John Yoo's Living Constitutionalism

Slate's blog on legal issues.
April 2 2008 1:47 AM

John Yoo's Living Constitutionalism

My reaction to the Yoo memo is almost the exact opposite of Emily's : I'm struck by how lawyerly it reads. It cites tons of authority, hedges arguments, discusses counterarguments, and generally reads like a careful lawyer's work. In fact, if it were a Supreme Court opinion rather than an OLC memo, I believe it would be entirely acceptable under Jack Balkin's theory of living constitutionalism. (Or so it seems to me—I remain a bit unsure of what Jack's theory rules in or rules out.)  As Jack might say, Let Yoo be Yoo!

Instead, I think the problem with the memo is that the quality of the doctrinal analysis is generally poor. At least that's what I've been struck by in the sections that touch on the areas I teach.  Take the discussion of the necessity defense and self-defense. I think it's probably right that in a genuine, real-deal "ticking time bomb" scenario, there could be a necessity defense to torture in some way. But while the memo notes the doctrine is fact-specific, it weirdly does not explain just how narrow those circumstances would have to be for the doctrine to apply. You end up with a chunk of the memo saying there's a possible defense "depending on the facts," but without explaining that those facts would have to be pretty extreme to matter.  That's the impression I get from the sections I know well, at least.



Meet the New Bosses

How the Republicans would run the Senate.

The Government Is Giving Millions of Dollars in Electric-Car Subsidies to the Wrong Drivers

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Cheez-Its. Ritz. Triscuits.

Why all cracker names sound alike.

Friends Was the Last Purely Pleasurable Sitcom

The Eye

This Whimsical Driverless Car Imagines Transportation in 2059

Medical Examiner

Did America Get Fat by Drinking Diet Soda?  

A high-profile study points the finger at artificial sweeteners.

The Afghan Town With a Legitimately Good Tourism Pitch

A Futurama Writer on How the Vietnam War Shaped the Series

  News & Politics
Sept. 21 2014 11:34 PM People’s Climate March in Photos Hundreds of thousands of marchers took to the streets of NYC in the largest climate rally in history.
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Tv Club
Sept. 21 2014 1:15 PM The Slate Doctor Who Podcast: Episode 5  A spoiler-filled discussion of "Time Heist."
Brow Beat
Sept. 21 2014 2:00 PM Colin Farrell Will Star in True Detective’s Second Season
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 21 2014 8:00 AM An Astronaut’s Guided Video Tour of Earth
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.