Why Does the United States Have an Exclusionary Rule?:
Adam Liptak has an interesting story in today's New York Times about the so-called exclusionary rule, the rule of criminal procedure instructing (in simplified form) that evidence acquired by the police in violation of investigatory rules cannot be used in a prosecution. The United States is essentially unique among nations in having a mandatory exclusionary rule: The obvious question is, why? Liptak's article includes a short quote from me on this issue, and I thought I would blog some more thoughts on it.
There are a few reasons why the United States has an exclusionary rule, but I think the most important is that criminal procedure rules in the United States are mostly judge-made. The courts make the rules in the form of interpretations of the Fourth, Fifth, Sixth, and Fourteenth Amendments. That's largely unique among nations. In most countries, investigative rules come mostly from legislatures, not courts.
In my view, the fact that criminal procedure rules are judge-made led fairly directly to the exclusionary rule. Put simply, the exclusionary remedy is the one remedy that judges can completely control. There are a variety of ways to enforce rules of criminal investigations, such as lawsuits, criminal prosecutions, and internal discipline. But all of these alternatives tend to require the cooperation of other branches. The rules governing civil lawsuits are largely under the legislature's control. Legislatures can regulate jurisdiction, create procedural hurdles, limit damages, and the like. And criminal prosecutions and internal discipline require the cooperation of the executive branch. Someone in the executive branch needs to see the violation as a major problem and needs to take action to enforce the law.
In contrast, the exclusionary rule does not require the cooperation of any other branches. The same courts that create the rules control the remedy. As a matter of history, I think that explains why we have an exclusionary rule: judges needed a way to enforce judge-created rules even when they were unpopular and didn't have buy-in from other branches. The exclusionary rule provided a way — and perhaps the only way — to do that.
Finally, let me stress that this explanation is descriptive, not normative. That is, it describes why I think judges did what they did, but it doesn't take a position on whether the judges did so appropriately or whether they read the Constitution correctly. If there is interest in the normative question, let me know in the comment thread and I'll consider a follow-up post.
Funding Barack Obama's "civilian national security force."--
A. Obama on National Service.
In Barack Obama’s July 2, 2008 speech calling America to national service, Obama proposed “a civilian national security force that's just as powerful, just as strong, just as well-funded” as our military.
This has prompted some in the blogosphere to raise the specter of a huge new domestic paramilitary organization. Others suggest that he may have been talking about our “current non-military security agencies - FBI, CIA, NSA, DEA, DHS, etc.”
I think that both interpretations are probably wrong. If you listen to the whole speech –- or even the couple minutes before his security force proposal — I think that it’s reasonably clear that Obama is talking about expanding a range of domestic and international agencies such as AmeriCorps, the Foreign Service, and the Peace Corps — and adding some new ones.
The two controversial sentences (shown below in bold) were not in the transcript of Obama’s prepared remarks. Because the lines seem as if they were crafted ahead of time, I wonder whether the language was cut from an earlier draft, but Obama decided to deliver the sentences anyway.
Here is Obama on national service (the controversial passage starts at about 16:00; I have also corrected some slight errors in the transcriptions posted by other bloggers):
Obama on National Service, July 2, 2008
Just as we must value and encourage military service across our society, we must honor and expand other opportunities to serve. Because the future of our nation depends on the soldier at Fort Carson, but it also depends on the teacher in East LA, or the nurse in Appalachia, the after-school worker in New Orleans, the Peace Corps volunteer in Africa, the Foreign Service officer in Indonesia. . . .
Today, AmeriCorps – our nation’s network of local, state and national service programs – has 75,000 slots. And I know firsthand the quality of these programs. My wife Michelle once left her job at a law firm at city hall to be a founding director of an AmeriCorps program in Chicago that trains young people for careers in public service. These programs invest Americans in their communities and their country. They tap America’s greatest resource – our citizens.
That’s why as President, I will expand AmeriCorps to 250,000 slots, and make that increased service a vehicle to meet national goals like providing health care and education, saving our planet and restoring our standing in the world, so that citizens see their efforts connected to a common purpose. People of all ages, stations, and skills will be asked to serve. Because when it comes to the challenges we face, the American people are not the problem – they are the answer.
So we are going to send more college graduates to teach and mentor our young people. We’ll call on Americans to join an Energy Corps to conduct renewable energy and environmental cleanup projects in their neighborhoods all across the country. We will enlist our veterans to find jobs and support for other vets, to be there for our military families. And we’re going to grow our Foreign Service, open consulates that have been shuttered, and double the size of Peace Corps by 2011 to renew our diplomacy.
We cannot continue to rely only on our military in order to achieve the national security objectives that we've set. We've got to have a civilian national security force that's just as powerful, just as strong, just as well-funded.
Undoubtedly, much of what Obama is talking about is also proposed on his website, for example:
He will establish a Classroom Corps to help teachers and students, with a priority placed on underserved schools; a Health Corps to improve public health outreach; a Clean Energy Corps to conduct weatherization and renewable energy projects; a Veterans Corps to assist veterans at hospitals, nursing homes and homeless shelters; and a Homeland Security Corps to help communities plan, prepare for and respond to emergencies.
So I think it’s incorrect to think that Obama is proposing some new paramilitary organization or is just referring to the FBI or the CIA.
B. Comments on Obama's Proposal
The part of Obama’s comment that may be a genuine cause for concern is his statement that this civilian force has to be “just as powerful, just as strong, just as well-funded” as our military.
1. First, Obama is suggesting a fundamental restructuring of our national government with civilian service organizations becoming roughly as important and as expensive as our military. He is proposing to carve another large slice out of the private sector and assign it to the government.
As his website makes clear, Obama is proposing to "Require 100 Hours of Service in College" and grant a $4,000 tax credit to college students for 100 hours of community service work, an effective wage of $40 an hour.
Require 100 Hours of Service in College: Obama will establish a new American Opportunity Tax Credit that is worth $4,000 a year in exchange for 100 hours of public service a year.
Further, Obama proposes to divert fully a quarter of college work study funds away from work in college libraries and student services to serving the larger community. (As someone who went to Yale College on a full need scholarship and did work-study, the university would probably have had to hire someone else to do much of the work that I did. Over two years I also did unpaid tutoring in a local high school.)
2. Second, there is the cost. The US military has about 2 million members in service and about 650,000 civilians employed by the Defense Department. Its proposed FY2009 budget is about $585 billion.
Today, before Obama’s expansions, AmeriCorps currently has about 1.875 million members in its various programs: 75,000 in the main AmeriCorps program, 500,000 seniors in the SeniorCorps, and 1.3 million students in the Learn and Serve America program. Obama’s proposed increases in AmeriCorps alone would lead to at least the 175,000 new members mentioned in his speech, bringing the AmeriCorps total to at least 2,050,000 members, about the same as the military’s 2 million members. While the military also has about 650,000 civilian employees, it is unclear how big the existing bureaucracy is at AmeriCorps and other parts of Obama's civilian security force.
With Obama’s proposed increases in the Foreign Service, the Peace Corps, and other agencies — not to mention the existing and expanded bureaucracies to run them — the total number of members of Obama’s civilian national security force should range from about 2.1 to 2.7 million members and staff, roughly the same numbers as are employed by the Department of Defense.
Yet the current budget of AmeriCorps is under $1 billion, as is the Peace Corps’. The budget of the Defense Department, on the other hand, is about $585 billion, over $200,000 per employee. Although the equipment costs involved in Obama’s civilian national security force would be small compared to the equipment needs of the military, they would not be trivial (building infrastructure is one of Obama's more expensive goals). (Further, pension and health care costs for former members of the military take up a significant minority of military funding.)
The Heritage Foundation reports that spending on military personnel averages $70,000 per member, though it is not clear what that entails.
If Obama is talking about funding his civilian national security corps at the same level as the military, he would need at least an additional $500 billion.
Even though Peace Corps volunteers are poorly paid under the existing program, the agency’s annual budget is still about $43,000 per Peace Corps volunteer, not a trivial amount. If pay for Peace Corps volunteers and funding for their programs were raised to military levels, the per capita cost of the program would probably increase several fold. If one raised funding for Obama’s civilian corps only to the same level as the military spending on personnel only ($70,000 per member), we would require at least $150 billion in additional annual funding.
These staggeringly huge numbers are driven in part by the large numbers of students in AmeriCorps, 1.3 million of them. If the students were paid only $4,000 each, rather than $70,000 in personnel costs, and the student program is assumed to be otherwise completely free to administer, and the rest of AmeriCorps cost $100,000 per member, then the budget increase needed would be about $100 billion.
Also, is Obama going to expand the GI Bill to cover the 2-3 million people in Obama’s civilian national security force? If they deserve the same power, strength, and funding as the military, why not?
So – if Obama means what he says – his civilian national security corps would cost at least another $100 billion a year, and perhaps as much as $500 billion a year. With total federal income taxes of $935 billion in 2005, Obama's proposal would mean using up to half of all federal income tax revenues just to fund his promise “to have a civilian national security force that's just as powerful, just as strong, just as well-funded” as the military.
3. Last, given the dangers and the sacrifices that our fighting men and women are making every day in Iraq and Afghanistan, is it really fair to suggest that AmeriCorps and similar programs should be “just as powerful, just as strong, just as well-funded” as the military?
Times have certainly changed. I hesitate to think what the American public would have thought of a politician during World War II who suggested that those donating their time to tutoring, visiting the sick, or leading blackout drills on neighborhood watches on the homefront should be “just as well funded” as those serving in the military. My grandfather, who was too old to serve in WW II and led such neighborhood drills, was a man whom I admired more than anyone else I knew while I was growing up. I’m certain that my grandfather would have thought Obama’s suggestion to be strangely lacking in proportion and simple common sense.
To comment on Barack Obama, go here. To comment on John McCain, go here.
Josh's posts will focus on his new article, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, which makes the surprising assertions that, (1) while the Constitution gives Senators a right to resign their seats, Representatives have no such right, but may only quit if the House lets them, and (2) there are good reasons for the House to change its rules so that resignations have to be accepted by vote of the House to become effective. Long-time Conspiracy readers may recognize that this is Josh's second guest-blogging appearance here; he and his OxBlog cobloggers guest-blogged here nearly five years ago.
Third Circuit Rejects Proposed New "Depiction of Animal Cruelty" First Amendment Exception,
by a 10-3 en banc vote (U.S. v. Stevens). Here's my summary of the issue from when I blogged about another such case last year, though I've revised it slightly.
The relevant statute, 18 U.S.C. § 48, criminalizes (a) "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce," though with an exception for (b) "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."
"[D]epiction of animal cruelty" is defined in (c) to include "any visual or auditory depiction ... of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the [jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the [jurisdiction]." This means that it's a federal crime to distribute videos of cockfighting or dogfighting in, say, California (assuming the depictions lack "serious ... value") even if the cockfighting or dogfighting was legal in the place (say, Puerto Rico or Japan) in which the video was created.
The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens; and it does indeed seem to cover such videos, assuming the relevant state law bars the underlying conduct (often yes as to killing kittens, often no as to killing insects). Don't ask me why people would want to watch this stuff, but apparently some get their jollies this way.
But the statute is written much more broadly than that. On its face, the statute would also punish, depending on how judges and juries interpret "serious religious, political, scientific, educational, journalistic, historical, or artistic value" (emphasis added):
A TV program showing foreign bullfights, which might be legal in the country in which they're taken, but illegal in at least some states in which the program is shown.
A magazine with photographs of people illegally killing endangered species in a foreign country.
A magazine with photographs of people committing cruelty to animals, aimed at exposing and punishing such cruelty, so long as the magazine is sold on newsstands or by subscription (rather than given away).
One can certainly argue that all the above has such serious value, but at least as to the first item and maybe as to the others, some factfinders might conclude otherwise — the test is quite subjective, and some jurors or judges might well say "this bullfighting scene has no serious value; it's just aimed to shock, titillate, and get ratings."
Note also an important difference between this clause and the third prong of the obscenity test, from which the clause is borrowed: clause (b) doesn't say that the work has to be judged "taken as a whole." This means the "serious value" exemption under this law may well be a smaller safe harbor than the "serious value" exemption under obscenity law.
The statute doesn't fit within the existing obscenity or incitement exceptions. President Clinton's signing statement tried to cabin the statute by saying that the Justice Department should construe the law narrowly, limiting it to "wanton cruelty to animals designed to appeal to a prurient interest in sex"; that at least brings it closer to the obscenity exception, though not entirely within it. But the signing statement isn't part of the law, and is certainly not binding on later administrations.
The real question is whether the child pornography exception — the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created — should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,
production of cruelty videos can be done in secret, but the distribution has to be relatively public;
a ban on production will thus be very hard to enforce;
so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,
to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.
The argument against extending the child pornography exception would be:
The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.
The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.
The harm that the distribution of this speech causes — indirectly furthering animal cruelty — is much less severe than the harm of indirectly furthering sexual exploitation of children. (The legal system itself embodies such a judgment — child sexual abuse is a very serious crime, generally punished much more severely than animal cruelty. Cockfighting, in particular, is not even a crime in Puerto Rico, though Congress could have outlawed it if it wanted to. For more on when and whether it's legitimate for courts to draw such crime severity lines as a constitutional matter, see Crime Severity and Constitutional Line-Drawing, 90 Va. L. Rev. 1957 (2004).)
This also illustrates how the "slippery slope" can work in a legal system that's built on precedent and analogy. Crush video laws have indeed been advocated by their supporters as analogous to child pornography bans; and while courts might well draw the line between the two, perhaps on the grounds that child sexual abuse is just much more harmful than crush videos, the analogy seemed to be at least helpful in persuading legislatures to enact the laws.
Some might embrace the slippery slope here, if they think that cruelty videos should be banned. Some who disagree about cruelty videos nonetheless might accept the slippery slope risk, on the theory that child pornography is so harmful that we should have an exception for it even if there's some risk that the exception will spread further than one would like. (That's my view, and the Third Circuit decision suggests the risk of spread isn't that high, though note that the 3 dissenters did indeed rely heavily on Ferber as justification for carving out a new exception here.) But one shouldn't pretend that the slippery slope risk doesn't exist.
The McCain campaign has a long, nearly 8-minute ad up on its website, which is mostly just video clips of Barack Obama's statements on Iraq, interspersed with derogatory slides expressing negative conclusions about Obama. Personally, I could do without the ominous music and most of the slides (which are sometimes fair and sometimes not). Yet I like actually hearing Obama's views on what is for me the main issue. Although there might possibly be a clip taken out of context, my sense is that the clips shown are quite representative of his views on Iraq over time.
Indeed, I was happy to see that the political ad included a brief example of his view before he started running for President that we should NOT pull out of Iraq because of the destruction that would result from our leaving. This is the position he took in "The Audacity of Hope." Most people think that Obama always opposed continuing the war and always favored pulling out fairly quickly.
Personally, I would prefer that, should Obama clearly pivot on what to do in Iraq, he not be attacked by either the left or the right for flip-flopping, but rather commended for responding to new realities. After all, he is likely to be President, and the earlier he takes a more mature position on the war, the likelier he is to stick with it. Indeed, that Obama has been so slow even to begin changing his position is a worrisome sign. Even if Obama does change his views and decide to stay in Iraq and win a war that is now probably winnable, I wonder whether when he takes office he has the courage to disappoint his supporters, especially when he has to deal with, not only his extravagant promises, but the families of dead soldiers.
One thing I find disturbing about the Obama clips and some recent public comments is the degree to which he is trying to rewrite the history of what his positions were, particularly on the surge. Obama was wrong on the main foreign policy issue of his brief time in the US Senate, the surge, and he should correct his position as quickly and as forthrightly as is politically possible, not pretend that he always thought that the surge would work to reduce violence.
I would love to see a similar long, detailed ad on the Obama website on John McCain's shifting views on immigration (for amnesty/against amnesty; border control first/border control as part of a general solution). (Perhaps one is already there.)
My own immigration views are for tighter borders AND increased immigration through greatly increased legal immigration. I have long entertained the possibility that some portion of slots should be sold or auctioned off to screened, otherwise qualified immigrants, a proposal explored by Dick Posner and Gary Becker.
Three Difficulties With Using State Constitutional Rights to Infer Federal Constitutional Rights:
I really appreciate Eugene's thoughtful response to my earlier questions about the relevance of state constitutional rights to whether courts should infer or an analogous federal constitutional right. At the same time, I'm not yet persuaded. Here's why:
First, I have concerns with Eugene's approach from the standpoint of constitutional fidelity. I fear that looking to state constitutional provisions for new federal constitutional rights risks nullifying the decisions that Congress and the ratifying states actually made in amending the Constitution under Article V. As I understand it, the first Congress that debated and enacted the Bill of Rights looked largely to the provisions found in then-existing state constitutions for ideas. They selected the state constitutional amendments they wanted, and they declined to pick others.
It seems to me that Eugene's proposed methodology risks effectively nullifying those decisions. It seems a bit like a constitutional version of "heads I win, tails you lose." Those state constitutional provisions actually adopted become part of the federal constitution, and those that weren't adopted become of the federal constitution anyway because they are "traditional" (at least if they are sufficiently common in the states). I would prefer a constitutional methodology that draws a sharper line between Constitutional amendments that were actually adopted and those that weren't.
Second, I think Eugene's approach has troubling implications for federalism. If surveying state constitutions means that minority approaches tend to become constitutionally forbidden, you cause a shift in power from the states to the federal government. Diversity among the states is replaced by a one-size-fits-all rule from Washington, DC. This does happen in the Eighth Amendment setting, granted, but at least there's a textual hook: the word "unusual" suggests an inquiry into relative frequency, and state laws could help shed light on that. But here we seem to be interpreting no particular text at all, and the federalism concerns strike me as troublesome.
Finally, the relevance of state constitutional practice seems at best modest under existing law. I agree with Eugene that legal history and tradition is often an important part of constitutional decisionmaking. But I think the role of state law in interpreting unenumerated rights is narrower than Eugene suggests. In the substantive due process context, for example, cases like Washington v. Glucksberg that have tried to root substantive due process in historical practice treat history as a necessary condition but certainly not a sufficient one. That is, newfangled rights don't get recognized, but the fact that a right has a long historical pedigree does not mean that it gets constitutionalized. Indeed, the same cases that try to root the doctrine in history warn that courts must be "reluctant" to expand substantive due process, "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court." Glucksberg.
Dave Kopel argues that the use of the word "the" in "THE right to keep and bear arms" indicates that the right was pre-existing.
A similar — though significantly different — argument has been made about "THE freedom of speech" in the first amendment, that including the word "THE" indicates that the right was pre-existing.
In the first amendment context, that argument misunderstands English grammar. When an of-phrase is newly coined, it should take an article, thus
"I recognize THE freedom of taking a shower whenever I please,"
NOT
"I recognize freedom of taking a shower whenever I please."
When an of-phrase becomes so common that it is treated as a single concept, only then is it idiomatic to drop the article. Thus, today we would usually say that a case "involves freedom of religion" or "involves freedom of speech." When a few hundred years ago, these phrases were not so common that they could be thought of as single concepts, we would have said that a case "involves THE freedom of religion" or "involves THE freedom of speech."
Now Dave Kopel's 2d amendment argument is different than the standard 1st amendment argument because an of-phrase is not involved:
"THE right TO keep and bear arms."
Although he is not entirely clear, I assume Kopel means that, if the right was not pre-existing, the 2d amendment might have said:
"A right to keep and bear arms."
But IMO idiom is not as reliable a guide here as Dave considers it to be. One can certainly use "A" to introduce rights thought to be pre-existing. Kopel does so himself in the post I am responding to. Kopel writes:
If the majority is right on this point, then the Stevens dissent is plainly wrong; the Second Amendment was intended to protect A personal right to arms for self-defense.
But is it also idiomatic to use "THE" when the right is not recognized as pre-existing? Yes. Idiomatically, I might write either:
I believe that each American should have THE right to drive as fast as he wants.
OR
I believe that each American should have A right to drive as fast as he wants.
Even though my examples presume that the right does not pre-exist, I still think that I might idiomatically refer to "THE right to drive as fast as he wants" or "A right to drive as fast as he wants." If I use "THE" to refer to a non-existent right, the word indicates which right I am refering to, in this example the particular right to drive as fast as he wants. IMO, using "THE" to refer to a right may just tell us which right is referenced, not that the right is pre-existing.
BTW, the best discussion of the use of articles before "of" phrases is in Wilson Follett's Modern American Usage (the versions edited by J. Barzun).
Over at Cato Unbound, Bob Levy (Cato), Dennis Henigan (Brady Center), and I are debating the Heller case. All three of us have new essays on the subject. My essay published today looks at the fatal flaw in the Stevens dissent: its treatment of "the" in "the right to keep and bear arms." The essay also examines which types of gun bans and gun storage laws may now be unconstitutional. Erwin Chemerinsky will weigh in next week. Thereafter, we will engage in a four-way blog discussion.
On the issue of a right of self defense discussed by my fellow Volokh Conspirators a few days ago, my take is somewhat different.
The framers believed that Americans possessed a natural right of self defense, which no government could abrogate.
Indeed, the purpose of entering into civil society was for protection. As Locke argued, when a person attacks you (and when civil authorities would be ineffective in such an emergency), you have a right to defend against — and even kill — your attacker because he is in a state of war with you. Since preservation is the purpose of society, no legislature has the power to legislate in direct contravention of that right of self preservation.
The right of self defense is among the most basic of the natural rights and was sometimes described in the 19th century as a “fundamental” right.
The framers would have thought it strange to believe that people could have no right of self defense, even after they enter into civil society. Remember, the right to life was considered inalienable. Some 17th and 18th century commentators considered self defense to be, not only the permissible thing to do, but the morally required thing to do (for the same reason that suicide was considered immoral).
The legal question for an originalist would be: Is this natural right of self defense protected by the US Constitution, or does the Ninth (and/or Tenth) Amendment merely reserve it to the people by making clear that the new Constitution did not abrogate such pre-existing rights?
Most of the 19th century discussions that I’ve read seem to assume that it is a natural right, but not a right protected by the US Constitution.
Under that view, I would think that a state would not be allowed to take away the right of self defense completely (even if no 2d Amendment arms were to be used), because no government could legitimately do so.
This passage from Gray vs. Combs, 30 Ky. 478 (App. 1832), presents the issue nicely, as well as shows that, even for many originalists, the proper scope of the natural right of self defense might change over time based on changed circumstances.
The right of necessary defence, in the protection of a man's person or property, is derived to him from the law of nature, and should never be unnecessarily restrained by municipal regulation. However proper it may be for every well ordered community to be tender of the public peace, and careful of the lives of its citizens, there can be neither policy or propriety in extending this tenderness and care so far as to protect the robber, the burglar and the nocturnal thief, by an unnecessary restraint of the honest citizen's natural right of self defence. Sir Matthew Hale, in speaking on this subject, says, "the right of self defence in these cases is founded in the law of nature, and is not, nor can be superceded by the law of society. Before societies were formed, the right of self defence resided in individuals, and since, in cases of necessity, individuals incorporated into society, cannot resort for protection to the law of society, that law with great propriety and strict justice considereth them as still, in that instance, under the protection of the law of nature."
Accordingly, the framers would have thought the right of self defense to be a natural right, perhaps more fundamental than any other. This natural right would have been contemplated (but not explicitly guaranteed) by the language of the 9th Amendment. Whether that is enough to makes it a “constitutional” right I couldn’t say.
Perhaps other Volokh Conspirators or commenters can enlighten me on whether fundamental rights recognized as reserved to the people by the 9th Amendment are “constitutional” rights. I would say technically not, but I would also say that the US Constitution does not give governments the power to abrogate the right of self defense in a general way.
If one were to agree with me, would that make the right of self defense a “constitutional” right? Would a court in the US be duty bound to recognize such a right of self defense? Is every right that courts must recognize (by striking down statutes if necessary) “constitutional” by definition?
Other cases discussing or mentioning the natural right of self defense include Nunn v. Georgia, 1 Ga. 243 (1846); Missouri v. Quaite, 20 Mo. App. 405 (1886); Cockrum v. State, 24 Tex. 394 (1859); and Anderson v. Dunn, 19 U.S. 204 (1821) (argument of lawyer).
By the way, for an enterprising student, a good law review note topic (and title) might be “The Natural Right of Self Defense” or “The Fundamental Right of Self Defense.” If a student reader of the VC does indeed choose that topic, it might be kind (and in your own best interests) to let other student readers know of your choice by clearly disclosing your intentions in the comments, so that others can decide if too many others are working on that angle in the impending self defense debate inspired by Heller.
For background, here is Locke on the “fundamental law of nature, man being to be preserved as much as possible” from his Second Treatise:
Sec. 6: . . . Every one, as he is bound to preserve himself, and not to quit his station willfully . . . .
Sec. 16. THE state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man's life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other's power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the commonlaw of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power. . . .
Sec. 19. . . . But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho' he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man's person, makes a state of war, both where there is, and is not, a common judge.
Sec. 25. . . . men, being once born, have a right to their preservation . . . .
Sec. 128. For in the state of nature, to omit the liberty he has of innocent delights, a man has two powers.
The first is to do whatsoever he thinks fit for the preservation of himself, and others within the permission of the law of nature . . . .
Sec. 129. The first power, viz. of doing whatsoever he thought for the preservation of himself, and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself, and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of nature. . . .
Sec. 131. But though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure every one's property, by providing against those three defects above mentioned, that made the state of nature so unsafe and uneasy. . . .
Sec. 134. THE great end of men's entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive law of all commonwealths is the establishing of the legislative power; as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it.
Sec. 135. Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every common-wealth; yet,
First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions, must, as well as their own and other men's actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.
This fall, I will be a visiting professor at the University of Pennsylvania Law School, teaching Property and a seminar on Federalism. Thanks to the Law School's generosity in providing me with a research stipend, I have the opportunity to hire one or two Penn law students as research assistants.
If you are a Penn law student and would like to take advantage of this exciting and incredibly lucrative (OK, maybe exciting and not so lucrative) job opportunity, please e-mail me and send a resume. My website should give you an idea of the sorts of issues I'm working on in my scholarship.
A higher court writes a decision which says X. Misreading the case, many lower courts claim that the decision means Y. Years later, the higher court faces the same issue. To what extent, if any, should the higher court's new decision take into account the reliance interests of the lower courts who said Y?
Is the obvious answer "none"? Justice Stevens and the other three dissenters in Heller did not think so. All nine Justices agreed that the Second Amendment secures an individual right, not a collective right. (The Justices disagreed about the scope of the individual right--in effect, a disagreement between X1 and X2.) Yet Justice Stevens in dissent complained at length that the Heller majority was harming the reliance interests of lower courts, and his litany of complaint about lower court decisions that were being disregarded included many "collective right" decisions from the lower courts.
I am working on a law review article on the subject. I would be grateful for any leads for law review articles which discuss what deference higher courts should give to a large body of lower court decisions on an issue of law, particularly when that body of decisions is based on the lower courts' controversial application of a precedent from the higher court.
The "Unitary Executive" and the Scope of Executive Power:
As co-blogger Jonathan Adler points out, Libertarian Party presidential candidate Bob Barr is one of many people who confuse the theory of the "unitary executive" with the claim that the executive has virtually unlimited power. Barr argues that "McCain has endorsed, in action if not rhetoric, the theory of the 'unitary executive,' which leaves the president unconstrained by Congress or the courts." In reality, the unitary executive argument is a theory about the distribution of executive power, not its scope. I addressed this crucial distinction in more detail in this post. I hate to quote myself, but I don't think I can improve on what I said then:
The idea of the unitary executive is simply that whatever power the executive branch has should be concentrated in the hands of the president. There can be no executive officials (such as the independent counsel) who are not subject to presidential control and removal. As Article II of the Constitution states, "the executive power [of the federal government] shall be vested in a President of the United States." It does not grant any executive authority to officials not under presidential control.
This is perfectly consistent with simultaneously believing that the scope of executive power is relatively narrow, and that the president has no authority to ignore laws enacted by Congress, including those that constrain many military and foreign policy decisions. Congress can pass a variety of laws stating that no one in the executive branch - including the president - can do X....
Constraining presidential authority in this way does not go against the theory of the unitary executive. What Congress cannot do without contradicting the theory is pass a law allocating authority to decide whether to do X to executive officials who are exempted from presidential control and removal.
Barr's claim that McCain supports unlimited executive power "unconstrained by Congress or the Courts" is also strange in light of the fact that McCain sponsored the McCain Amendment forbidding the use of torture, one of the best-known congressional efforts to cut back on the Bush Administration's extreme assertions of executive authority.
I am no fan of McCain, who has many genuine shortcomings from my libertarian perspective. To the extent that I support his candidacy, it is primarily because a McCain victory is the only hope for preserving divided government, which is one of the most important constraints on the growth of the state. Nonetheless, it is not true that McCain has endorsed unconstrained executive power.
UPDATE: TalkLeft criticizes this post, arguing that the Bush Administration has claimed that the unitary executive theory does indeed justify unlimited presidential power. TalkLeft's post gives several examples of Bush Administration officials claiming extremely broad presidential power. However, none of the quotes in question claim that power on the basis of the theory of the unitary executive. One of the quotes mentions the "unitary executive branch" in passing, but rests its claim of broad executive authority on the Commmander in Chief Clause. And even if the Bush Administration has misused the term "unitary executive" on occasion, that is no reason for the rest of us to do so.
The post also cites a 2001 speech by Samuel Alito arguing that "all federal executive power is vested by the Constitution in the President." This statement, of course, is clearly compatible with strong judicial and congressional limits on executive power. Executive power can be narrow, yet still be entirely vested in the hands of the president. As Alito himself stated at his confirmation hearing:
The question of the unitary executive . . . does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive.
Finally, TalkLeft claims that the theory of the unitary executive (even as I construe it) is "self-evidently wrong" because of the Spending Clause and the Senate's power to confirm certain presidential appointees. I don't see how the existence of the clauses invalidates the theory that all executive power lies in the hands of the president. Rather, the existence of the Spending Clause simply shows that the power to control federal spending is not part of the power of the executive branch. Similarly, the Senate's confirmation power simply allows the Senate to veto certain presidential appointments. To use Alito's terminology, neither says anything about the question of "who controls whatever power the executive has."
The Olympics and Property Rights Violations in China:
The Boston Globe reports that as many as 1.25 million people have been evicted from their homes in Beijing by the Chinese government, so that the property they live on can be used to "beautify" the city in preparation for the 2008 Olympics [HT: Yefim Somin]. Numerous small businesses have also been forcibly displaced.
Although today's Chinese government shows greater respect for property rights than it did in the days of Mao Zedong, there is still a long way to go. As I noted in this 2007 post, some 40 million Chinese have been forcibly displaced by government-sponsored development projects in recent years.
Perhaps this human rights issue should be added to the list of those the athletes might want to protest while in Beijing. Unlike the better-known Tibet and Darfur issues, these violations are directly connected to the Olympics, because many of the Beijing expulsions were part of the government's strategy for preparing for the games.
New York City Declares Neighborhood "Blighted" so that Property Coveted by Columbia University Can be Condemned:
The New York Times reports that Columbia University has succeeded in its efforts to get New York City to declare a portion of Manhattanville "blighted" so that the area can potentially be condemned and transferred to the university in order to facilitate its expansion plans [HT: VC reader Michael Pitkowsky]. Once an area is declared blighted, all the property there can be condemned by the government at any time, for as long as the blight designation lasts (which can be many decades). I have previously criticized Columbia's efforts to use the threat of eminent domain to acquire this property (see here for the most recent post and links to earlier ones).
Although the Manhattanville area isn't one of New York City's most prosperous, it is clearly not blighted in the layperson's sense of the term (see here for a photo). Such blight as might exist on the area is actually on property already owned by Columbia, and thus within the University's power to alleviate without acquiring additional land. However, New York law, like that of many other states, defines "blight" so broadly that almost any neighborhood can be declared blighted and then taken by eminent domain and transferred to politically influential interest groups. Obviously, Columbia University has a lot of political clout in New York. As the Times article suggests, it is probably no accident that the firm that conducted the official study that found the area to be blighted also does consulting work for the University itself.
New York is one of the eight states that has not passed any eminent domain reform legislation at all since Kelo, although new governor David Paterson has said that such legislation is needed. So far, however, Paterson hasn't done much on the issue since becoming governor earlier this year.
UPDATE: I criticized Columbia's arguments that the use of eminent domain in this cae will benefit the city in my original 2006 post on this issue. The bottom line is that if Columbia's planned uses for the property are truly more valuable than those of the current owners, the University should be able to get them to sell voluntarily. Indeed, their refusal to do so is a strong sign that they value the property more than Columbia does. For a more detailed exposition of the reasons why genuinely beneficial private development projects rarely if ever need to use eminent domain, see Part I of my 2007 Supreme Court Economic Review article, and this excellent article by Daniel Kelly.
UPDATE #2: Commenter Edward Hoffman points out that the photo linked in the original post includes a larger area than the one Columbia wants to expand into and notes that Columbia University's own website on the project contains more narrowly focused photos. Having actually been to this area, I think that Columbia has picked some of the least attractive buildings in the area to feature in its website (which, after all, is intended to defend its project). But even these far from flattering pictures don't prove the existence of blight in the lay sense of the term: severe dilapidation, threats to public health, and the like. What they show is a neighborhood with some esthetically unattractive buildings and infrastructure.
The White House and OLC:
The Washington Post offers up this very interesting story on the White House's initial insistence in 2003 that John Yoo would become the head of DOJ's Office of Legal Counsel. Marty Lederman adds some fascinating details about White House involvement in later OLC picks over at Balkinization.
One very minor correction: The Post states that Adam Ciongoli was "a onetime Supreme Court law clerk" in 2003, but I believe he clerked afterwards, in OT2005. I'm guessing Ciongoli is the first person to serve as a law clerk after he was seriously considered as a nominee to head the Office of Legal Counsel.
The idea of a "living Constitution" long has been popular on the political left. Conservatives routinely dismiss such result-oriented justice, denouncing "judicial activism" and proclaiming their fidelity to "original intent." However, many Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired. . . .
even if a President McCain were to influence the court, it would not likely be in a genuinely conservative direction. His jurisprudence is not conservative.
For instance, most conservatives believe that the First Amendment safeguards political speech. Mr. McCain does not. . . .
In his May 2008 speech on judges at Wake Forest University, Mr. McCain talked about the importance of "the constitutional restraint on power," but in practice he recognizes no limits on government or executive-branch authority. In fact, if Mr. McCain nominated someone in his own image, the appointee would disagree with not only the doctrine of enumerated powers, which limits the federal government to only those tasks explicitly authorized by the Constitution, but also the Constitution's system of checks and balances, and even its explicit grant of the law-making power to Congress. . . .
It is important to choose judicial nominees carefully. But that is no reason for conservatives to vote for Mr. McCain. He has demonstrated no more interest in "conserving" the Constitution, and its principles of limited government and individual liberty, than has Mr. Obama.
This is a smart tack for Barr to take. Many limited government conservatives are quite disgusted by Republican profligacy and incompetence but nonetheless fear having a President Obama nominate two or more justices to the Supreme Court. Challenging McCain's credentials as a "judicial conservative" is one way to discourage conservative support and diminish conservative fervor for his campaign.
Judicial nominations is one of the few issues with the potential to keep many limited government conservatives in McCain's camp. But Bruce Bartlett is skeptical that "at the end of the day . . . the makeup of the Supreme Court will really be all that different under McCain than under Obama." According to Bartlett:
With Democrats virtually guaranteed to control the Senate by a comfortable margin in the next Congress, McCain would have enormous difficulty getting anyone nearly as conservative as Roberts or Alito onto the Supreme Court.
While McCain could theoretically just keep nominating conservatives until the Senate is finally forced to accept one of them, this approach is unlikely. There isn’t an unlimited supply of conservative jurists with the requisite experience to be a viable Supreme Court appointee. And if the confirmation process remains as contentious as it has been in recent years, many of those who are qualified will pass on the opportunity to have their lives torn apart.
More likely, McCain would be forced to appoint moderate justices just to get confirmation. . . .
McCain could help himself by explaining what his strategy will be to find dependable conservatives and get them confirmed. However, he has already repudiated the best hope Republicans had for circumventing Democratic opposition: the so-called nuclear option, which would have forced the Senate to give all federal court nominees an up-or-down vote. McCain basically destroyed any hope of getting a parliamentary ruling on this scheme by putting together the Gang of 14, a bipartisan group of senators that agreed to allow all qualified nominees to have a vote before the full Senate.
Conservatives have to ask themselves whether the man who torpedoed the nuclear option is really likely to fight to the bitter end for the kinds of justices they want to see on the court.
Bartlett suggests that Obama will also be constrained in selecting judicial nominees, but I think he overstates his case here. The likelihood of a GOP filibuster of an Obama Supreme Court nominee is quite small (as it should be). Still, if liberal justices are the next to retire, a President Obama would have difficulty moving the Court much to the left.
Note: Barr's op-ed makes the common mistake of conflating the theory of a "unitary executive" with a theory of robust or unconstrained executive power. The theory of the "unitary executive" concerns the nature of the President's control over the executive branch, but has relatively little to say about the scope of executive authority or the degree to which the executive may act unilaterally.
How Much Is Your Law School Worth on the Open Market?
College Life, an Orange County Register blog, reports that "Orange County’s first law school [Western State University College of Law], which educated an entire generation of lawyers and judges here since it was founded in 1966, has been sold to an education company based in Geneva, Switzerland.... The deal was estimated valued between $5 million and $10 million, according to SEC documents filed July 16 by Education Management LLC, the parent company of the for-profit law school."
Nyah, Nyah, Nyah, Nyah, Nyah, Nyah, 200 Years Ago:
A short snippet from the Newburyport Herald, Jan. 25, 1799, which illustrates just how hot the political divisions of the time were -- remember that this was the Sedition Act era of massive political warfare between the Federalists and the Republicans (whom the Federalists derided as Jacobins). "Sedition pole" is a reference to a liberty pole, at the time a symbol of opposition to the Adams Administration, that the target presumably helped erect; other accounts of the incident report that the Sedition and Alien Acts were burned at the foot of the pole. Here's the entirety of the mini-article:
Thursday last a petition was presented by Charles Webber, of Vassalborough, to the Mun. Court of Sessions, &c. now sitting in this town, for a Licence to keep a house of public entertainment, which (to the honor of the Bench) was unanimously rejected. So much for Sedition Poles, and being an enemy to country, Charley.
Oddly, Charley had already publicly repented two weeks before the article was written, perhaps because of the threat of Sedition Act prosecution.
The cases about secular enforcement of Muslim dowry-on-divorce agreements (see below) remind me of a broader thought I had offered before about Islamic agreements and American law: Those agreements should be treated the same as other agreements, without any attempt to specially nanny-state the parties.
If American law provides for certain constraints on contract enforcement generally -- e.g., you can't contract to have your hand cut off, certain prenuptial agreements are unenforceable, contracts entered into by minors are unenforceable unless properly ratified when the minor becomes an adult, parties can't contract away the rights of nonparties, such as the parties' future children, etc. -- those same constraints should apply to Islamic agreements. That should be true of agreements to arbitrate pursuant to certain rules, agreements to pay money in the event of a divorce, or whatever else. But if American law allows people freedom of contract, even when the people are young, foolish, socially pressured, and the like, Muslim people are as entitled as other people to such freedom (with the burdens that freedom often yields).
Sometimes the enforcement of the agreements might hurt Muslim women, who we think were wrongly pressured by family, community, or religion into waiving important rights. Sometimes it might help Muslim women, as with the enforcement of promises of a certain payment on divorce. But that, I think, shouldn't much matter, because the more important point is that Muslims, women, and Muslim women should be no more and no less entitled to freedom of contract than the rest of us.
If they feel undue pressure, the harsh but proper remedy is for them to leave the source of the pressure, again, whether family, community, or religion. Of course the law should protect them as best it can against unlawful (for instance, violent) retaliation for the departure; but that should be the extent of it. This "leave and take the social consequences, or stay and live with the contracts you make" is the remedy American law offers to the Amish, Hasids, Mormons, Catholics, Baptists, or anyone else, religious or not, who are dissatisfied with what their families, communities, or religions demand of them. It should be no different for Muslims.
Mohammed Zawahiri and Raghad Z. Alwattar were married, in an arranged marriage. The day of the wedding, Zawahiri signed a "mahr" under which he promised to pay his wife $25,000 in the event of divorce. Last week, the Ohio Court of Appeals held that the agreement was unenforceable under generally applicable Ohio prenuptial agreement law (chiefly because it was "presented a very short time before the wedding ceremony and postponement of the ceremony would cause significant hardship, embarrassment, or emotional stress," and because "Zawahiri did not have the opportunity to consult with an attorney prior to signing the marriage contract"). This may well be an accurate statement of Ohio law, and I don't mean to quarrel with it here.
What particularly interests me, though, is the trial court's alternative basis for its decision, on which the appellate court didn't opine: The First Amendment barred enforcement of a mahr -- just as it would bar the enforcement of an agreement to give a Jewish religious divorce (citing an unpublished Ohio decision, Steinberg v. Steinberg, 1982 WL 2446 (Ohio. App.)). Though the mahr requirement "seems less like a religious act than the participation in a religious divorce ceremony," "because the obligation to pay $25,000 is rooted in a religious practice, it is similarly a religious act" and a court therefore can't order the husband to make the payment.
I saw a similar First Amendment argument made in last month's Ahmed v. Ahmed, but the appellate court didn't consider it because it hadn't been properly raised below. I also saw it made and rejected in Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ch. 2002):
[T]he Mahr Agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a “free exercise” of religious beliefs, no matter how diverse they may be. If this Court can apply “neutral principles of law” to the enforcement of a Mahr Agreement, though religious in appearance, then the Mahr Agreement survives any constitutional implications. Enforcement of this Agreement will not violate the First Amendment proscriptions on the establishment of a church or the free exercise of religion in this country. “The primary advantages of the neutral principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity.”
It seems to me that the New Jersey court got it right, and the Ohio trial court got it wrong: If two parties enter into an agreement promising to perform a secular act (e.g., pay money) in the event of some secularly ascertainable event (e.g., a divorce), there's no Establishment Clause barrier to enforcing such an agreement. There might be state law principles constraining such agreements. But the religious motivation for the promise, and the religious event in which the promise was made, shouldn't affect the analysis. (See Jones v. Wolf, which holds that church property disputes may be resolved by civil courts using "neutral principles" of contract and deed interpretation.)
I would go further and say that refusing to enforce a contract simply because of its religious source or motivation would itself violate the Free Exercise Clause, because it would deny people an important generally available right (the right to have contracts enforced) because of their religious motivations. A person who has a religious reason for entering into a contract is just as entitled to enforcement of the contract as a person who has a secular reason for doing so.
There are indeed reasons why civil courts may not enforce certain contracts, for instance when enforcing the contract requires interpretation of religious doctrine, or when it would require ordering people to perform an act that has purely religious significance. (I should note that there's a conflict among courts about whether enforcing prenuptial contracts to give a Jewish religious divorce, called a get, would violate the Establishment Clause; but that, I think, is because the giving of the divorce, as opposed to paying money, is indeed an act that has purely religious significance.) But when the contract simply calls for a payment of $25,000 in the event of a divorce, and the parties do indeed get civilly divorced (so there's no need to determine whether there's a valid religious divorce), then it seems to me that the motivation for the contract should not make any difference.
My answer to Orin is that "law" can validly mean many things, depending on the context and what you want to use it for.
For instance, Holmes -- explaining his famous "bad man" view of the law -- says that law is "the prophecies of what the courts will do in fact." (See The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897).) We can expand this a bit beyond courts and say, with Eskridge and Frickey, that "law is a prediction of the rules that interacting government institutions will apply." (See Law as Equilibrium, 108 Harv. L. Rev. 26, 77 (1994).)
Thus, in most of our lives, most of us don't care what the law is in any abstract sense (I sure don't!); we just want to know what we should or shouldn't do if we want to avoid being punished by someone. That, to us, most of the time, is Law. Constitutional law is just a subset of law, so, among other things, we might want to know what we should or shouldn't do if we want to avoid being unconstitutional, which will usually be relevant only if we're some government actor. (But see Amend. 13, which means any private slaveholder is acting unconstitutionally!)
So usually, constitutional law will be current Supreme Court doctrine. It's possible that other branches might be applying their own constitutional rules -- maybe the Executive Branch has a policy of withholding government funds from property development projects it believes are unconstitutional, and maybe it has a different view of the Takings Clause than Kelo -- so then, from your perspective, constitutional law would also consist of the views of those other branches.
But that's not the only view of law! For instance, there are all sorts of unenforced or underenforced constitutional commands. The Suspension Clause says the writ of habeas corpus won't be suspended, unless in case of rebellion or invasion the public safety requires it. If Congress suspends the writ, it's unlikely that the Supreme Court would ever judge whether the public safety really requires it, or whether what's going on is really a "rebellion." There are lots of political questions like that, and other "underenforced constitutional norms." It's not that there's no law to apply -- it's just that whatever law there is is unenforceable.
Does that mean there's no law? From the "bad man" perspective above, that is correct -- there's no law. Congress can suspend habeas even when there's no rebellion or invasion or the public safety doesn't require it. But suppose -- just suppose -- that for whatever reason, you wanted to follow constitutional commands, perhaps because you took an oath to that effect and want to live up to it. In that case, the Constitution becomes an independent source of duties for you, and you have the obligation to figure out what duties it imposes.
Now you could just decide to listen to the Supreme Court all the time, or on certain questions (perhaps whenever there's something enforceable), or whatever; but that will be your choice. There's nothing in the Constitution that says the Supreme Court is always right. If you have a view on how the Constitution should be interpreted, and, after due consideration, you decide that you disagree with the Supreme Court, why not follow your own view? (Especially, as I said in my previous post, if the Supreme Court won't stop you, for instance if you take a more protective view, not as a matter of policy but as a matter of constitutional meaning.)
So suppose you decide that you believe in original public meaning. And you observe that, low and behold (moo!), all these originalist textualists have already created a whole body of work explicating that meaning! No need to read those pesky Supreme Court opinions (except for prudential reasons, to the extent they'd actually frustrate your plan); you've already got a whole set of binding principles that tell you how to act. What are these principles if not law?
Well, you don't have to call them law, but from your perspective, they're as binding on you -- if unenforceable by judicial means -- nay, more binding on you!, than the stuff laid down in Supreme Court opinions. It's what the "bad man with a conscience" has to follow if he doesn't want to be punished by his conscience. No, I don't think that all moral rules that you feel are binding should be called "law" -- if you were elected to office wanting to implement Kantian ethics, that wouldn't be law. But I do think it's fair to call them "law," at a minimum, if they derive from what are commonly recognized as legal principles, for instance, interpretation of a legal document. Once what you're doing purports to derive from a statute or constitution or treaty or suchlike, the rules that you derive that you claim bind you and should bind others are properly called "law."
Yes, this means that Hectorism can be considered "law," and arguments deriving from Hectorism are "legal arguments." It doesn't mean that non-Hectorists should give it any consideration, because, life being short, it's only worthwhile considering theories that (1) are actually applied in the world by at least some people, OR (2) are actually advocated in the world by people you respect, OR (3) are, in your view, meritorious.
And, as a final note: These arguments don't need to be OUGHT arguments at all. I'm perfectly capable of arguing that "the original public meaning of the Second Amendment implies position X," even if I don't believe that original public meaning has any normative value at all. It's just fun to talk about it! Larry Solum's recent article on Semantic Originalism, if I understand it correctly, makes the point that the meaning of the Constitution is original public meaning, but separates that from the question of whether one should actually follow the meaning of the Constitution.
So a non-originalist can make arguments from original public meaning that are contrary to Supreme Court doctrine; those can definitely be IS arguments about the meaning of the Constitution without being OUGHT arguments. And of course one can make OUGHT arguments without making any legal IS arguments about anything. For instance, "We should adopt position X because it's required by Kantian ethics" is an OUGHT argument, and is also an IS argument about Kantian ethics, but is not a legal IS argument.
A Reply to Sasha on The "Is"/"Ought" Distinction:
A few quick thoughts in reply to Sasha's interesting response. Sasha writes:
As an initial matter, consider that, under many constitutional theories — which many people subscribe to — the Constitution "means" something independently of whether courts have recognized it. People holding such theories can differ on what that meaning is, and on what interpretive theory you should use to figure out what that is — for instance original public meaning or something else — but these people would each agree that there exists some meaning of the Constitution."
It is true that groups of people can get together and agree on what the Constitution means, and for them that will become what the Constitution "is." For example, a group could decide that the Constitution has 14 branches of government overseen by a Giant Iguana King named Hector. They would be quite distressed that the courts have not yet recognized Hector the Iguana King as the authority ("damn activist judges!"). But to them Hectorism is not a theory of what the law should be but what it truly is.
But as Sasha suggests, this is just a definitional point about what it means for the law to be something. To borrow from our former President, it depends on what the meaning of "is" is. "What Law Is" has filled libraries, and obviously I can't resolve it here. But I think I can take it to mean what I think most of us commonly think it means; what legal institutions believe it they must do or not do using widely shared practices of interpretation, rather than a person's view about what those legal institutions should believe.
The contrary view makes the notion of what the law "is" rather useless, I think, which presumably explains why it is not the common use of the term. If the Constitution "is" what a person thinks it is, and no two people agree on what that is, then the Constitution is different to everyone. There isn't much to be gained by talking about what it "is" at that point. So we could define it that way, but the results are silly enough that it's not the common understanding of the term. And besides, Hector insists, and Hector must be obeyed.
Sasha coninues:
But it may be misleading to claim that "Supreme Court doctrine" is the same thing as "constitutional law." For instance, it's also a view held by many that everyone who takes the constitutional oath — say all public officials — also have an independent duty to follow the Constitution. And there's no necessary reason why the Supreme Court's pronouncements on what the Constitution means should be authoritative. They're just one interpreter (well, nine) among many possible ones.
This is another classic and much-debated question in the law reviews, of course, and again I can't settle it here. But I intentionally tried to sidestep that debate in my post by not referring only to the Supreme Court or "Supreme Court doctrine." Rather, I made a point to refer to "legal institutions such as courts." To elaborate on that, I think Congress is a legal institution. The executive branch is one, as well. Exactly what their role should be in determining constitutional meaning raises a fascinating set of questions, but those questions are distinct from the point I was making in my post.
Is the "is"/"ought" distinction so clear in constitutional law?
In general, I endorse the is/ought distinction, in law as in other places. When Orin tells you what Supreme Court doctrine says, it doesn't mean he endorses it as the correct doctrine, the correct understanding of the Constitution, or whatever.
However, I think the line may be a wee bit fuzzier than Orin lets on. As an initial matter, consider that, under many constitutional theories — which many people subscribe to — the Constitution "means" something independently of whether courts have recognized it. People holding such theories can differ on what that meaning is, and on what interpretive theory you should use to figure out what that is — for instance original public meaning or something else — but these people would each agree that there exists some meaning of the Constitution. (Incidentally, I'm taking no position here on whether that view of a True Meaning is correct. This is an "is" point, not an "ought" point! In any event, I could phrase my argument without recourse to such views; but it's simpler this way.)
So, when we ask whether the Commerce Clause allows regulation of intrastate marijuana, one can give an "is" description of what the Commerce Clause means under one's preferred theory (e.g., "no it doesn't because the original meaning of 'interstate commerce' didn't cover that"), but that description would at the same time often be an "ought" description because usually such arguments would be accompanied with an argument that the theory is the normatively correct one. So such a description would be both "is" and "ought" at the same time, and more importantly, it could differ radically from what the Supreme Court says the Constitution means.
O.K., Orin might say — if I might put words into his mouth — but, he might continue, when I'm describing doctrine, it's clear what I'm doing — look, I'm citing Supreme Court cases! So (says the hypothetical Orin) let me translate my point into your rhetoric: Don't confuse "an argument about what current Supreme Court doctrine is" with "an argument about what the Constitution really means in your view, which really comes down to what you think Supreme Court doctrine ought to be."
Fair enough. But it may be misleading to claim that "Supreme Court doctrine" is the same thing as "constitutional law." For instance, it's also a view held by many that everyone who takes the constitutional oath — say all public officials — also have an independent duty to follow the Constitution. And there's no necessary reason why the Supreme Court's pronouncements on what the Constitution means should be authoritative. They're just one interpreter (well, nine) among many possible ones.
Now you'll probably want to avoid doing what the Supreme Court says is unconstitutional, in a context where they're just going to reverse you, just like you want to avoid walking down a dark street in a dangerous part of town — it's probably prudent, but it doesn't mean you accept it as the way things should be. (But not even everyone agrees with that — some argue that there's a duty to follow your own view of the Constitution, even if it means reversal, because that's just your duty as a defender of the Constitution.)
But there's no reason why you can't take a stricter view of the Constitution than the Court. For instance, as a legislator, you might say: "The Supreme Court says this law is constitutional, but I disagree, so I'll vote against it on constitutional grounds." Or the President could use the same argument for vetoing a law, or for enforcing a law in a particular way. (Some have also written about the President's duty to veto, and the President's duty not to enforce unconstitutional laws.) Or regular folks could use their own view of the Constitution in making arguments to these officials.
This stuff rarely gets litigated. For example, regular people don't need to account to anyone for the arguments they make; elected officials don't need to give reasons for why they vote against or veto something; and so on. But these are still arguments about the meaning of the Constitution, or, if you want to put it differently, about the substance of constitutional commands.
Now, is this constitutional law? Because, some might say, arguing about сonstitution meaning isn't the same as arguing about constitutional law. For instance, in the view of some, "law" is just what comes out of the courts. (Perhaps constitutional law, in this view, should be influenced by constitutional meaning, but it might diverge from constitutional meaning sometimes, either for good or for bad reasons; but the two are different things.) I disagree, and so does a substantial literature on "popular constitutionalism." I won't try to give a complete definition of "law" here, but I'll say that at the very least, legal principles include any principles that purport to bind government actors in a way that purports to be independent of mere policy preferences.
For instance, this is a legal argument: "You, Senator X, have the duty to vote against this law regardless of how good an idea you think it would be as a matter of policy, because it's contrary to the true meaning of the Constitution, by which I mean the original public meaning."
And if Senator X himself claims, "I think this is an excellent idea, but sadly I feel bound to vote against it because it's contrary to the Constitution, even though the Supreme Court would uphold it," he's enunciating a principle of constitutional law, though not a principle of a judicial variety, and not one that could actually be enforced in any court.
An implication of all this is that if Senator X votes against a law because he (correctly, in your view) thinks it's unconstitutional, and the law gets enacted anyway, and then the Supreme Court (incorrectly, in your view) upholds it, then it's perfectly valid to say that Senator X understands constitutional law better than the Supreme Court does.
What this all comes down to is that when Orin makes an argument about the state of current Supreme Court doctrine, you should listen to him and not confuse it with an argument about what Supreme Court doctrine ought to be. But you also shouldn't think that Supreme Court doctrine exhausts the whole of constitutional law. And in particular, if your argument about what Supreme Court doctrine should be is grounded in some theory of constitutional interpretation, your "ought" argument can also be an "is" argument about constitutional law, though not about the Supreme-Court-doctrine branch of it.
Glenn Reynolds & Brannon Denning on the Second Amendment After Heller,
at the Northwestern Law Review's Colloquy. Both Professors, in addition to their other claims to fame, have written a good deal of scholarship on the Second Amendment before, and even more on constitutional rights more generally. Much worth reading, and only 9 pages.
