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Balkin on NSA Program:
Over at Balkinization, Jack Balkin has a powerful post on Richard Posner and efforts to defend the NSA surveillance program.
Just an Observer:
Since this now is a separate thread, I will incorporate my own comments about the Balkin piece by reference here.
2.1.2006 11:16pm
Shahid Alam (mail):
Powerful? Interesting choice of word. Somewhat revealing of how you may feel about the entire issue, and definitely revealing of how the good Professor Balkin may feel. Doesn't, however, add anything more than what we already knew, either about the law, or about Judge Posner, or his jurisprudential approach.

So, I wouldn't say powerful. Powerful, when applied to an argument, implies that someone who is open to the argument may at a minimum be addressed by its reasoning. Balkin's post doesn't actually reason. Rather, it disdains. So, if you accept his basic premises to start with, as far as the legality of the matter, you're in happy land, and maybe the sun is shining. If you don't, well, not so much.

There are bright lines in the law. Balkin, and perhaps you, may well believe there are bright lines in play in this matter. Balkin doesn't convince, because he doesn't try to.

Professor Kerr, I generally have a lot of respect for your writing. But on this matter, it does seem you've let what you prefer the desirable outcome to select what facts or authorities you consider relevant or not. That said, I did find your FISA analysis to be valuable. However, in a messy and little adjudicated area of law with conflicting authorities and state interests, compelling and otherwise, I'm not sure, at the very least, the SCOTUS would agree with that analysis. At the very least, they are likely to take other factors to account in their judgement.

Of course, I can understand if you just have a basic problem with Posner's approach, and not just on this matter. But that's not Balkin's basic point. If it is yours, it's a valid one.
2.1.2006 11:32pm
OrinKerr:
Shahid,

I am not sure what you're arguing. Is the point that you are already an expert on jurisprudence?
2.1.2006 11:42pm
Medis:
I think Balkin is probably right that a lot of "liberals" are learning a valuable lesson about not being too quick to dismiss "conservative" arguments involving the rule of law or judicial activism, including about why doing so when conditions are favorable may be short-sighted.

And my hope is that a lot of "conservatives" are not forgetting the similar lessons that they once learned. Of course, it seems that there may be some people who are perfectly willing to flip on these issues as soon as doing so serves their purposes. But I sincerely hope--and indeed believe--that many self-described "conservatives" will ultimately remain consistent in their principles, even if that runs contrary to their partisan interests.
2.1.2006 11:50pm
Fishbane (mail):
But on this matter, it does seem you've let what you prefer the desirable outcome to select what facts or authorities you consider relevant or not.

Funny that. Such an approach is, in large measure, what Posner seems to indicate he uses.
2.1.2006 11:59pm
Wintermute (www):
Hey, can you tell Pajamas to send more cheesecake over there on the right? ----->>

A lot of decisions are results-oriented, whatever mantras are called upon to rationalize the result.

BTW, Conpirators, hasn't Glenn Greenwald earned a place on the roll over there? ----->>
He's a rising star with a brain and does great research for his posts.

http://glenngreenwald.blogspot.com/
2.2.2006 12:15am
Kovarsky (mail):
hey, how dare a renown caliber constitutional scholar steal the thunder of me, a putzy nobody; from my 1:31 a.m. on professor kerr's previous posner entry:

Forget whether or not pragmatism is correct or not, is anybody else just floored that many conservatives adopt this as a rationale for the NSA program on the eve of confirming a beloved "strict constructionist."

Twilight Zone.


that was very childish of me, i know.
2.2.2006 12:30am
Robert Schwartz (mail):
I am with Shahid here. I found the Balkin piece more of the usual liberal tu quoqe than an answer to Posner. As for power I would say it was about 1.2 volts, you could feel it, but there was not enough juice to cause a shock let alone burn.
2.2.2006 12:34am
Kovarsky (mail):
Shahid,

I think you maybe skimmed the Balkin post and took the wrong point from it. I'm assuming that you don't mean that reasons cannot also disdain. Most reasoned arguments tend to do that.

I don't think either professor kerr or professor balkin have expressed any particular hostility to Posner's jurisprudence.

Balkin's point is simply that Posner's "conservative" defense of the NSA program is incompatible with the "conservative" distaste for judicial activism.

Would anybody care to make a non-rhetorical case for how the "strict constructionist" paradigm is consistent with posner's NSA position?
2.2.2006 12:39am
Medis:
"Strict constructionism" is SOOOO 2005. These days, "pragmatism" is the new black.
2.2.2006 12:46am
Dave:
Here are the highlights of my comments on Posner's article and the TNR debate:

From what I can tell, to the extent that he's being honest and not muddling the issues, Posner is arguing only that probable cause is too restrictive; he's not presenting any arguments about other parts of the program. For example, I don't see any arguments against a hypothetical law that would allow the FISC (also called the FISA court) to grant warrants so that the NSA could search people when it merely had "reasonable suspicion" or "reasonable basis to believe" that they were associated with terrorists. Bush's current program, as far as I can tell, and as far as Posner has actually argued, has no advantages whatsoever over such a law.

[Glenn Greenwald's analysis of the administration's 2002 statements has been discussed extensively on this blog already, so I'll skip part of my post and assume you know about it already]

...

Regardless of what [the Baker revelations] say[] about the administration's honesty, [they mean] mean that [Posner's] argument that probable cause is hampering investigations is patent nonsense. With all due respect to Posner, Baker simply knows more about the issue than he does, and every argument the administration has advanced ("FISA is too slow," "probable cause is too restrictive," etc.) has been buried. The only possible reason for operating outside of FISA instead of amending it is to avoid court oversight. They're doing some kind of spying that the courts wouldn't allow even if the standard were lowered to reasonable suspicion.

We know that the administration has illegally spied on its political opponents, including Democrats, anti-war protesters, and Quakers using other programs. It's either that or something much much broader than what "reasonable suspicion" could possibly allow--monitoring a significant fraction of all the calls in the U.S.


Dave
2.2.2006 1:03am
sadandbeautiful:
Shahid Alam said:

[...] Balkin's post doesn't actually reason. [...]

You can agree or disagree with Prof. Balkin's position, but can anyone make such a statement and consider himself intellectually honest? I couldn't.
2.2.2006 6:59am
Michael B (mail):
Balkin is more penetrating than all too many as pertains to this matter, but that doesn't say very much. Too, Balkin professes to admire Posner's "refreshing ... honesty" - and I'd very much agree that it is both - yet indulges in this admiring glance only momentarily. Balkin's appreciation of Posner's refreshing honesty takes a decided turn as soon as it is no longer convenient, from Balkin's pov, to admire or be accepting of it. For Balkin, at that exact point, rather than refreshing it all becomes ironic - so much so that he can no longer take Posner at his word for to do so would contradict Balkin's own predetermined convictions (aka, in far more formal settings, as abandoning the rule of law and legislating from the bench). Ironic, that, and not at all refreshing; in fact, it's all too predictable.

Similarly, when a commenter in the thread, apparently an economist, adds some of his own refreshing honesty to the mix, commenting upon the methodology Posner is suggesting, Balkin fails to offer any counter argument, refreshing or otherwise. Transparency and forthrightness are seemingly lacking, once again, precisely at the point where it would become problematic from Balkin's own predetermined position.

It wouldn't be difficult to elaborate further in this vein, vis-a-vis other aspects still of Balkin's attempt. "Powerful" is not how I'd describe his sendup - though it is more penetrating than all too many posts on the topic throughout the 'sphere and elsewhere - but that says little, unfortunately. Perhaps, by contrast, that is why so many are refraining from much commentary on the DOJ white paper, which may be deserving of being described as "powerful," it certainly seems . Regardless as to how the DOJ white paper might be classified, how Balkin's post claims the assignation of "powerful," I'm not at all sure.
2.2.2006 8:48am
Medis:
On the "powerful" issue:

I tend not to use words like that myself (not that I would discourage Orin from doing so), but what I think is interesting and insightful about Balkin's post is basically captured by this claim:

"Posner's candor lays bare a jurisprudential problem for both sides of the ideological spectrum."

As I implied above, I think that is absolutely correct, and I think both self-identified "liberals" and "conservatives" could benefit from reflecting on Posner's argument, asking themselves if they want judges to work in the way that Posner envisions, and indeed whether that vision is consistent with their general sense of the rule of law.

So, I think people who simply see Balkin's post as another shot fired in the "liberal" versus "conservative" war over the NSA program are rather missing the point. Balkin is asking all of us to take a step back and reflect on some very basic issues about the nature of law and government, and I think he makes a pretty compelling for doing so in light of Posner's Op/Ed. To me, that is certainly a "powerful" enough message to merit Orin calling our attention to it.
2.2.2006 9:48am
Michael B (mail):
"So, I think people who simply see Balkin's post as another shot fired in the "liberal" versus "conservative" war over the NSA program are rather missing the point." Medis,

Perhaps. I'd agree it's at least a debateable point and that's why I do agree Balkin "is more penetrating" than most on this topic. However, as also indicated, that doesn't say very much, especially so since Balkin views Posner as "refreshingly honest" only momentarily, but then resorts to his purportedly knowing and ironic reading when any acknowledgement of refreshing honesty becomes problematic. Hence a knowing, ironic reading of Balkin's own text is not at all out of bounds; his authority, as his powerful commentary, are much in doubt.

Also, the second exchange between Heymann/Posner is now up at TNR. Heymann opens with: "... it's worth laying out our areas of agreement before moving on to the areas where we disagree. I agree that statutory and constitutional interpretation of an ambiguous text can often be enlightened by a judgment as to what would be a sensible result in the situation ..."

That admission alone is problematic for Balkin's interest since Balkin places a great deal of emphasis upon his own statement, after quoting Posner, that "... [Posner] does not want to pre-judge the legality of the NSA program, only discuss the virtues of its policy so that Congress might amend the statute. Yet at this point the cow is out of the barn door."

Balkin's presumption of somehow "knowing" Posner's motives very much is the pivot-point where Balkin substitutes divination for reason and transparency.

Another quote from this most recent exchange, Posner's closing graph, summarizes a great deal that is occurring in this debate:

"In listing these arguments for the legality of the NSA program, I do not mean to endorse them. I do not myself consider Al Qaeda-style terrorism to fit neatly into either the box we label "crime" or the box we label "war." I think it's sui generis and should be treated accordingly. I also don't know where exactly the line falls between the president's prerogative authority to control military operations and the provision in Article I of the Constitution that authorizes Congress to "make Rules for the Regulation and Government" of the armed forces. I object merely to your oversimplifying the legal issues. The oversimplification, and the indignation that it engenders, exacerbate political divisions, of which we have enough already." emphases added

No doubt, for Balkin, "ironies abound" once again, since Balkin, like Greenwald and many others, resorts to the fictional, third person omniscient voice at those times when such knowing certitude is needed to leverage his "powerful" argument. Such as it is. Too, Posner is spot on when he emphasizes the sui generis aspect of the current situation. And he most certainly summarizes a great deal of the debate/discussion when he highlights the "oversimplifications" used by Heymann, which term doesn't begin to describe the presumptive rhetoric of others still in these discussions.

(For commenter sadandbeautiful, I can make such an argument and have begun to do so. But can you indicate first the aspect(s) of Balkin's statements which you find most well reasoned?)
2.2.2006 10:05am
Michael B (mail):
Also, Balkin's purported power would be much enhanced if he were to transparently and forthrightly answer some of the more sound probings by commenters in his thread. Most pointedly in the link already provided. Then again, power is a category, unlike the category of veracity, wherein transparency and forthrightness aid the cause; in that vein, "power" may well be the term to use.
2.2.2006 10:19am
Michael B (mail):
Then again, power is a category, unlike the category of veracity, wherein transparency and forthrightness do not aid the cause; in that vein, "power" may well be the term to use.
2.2.2006 10:21am
sadandbeautiful:
Michael B: (For commenter sadandbeautiful, I can make such an argument and have begun to do so. But can you indicate first the aspect(s) of Balkin's statements which you find most well reasoned?)

For me *to reason* is to build an argument in a logical and coherent way. Such *reasoning* can be considered better or worse, agreable or not. But to say that someone isn't reasoning is saying that such person has built an argument that lacks logic and/or coherence. To assert that of Balkin's post is, in my and in any reasonable person's opinion, an intellectually dishonest claim.

On the other hand, what you are doing, Michael B, is analyzing whether Balkin's argument is more or less coherent. That I consider not only intellectually honest, but the essence of any healthy debate.
2.2.2006 11:16am
Medis:
Michael B,

Your selective quotation of Balkin obscures his point. Here is the quote you note in context:

"Posner then goes on to add that, even so, 'not every good thing is legal,' and he does not want to pre-judge the legality of the NSA program, only discuss the virtues of its policy so that Congress might amend the statute. Yet at this point the cow is out of the barn door. If Posner's view about how to judge a case means deciding whether the policy result is good and then 'ask[ing] whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion' he has sent pretty strong signals about his priors if he were asked to decide the case."

Nothing Posner has subsequently said in his debate with Heymann actually undermines this point. In the quote from Heymann you note, he is articulating what I have called the "conventional" view on how policy considerations might enter into legal analysis--namely, the conventional view prioritizes textual and structural analysis, and applicable precedents, but if after such analysis the law remains ambiguous, then the scope of the analysis may be expanded to include policy considerations. Posner, however, has consistently maintained that he wants to START with policy analysis, and only subsequently ask whether the relevant texts and precedents prevent him from reaching his preferred result.

Balkin's point in this paragraph is simply that insofar as Posner STARTS his legal analysis with policy considerations, and insofar as he is currently discussing such policy considerations, he is in fact already signalling the policy preferences that would in turn, on Posner's own description of his legal approach, "push" his subsequent analysis of the relevant legal authorities. You recharacterize this as a point about "motivations", but of course it is not: it is a point about Posner's own statement of his ajudicatory approach as it would apply to this case.

Of course, one might think that Posner's approach is the right approach, and the conventional approach is the wrong approach, or even that in practice there is no difference between them. But the point of Balkin's post is not to present a definitive argument on this issue.

Rather, Balkin's post is addressed to "liberals" and "conservatives" who had marked out positions on these subjects in other contexts. Specifically, many "conservatives" in the past have objected to judges using their policy preferences to "push" their legal analysis, and many "liberals" in the past have arguably discounted these objections. As I noted above, Balkin is asking both "conservatives" and "liberals" to reflect on what they really believe about the rule of law and the proper role of judges in light of Posner's Op/Ed.

And insofar as I think Balkin is right about the dynamic between many "conservatives" and "liberals" in the past, I do think the point of this post is potentially "powerful," in the simple sense that it may indeed cause many people to think a bit more deeply about what they really believe about the law and judges.
2.2.2006 11:37am
Medis:
On the subject of the economist commentator:

If I understand him correctly, he is raising the issue of whether it actually matters how one prioritizes the policy considerations versus the textual/structural/precedential/etc. considerations. As I noted above, it is conceivable that it does not matter in practice how these factors are prioritized. On the other hand, it is certainly conceivable that it does matter. As an aside, my guess is that in practice it would depend on the judge.

But as I also noted above, I don't think Balkin's post is actually about deciding these complicated issues, or otherwise debating the merits of Posner's theories of adjudication. Again, his audience is primarily those who have already taken positions on these issues in the past which may be at odds with their preferred outcome in this case.
2.2.2006 12:24pm
Jutblogger (www):
One clear issue with his statement is that, to paraphrase, the best argument is that "9-11 changed everything". I think that is far from the "best defense" and, in fact, have not seen the administration or anyone from the NSA/DOJ saying that was the "best defense".

It's clear the best defense lies in the case-law and Article II itself, regardless of whether you agree with it or not. He is attempting to shift the defense argument away from itself and make it some: "because of 9-11, we accept bush as king" thing. if that's his understanding of the issues and how the DOJ and administration is presenting this, it's far from a powerful comment.
2.2.2006 12:27pm
A.S.:
I find it deeply, deeply ironic that Orin calls Balkin's post "powerful" when just the other day Orin lavished such high praise on Justice O'Connor (in fact, going so far as to delete an entire thread of comments when a few of the comments turned negative on O'Connor). After all, Justice O'Connor is the high priestess of "pragmatic" jurisprudence... the very jurisprudence that Balkin savagely attacks in his post. So, which is it, Orin? Do you hate "pragmatic" jurisprudence, as Balkin does? In which case, how can you like in any way Justice O'Connor's jurisprudence?
2.2.2006 12:27pm
Kovarsky (mail):
Everybody who is not Medis,

Not to sound like a broken record, but please elaborate which of these two claims you dispute:

(1) The point Balkin is making is that Posner's methodology is problematic for strict constructionists.

(2) Posner's methodology is problematic for strict constructionists.

Balkin's post is not an unalloyed attack on pragmatism. It seeks to point out the tension between Posner's pragmatism and the dominant jurisprudential paradigm bandied about in political, uh, discourse.
2.2.2006 12:30pm
Michael B (mail):
"And insofar as I think Balkin is right about the dynamic between many "conservatives" and "liberals" in the past, I do think the point of this post is potentially "powerful," in the simple sense that it may indeed cause many people to think a bit more deeply about what they really believe about the law and judges." Medis

Firstly, there was no selective quoting involved. I'm not quoting from some hardcopy manuscript which people don't have ready and immediate access to in order to check the broader framing. Secondly, I tend to shy away from lengthier excerpts in blog posts to begin with, though if anyone cares to quibble with that they can find an exception to that general rule. Thirdly, and more importantly, I disagree with your statement that "[n]othing Posner has subsequently said in his debate with Heymann actually undermines [your own initial point]". In fact, nothing Posner subsequently indicates undermines his statements positing the contrary. Nor does anything Posner say in general, outside of his more direct and overt statements, undermine his protests to the contrary. It's only when we rely upon Balkin's ironic interpretations, adumbrated with additional assumptions still, that Balkin's broader narrative becomes coherent as a whole. That why I emphasized that particular pivot-point in Balkin's narrative and allowed myself an ironic interpretation of Balkin.

Finally, I've already repeatedly noted Balkin is more penetrating than many commenting upon this subject - though also noting that doesn't say very much. Additionally I've already indicated why I'm unimpressed with Balkin in terms of his appeal to both "conservatives" and "liberals". His appeal is predicated upon admiring Posner's refreshing honesty at one turn, but then denying that honesty at a subsequent turn. Well and good, it's an expression of Balkin's interpretation, but it does rely upon notably convenient turns, first accepting and later exchewing any acceptance of that honesty, and those turns of acceptance/non-acceptance coincide perfectly with Balkin's predisposition. Balkin's role as arbiter is therefore greatly undermined and is additionally skewed in a manner distated by a far too conveniently and presumptively ideologically inclined interpretation of Posner.

Might Balkin's effort still have an effect, perhaps upon both sides? Yes, and while I don't care to quibble or get bogged down in semantics, "powerful" carries more penetrating connotations than I, for one, would apply to Balkin's initiative. He penetrates below the surface, but not with very much depth and only in a manner predicated upon his reading, admiring at one turn when it's convenient to admire, then ironic at another turn when that knowing irony is in turn convenient, despite Posner's own repeated insistancy to the contrary which insistancy is not, in fact, contradicted by Posner's narrative taken as a whole - which once again is why I pointed to the note on methodology by one of the commenters in Balkin's thread.

By contrast (though this final comment is not primary since Posner's interlocutor is obviously not Balkin, but instead is Heymann) at no point does Posner resort to a presumptive interpretation, ironic or otherwise, of Heymann or any other commenter for that matter. I find Posner to be transparently honest throughout and I further agree with his most recent comment concerning Heymann's "simplifications," thus find Heymann less transparent, more opaque, and predictably so.

You seem to be taken with Balkin's objectivity or his position as some type of arbiter (without wanting to presume more exactly what you're attempting to say). I disagree, I suspect Balkin's "Balkinization" is all too aptly named and I base that upon his interpretation of Posner, at each and every turn a far too handy interpretation from Balkin's pov.
2.2.2006 12:34pm
A.S.:
The other ironic thing is that Balkin babbles on about how this all violates the rule of law, and has never even analyzed the DOJ White Paper. Oh, and neither has Orin!

I know, I know, they are law professors. No point in them actually analyzing a legal argument. Sheesh.
2.2.2006 12:34pm
Medis:
Michael B,

Perhaps you could be more specific about what Posner has said that Balkin is treating as dishonest. As I see it, Balkin's post simply accepts Posner at his word, and discusses some implications of doing so--implications which, to my knowledge, Posner has never disclaimed. But if you could point to what you have in mind it might be helpful.

Incidentally, on the subject of "oversimplifications": that aspect of Posner's response to Heymann seems really misleading to me. Posner is characterizing this portion of Heymann's post:

"I think the FISA statute unmistakably makes what the president has done illegal, unless the statute itself is unconstitutional. In your post, you cited a letter to Congress that I co-signed. For reasons laid out in a second letter to Congress that I co-signed, I think requiring the president to follow the law or get Congress to change it is plainly constitutional and, were it not, the country would be in one grand mess."

Heymann is thus incorporating by reference the two letters he has co-signed, which in fact contain detalied arguments in support of his conclusions, including analysis of the arguments Posner cites in response to Heymann. Of course, one need not assume that Heymann's arguments are sound, but to say he is "oversimplifying" is misleading because he was in fact incorporating by reference these complex and detailed arguments.
2.2.2006 12:47pm
David Sucher (mail) (www):
It's remarkable to hear a Judge --- of any political stripe but especially a 'conservative -- so open about being a Legislator-in-Fact. Even the 'legal realists' or Justice Holmes would not have put it so baldly.

I am waiting to see how Posner will climb down from what looks to me to be a terrible and ill-considered blunder.

The idea that a Judge should start with his own assessment of whether a policy is a good one and then 'shape' the law to allow it brings a very broad smile -- but no pleasure -- to my face.
2.2.2006 12:49pm
Michael B (mail):
Kovarsky, I'd dispute both (1) and (2), the former more than the latter.

I'd more pointedly dispute (2), however, if we're referring narrowly to the aspect of his methodology which Posner succinctly describes in his first response to Heymann at TNR, where he states "The way I approach a case as a judge--maybe you think it heresy--is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion." (This "narrow" or limited aspect of his methodology, in contrast to his methodology in its entirety, which would require a review of his larger corpus or would at least need a broader statement from him.)

I'm done here, am beginning to repeat some things.
2.2.2006 12:52pm
Medis:
A.S.,

I'm a bit confused by your point. Balkin's post is about Posner's Op/Ed, and Posner's Op/Ed specifically is NOT about assessing the merits of the Administration's argument. Indeed, Balkin is discussing the portion of Posner's Op/Ed in which he argues that such legal analysis should come after a consideration of the relevant policy issues.

So, I'm not sure what you are arguing, and why you think it would contradict Balkin's point. Indeed, if you arguing that a substantive consideration of the merits of the Administration's legal case should start with an analysis of their legal arguments, then I suspect Balkin would agree (and Posner would disagree).
2.2.2006 12:53pm
A.S.:
Indeed, if you arguing that a substantive consideration of the merits of the Administration's legal case should start with an analysis of their legal arguments, then I suspect Balkin would agree (and Posner would disagree).

I am certain Balkin would agree. My point, though, is that Balkin has not substantively considered the merits of the Administration's legal case, given that there is no analysis at all of the White Paper on the blog. Nevertheless, Balkin seems to assume that the NSA program is, in fact, NOT legal (at least that is my reading of his final paragraph).

If Balkin really believes that a proper evaluation of the NSA program should begin with a substantive consideration of the merits of the Administration's legal case, he would have analyzed the White Paper. He didn't, which seems to me to be quite hypocritical.
2.2.2006 1:06pm
Kovarsky (mail):
Michael B,

Your argument against (2) consists of the statement that "i pointedly disagree with (2)."

the remaining text in your post is (i) a parenthetical, and (ii) something oddly dismissive:


(This "narrow" or limited aspect of his methodology, in contrast to his methodology in its entirety, which would require a review of his larger corpus or would at least need a broader statement from him.)

I'm done here, am beginning to repeat some things.


I'm not sure what you're saying in the first paragraph? Are you saying that the methodology he expressed in his article is not representative of his methodology as a whole? If that is the case, and I say this with the utmost respect - but are incorrect. Posner is the mouthpiece for pragmatism, the method he advances in his article.

Moreover, that's not even really important. Balkin's point was that the methodology Posner advanced in the article (as opposed to Posner's generalized methodology) was what is in tension with strict constructionism.

SO, CAN SOMEONE PLEASE EXPLAIN HOW POSNER'S PRAGMATISM IS NOT IN CONTRAST WITH "STRICT CONSTRUCTIONISM." I've asked this question 4 times and indeed, in fairness to Balkin - it's his central point - and nobody seems to want to address it directly.

Also, you may be repeating yourself, but that doesn't mean in any of those repetitions you've answered the question posed (see capitalized text above).
2.2.2006 1:08pm
Medis:
I'm not sure that there is an uncontroversial definition of "strict constructionism" (Solum's Legal Theory Blog had an interesting post on this subject under the heading "Legal Theory Lexicon 035"), but I am having a hard time understanding how anyone could not see the conflict between Posner's statement and the range of views called "strict constructionism".

Anyway, for what it is worth, it may be useful to put at least some definitions of "strict constructionism" on the table.

Here is the one from Wikipedia:

"Strict constructionism is a philosophy of judicial interpretation and legal philosophy that limits judicial interpretation to the meanings of the actual words and phrases used in law, and not on other sources or inferences. Adherents look strictly at the text in question rather than relying either on legislative intent (as gleaned from contemporaneous commentaries or legislative debate) or on metaphysical ideas such as natural law."

From law.com:

"interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast 'broad construction' looks to what someone thinks was the 'intent' of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society."

I might note that the aforementioned Solum post deconstructs the law.com definition and teases out several possible meanings.
2.2.2006 1:09pm
Kovarsky (mail):
i said "in contrast with." i'm not sure why i used that word choice. i meant "in tension with."
2.2.2006 1:14pm
Michael B (mail):
Kovarsky,

With all respect I didn't indicate my reply to you was an argument, it was a brief statement and I didn't represent it as anything beyond that. Too, I'll determine, to my own satisfaction, what Balkin's "central point" is, thank you very much.

Medis,

A final, very brief comment, though I've already answered your latest. I'm also beginning to think we're talking past one another, in large part.

I'm not at all sure Posner's reference to oversimplifications is as limited as you're indicating, but even there the sui generis aspect he notes is relevant. Also, there are obvious times where Balkin doesn't take Posner at his word, most obviously where Posner notes he's not attempting a legal opinion, but other places as well. And yes, I understand that's not an "argument".
2.2.2006 1:19pm
Kovarsky (mail):
Michael B,

There is no need to be snide. I am quite capable of being snide back, but I'm asking you quite civilly what your argument/reply/statement/comment with respect to my (2) was.

On top of that, seriously, what is Balkin's central point, if it isn't that Pragmatism is in tension with "strict constructionism."

Or is your argument/reply/statement/comment that Posner doesn't espouse pragmatism?

Or is it that his argument/reply/statement/comment does not espouse pragmatism, even though as a general matter, his jurisprudence embodies it.

Seriously, be nice. I've taken every effor to lay out every conceivable interpretation of what you've said, because I'm genuinely trying to understand your argument/reply/statement/comment.
2.2.2006 1:24pm
Medis:
A.S.,

Frankly, I'm still confused by your point--you seem to be actually agreeing with Balkin.

Incidentally, I don't think you can read the last paragraph of this post as being just about the NSA issue--it is written in a far more sweeping fashion than that, and again is addressed to both "conservatives" and "liberals". Moreover, if I did have to guess what specific current issues he had in mind when writing that paragraph, I'd suggest he was more likely thinking about torture than NSA surveillance.

Finally, you might note that Marty Lederman posted on Balkinization the intro and link to the letter written by Lederman, Heymann, et al. I'm not a regular reader of Balkin so I don't know this for sure, but I suspect that he has endorsed in some form the legal reasoning in that letter.
2.2.2006 1:26pm
Medis:
Michael B,

Honestly, I don't understand your claim. You say:

"Also, there are obvious times where Balkin doesn't take Posner at his word, most obviously where Posner notes he's not attempting a legal opinion, but other places as well."

But Balkin didn't claim that Posner was offering a legal opinion. What Balkin actually wrote was: "If Posner's view about how to judge a case means deciding whether the policy result is good and then 'ask[ing] whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion' he has sent pretty strong signals ABOUT HIS PRIORS IF HE WAS ASKED TO DECIDE THIS CASE." (my emphasis added).

For whatever reason, you seem to be turning Balkin's claim about Posner's "priors" into a claim that Posner has moved past those priors into an actual legal opinion. I see absolutely no support for your interpretation, and indeed it is completely at odds with the actual substance of Balkin's post, which is entirely about the fact that Posner has prioritized policy considerations over the remainder of conventional legal analysis. And once again, I think Posner has not in any way disclaimed this account of how he approaches legal cases.

So, I think you are really constructing a straw man. You are attacking a claim that Balkin does not actually make, assuming a conflict between Balkin and Posner that does not actually exist, and generally missing the point that Balkin is actually trying to make.
2.2.2006 1:37pm
Medis:
Incidentally, does anyone have a link to the second letter referenced by Heymann? It sounds to me that it may have addressed the additional constitutional arguments raised in the Administration's White Paper (and in my view, that was the most substantial and important area in which the White Paper varied from the Moschella Letter).
2.2.2006 1:47pm
Just an Observer:
Much of the confusion here can be resolved just by looking at the very next sentence Posner writes after the passage quoted in the thread above. After explaining how he would start with the preferred policy position, then temper that analysis with a check for legal barriers to it, Posner says, "That is how I would proceed if asked to decide a case challenging the legality of the NSA surveillance program."

Clearly, Posner is not advancing a legal opinion, and Balkin does not claim that the judge is doing so. But Posner states unambiguously that the policy-first framework he just outlined is how he would develop such a legal opinion.
2.2.2006 1:53pm
Medis:
JaO,

What I find somewhat amusing is that some people seem to think they should be defending Posner from such a characterization of his views. But those who know Posner also know that he wants no such defense--he undoubtedly means exactly what he is saying, although I do find it a bit surprising that he was willing to state this proposition so baldly.
2.2.2006 2:00pm
Just an Observer:
I failed to close my italics, which seems to be affecting subsequent posts.

So, now I have done so.
2.2.2006 2:15pm
Just an Observer:
Perhaps this will do the trick on the italics? If not, I will stop cluttering things up.
2.2.2006 2:18pm
Anderson (mail) (www):
The way I approach a case as a judge--maybe you think it heresy--is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion.

We've already seen this quoted above. I just want to know, which commenters would be going ballistic on the author of those words if they had been written by Justice Souter? ... You know who you are! ;)
2.2.2006 3:41pm
Challenge:
Posner's a pragamatist?

Wow, powerful stuff.
2.2.2006 3:42pm
Medis:
Challenge,

The "powerful" part is not identifying Posner as a pragmatist. The "powerful" part is asking both "conservatives" and "liberals" to reflect on what they really believe about the law in light of Posner's "pragmatist" Op/Ed.

AS,

I don't know if you are still reading this thread, but I wanted to note something in Balkin's post that I had overlooked before. He says:

"Defenders of the President must come up with what I can only regard as makeweight legal arguments for justifying what he has done, arguments that would indeed require judges to legislate from the bench, if that hackneyed phrase has any meaning. (For those of who you want a detailed defense of that claim, I direct you to Marty's many posts on this site.)"

So, Balkin is indeed expressly adopting Lederman's legal analysis by reference.
2.2.2006 5:06pm
Just an Observer:
Medis,

You asked above about a link to the "second letter" from Prof. Heymann and his co-signers.

I see that the letter to congressional leaders, dated today, is now posted at Balkinization.

As you suspected, it does appear to be an updated response to details of the administration arguments that did not surface until the "white paper."
2.2.2006 6:20pm
A.S.:
So, Balkin is indeed expressly adopting Lederman's legal analysis by reference.

Well, now that Lederman's legal analysis actually responds to the White Paper, I find that a relevant response.
2.2.2006 10:47pm
A.S.:
freaking itals!
2.2.2006 10:47pm
Medis:
JaO,

Thank you for calling that to my attention. Once again, I think this letter does a good job of explaining the problems with the Administration's argument. I also note that tactically, I think it was wise for them to stress that if taken seriously, the Administration's separation of powers arguments would apply equally well to the McCain Amendment.

A.S.,

I think this is only a minor point, but I take it you are now satisfied that Balkin does in fact take the legal arguments quite seriously.

Incidentally, I suspect that the White Paper and this latest letter are not going to be the final round in this debate, However, I predict with some confidence that Balkinization will continue to post on this subject as future developments occur--but likely they will not do so instantaneously in all cases. So, I might suggest that a little patience before accusing people of hypocrisy is in order.
2.3.2006 12:12am
minnie:
I agree with Wintermute that Glenn Greenwald has earned a place on the roll.
2.3.2006 4:41am
Michael B (mail):
Kovarsky, your accusation is unwarranted, I made two simple, brief comments in closing yesterday. I don't believe anyone sufficiently addressed my own positions in this thread regarding Balkin's effort, beginning here and here, and felt I was beginning to be repetitive, so I left, simple as that. If those closing comments were firm, that's all they were.
2.3.2006 9:20am
Just an Observer:
This probably deserves its own thread, but since it does not exist yet I will note here the news that Senate Intelligence Committee Chairman Pat Roberts today declared that FISA imposes an unconstitutional restraint on the President.

Roberts sent a 19-page letter to the Judiciary Committee leadership in advance of next week's hearing on the NSA surveillance controversial.

Rather than consider the administration's assertion that the 2001 AUMF provided statutory authority for the surveillance -- which "I do not discount" -- Roberts said in the conclusion of his letter:


I have focused instead on the constitutional authorities of the President because I believe that those authorities should be the beginning and end of our legislative inquiry into the "legality" of this program. It is quite clear to me that Congress could not, through passage of FISA, extinguish the President's constitutional authority to conduct the terrorist surveillance program at issue.


An image-based PDF of the letter was posted at Balkinization by Marty Lederman.
2.3.2006 7:22pm
Just an Observer:
Uh, my post should have read "... hearing on the NSA surveillance controversy."
2.3.2006 7:54pm
Medis:
Wow--Roberts's letter is a little on the surreal side. He purports to analyze the case under the Youngstown Category 3 framework, and he says that "the subject of electronic surveillance, even in the context of national security investigations, is a lawful object of legislative effort."

OK, then the result under Category 3 should be clear. The rule, as Roberts in fact notes, is that in a Category 3 case, the President "can rely only upon his own Constitutional power minus any Constitutional power of Congress over the matter." Accordingly, the President only had his own inherent power to conduct electronic surveillance in a national security context MINUS Congress's power over the subject, which means that he no longer had the power to authorize certain surveillance once Congress exercised its power to prohibit it.

But in what seems like a complete non sequitur to me, Roberts asserts that the Supreme Court would nonetheless determine that Congress could not define FISA and Title III as the exclusive means for the conduct of electronic surveillance. To me, this is the equivalent of saying 2-1=2. In other words, for no apparent reason, Roberts appears to conclude that in this particular Category 3 case, the Supreme Court would decide not to subtract Congress's power from the President's power after all.

Frankly, I'm not sure what to make of all this. Well, aside from concluding that the President only needs 33 more votes to avoid removal, if it comes to that.
2.4.2006 12:06am
Just an Observer:
Trying to find some argument that Roberts makes to distinguish the current situation from Youngstown, I think it is this:

But, unlike the authoritiy to seize steel mills -- by comparison so indirectly and distantly tied to the President's Article II authority and so directly tied to Congress' enumerated authorities in Article I -- the regulation of the President's constitutional authority to collect intelligence information incident to potential or actual attack by foreign powers and their agents is a subject over which Congress cannot assert complete dominion.


Essentially Roberts' view of FISA rejects Youngstown while paying lip service to it. It is similar to the view John Yoo asserted in a recent interview with Adam Liptak of the NYT during the Alito hearings. As such, Roberts' stance represents the most extreme constitutional position advanced by Bush advocates. It is most remarkable because it comes from a key senator entrusted with oversight over executive enforcement of the very law he finds unconstitutional!

Among other things, Roberts' argument fails to take account of two legal principles:

* One of Congress' enumerated authorities in Article I is the power to "to make rules for the government and regulation of the land and naval forces."

* The Supreme Court, in Hamdi, already has interpreted the Youngstown precedent in a matter found to be a "fundamental incident of waging war" -- in that case battlefield detention. And in that context, the court's plurality opinion held, "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Roberts' characterization of FISA as Congress asserting "complete dominion" in this area is a strawman. Like other statutes, it represents the legislative dominion, which in turn sets rules the President is to abide by, enforce and administer -- the executive dominion. FISA also lawfully establishes the FISC courts and their jurisdictions. So the proper "role for all three branches" obviously is respected.
2.4.2006 10:32am
Just Wondering:
From Sen. Roberts' letter:

But, unlike the authoritiy to seize steel mills -- by comparison so indirectly and distantly tied to the President's Article II authority and so directly tied to Congress' enumerated authorities in Article I -- the regulation of the President's constitutional authority to collect intelligence information incident to potential or actual attack by foreign powers and their agents is a subject over which Congress cannot assert complete dominion.

I'm not sure I get the distinction, as long as we're talking about exercising "force." Why couldn't one argue that destruction of property is a fundamental incident of war, thus the milder measure of seizing property must also be included. Therefor, seizing a steel mill is obviously an act of war that would be sanctioned by a congressional authorization to use force, which Truman didn't have with respect to military operations in Korea. So maybe Youngstown isn't relevant after all. Or, DOJ is correct that the AUMF, while unnecessary to authorize force, has the sole effect of catapulting the president's power to its zenith.

Wow, our civil liberties are better protected when Congress keeps quiet. So much for checks and balances. Or is it that when Congress writes blank checks, nobody should be overly shocked when they discover the balance is way in the red.
2.4.2006 11:11am