response, so that the Court can consider the petition at its January 15, 2016 Conference.  If the Court were to grant the petition on January 15, the case could be argued in April without much, if any, adjustment to the ordinary merits briefing schedule.  The Solicitor General has further informed the Court that if the petition-stage briefing does extend into January, and the Court does not consider and grant the petition until a Conference after January 15, he will move the Court to set oral argument for a special May session so that the Court can decide the case this Term.  (The Court has heard arguments in important cases in May before--including, for example, in Raines v. Byrd, the first "Line-Item Veto Act" case, in which the Court accepted the case on April 23, 1997, heard oral argument after full briefing on May 27, and issued a split (7-2) decision on June 26.)  More on the details of this timing dispute from Lyle Denniston here.

Regardless of how long an extension the Court grants Texas to file its brief in opposition, the Court should set argument in the case this Term, and decide it by the end of June 2016, for a very practical reason--one that can be seen clearly by considering the two principal, possible dispositions of the case.  If, on the one hand, the Court affirms the decision of the Fifth Circuit, then the date of decision will not have had any practical impact:  the status quo will continue from today into the future, whether the Court acts in June 2016 or in January or June 2017.  But on the other hand, if the Court reverses the court of appeals, and rules for the federal government, then any delay in the decision will necessarily result in irremediable harms to the government and to the DAPA aliens and their families during the period between June 2016 and whenever the Court were to decide the case next Term.

As I explained here last week, the court of appeals issued a decision with a very odd, if not counterintuitive, disposition:  The government is not enjoined from implementing its policy to forbear from removing the DAPA-eligible aliens from the United States--indeed, the court of appeals in effect acknowledged that Congress has afforded the Secretary of Homeland Security the broad and unreviewable discretion to implement such a removal-forbearance policy.  Therefore, the DAPA aliens presumptively will not be removed, and presumably will remain in the United States, unless and until Jeh Johnson or his successor decides to remove some or all of them.  However, the court of appeals also held that Secretary Johnson is effectively prohibited from authorizing employers to hire such aliens, notwithstanding a decades-old regulation that provides for such "work authorization."

This creates the anomalous situation (the SG refers to it as a "half-measure") in which more than four million aliens--all of whom by definition already have long ties to the community--will presumably remain in the United States, without substantial fear of being removed, but cannot become part of the legal workforce.  Those aliens, therefore, either (i) will be unemployed--and thereby will not only be unable to support their children (who are U.S. citizens and permanent residents), but will actually impose a heavy burden on their extended families and communities--or (ii) will work "off the books," typically on a pay scale that depresses the wage market for all other employees, and the federal and state governments will then be unable to collect employment-related taxes.

Given that status quo situation, let's look at what would happen under the possible dispositions of the appeal by the Supreme Court:

If the Court affirms the judgment below, the status quo will continue indefinitely into the future (i.e., until Congress or DHS changes it):  Most of the DAPA aliens will remain in the United States, but the Secretary will not be able to authorize employers to lawfully hire them.  If this is the Court's disposition, then it will not have mattered whether it issued its decision in June 2016, or January 2017, or June 2017, or any other date:  Throughout the entire period, and beyond, the government and the aliens will be in exactly the position they find themselves in today.

If, however, the Court reverses the judgment below, and holds that the Secretary does have the legal authority to authorize employers to hire the DAPA aliens, it will mean two things:  First, well, employers will then be able to lawfully hire such aliens.  But second--and more importantly for purposes of the timing question--it will mean that between today and the date of the Court's decision, the Secretary will have been denied his lawful authority to authorize such hiring, and employers and the DAPA aliens will have been prevented from entering into open, lawful work arrangements, even though (as the Court will have held in this scenario) they ought to have had the lawful opportunity to do so.  In other words, the aliens will have been unemployed, or working "off the books," even though they would and should have been able to be working openly all that time, if only the lower courts had not erred.  (There is another, related possibility:  The Court might hold that Texas lacks Article III standing to challenge the policy and the work authorization.  If so, the Court would not opine on the lawfulness of the policy, but it would nonetheless conclude that the district court lacked the authority to enjoin DHS's actions--in which case employers should still have been able to hire the DAPA aliens during the period in question, but would have been prevented from doing so.)

And so, in this second possible scenario, it matters a great deal when the Court issues its (hypothetical) reversal.  If, for example, it issues such a decision in June 2017 rather than in June 2016, that will have meant unemployment or off-the-books employment of millions of aliens for an entire year, even though the law did not, in fact, compel such a situation (or, at a minimum, that there was no warrant for the trial court to enjoin the work authorization).  And that, in turn, will mean the imposition of real, palpable costs for millions of families, and the government and other workers (in terms of tax revenues and wage scales)--costs that cannot be remediated.  

For this reason alone, the Court should hear and decide the case this Term, regardless of what it decides about the petition-stage briefing schedule.*

One, other, related consideration is worth flagging, too:  It is possible Texas will argue that the court of appeals did not go far enough:  Texas might ask the Court to hold, as it alleged in its complaint, that the Secretary has abused his discretion not only in authorizing employers to hire the DAPA aliens, but also in forbearing to remove such aliens.  (As I discussed last week, that removal forbearance was, in fact, the focus of the criticisms and defenses of the DAPA policy until very recently.)  If Texas does seek such a disposition, then it, too, has an interest in a decision of the Court this Term, because Texas, too, will be seeking a change in the status quo.  If, for example, the Court were to hold that DHS cannot forbear removal, and must continue to remove such aliens, then a decision in June 2017 will have meant an extra year of the presence in the United States of such aliens as DHS would have been able to remove in that time period.

* In its motion, Texas notes that when the court of appeals denied the government's motion to stay the preliminary injunction pending appeal, the Solicitor General did not ask the Supreme Court to stay that injunction.  That earlier decision by the government, however, does not in any way affect or undermine the argument I've offered in the text:  It remains true that expedition of the case would minimize palpable and irreparable harms if the Court rules for the government, whereas there'd be no downside to expedition if the Court affirms the Fifth Circuit.

In any event, the SG's decision not to seek an earlier stay from the Court is not inconsistent with his current request for the Court to decide the case this Term.  For one thing, the standards for such a stay are much more demanding than the "standards" (basically, the Court's own preference) for when the case is to be scheduled for argument.  Moreover, a stay would have affected what would have happened between last summer and next in a way that could have resulted in a very confusing and awkward back-and-forth dynamic:  Employers would have been free to hire the aliens as of May or June of 2015, but only with the prospect that the Supreme Court might hold that such hiring was unlawful in June of 2016 or 2017--which would presumably then mean they'd have to fire those employees who had previously been hired.

Khaitan on Discrimination Law

Andrew Koppelman

Tarunabh Khaitan’s valuable book, A Theory of Discrimination Law, proposes a general account of a type of law that now can be found in many countries.  He proposes four conditions which are individually necessary and cumulatively sufficient to make a norm of discrimination law: the norm should have some connection with a ground that divides all persons between two or more groups, at least one of whose members must be significantly more disadvantaged in relation to members of another group defined by the same ground; and the norm must be designed to distribute the direct substantive benefits or burdens in question to some, but not all, members of a protected group.  The book analytically disaggregates the elements of antidiscrimination law thus defined.  It also aims to specify the conditions under which it makes sense for such a law to operate.  The consequence is a work that is both analytic and normative.  It is executed with admirable care.  It convincingly establishes that this kind of law is a transnational phenomenon with distinctive characteristics. 

The book is impressive but somewhat frustrating.

Chapter Five is entitled “The Point of Discrimination Law.”  That point, Khaitan thinks, is to make an adequate range of valuable opportunities available to everyone.  But he observes, as many commentators on antidiscrimination law do not, that only some members of the protected group benefit from the law.  This point is worth emphasizing.  William Julius Wilson noted long ago that both antidiscrimination law and racial preferences benefit the black people who are best qualified, and so have been least injured by racism.  (The Truly Disadvantaged 109-24 (1987).  So the benefit to a limited number of people must lead to some benefit to all the members of the group.

This benefit, Khaitan thinks, is a general elimination of discriminatory behavior.  “It is only the cumulative effect of a critical mass of such [legal] actions, including the deterrent effect of the threat of these actions and the internalization of the antidiscrimination norm, which systematically connects the antidiscrimination duty with its broader purpose of ameliorating relative group disadvantage.”  (192-93)  If this broader purpose is understood, then it is possible to dispel certain characteristically American confusions that regard discrimination as an ordinary tort, like carelessly breaking someone’s leg, and focusing exclusively on the intentions of the alleged discriminator.  The legitimacy of antidiscrimination law depends on “its assumptions about a complex, dynamic, and contested set of social facts.”  (246)

This is a valuable corrective to the Supreme Court’s tendency, noted long ago by Alan Freeman, to regard discrimination as merely "the misguided conduct of particular actors" in "a world where, but for the conduct of these misguided ones, the system of equality of opportunity would work to provide a distribution of the good things in life without racial disparities and where deprivations that did correlate with race would be 'deserved' by those deprived on grounds of insufficient 'merit.'"  (Legitimizing Racial Discrimination Through Antidiscrimination Law, 62 Minn. L. Rev. 1049, 1054 (1977).)  The demand that any civil rights claimant show that he is the individual victim of intentional discrimination implies "that Black Americans can be without jobs, have their children in all-black, poorly funded schools, have no opportunities for decent housing, and have very little political power, without any violation of antidiscrimination law."  (1050) 

Khaitan’s correction, however, does not answer Wilson’s concern.  Even if deterrence is perfect and discrimination is eliminated – even if unconscious, discriminatory behavior is eliminated - discrimination might not be the only reason why the group is systematically disadvantaged.

In the contemporary United States, for example, discrimination is certainly one reason why so many black Americans are poor and marginalized.  But another is the continuing consequence of a long history of marginalization, the social consequences of a punitive war on drugs, and the disappearance of industrial jobs in the rust belt. The consequence is a self-sustaining pattern of disadvantage that itself is a powerful driver of racism.  In obstetrics wards on the south side of Chicago right now, there are newborn boys who, we can feel confident, will commit stupid, pointless homicides in 16 years, and others who will be the victims of those homicides.  The high crime rate among African-Americans itself reinforces old American tropes about black male dangerousness.  Stopping discrimination won’t stop this from happening.  It would require intervention on a massive and expensive scale, of a kind that the United States today shows no interest in.  (We don’t know enough about what kinds of intervention would work, but we’re not investing much in the way of resources to find out.)  The conditions Freeman described in 1977 are still with us.  No clarification of or change in antidiscrimination law is likely to fix it.

I argued, in my book Antidiscrimination Law and Social Equality, that discrimination law only makes sense as part of a larger project of changing cultural norms to eliminate such malign ideologies as racism and sexism.  Those ideologies, and patterns of group disadvantage, form a self-sustaining cycle, in which each reinforces the other.  Discrimination law can only be one element of the larger project of disrupting this cycle of reproduction of a racist social reality.  It can’t do the job itself.  A theory of medical care presupposes a theory of disease.

Khaitan acknowledges this. “The antidiscrimination duty, even when effectively implemented, is likely to make but little impression upon relative group disadvantage, and at best prevent its exacerbation. The reason is simple. In order to make its imposition legitimate in a liberal state, the duty had to be action-regarding and wrong-sensitive, and limited to a small set of duty-bearers. ... Given these limitations, its impact on abiding, pervasive, and substantial advantage gaps between groups is likely to be small. This does not, of course, make the duty pointless. It plays an important role in seeking to ensure that this advantage gap does not widen. Group dominance is self-reinforcing. If the duty just manages to resist its expansionary pressures, it would be successful. But that merely maintains the status quo, which is freedom-inhibiting, even as it prevents it from worsening. Unraveling relative group disadvantage will take more than successful internalization of the antidiscrimination duty by its bearers. It calls for a good deal of affirmative action.” (216-7) It is for this reason that he underscores the “importance of acknowledging the conceptual and normative continuity not only between the prohibition on direct and indirect discrimination but also between this prohibition on the one hand and the provision for affirmative action on the other.” (165)  But of course affirmative action won’t end relative group disadvantage either.

Khaitan notes at the end of his book that there might be, outside his data set, “countries that have sought to address the problem of relative group disadvantage through tools entirely distinct from (and, perhaps, more effective than) discrimination law.”  (249)  This raises a serious question about the point of discrimination law.  It may be that discrimination law aims at remedying group disadvantage, and does so, but less effectively than other tools.  If this is so, than any defense is radically incomplete.  High fructose corn syrup is a way of preventing death by starvation.  The body must have glucose, but that is not a defense of high fructose corn syrup, because there are other ways of preventing starvation and delivering glucose that are far healthier.  Sometimes discrimination law is the right tool for the job.  Sometimes it isn’t.  A theory of discrimination law ought to be able to tell us which is which.

Tuesday, November 24, 2015

Evenwel and Minority Representation

David Gans

Next month, the Supreme Court will consider Sue Evenwel’s bid to change the way state and local governments draw election districts.  Demanding that state and local governments across the nation change the way they draw legislative lines, Evenwel argues that it is unconstitutional for states to draw districts based on total population, creating districts of substantially equal numbers of people.   Evenwel’s arguments—which fly in the face of our Constitution’s promise of equal representation for all—would undermine minority representation both in Texas, the state Evenwel is suing, and throughout the nation.  Recent events in Yakima, Washington, provide a good example. 

The town of Yakima—an agricultural community 140 miles east of Seattle—is forty percent Hispanic, but, until this year, had never elected a person of Hispanic origin to the town’s city council.  This year, a federal district court held that Yakima’s at-large system of elections for city council violated the Voting Rights Act by denying Hispanic voters an equal opportunity to elect their candidate of choice, and ordered the town to draw single-member districts composed of substantially equal population.   Earlier this month, in elections held under these court-ordered boundaries, three Hispanic candidates won election to office, ending the exclusion of Hispanics from elected office.   

But the town of Yakima is now using every avenue to undo these historic gains, claiming—as Evenwel does—that the Constitution does not permit state and local governments to draw districts composed of substantially equal numbers of people if those districts do not contain approximately the same number of eligible voters.   Yakima argues that the Hispanic voters’ claim under the Voting Rights Act should be dismissed because creating single-member districts in order to make it possible for the Hispanic community to elect its candidate of choice would result in “severe malapportionment of eligible voters.” Represented by defense counsel in the Voting Rights Act litigation, Yakima has even gone  so far as to file an amicus brief in the Supreme Court supporting Evenwel’s attack on the principle of equal representation for equal numbers of people. 

As this example illustrates, Evenwel’s far-reaching arguments, if accepted by the Court, would  not only wreak havoc with our democracy, requiring states to change the way they draw district lines, but it would also make it harder to draw election boundaries that ensure that racial minorities have an equal chance to elect representatives of their choice.  Evenwel’s argument would undermine the protections afforded by the Voting Rights Act and take political power away from urban population centers where racial minorities overwhelmingly live, giving it to whiter, more rural areas.  This is no accident.    Ed Blum—the mastermind behind Evenwel’s case—wants to stop states from creating majority-minority districts that help ensure equal political opportunities for all regardless of race.  Denying equal representation to unnaturalized immigrants, children, and others who lack the franchise won’t alone accomplish Blum’s goal, but it would make it harder to draw election boundaries that ensure that minorities have a fair chance at the polls.  Among the losers—if Blum succeeds in eliminating the guarantee of equal representation for equal numbers of people—will be racial minorities in places like Yakima, who will, once again, find it harder to have their voices heard.  

David Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Evenwel v. Abbott.  This post is cross-posted at Text and History.  

Monday, November 23, 2015

A Tub To A Whale

Gerard N. Magliocca

Congressman Aedanus Burke is not a household name, but during the First Congress he contributed something distinctive to legal discourse by criticizing Madison's proposal for what became the Bill of Rights as "a tub to a whale." What Burke meant was that the amendments were meaningless, just like the wooden tub that a crew would throw into the water as a decoy to direct whales away from a ship.

While Burke turned out to be wrong about importance of the first set of amendments, I have been reflecting lately (as part of my next book) on how the constitutional construction of the Bill of Rights acts as a distortion or a distraction comparable to a tub to a whale. The Constitution does not say that the first set of amendments are a bill of rights. Furthermore, that term was not commonly applied to those amendments until long after the Founding, and even then there was disagreement about if the first eight, the first nine, or the first ten were the Bill of Rights.

Now an obvious question here is, "Well, what's the harm of calling some part of the first set of amendments the Bill of Rights?" One possible answer is that the exclusion of the Reconstruction Amendments from that category places too much emphasis on the Founding and not enough on what happened after. The focus on the Bill of Rights during the early twentieth century occurred while Jim Crow was firmly entrenched, and thus prior to, say, 1950 thinking of the Fourteenth Amendment as part of the Bill of Rights was impossible.  Nothing prevents that sort of redefinition now, of course, but constitutional inertia can be powerful.  FDR tried to get around this problem by pitching the idea of  a "Second Bill of Rights" that protected economic equality, but that slogan never caught on.

I'm going to do another post shortly about how Bolling v. Sharpe fits into this story, but that may have to wait until after turkeys have been consumed.

Use and Reference Squared

Mark Tushnet

The summary of a story in today's Chronicle of Higher Education reads, "Kansas professor is on leave after students complain over her use of n-word and her statements on retention. Situation is latest to raise issues of racial sensitivity and academic freedom." When you read the story itself, it turns out that the professor didn't "use" the word in the technical sense, but "referred" to it. (My providing a link to the story is the "squared" version of reference.) There's more to the controversy than the reference to the n-word. But, at least as reported, I would think that the professor's in-class actions were well within the boundaries of academic freedom and discourse, though perhaps there was some inartful phrasing (as can occur when one doesn't simply read prepared notes).

Sunday, November 22, 2015

The Perils of Originalism: Notes from Zivotofsky II

Richard Primus

            One of the important and well-known problems with originalism is that even smart judges rarely have the historical knowledge and training that is necessary for interpreting and drawing conclusions from the world of prior centuries.  A method of judicial decisionmaking ought to be one that judicial personnel can apply responsibly in practice.  So even if some form of originalism made sense as a matter of ideal jurisprudential theory, that form of originalism would be a poor choice of method for an actual judiciary if the judges turned out to be unable to operationalize it.  (Reading the minds of witnesses through the magic of Legilmency would be an excellent way for district judges to do credibility assessments if the judges had the skills of Severus Snape.  Lacking the capacity to perform magic, judges probably shouldn’t try to do things that way.)
            Many thoughtful originalists acknowledge that history can be messy, that historical interpretation is often difficult, and that sometimes historical sources yield no answer to a now-pending question—but that we should not throw out a whole method for being imperfect and that the difficulties with getting history right should not be overstated.  This rejoinder often sounds reasonable enough.  So it is important to point out, on a regular basis, how flagrantly awful even the most respected and prominent originalists can be at rendering their historical evidence. 
The reason why it is important to keep making that demonstration is not, I think, because it might prompt committed originalists to give up their preferred approach.  The point is rather to show the broad mass of constitutional lawyers—most of whom are not committed originalists but who do think that original meanings should have an important role in constitutional interpretation—just how flawed the practice of originalism actually is.  (If you think that claims about original meanings should be taken with a grain of salt, you might keep eating—a grain of salt isn’t so bad for you.  But you might alter your diet if you realized that the sodium content of what you were eating was through the roof.)
            The illustration to which I will here call attention is one that I noticed again a few days ago while preparing to speak with students about this year’s decision in Zivotofsky v. Kerry (“Zivotofsky II”).  The majority in that case struck down § 214(d) of the Foreign Relations Authorization Act of 2013, which provides that the passport of a U.S. citizen born in Jerusalem shall list the citizen’s place of birth as “Israel” if the citizen so requests.  Justice Scalia wrote a dissent—one that I find cogent in most respects.  In particular, I agree with Justice Scalia that Congress has the authority to regulate passports.  But before Justice Scalia reached the portions of his analysis arguing concretely in favor of congressional power to enact § 214(d) in spite of the President’s contrary preferences, he framed the big picture in a way that should make historians gape.
            Justice Scalia wanted to make the general point that the checks and balances of our constitutional system operate in the realm of foreign affairs and not just domestically—that the President does not make American policy unilaterally, even beyond the border.  That’s fine.  It’s even important.  But to make the point, Justice Scalia’s opening paragraph made a remarkable historical claim.  The opinion began as follows: “Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom's foreign affairs.”  To support the proposition, Justice Scalia cited Blackstone.  And then he noted that the People of the United States decisively broke from this tradition when they became independent and designed the Constitution.  The moral, which primes us to see see the folly of the majority’s decision in Zivotofsky II: an executive with unchecked foreign-affairs power how they did things in the bad old Empire against which we rebelled, not how we do things here. 
            I tend to agree with Justice Scalia that the majority’s position in Zivotofsky is unsound.  But the picture of eighteenth-century British government that Justice Scalia offered to frame the point is fully make-believe.  By the time of the Hanoverian Kings, Parliament was thoroughly involved in foreign policy.  Indeed, the Parliamentary settlement that installed the Hanovers in the first place came with statutory limits on what these new Monarchs would be allowed to do in the domain of foreign affairs.  Through the eighteenth century, Parliamentary Ministries approved and disapproved alliances, granted and refused foreign subsidies, and as a practical matter authorized war and peace, to say nothing of building the overseas Empire.  George II had little interest in that last little endeavor, being much more focused on Europe, but the Crown’s disinterest didn’t matter much, because the Ministers in Parliament were driving.  George III, who was more interested in the Empire than his grandfather had been, would have been shocked to learn that he had a free hand in foreign affairs, given his constant experience of having to deal with Parliament.  To say nothing of the consternation that news of the King’s exclusive foreign-affairs power would have caused throughout the capitals of Europe, as governments wondered why they were spending so much money retaining London agents for the purpose of lobbying Parliament to make favorable foreign-affairs policy. 
            How does a Supreme Court opinion signed by three Justices open with a paragraph that asserts a basic proposition about constitutional history and whiffs so completely?  It’s hard to know for sure, but here’s a hypothesis.  Technically, in the eighteenth century and also today, foreign-affairs powers in the United Kindgom’s system were and are classified as matters of “royal prerogative.”  Blackstone used that term at one of the pages that Scalia’s opinion cites.  Someone unfamiliar with U.K. constitutional law might see the foreign-affairs power described as a matter of royal prerogative and infer that things worked just as Justice Scalia said—that the King wielded exclusive control over such things.  But that inference would misunderstand the prerogative powers.  Even in 2015, British constitutional doctrine continues provides that foreign-affairs powers up to and including decisions on war and peace are matters of royal prerogative—they belong, officially, to the Monarch.  But it is a matter of consensus understanding and centuries-old unbroken practice that the Monarch exercises those powers on the advice of her Ministers—which is a polite way of saying that the elected leadership of Parliament asks the Monarch to do X and the Monarch duly says “I hereby do X.”  The practice of a Monarch’s exercising the prerogative powers on the advice of his Ministers was not as old or as complete in 1776 as it is two hundred and fifty years later, but the basic move had already been made.  George III had more latitude than Elizabeth II has, but already Parliament was calling a lot of shots.  So yes, Blackstone called foreign affairs a matter of royal prerogative, which officially they were—and are, even today.  But everyone from Blackstone to John Adams to Louis XIV knew that in the British system Parliament had a lot of actual power over foreign affairs. 
            I don’t think that judges—even Supreme Court Justices—should be responsible to know how the British constitution worked more than two hundred years ago.  The world is full of specialized knowledge, and nobody can know everything, and federal judges have enough to keep track of without having to be historians, too.  So my complaint isn’t that Justice Scalia (or the two other Justices who joined him) should have a better understanding of eighteenth-century British constitutional law.  Instead, the point is that we should all expect that even our leading judges will not know what they would need to know in order to interpret eighteenth-century materials—even, in this case, when the materials are something familiar like Blackstone, and even when the subject matter is a pretty basic fact about the constitutional law of the world in which the Founders operated.
If a Supreme Court opinion by a leading originalist in as prominent a case as Zivotofsky II can open with an entire paragraph of historical fantasy, what hope is there for the practice of originalism in the courts more broadly?  We should not think “Look, sometimes it won’t work out, but most of the time it’s fine.”  We should think “Originalist interpretations are liable to be shot through with misunderstanding even under what seem like favorable conditions.” 

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