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.



Forget Oculus Rift

This $25 cardboard box turns your phone into an incredibly fun virtual reality experience.

Republicans Want the Government to Listen to the American Public on Ebola. That’s a Horrible Idea.

The 2014 Kansas City Royals Show the Value of Building a Mediocre Baseball Team

The GOP Won’t Win Any Black Votes With Its New “Willie Horton” Ad

Sleater-Kinney Was Once America’s Best Rock Band

Can it be again?


Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

I Am 25. I Don’t Work at Facebook. My Doctors Want Me to Freeze My Eggs.

These Companies in Japan Are More Than 1,000 Years Old

  News & Politics
The World
Oct. 21 2014 11:40 AM The U.S. Has Spent $7 Billion Fighting the War on Drugs in Afghanistan. It Hasn’t Worked. 
Business Insider
Oct. 21 2014 11:27 AM There Is Now a Real-life Hoverboard You Can Preorder for $10,000
Atlas Obscura
Oct. 21 2014 12:40 PM Asamkirche: The Rococo Church Where Death Hides in Plain Sight
  Double X
The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don’t Work at Facebook. My Doctors Want Me to Freeze My Eggs.
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
Oct. 21 2014 12:05 PM Same-Sex Couples at Home With Themselves in 1980s America
Oct. 21 2014 10:43 AM Social Networking Didn’t Start at Harvard It really began at a girls’ reform school.
  Health & Science
Climate Desk
Oct. 21 2014 11:53 AM Taking Research for Granted Texas Republican Lamar Smith continues his crusade against independence in science.
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.