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[Adam White]
Eric, I think you're reading too much into my post on George Will's latest column. You make a few points; let me roughly group them and respond in turn, not necessarily in the order in which you presented them:
First, regarding the specifics of the Will column: I'm not sure why you took me to be "worried about whether Will's legal philosophy should be called 'conservative jurisprudence,'" or to be "relieved" to ultimately answer in the affirmative. I certainly wouldn't "worry" one way or the other as to Will.
Second, as I intended to convey in my post, Will's column raised eyebrows not for his suggestion that "[t]here must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say" (i.e., the portion you quoted) but, rather, for his view of the Fourteenth Amendment:
The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism -- judges judging rather than merely ratifying government's caprices.
Will's call for courts to impose a greater-than-rational-basis review on state economic regulation is a fairly bold departure from the textualism/originalism jurisprudence now predominent among conservative legal and political scholars. I noted that Will (to borrow your phrasing) "touched a nerve" by invoking a degree of judicial restrictions on regulatory power very much outside of the modern American conservative mainstream. That's all.
Third, your larger point: You confess puzzlement by my use of the term "conservative jurisprudence." In fact, you suggest that the term is novel to the blogosphere -- and, hoping not to appear out of place among your fellow bloggers, you ask for insight on what you characterize as "a secret meeting where everyone is wearing costumes and speaking in code." (Hats and keys and passwords? Gee, whiz.)
I think you're simply reading too much into my point. By using the term "conservative jurisprudence," I meant only those methods of legal analysis most commonly employed by American "conservatives." Subjective definition perched upon subjective definition, no doubt. Nevertheless, I don't think it's a particularly novel term, and I certainly do not agree that the term "conservative jurisprudence" is the strange province of bloggers.
Cass Sunstein, for example, quite nonchalantly used the term "conservative constitutional thought" in his recent paper on "Burkean minimalism." (Sunstein identified at least two "approaches" under the broader umbrella of "conservative constitutional thought": "Originalists, including Justices Antonin Scalia and Clarence Thomas," and "conservative perfectionists," including "the most influential memebers of the Lochner Court".)
Ernest Young's 1994 contribution to the North Carolina Law Review -- also focusing on Burke -- offers a fine account of "Modern Conservative Jurisprudence," which he sees as encompassing "Originalism" and "judicial restraint." (He begins with Mark Tushnet's 1985 sharp quote, "Conservative constitutional theory might be interesting, but it isn't.")
And of course there other myriad other examples. (Robin West's 1990 Michigan Law Review article, "Progressive and Conservative Constitutionalism" among them.) At risk of being overly general, these authors used the terms "conservative jurisprudence," "conservative constitutional thought," and other variants in the same way that I did: I referred only to the methods of legal analysis most commonly associated with "conservatives."
As for your specific questions as to whether Will will be thrown out of the "clubhouse," or how a method of legal analysis comes to be adopted by conservatives -- good questions, and ones for which I don't have any answers. I can't say I've ever given them much thought. How conservatives (or progressives, or Marxists, or Iowans) come to respective consensuses on preferred methods of legal analysis certainly is a question far beyond the capabilities of a blog post's analysis.
In short: Let not your heart be troubled, Eric! You've stumbled upon no secret societies; you've accidentally uncovered no secret handshakes, keys, or hats! I meant to offer no more cryptic a point than that Will's analysis, while certainly not within the modern American conservative legal mainstream, was perfectly consistent with his prior writings and, therefore, unsurprising, and that it isn't utterly foreign to conservative thought. I certainly did not intend to introduce into the debate any new or novel terms.
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Eugene Volokh takes Dahlia Lithwick to task for accusing Republican Supreme Court justices of hypocrisy when in fact they are merely applying their ("conservative") judicial philosophies in a consistent manner. Dahlia thinks that conservatives believe that courts should leave policy to legislatures, respect precedent, and refrain from inventing constitutional rights, and that the Republican Supreme Court justices do none of these things. Heller might not be the best case for her argument, especially because it has not yet been decided; but if it is decided as everyone expects it will be (namely, conservatives on one side, liberals on the other), it is not the worst example that she could have come up with. (She says similar unflattering things about the liberals on the Court.)
The problem, as Volokh points out, is that it is hard to show that any of the existing Supreme Court justices are being hypocritical. They have their particular judicial philosophies, and are arguably acting consistently with them. Dahlia's hypocrisy charge will nevertheless ring true for some people. Correctly read, I think, she is not so much accusing any particular justice of hypocrisy; rather, she is accusing a composite of conservatives of hypocrisy--those conservatives who argued, back when liberals ran the Supreme Court, that justices should try to avoid striking down statutes, and who now, with a conservative court doing the same thing, are egging it on.
Conservative thinking about courts has changed. At one time, conservatives criticized the Court for aggressively striking down laws; now conservatives seem less concerned about this behavior. (I am simplifying: there are exceptions in both groups.) Because the time-one conservatives said the Court was doing politics, and the time-two conservatives deny that they have a political agenda for the courts, something, vaguely, seems hypocritical. (A mirror-image argument is being made about liberals who have begun arguing for judicial restraint.) But no particular individual is necessarily hypocritical. The first group has faded into the background, and the second group has come to the forefront. With the change in the personnel of the courts, there is more political demand for the ideas of the second group than for the ideas of the first. No individual is hypocritical, but if you thought of the "conservative movement" as a living, breathing person, then you could accuse that person of hypocrisy. Unfortunately, there is no such composite person. Dahlia commits the "fallacy of division," attributing to the members of a group motives that would better describe the group as a whole, with the added twist that the group is inappropriately anthropomorphized.
One can see the problem more clearly by focusing on how people are chosen for the Court. Presidents want to appoint Supreme Court justices who will decide cases consistently with the presidents' political agendas, but they can't very well ask their appointees to do politics. The solution is to find and appoint people who sincerely hold judicial philosophies that are likely to generate the political outcomes that the president values. It isn't fair to call these appointees hypocrites; they are sincere (as far as we can tell). Nor does it seem fair to call the presidents hypocrites, though they are less than straightforward when they claim that they care about the judicial philosophies rather than the politics of appointees (they care about the former because they care about the latter). Politicians do politics, so it would be strange to call them hypocrites for advancing their political agendas in the courts. So voila, we have a hypocritical institution--the Supreme Court, which claims to do law, and not to do politics, but does both--even though it may well be composed of, and by, people who are not hypocritical at all. How do we know that the Supreme Court is hypocritical? Because it holds itself out as an impartial institution that decides the law only, but makes decisions that a twelve-year old could tie to the politics of its members--as Heller seems to make (or will make) painfully clear.
You can call an institution hypocritical until you're blue in its face, but it's not going to change its behavior. It's just an abstraction, after all. The question is whether one can live with the institution as it is, or can figure out some way to make it better. Calling the justices hypocrites won't work because they are not hypocrites. Telling them--or at least a wavering swing vote--that they risk damaging the reputation of that institution, and hence their means for exerting influence, might.
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[Nancy Gertner] Kenji Yoshino asks whether it is better to eliminate peremptory challenges altogether rather than risk their use in a discriminatory fashion. I understand the problem; Snyder, the Supreme Court's recent peremptory challenge case, dramatized it. Still, because of what I know of the real world of criminal trials, I would not throw out peremptory challenges.
Peremptory challenges are more likely to be based on stereotypes of all kinds where the voir dire process has been inadequate. The more information you have about someone the less likely you are going to stereotype him or her. The problem is that voir dire in federal court is usually limited. (State courts are different; some, like Connecticut, have a long tradition of elaborate voir dire. Some federal courts mirror the more elaborate voir dire of the states in which they are located, but that is the exception not the rule.) Typically, a juror's self-assessment of partiality or impartiality is the end of the analysis. So, until courts recognize the significance of a searching voir dire, lawyers will never be able to ask the kind of questions that really elicit bias on the part of the juror. (When I was a practicing lawyer, the only mandated question about race in the courts of Massachusetts was, "are you sensible of any bias or prejudice you might have " a question often asked to the jurors as a group. It was an approach hardly likely to elicit a meaningful response from the jurors. In fact, it reminded me of an AA meeting; the jurors were expected to stand up and say, "My name is John Smith and I am a racist." Happily, the Massachusetts has changed its jury selection procedures.)
Of course, one might say if we had a more searching voir dire, why would we ever need peremptory challenges. The only answer is that peremptory challenges represent the system's safety valve—because the very process of jury selection may alienate a juror, because there may not be enough time to ask all of the relevant questions of a juror, because in high profile cases one may suspect a juror to have been influenced by 24/7 news coverage but the juror denies it, etc.
I recognize the contradiction—if after lots of questioning you don't have a rational basis for a cause objection, you are more likely to challenge a juror based on hunches, gut feelings, and of course, bias. Still, the very possibility of a Batson challenge has an impact on the exercise of peremptory challenges. In addition, perhaps after Snyder the courts will do a better job of monitoring. For every Snyder there were a thousand cases where courts have been unwilling to second guess the prosecutor. It was enough if the prosecutor offered any old reason so long as it was ostensibly race neutral; it didn't have to make sense. (The Supreme Court literally said that in a 1995 case, Purkett v. Elem.) This included "I got the feeling that the juror didn't want to be here," or another where the juror seemed "squishy on the death penalty," or made a funny face, or looked bored.
Whether Snyder augurs a change is an open question. It was, after all, a death penalty case. At times it appears that there is death penalty jurisprudence and then all other criminal prosecutions. In addition, as we have seen to a degree in sentencing, there are Supreme Court pronouncements which are effectively ignored by the lower federal courts.
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So here's where I think our arguments are passing in the ether, Jack. First, I've always understood there to be an at least doctrinal (perish the thought) distinction between "fundamental rights" and "everything in the Bill of Rights." (So when, for example, we studied in law school why a state law forcing the sterilization of certain people was constitutionally problematic, it mattered in the court's decision to apply strict scrutiny that in particular "[m]arriage and procreation are fundamental to the very existence and survival of the race.")
I take you in recent posts to be arguing there's no daylight between rights fundamental and any right in Amendments 1 through 8 (i.e. that "fundamental rights" include at a minimum everything in the Bill of Rights). Among other things, then, I'm stuck with how to understand things like the grand jury right, on which the states have gotten a constitutional pass. Guess that falls into the Balkin given-a-chance-I'd-reverse bucket.
Second, I wasn't arguing that strict scrutiny should apply to regulations of Second Amendment rights, or indeed that strict scrutiny is what applies to everything in the first 10 amendments. Just the opposite (as I'd hoped was made clear when I noted, for example, "the highly contextual availability of those rights (even the great First Amendment)..."). I was arguing that applying strict scrutiny (or something thereabouts) seemed like the necessary implication of your argument that the right to carry a handgun is "fundamental." Because you apparently think Amendments 1-8 or 9 are all "fundamental," I can see why you wouldn't think that the necessary implication at all. Glad to have the record straight.
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Richard Schragger is another Slate contributor who teaches at UVA law school. He sent in this email in an effort to clarify where you and I differ Jack.
In his post concerning the “living Constitution” Jack takes Dahlia to task for her naiveté – how can a “living constitutionalist” believe that constitutional law-making is anything other than a mixture of constitutional law and constitutional politics (with the latter more dominant than the former)? This explosion of the law/politics divide is too all-encompassing—and it doesn’t give us much traction on the important question—which is: What does the Constitution require? Jack offers an externalist perspective on constitutional change and calls it the "living constitution" -- but what he is offering is a description of how political/historical forces shape courts and other institutions of government – an account that may or may not be accurate but is, in any case, not what lots of opponents of originalism mean when they speak of the “living constitution.” Jack’s description also doesn't answer the question of whether the Court is actually engaged in making law. What I think Dahlia cares about (or, more accurately, what I care about) is the Court from an internalist perspective: We think that the Constitution is law, that law has content, and that legal doctrine has to be justified by an actual theory or account of the Constitution, the rights it contains, and how those rights apply through time.
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I’ve been getting lots of interesting emails about my conversation with Jack about the proper role of social moments in constitutional courts so I thought I’d share some of the best. James Ryan teaches at the University of Virginia and has written for Slate. He writes:
I wonder if what really bothers you is the difference between well-heeled interest groups, who should be able to do just fine in the legislature, versus social groups that are traditionally disadvantaged in the legislative process. Seems like you could accept that social groups can and should help shape the Court's agenda but believe, ala Ely and political process theory, that there's no reason for the Court to overturn the legislative process when it disadvantages social groups that can and often do just fine in the legislative arena, as in the NRA. The Court might want to take a closer look when groups that are routinely disadvantaged ask for their help. E.g., you can make the argument that the Court should pay more attention to the NAACP than the NRA.
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[Benjamin Wittes] To the extent the eventual convictions of KSM et al rely on coerced testimony, even indirectly, I agree with you, Emily, that the Defense Department should not put them to death. The hard question is what to do if, notwithstanding their brutal treatment, the military commissions can deliver "clean" convictions that do not depend on coercion at all. There are several ways this could happen. The first is that the defendants-some of whom have evinced significant pride in their acts-do not contest the allegations against them, but actively take credit for them. This is what KSM did in his combatant status hearing and also what Richard Reid did in federal court and two other detainees tried to do in prior military commissions. It strikes me as a plausible, even likely, disposition for at least some of the 9/11 defendants.
The second possibility is that prosecutors may be able to convince a military commission-as civilian prosecutors convinced a judge and jury in Jose Padilla's case—that the evidence they are presenting is in no way tainted by the circumstances of the defendants' initial interrogation. So while I agree with you that this country shouldn't "be a place where people are sentenced to die based on a prosecution that is tainted by torture testimony," that doesn't seem to me to end the inquiry. These cases could raise a different question: whether the fact of having been tortured-or something close to it—renders one ineligible for the death penalty, no matter how culpable one is and no matter how well-scrubbed one's criminal trial might be. I hate the death penalty enough that I have trouble answering that question dispassionately, but I think my answer is that it probably doesn't—that is, if the conviction is truly unaided by the fruits of coercion, I would not fight execution based on the fact of the coercion having taken place (though I would, as described earlier, have grave anxieties about execution in these cases for other reasons).
That, of course, raises the question of whether the rules of the tribunals created by the MCA are strong enough to make sure that convictions are not tainted. The answer is, well, maybe. In theory, they could stand to admit a fair bit of coerced testimony if the presiding judge deems it probative and reliable given the totality of the circumstances. But that very standard also allows a lot of litigation over the reliability of a given piece of evidence and its probative value under the circumstances under which authorities got it. The result of that litigation could well be that the tainted stuff stays out. In other words, I can imagine unfair trials under the MCA or very fair trials under it. So all the rhetoric aside, I don't think we'll know until trials actually happen how fair or unfair the system really is.
The truth is that a lot of trial systems have rules that permit horrifying unfairness under the worst circumstances. A few years ago, I did a series of editorials for the Washington Post about procedural rules in Virginia criminal cases under which more than 10 percent of convicts used to lose their right to appeal because of lawyer errors in filing appellate documents. The process of restoring these defaulted appeals would generally cause the inmates to lose all ability to file habeas corpus actions. (The rules have since changed.) Nothing in the MCA is that indefensible, in my opinion—yet we don't generally talk about Virginia rules as so pervasively unfair as to render trials conducted in the state as per se illegitimate. We treat each case on its own merits. While I do suggest substantial changes to the MCA in my forthcoming book (about which I'm grateful for Emily's kind words), I'm inclined to view trials under it as warranting at least that level of confidence.
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continue reading at Balkinization . . .
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With growing appreciation of Jack and Dahlia (and growing bewilderment at how any of us will keep up with our day jobs in a post-Convictions world), let me offer a few thoughts in response to Jack's post on the Second Amendment and more broadly on constitutional interpretation by "progressive constitutionalists."
Jack's of course right that we should all know a lot more about the framers (and framing) of the 14th Amendment. Count me in. I also couldn't agree more with the general sentiment I take Jack to be expressing that those who continue to assert vigorous state rights-type arguments (in various contexts, most ridiculously perhaps when it comes to voting rights) are simply missing the reality that their side lost the Civil War. Even on the more specific point, I would be willing to defer on grounds of comparative historical illiteracy to Jack's account that one of the things the 14th Amendment framers had in mind in passing the amendment was to make sure, I take it his historical argument would lead him to say to the Heller Court, that citizens would be able to carry guns with them pretty much anywhere, anyplace, for any reason. For such is the result at least traditional strict scrutiny of regulation of a fundamental right would most likely bring.
But it is that last point that brings me back to the question my earlier post meant to be asking - namely, that however terribly inadequate (Charles Black said), ahistorical (as you would say), and otherwise laden with "baggage" (as Chief Justice Roberts would say) the Court's fundamental rights jurisprudence has been in the past ~150 years, my naïve stare decisis-related assumption had been that those decided cases are entitled to at least some measure of "interpretive weight" as against the statements of the no-doubt-far-more-enlightened views of Senator Howard. Of course it would've been better had Slaughterhouse been rightly (or even plausibly) decided, and we all hadn't wandered off for the past century and a half down the less-than-perfect substantive due process road, and the associated imperfect road along which we incorporated some (but not all) of the Bill of Rights against the states. But alas, that is the legal road we have traveled. It is one thing for progressives to explore anew the heretofore untapped scope of the privileges of immunities clause. It seems to me another thing to ignore, in any case in which any of that along-the-way jurisprudence seems inconvenient, everything else that might inform the modern Court's understanding of what makes a right fundamental.
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I must confess, Dahlia, that you saw something in my last post that I didn't see. I was not writing about the "drawbacks of living constitutionalism," but about how living constitutionalism of the kind you like actually works.
You seem to think that there is some important difference between the way that political and social movements influenced and interacted with John Roberts and his conservative brethren and the way that they influenced and interacted with Earl Warren and his liberal allies. I'm here to tell you that there are not that many differences, if you put aside who you happen to be rooting for. People said the same things about Earl Warren (and William O. Douglas and William Brennan) that you now are saying about John Roberts, as in: "Where the heck did he get this stuff? Is he just making it all up? Is he just a mouthpiece for the liberal wing of the Democratic Party? He must have been too influenced by those crazy lefties." etc., etc. etc.
Go back and read what people said in the 1950s and 1960s about the work done by courts in this era and you'll find it all very familiar. It sounds just like you. If you like, we can turn back the clock and reverse all those liberal decisions that were done the "wrong way." But frankly, I'd rather not.
One last thing. The notion that "the individual right to bear arms `ar[o]se full blown' from the head of Chief Justice John Roberts" and not out of the text of the Bill of Rights is news to me. I guess you could also say that the right against sex discrimination sprang full blown out of the head of William Brennan or that the right against segregated schools sprang full blown out of the head of Earl Warren. This is not historically accurate in either of those cases, and it's not historically accurate in the case of Roberts. Believe me, I'm not generally in the business of carrying water for our current Chief Justice. But let's give credit where credit is due.
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Adam invites us to ponder a recent column by George Will, who says, in the context of a picayune dispute among a group of people whom he obviously thinks are a bunch of rubes (actually, the "people" of Pinal County are salt-of-the-earth regular guys and gals who love their families but are not averse to some clean fun, and who elect secret admirers of the Gestapo to rule over them):
there is this mighty oak of a principle: There must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say.
I don't know whether this principle is a mighty oak or not, but it's hardly news. Any lawyer would tell you the same thing if he could stay awake long enough to finish the sentence. If courts didn't do this, there wouldn't be much point in having a legislature. Why Will thinks that a court interpreting a statute according to its meaning is "judicial activism" is beyond me. Maybe, he's confusing statutory interpretation with the opposite practice of striking down a statute because it violates the Constitution. Starting from the premise that local courts should enforce the "plain language" of the relevant zoning ordinance so as to constrain the power-mad officials of Pinal County, Will concludes that courts should strike down these ordinances because they violate the Constitution. So which is it? Uphold or strike down?
Adam seems worried about whether Will's legal philosophy should be called "conservative jurisprudence." He seems relieved that the answer is yes. But what is "conservative jurisprudence," anyway? Jurisprudence is the study of law; is "conservative jurisprudence" like "conservative geology" or "conservative astrophysics"? Would Scalia and Thomas agree that their jurisprudence is "conservative" or would they just say it is "correct"? What happens if Will's jurisprudence turns out not to be conservative? Does he have to turn in some special key or a funny hat? Is the correctness or not of Will's jurisprudence relevant to the issue of whether it is conservative? Or is the idea that "correct" is just an unnecessarily simple way of saying "conservative"?
Reading Adam's post, I feel that I have stumbled across a secret meeting where everyone is wearing costumes and speaking in code. If I am going to take a place in the blogosphere, I will have to learn this code myself. So someone please help me. Why would conservatives or anyone else have a nerve touched by Will's column? Is it because one can derive (as I learned in logic) any proposition ("war is peace," "black is white," "taxes are good") from two contradictory premises? Should this bother only conservatives but not liberals? And why does it matter whether someone's jurisprudence counts as "conservative" or not? Is the idea that jurisprudence is "conservative" if it generates right-wing case outcomes--for example, Republicans always win and Democrats always lose? If a judge resolves a breach of contract dispute by decreeing that neither party may have an abortion, does this count as "conservative jurisprudence"? If someone's jurisprudence produces liberal case outcomes, does that mean his jurisprudence is wrong, or just that he is denied entry into the clubhouse? Adam, someone, help?
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To respond to David’s questions on the deported dandy Sebastian Horsley, here’s the governing law from the State Department. The United Kingdom is one of the countries recognized under the Visa Waiver Program, which is what it sounds like. But according to the State Department site an individual otherwise eligible for a waiver must apply for a visa if the alien “[h]as a criminal record or other condition making them ineligible for a visa.”
That infelicitously worded provision makes it sound like you have to apply for a visa if you aren’t eligible for one. The reality is not quite so Kafkaesque. Yes, classes of ineligible aliens include “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of, a crime involving moral turpitude.” Such aliens, however, can still be admitted if: (1) the crime was committed when the alien was under 18; (2) the crime was committed more than five years before the visa application; or (3) “the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year.”
Unfortunately for Horsley, none of these exceptions apply to him. He has admitted that he spent 100,000 pounds (about $200,000) each on prostitutes, drugs, and suits. Disclaimer: fashion crimes are not deemed acts of moral turpitude, though Horsley was pulled out of the line for wearing a three-piece suit and a top hat on this occasion.
While we’re on the sartorial point, it does seem that Horsley wanted to make an entrance to this country in more ways than one. He had come here without incident on prior occasions. One wonders whether this may have been because he waited until he got through customs before going into full dandy persona. Because I don’t want to encourage end-runs around the law or stifle personality, I’m not recommending that the soignée artiste abjure the Oscar Wilde “I-have-nothing-to-declare-but-my-genius” approach to customs. But the occupational hazard of being fashion-forward is that you do stand out.
With that background in mind, let’s move to David’s questions: “What’s a poor memoirist to do when confronted at the border with his own tell-all tome? How does he avoid getting booted for ‘moral turpitude’?” He has at least three options. He can get all the turpitude out of his system before he is 18. He can place a five-year moratorium on his turpitude in the years before applying for a visa. Or he can live a life free of turpitude and write a memoir about his veterinary practice in Yorkshire, like that nice James Herriot.
You also ask whether “the book was sufficient evidence of his moral failings,” or whether the deportation rested “on the admission he made (presumably by confirming facts in the book) in the interview.” According to the press, his book was “considered,” but it’s hard to believe it was the only ground for his deportation. The book is 368 pages long. The interrogation lasted for eight hours. Perhaps the book is one of those dense poetic efforts where skimming feels itself like an act of moral turpitude. But that’s still 50 pages an hour for one official. Recall as well that the book is touted as an “unauthorized autobiography,” which presumably means that Horsley’s superego did not hold the other parts of his self to strict levels of truthfulness. Because of that disclaimer, it’s hard to see how officials could properly use the book as stand-alone evidence of his bad acts. Besides, Horsley generally seems like a open person—in interviews prior to the one he had at Newark airport, he has talked about sleeping with a thousand prostitutes and why he felt the need to stage his own crucifixion.
And let’s not miss the silver lining. As someone who likes reading memoirs, I, like others, was dispirited to learn that James Frey’s A Million Little Pieces and Margaret Seltzer’s Love and Consequences were fictionalized. It’s comforting that customs officials believe that Mr. Horsley, unlike Ms. Seltzer, has done many of the things he says he has done. I hope they put a sticker on the book to that effect. Indeed, given that publishing houses say that fact-checking memoirs is impractical, maybe they should farm out the vetting process to the government. The Secretary of Homeland Security could be renamed the Master of Revels, and citizens would feel safe—well, more safe--from the serious threat dandy memoirists pose to this country.
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Jack, thanks for your thoughtful post on the drawbacks of living constitutionalism. I don’t imagine you really believe that the version of living constitutionalism you’ve unspooled -- if it’s living constitutionalism at all – is one I’d embrace. That’s judicial tyranny. My objection in Heller was not to “political and social movement guided constitutional development” but to political and social movement dominated constitutional development as the courts snoozed. I don’t imagine anyone genuinely believes the courts could or would ignore political forces.
I’m actually rather fond of the unwashed masses. But what I didn’t see happening in Heller was the kind of serious constitutional conversation between the unwashed and the courts that we both favor. What I did see was the individual right to bear arms “arise full blown” from the head of Chief Justice John Roberts.
It’s not clear to me that we differ about “living constitutionalism” at all. Both originalists and living constitutionalists can embrace judicial restraint. I simply think the constitution has real meaning, and that courts play a role beyond merely carrying water for special interest groups social forces. That’s why I am most looking forward to your answer to the question Eric and I posed earlier this week. If it’s really all just politics, why do we need constitutional courts at all?
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Ben, you posed great questions the other day
about the 9/11 plotters, their culpability and appropriate punishment,
the due process that the military tribunals set up to try them could
deliver, and, especially, what "real due process" would look like for
them. For me the answers to the first two questions are tied up in each
other. Because of my doubts about the procedural protections to be
afforded KSM et al, in particular the influence of torture testimony
on their trials (whether or not it's directly admitted), I don't
think they should be executed, despite their culpability. I just don't
want this country to be a place where people are sentenced to die based
on a prosecution that is tainted by torture testimony.
There are a lot of hard questions that this sliver of certainty
doesn't address: What's supposed to happen to these detainees, then,
and your crucial question, what due process should they get?
I'm only beginning to stumble toward my own answers. I know you've
thought a lot more about this than I have, thanks to the
impressive-looking advance copy of your new book, Law and the Long War,
that is sitting on my desk. We probably come out in different places on
various points, but I'd love to hear your thoughts whenever you think
the time is right. (And everyone else's, too, of course.)
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continue reading at Balkinization . . .