New Blog on Islamic Law

I don't usually post simply for the purpose of plugging another blog, but I'll make an exception to that principle for University of Pittsburgh law prof Haider Hamoudi, who has just started a new blog on Islamic law. His first post examines two recently noteworthy cases: the English woman jailed and exiled for calling a teddy bear Mohammed (in response to her students' request) and the Saudi woman sentenced to 200 lashes for being in a car with a man not her husband (and possibly for then having been gang raped). Hamoudi condemns these sentences but goes on to explain how the claim that they carry out "Islamic law" rests on numerous controversial premises. It's worth a read.

Posted by Mike Dorf

Eisgruber Respondeth

For everyone wondering how Chris Eisgruber would respond to my question whether a tendency to defer to institutional settlements could really be cabined off from ideological values as "procedural," wait no longer. Chris said that while deference to institutional settlements is part of what makes a Justice "moderate" along the procedural dimension, the procedural value on which he principally relies is "open-mindedness" towards new claims of justice. I'm all for that too, but I should say that this too can be characterized as an ideological position. Self-styled originalists, after all, might say that it's the job of the Court to enforce the old Constitution and for the political branches to be open-minded towards new justice claims. In the end, my mild skepticism may boil down to the sort of skepticism one often sees towards all process-based theories. Think here of the criticism by Larry Tribe of John Ely's process theory.

One further thought on Eisgruber's proposal for moderate Justices. The best way to achieve this would probably be a structural mechanism, such as a requirement of super-majority confirmation. We have a de facto version of that in the possibility of a filibuster of judicial nominees, but the threat of the "nuclear option" doing away with the filibuster is powerful. Thus, even though Justice Alito received fewer than 60 votes to confirm in the Senate, some of the Senators who ultimately voted against confirmation had earlier voted for cloture. Whether the Republicans would have "gone nuclear" if the Democrats had held fast and filibustered is not clear, but the very possibility may have had a chilling effect, and explains why we do not have a strong de facto super-majority requirement. Getting a real super-majority requirement for confirmation would require a constitutional amendment, which may explain why Eisgruber doesn't advocate it (as such an amendment would be extraordinarily difficult to enact).

Posted by Mike Dorf

The Next Justice

Christopher Eisgruber is the Provost of Princeton University and a former law professor at NYU. He is one of the most elegant writers on constitutional law, both in his solo work and in his collaborations with his former NYU colleage (and current Dean of the University of Texas Law School) Lawrence Sager. Eisgruber's most recent book, The Next Justice, argues for a new approach to the selection of Supreme Court Justices. I'll be talking about the book on a panel at Princeton this afternoon and thought I'd very briefly preview my remarks here.

Roughly half of The Next Justice addresses matters of constitutional (and to a much lesser extent, statutory) interpretation. In order to know what the confirmation process should look like, Eisgruber says, we need to know what it is that we want our Justices to do. His answer is that Justices apply "ideological" and "procedural" values in interpreting the open-ended (Sager would say "justice-seeking") language of the Constitution (and statutes). Ideological values vary greatly based on a Justice's background, experience and commitments, and map roughly onto the conservative/lberal divisions that we see in politics. Procedural values, however, are distinctively non-political, and include a commitment to the consistent application of principle, blindness to party interest and respect for the decision-making capacities of other institutions. Thus, on the merits, Eisgruber offers a vision of judicial decision making that is broadly similar to the one I offer in No Litmus Test: Law Versus Politics in the 21st Century. We each think that ideology matters to judging, but neither of us thinks that ideology alone matters. Judging is a distinct activity from legislating.

How should this translate into the appointments process? Presidents, Eisgruber observes, take account of the ideology of potential Supreme Court Justices, and so should Senators. They should generally seek, Eisgruber says, "moderate" Justices, by which he means those who are in the mainstream ideologically and who manifest a commitment to the procedural values that make judging an enterprise that is distinct from politics as such. I don't quarrel with the latter but I do have serious doubts about the former: If a very liberal (or very conservative) President has a very liberal (or very conservative) Senate, then why shouldn't they appoint very liberal (or very conservative) Justices? Eisgruber's answer is that it's okay to appoint one or two such Justices but that beyond this, the Court should be dominated by moderates because they are more likely to accept the institutional settlements reached by other branches and levels of government. He offers that latter point (deference to institutional settlement, which is a term used by Hart & Sacks, not Eisgruber, but which captures his meaning) as a matter of the Justice's procedural values. But it is not clear to me that the degree to which a Justice defers to institutional settlements can be placed in the "procedural" rather than the "ideological" column. And by hypothesis, in my example, the President and the Senate favor Justices whose ideology makes them less deferential to conservative (or liberal) institutional settlements than the ideology of a moderate would.

I'll report back on the panel tomorrow or over the weekend.

Posted by Mike Dorf

Middle Class Entitlements

“Entitlement programs” (to use the ugly phrase) will be an issue in the 2008 election. The ultimate Democratic candidate is likely to put forward a universal health care plan, and we can expect to hear more about President Bush’s recent veto of health care for children. The state and future of other social programs, such as social security, should be on the agenda as well, although perhaps only Senator Obama will be willing to talk about them.

As an article in the Economist pointed out last month, the conversation about health care centers around universality of coverage, not around cost. (The Economist proposed that Senator John McCain was at least asking “the right question” in focusing on cost instead.) Coverage is incredibly important, and the number of uninsured Americans is disgraceful and growing. Most of the uninsured are, of course, poor. Yet the challenge for Democrats in the coming election may be to ensure that universal health care is talked about in ways that also illustrate the benefits for the many middle class Americans who are uninsured, underinsured, or paying too much for their insurance.

Most of we post-Boomer generations came to political consciousness in the Reagan era or later. We have no personal memory of a time when Great Society-style social programs were widely discussed with hope and energy. (Remember: Bill Clinton instituted workfare.) Those of us that grew up not in poverty also have very little personal experience with the benefits that various social programs confer. Even among those of us that consider ourselves "progressive," what we know tends to be abstract, at the level of principle, and faded out from the years of public conversation in which bureaucratic sclerosis and cynicism about public action have almost become starting assumptions. One of the main things that many of us no longer know at a personal level, therefore, is how social programs can change norms and social structures in positive and profound ways. Leaving aside interesting proposals to reform the public sector, even old-style social benefits can have profound effects.

I am currently the beneficiary of one of the most generous social programs in North America: I recently embarked on a paid maternity leave from my job. For the last five years, Canada has provided for 50 weeks of government-funded “employment insurance” for new parents. The sums are not great – they amount to about $1400 per month at the most – but many employers top those benefits up for a period of time. In my case, my employer tops my wages up to 95% of my regular salary for 27 weeks. My husband’s employer will top him up to 75% for the balance of those 50 weeks. (These are generous employer top-ups, more generous than most.) Most importantly, we can split the year off between us.

The effect of the new parental leave benefits on social norms in Canada has been profound. My impression is that mothers who take a year off work to be with their new children are less likely than before to be perceived as not being committed to their careers. In fact, mothers who eschew the benefits and return to work early may even feel compelled at times to justify that choice. (Of course there are exceptions within certain employment subcultures, including those at many private law firms.) In addition, an increasing number of fathers/partners are taking some part of the year off as parental leave while these mothers return to work. It is no longer surprising to see men toting babies to neighborhood playgyms in the middle of the week, though they are still in the minority. At a societal level, the leave benefits have provided powerful public affirmation for men who choose to be with their children at this early stage, and it has reinforced expectations that fathers be involved parents to their children. At the personal level, the more equal distribution of primary caregiving in that first year can strengthen the bonds between infant and both parents, and can have a rebalancing and unifying effect on the family as a whole. I am lucky that I haven’t had to imagine having a spouse who doesn’t know how to change a diaper, or what our children like to eat.

Without this personal experience of a generous parental leave policy, I would not appreciate firsthand, from personal experience, the enormous and positive changes to social norms and individual lives that such an entitlement program can provide. As middle class Americans go to the polls next November, they should also be reminded that “entitlement programs” like universal health care coverage can still, even in our post-idealistic age, be forces for profound and positive social change.

posted by Cristie Ford

Second Amendment Debate

Yesterday afternoon I debated Robert Levy of the Cato Institute, one of the lawyers for the plaintiffs in Heller v. D.C., in an event jointly sponsored by the Columbia chapters of the American Constitution Society and the Federalist Society. A rousing good time was had by all, or at least by me.

During the course of our debate, Dr. Levy offered the following example. Suppose, he said, that we had a constitutional provision that read: "A well-educated electorate, being necessary to the democratic self-governance of a free State, the right of the people to read books shall not be infringed." (I may not have reproduced his precise wording but that was the gist.) If someone wanted to read a book for pleasure, Dr. Levy said, surely the "Book Amendment" would protect that right, notwithstanding the fact that it was not part of any formal course of education.

Fair enough, but, said I (and say I now for wider distribution), suppose that in an obscenity prosecution, a defendant claims that a magazine consisting of pornographic pictures and text constitutes a protected "book" within the meaning of the Book Amendment. Wouldn't we want to construe the word "books" in light of the introductory language? Of course, someone could say that education doesn't refer only to formal education, and that pornographic books (and by extension, magazines) can play a role in educating people, in the broad sense of education. It would then be open to a defender of the obscenity law to say that the Book Amendment embodies a conception of freedom to read that must be tied to democratic participation, and that pornography (whether in books, magazines or other media) does not advance democratic participation in the way that other books do. I don't want to say which side in this argument would be right. I simply mean to point out that even in this example that is supposed to prove that the operative clause of a text like the Second Amendment can be broader than the purpose clause, we would want to use the purpose clause to guide our interpretation of the operative clause.

To be clear, even if Dr. Levy's side loses this particular argument, they can still win the case by showing that the purpose clause actually encompasses (or at least does not rule out) the possibility that there is a right to keep firearms for personal protection against private violence. Proponents of the individual right reading of the Second Amendment in fact do make such arguments. But these are, at least in my view, substantially harder arguments to make than they would be if the Second Amendment simply said "the right of the people to keep and bear Arms shall not be infringed." Even then, this claim would be vulnerable to the objection that to "bear" arms is to carry them in a military context, but the word "keep" would provide some support for the individual right interpretation.

Permanent and Serious Physical Damage Rising to the Level of Organ Failure

No, I'm not referring to any physical damage associated with my jaw dropping to the floor upon hearing George Bush say that Gen. Mr. Pervez Musharraf has not "crossed any lines" in his full-scale assault on civil society. There are so many things to be said in response to that ridiculous statement, but one particularly disturbing irony seems to stand out.

We have long known that when it comes to torture, the Bush administration has at times drawn "the line" in a rather peculiar place, at one point seeking to limit the definition of torture to acts "likely to result in permanent and serious physical damage ... ris[ing] to the level of death, organ failure, or the permanent impairment of a significant body function." Well, after several weeks in which many have feared that Musharraf, Shaukat Aziz, and their agents might be perpetrating unspeakable crimes in Pakistan's jails, it now appears that Musharraf has crossed even the dubious "line" drawn by the 2002 Office of Legal Counsel memo:

Former president Supreme Court Bar Association of Pakistan Mr Munir A. Malik has suffered renal failure. He has been shifted to ICU in PIMS where he is undergoing kidney dialysis. In panic, Musharraf has lifted the detention orders on Munir A. Malik.

For the last 2 weeks leading lawyers’ and HR organizations worldwide have been calling upon Musharraf to release Munir A. Malik from detention. Asma Jahangir had written in her letter (to HR organizations worldwide) that Munir A. Malik has been tortured by intelligence agencies.

The News is also reporting that Munir Malik has told doctors that he was served juice in Attock jail. Upon drinking the juice his condition start deteriorating. Since then his kidneys have failed and doctors are also concerned about liver function. [link]

See the interview with Malik in his hospital bed by Dawn News (in English) in the first video above. (The second video is the first part of Malik's spirited address on the importance of separation of powers, sprinkled with Urdu but mostly in English, to the Supreme Court Bar Association earlier this year after the reinstatement of the Chief Justice of Pakistan. The full, translated text of that address and part two of the video are available here.)

Malik's apparent poisoning is not the only atrocity that Musharraf seems to have committed against his civil society opponents:

Mr. Munir is one of four eminent advocates, all of whom were linked to the Chief Justice’s restoration struggle, who were incarcerated on November 3rd — the other three being Mr. Ali Ahmed Kurd, Justice (Retd.) Tariq Mahmood and Aitzaz Ahsan. There are persistent rumours that Mr. Kurd and Justice Mahmood have been subjected to barbaric physical torture. These rumours are lent credence by the fact that Justice (Retd.) Tariq Mahmood too has been shifted to Services Hospital from jail in ‘critical condition’ on the night of November 25th. Furthermore, no family members or media personnel have been allowed to visit him either in jail or hospital. Mr. Aitzaz Ahsan was seen in public on November 25th when he came to submit his nomination papers under police guard. He appeared visibly ‘pale and weakened’, according to eye witnesses, as he was escorted to and from the Sessions Court, Lahore, having been shifted to house arrest from Adiyala Jail. [link]

-----

The moving ordeal of an ailing but defiant Justice (retd) Tariq Mahmood lodged in the Sahiwal jail for the last 23 days, as narrated by his struggling wife, brought tears to the eyes of hundreds of members of the civil society and political workers who watched the 'Capital Talk' show of Geo TV live on the footpath of Islamabad on Monday.

Justice Tariq, once the top judge of the Balochistan High Court, who had resigned after refusing to conduct the controversial presidential referendum of 2002, was now being made to sleep on the cold floor of the Sahiwal jail to break his nerves and punish him for his acts of defiance since he quit the judiciary to register his protest.

As his health condition deteriorated in the Sahiwal jail, Tariq Mahmood who is said to have developed severe back pain has now been rushed to a Lahore hospital for his medical tests.

* * *

'My 11-year-old son keeps asking daily since November 3, where is my father. Now I have run out of words to tell him where is he,' Mrs Tariq said in a choking voice that greatly moved all the participants of the talk show. [link]

More links and a roundup are available at Sepia Mutiny.

So it seems that we are left to ask, yet again: exactly where does the Bush administration draw "the line" when it comes to torture? It is also worth recalling in this context that Musharraf's original attempt to sack Chief Justice Iftikhar Muhammad Chaudhry came exactly one day after Chaudhry made clear that the Supreme Court of Pakistan would investigate the disappearances of hundreds of individuals since 2001. The Bush administration was silent about Musharraf's interference with judicial independence then, and it continues to be silent about the importance of judicial independence in Pakistan today. Many Pakistani citizens, of course, have not been.

Posted by Anil Kalhan

Was I Right About Justice Alito Before I Was Wrong About Him?

In this post back in early September, I suggested that Justice Alito could be in play in the DC gun case (at that point just pending on cert). I said: "I put Alito in the unknown category because I suspect that his long experience as a prosecutor makes him more of a law-and-order conservative on this issue than his more ideologically conservative brethren." I now have information that leads me to think that this was naive on my part. Last night I had a conversation with a prominent conservative law professor who worked directly under Alito at the Justice Department. He thought that Justice Alito was fully on board with the individual right interpretation of the Second Amendment that conservatives tend to endorse on the basis of their reading of the original understanding.

If said law professor is right, then I was wrong about Justice Alito. But before I was wrong about him I was right about him, when earlier I wrote (in the Harvard Law & Policy Review, available here) that as a former high-ranking lawyer in a Republican Justice Department, Alito's views would have been well-known to the judge pickers working for the current President, and therefore that he would have been pre-screened for his ideological purity. If borne out by Justice Alito's vote in the DC gun case, my conversation with my conservative law professor friend will thus doubly confirm the claim of my earlier analysis: 1) It will show that in-the-loop conservatives know one another's views on ideological issues; and 2) It will show that Alito is, as predicted by the model my article develops, a staunch conservative.

You see, the good thing about making a lot of predictions---especially mutually contradictory ones about the same binary events---is that you're guaranteed that some of them will prove to be right!

Posted by Mike Dorf

Democracy's "Negative" Virtue

Living in a mature democracy, it is easy to point to the positive virtues of representative government (and to the myriad ways in which our system of government fails to deliver or fails to deliver fully on its promises along these dimensions): Regular elections, civil rights and political rights lead to public policies that serve the public's interests, even while ensuring that those whose interests go unserved have means of changing public policy.

But democracy serves a more basic function, one that we might call "negative" for what it avoids rather than "positive" for what it affirmatively does: Democracy substantially reduces the likelihood of bloody succession crises. From ancient through late medieval times, the death, incapacitation or overthrow of the ruler was frequently an occasion for war, as rival would-be rulers sought to seize power or to have their power validated by some other means. Clear rules and strong dynastic leadership provided one way to reduce the risk of bloody succession struggles, but many realms lacked such rules (consider the fate of Charlemagne's empire after his death), and strong dynastic traditions create incentives for fratricide. Democracy, by contrast, provides a ready solution: the winner of the next election is the ruler.

Understanding this negative virtue of democracy provides an additional perspective on the recent events in Pakistan. In addition to all the other reasons to protest what General Musharraf has done, we can add this: Even if he permits free and fair elections, and even if he hands over the reins of power to the winner of those elections, he will not do so automatically. To be sure, even before Musharraf's first coup, there was no longstanding tradition of democracy in Pakistan. But one has to start somewhere, and just as democratic traditions can develop over time, so their continued interruption delays the day when that process can begin.

Finally, and to bring the point back home, I'd add that the succession-struggle-avoidance virtues of democracy---indeed, all the virtues of democracy---can be lost even in a mature democracy. The bloggers and others who joke about Bush secretly envying Musharraf are not entirely joking, not only because of how Bush has governed but also because of how he came to power. We are still far from the point at which a President or general could simply seize power, but the notion that a close election can be stolen is, sadly, not so far-fetched.

Posted by Mike Dorf

Maybe There is Such a Thing as Bad Publicity

This story in the NY Times reports that the Chicago office of the Perkins Coie law firm drives its lawyers so hard that the firm has a "happiness committee" that does nice things to surprise its lawyers chained to their desks (like bringing them snacks). Perkins Coie is not alone, of course, but one has to question the judgment of anybody who volunteered information about firm "perks" to compensate for the lack of any semblance of normal life for associates in a NY Times story. (Perhaps this was damage control by the representatives of firms that had already been identified to the press as providing perks to make up for long hours.)

The most shocking item in the story for all people with normal lives must surely be the following:

Money is not the only thing that drives these lawyers right now,” said Marina Sirras, who runs a recruitment firm in New York for lawyers. “They want to be able to have a family and enjoy their family. This has never been as hot an issue.”

I suppose it's good news that young lawyers value something other than money. It's just depressing that this fact is a "hot issue."

Crossed the Line

According to President Bush, Pervez Musharraf "has advanced democracy in Pakistan," and not just a long time ago (like when he first seized power in a coup), but even recently. So said our Commander in Chief in an interview with ABC News yesterday. (Transcript here; video here). Here's my favorite part of the interview:

CHARLES GIBSON: Is there a line he cannot cross, that he cannot cross, something that would go too far, where you might say to yourself, 'OK, that's enough?'

PRESIDENT GEORGE BUSH: Well, he hasn't crossed the line. As a matter of fact, I don't think that, uh, he will cross any lines. I think he truly is somebody who believes in democracy. And he made a decision, we didn't necessarily agree with his decision, to impose emergency rule, and I, my, hopefully he'll get, get rid of the rule. Today I thought was a pretty good signal that he released thousands of people from jail.

I see, so if you jail judges, lawyers and journalists for opposing your efforts to assume all powers for yourself (uh, make that "your efforts to advance democracy"), then you haven't crossed any lines, so long as you later release some of them. Wouldn't it be more accurate to say that Musharraf crossed to the bad side of the line, but then (on Bush's account) crossed back to the acceptable side? So hasn't he crossed the line (at least) twice?

My second favorite part of the interview is watching Bush's face and listening to his tone in response to the question from Gibson whether the Pakistani nukes are secure. Bush says:

I certainly hope so. We feel pretty comfortable at this moment in time. And of course we'll pay very close attention to, to any, country that has got nuclear weapons. And, but yeah, I feel good about it right now.

In these words and even more clearly in the video, it appears that Bush is trying to send his standard signal: We're doing a great job protecting the national security, so don't worry, but also be very very afraid.

Happy Thanksgiving! (I won't post again until Monday, but one or more of my co-bloggers might.)

Posted by Mike Dorf

DC Gun Case Cert Grant

The Supreme Court granted cert today in the D.C. gun control case, now styled D.C. v. Heller. As I noted in an earlier post, this is not an unexpected development. One small wrinkle is that the Court took the somewhat unusual step of rewriting the question presented. The cert petition had phrased the question as follows:

Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.

The Court, in granting cert, reframed the question this way:

Whether the following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

It's hard to know whether anything important turns on the difference in wording. The Court's question isn't especially one-sided, but it does focus, to an extent that the cert petition's question does not, on the militia issue.

As I expected, the case is already working its way into the 2008 Presidential campaign. Rudy Giuliani's website says of today's grant: "I strongly believe that Judge Silberman’s decision deserves to be upheld by the Supreme Court. The Parker decision is an excellent example of a judge looking to find the meaning of the words in the Constitution, not what he would like them to mean." I couldn't find anything on the case on the Clinton, Obama or Romney sites, but it will be difficult for the candidates to remain silent for long.

Posted by Mike Dorf

Detroit "Wins" Most Dangerous City Award

The CQ Press has just released its 14th Edition of City Crime Rankings to a loud chorus of disapproval from police chiefs, mayors and others, especially in those cities that top the list of the most dangerous. The 5 most dangerous cities were, in order: Detroit, St. Louis, Oakland, Flint, and Camden. The 5 safest cities were Mission Viejo, California; Clarkston, New York; Brick Township, New Jersey; Amherst, New York; and Sugar Land, Texas.

Those lists alone are interesting: Michigan has two cities in the top 5 most dangerous; New York has two cities in the top 5 safest; California and New Jersey each have one city in the top 5 of each. And most obviously, the top 5 safest "cities" aren't really cities at all. They are political units with at least 75,000 persons living in them. These facts tend to confirm what some critics of the project note: That the variation in crime rates within a single city is often larger than the variation from city to city. A list of the most dangerous and safest STATES would be misleading with respect to California, New Jersey and other states, and so the fact that a large city is dangerous (or safe) overall can be very misleading about particular neighborhoods.

In addition, the fact that CQ Press only makes its list and methodology available for a fee suggests that this is a profit-driven gimmick, not unlike, say, the US News & World Report rankings of educational institutions. And like those rankings, this sort of effort has something of the self-fulfilling prophesy about it. Some number of people considering relocating to Detroit or St. Louis will choose not to, which will hurt property values further, which will further shrink the tax base, which will require further sacrifices in policing and social programs that fight crime, and so on in a vicious cycle. (At the safe end of the spectrum, virtuous cycles are less likely. Given the small populations, a single criminal coming to town could ruin the rating of a very safe "city.")

Still, for all the flaws of the aggregation methods, there should be little doubt that accurate measures of crime are an essential piece of a successful crime-fighting strategy. New York City (which has experienced a 75% drop in its murder rate since 1993), publishes its crime statistics, broken down by police precinct, on a weekly basis (here). This kind of fine-grained information has two principal effects: First, it enables the police to detect crime trends early and to respond; and second, it enables citizens concerned about crime to figure out whether they are simply reacting to media hype and isolated incidents, on the one hand, or to real trends on the other, and if the latter, to apply political pressure for responses.

I'm NOT saying that CompState (the NYPD's program of tracking crimes by neighborhood) is solely or even principally responsible for the dramatic decline in crime in NYC over the last decade and a half. Criminologists continue to debate the relative contributions of various factors (including, among other things, CompStat, legal abortion, the waning of the crack epidemic, the "broken windows" policing strategy, and others). What I am saying is that leaders in cities with high crime rates should not simply point to flaws in the CQ Press rankings. They should track crime by their own, transparent, and more informative methods. Perhaps Brian Leiter could help out if the NYPD isn't willing to.

Posted by Mike Dorf

Oops, Can We Get That Back?

My latest FindLaw column discusses Friday's Ninth Circuit ruling in Al-Haramain Islamic Foundation, Inc. v. Bush, which applied the state secrets privilege to forbid the plaintiffs in that case from showing that they were the targets of the NSA's warrantless wiretapping program. Although I only briefly discuss the point in the column, the case features one very peculiar, indeed troubling, detail.

Al-Haramain sought to rely on a top-secret document that the government had inadvertently provided to Al-Haramain during the course of a separate proceeding concerning the freezing of its assets. The government wanted to freeze Al-Haramain's assets because of its alleged ties to al Qaeda. The Ninth Circuit opinion says that even though the government recovered the top-secret document, that only occurred after Al-Haramain's directors had made copies, which they were apparently permitted to keep---and for all that I know, translate into Arabic and post on their website.

This fact makes the government's need for secrecy at least a bit sketchy. To the extent that the state secrets privilege is needed to protect the actual contents of the top-secret document, it's a bit late to be worrying about that, as the government itself gave it directly to the people who could do the most damage with it. Accordingly, one can only conclude that the case is either wrongly decided or that litigation about the top-secret document would pose an unreasonable risk of revelations of other information that could jeopardize national security. The Ninth Circuit suggests that this is the rationale for its ruling, but only barely. On the crucial point, the opinion simply says, essentially: "We've seen this document in camera and it confirms the need for secrecy."

The Ninth Circuit opinion does not say whether the crackerjack lawyer or administrator who accidentally transmitted the document to Al-Haramain has been disciplined or even reprimanded. Given the usual m.o. of the Bush Administration, he or she could be rewarded with a Presidential Medal of Freedom, but only if the screw-up proves to be truly disastrous.

Posted by Mike Dorf

Musharraf's Global War on Journalism - II

So Gen. Musharraf appears to be engaged in a global war on journalism after all. Two weeks after commencing his crackdown on Pakistani civil society, which effectively turned news into contraband, Musharraf has now begun to allow some independent television networks back onto cable television -- but only if they agree to a number of conditions, such as terminating television shows critical of the regime and signing an undertaking of "good behavior" permitting the government to interfere with their operations, seize their equipment, and terminate their licenses at any time. Some networks are now back on the air, albeit in "laundered" form -- AAJ TV, for example, is back but without a number of leading talk shows that have been critical of Musharraf. (The BBC and CNN are also back, but since they, along with Dawn News, are broadcast in English, the authorities are not as concerned about what they might say in their broadcasts.)

Musharraf's imposition of these conditions is the direct analogue for the electronic media of the mechanisms he has used to purge the judiciary. Just as he has required all judges to swear new oaths of allegiance to his provisional constitutional order if they wish to remain in office, Musharraf has now imposed a requirement on all "independent" media that in practice they swear loyalty to him if they wish to remain on the air. Having packed the courts with his "pocket judges," Musharraf now is trying to make sure that the only television journalists being seen and heard are his own "pocket journalists." But Musharraf is apparently not content with preventing individuals within Pakistan from hearing voices critical of his regime. Rather, he has now made his war on civil society truly a global one, pressuring the government of the United Arab Emirates to shut down two Pakistani television networks, GEO TV and ARY Digital, which originate and uplink from Dubai and are watched by many individuals outside of Pakistan:

Informed sources said President Pervez Musharraf himself intervened to stop all GEO news transmissions from Dubai, after a two-week standoff in Pakistan during which all major news networks were shut down by cable operators, who are directly controlled by the Pakistani authorities.

The shutting down of the Geo News was universally condemned by almost every political party and member of the civil society minutes before the anchors, almost in tears, signed off.

* * *

Popular news anchors came on Geo News around midnight Pakistan time to announce that their channel had been ordered to go off the air as result of the continued deadlock between the Pakistani authorities and the media channels, following the imposition of the emergency in the country.

In Pakistan all GEO channels were blocked by the military regime after the imposition of the emergency but on Friday two main channels, DAWN News and AAJ were back on air, with AAJ announcing that two its most popular talks shows, hosted by Talat Hussain, Nusrat Javeed and Mushtaq Mihas, were suspended temporarily. [link]

With his personal intervention with the UAE government to shut down GEO and ARY Digital, Musharraf has made his battle with civil society a global one. Many thousands of individuals all over the world, including Pakistani expatriates and others, have long relied upon these networks, and while Musharraf during the past two weeks has shut down domestic access to these channels via cable television, these channels have continued to be available via live video streams online and directly via satellite. As a result, many in Pakistan have continued to obtain news from these TV networks -- either directly, via live internet streams or satellite dish reception, or indirectly, as news is relayed to Pakistani citizens via phone calls and text messages from friends and relatives outside of Pakistan.

Ironically, when launching several years ago, both networks decided to originate and uplink their broadcasts from Dubai in part to try to minimize interference by the government of Pakistan with their operations. Musharraf's willingness to intimidate the UAE government shows that strategy wasn't foolproof. But one also has to wonder whether Bush administration officials tried to exert any counter-pressure with UAE officials and failed, or whether they simply did not bother. Neither possibility inspires much confidence.

* * *

Western journalists and Bush administration officials persist in calling Musharraf's coup a declaration of "emergency," as if it were responding to a temporary exigency and as if normalcy could be restored simply by "lifting" Musharraf's extraconstitutional declaration. It should be crystal clear by now that the damage to civil society wrought by Musharraf cannot be cured simply by "lifting" the current state of affairs. The proper constitutional category to describe Musharraf's extraconstitutional declaration is not "emergency," but rather "high treason," which Article 6 of the Pakistan Constitution defines as any move to "abrogate[] or attempt[] or conspire[] to abrogate, subvert[] or attempt[] or conspire[] to subvert the Constitution by use of force or show of force or by other unconstitutional means." The appropriate Western response under such circumstances therefore should not simply be to call upon Musharraf to "lift" his self-described emergency, but rather to insist upon "rollback" of Musharraf's extraconstitutional -- and now transnational -- effort to systematically undermine Pakistan's civil society institutions.

UPDATE (11/19/2007): A protest vigil outside GEO's offices in Karachi apparently attracted close to 1500 people:

The vigil itself started off at around 7pm but I am told the crowd was present there well before the specified time, when I reached there it was truly an amazing sight in the entire lane you could only see candles lit with quite a few heavy speakers blarring the signature Geo song Jeenay Do.

There were approximately well over 1500 people present most honding some sort of placard denocning the martial law but practiclaly everyone had a candle and sang the song Jeenay Do. There were a number of large TV screens showing the live feed from Geo which was being streamed via the internet. The best part of the vigil was when the Geo Musharraf-lookalike took to the stage and had some fun with the crowd with some unique imitations of the dictator. It was good to see people coming out to raise their voice against the censorship of the media. [link]

Posted by Anil Kalhan

Democracy Hypocrisy?

Are critics of the Bush Administration hypocrites for criticizing the President's failure to stand firmly on the side of democracy in Pakistan after many of those same critics earlier criticized the President's naivete in thinking that bringing democracy to the Middle East would advance the strategic interests of the United States in the region? So say some Administration defenders but they're mostly wrong.

The leading examples of the administration's problematic efforts to support democracy in the Middle East are Iraq, Lebanon and Palestine. Let's consider them in turn. Iraq, which is by far the largest effort, is problematic for two chief reasons. First, the invasion of Iraq was not justified to the American public as an effort to bring democracy but as pre-emptive self-defense. Democracy was one of the post-hoc rationalizations offered after Iraq proved to have no WMDs, and even then, there are reasons to doubt that it was ever a real justification. Second, there is a huge difference between saying---as critics of the Administration's coddling of Musharraf say---that the U.S. government should temper its support for an authoritarian ruler who does everything in his power to suppress democracy, and saying that democracy cannot be imposed through the use of military force.

To be sure, as to the second point, the critics are wrong if this is meant as a universal truth. The successful use of military force and military occupation pretty much did lead to democracy in post-WWII Japan and Germany, but this brings us to a different point. Democracy is not simply the holding of elections. The principal criticism of the Bush pro-democracy efforts in the Middle East is that it equated elections with democracy. Thus, it is hardly surprising that in places with few robust civil society institutions other than religious ones, elections would lead to victories by parties that are not, broadly speaking, democratic. The administration's approach to the elections in Lebanon and Palestine might have had some greater chance of success if there had been greater support for the other institutions of democracy (and if the secular alternatives were not widely perceived as corrupt and weak).

The contrast with Pakistan is stark. Pakistan has an educated professional class that supports liberal democracy (which is not to say that they are especially sympathetic to U.S. foreign policy, but that's another matter). Support for democracy in Pakistan would not have meant demanding elections in a country without the civil society institutions to go along with it. Support for democracy would have meant conditioning the billions in aid to Musharraf's regime on such basic principles as respect for the independence of the judiciary and the press.

In fairness to the Bush administration, it's not clear how much leverage we ever would have had with Musharraf, but the critics have a point that we don't know the answer because the Bush administration didn't even make an effort.

On the broader question of whether to support democracy in other parts of the world, I do want to register a tiny bit of support for the administration's intentions. The best that can be said for their policies, I think, is that they misapplied a laudable principle. In the 1990s, then-PM of Singapore Lee Kuan Yew famously argued that Western-style democracy was inconsistent with "Asian values," which supposedly favored a more authoritarian style of governance. Western liberals and many Asian liberals rightly rejected this claim as just so much rationalization.

I suspect that some of the idea people in the Bush administration thought that resistance to rapid democratization of the Middle East was simply an echo of the Asian values ruse. They thought that Islamic and Arab culture could coexist with democracy, and that a contrary position is patronizing. (You can see hear a cousin of Bush's approach to education and the denunciation of the "soft bigotry of low expectations.")

The problem is that a culture that is theoretically hospitable to democracy won't become actually hospitable to it simply by holding elections. Just as the administration thought that simply toppling Saddam would lead to a new stable liberal democratic state in Iraq, without paying any attention to the complex task of rebuilding, so more broadly the administration naively thought that elections were a magic bullet. They're not.

Posted by Mike Dorf

The Bonds Indictment

Now that Barry Bonds has been indicted on perjury and obstruction charges, the odds that he will be kept out of the Hall of Fame and/or be stripped of his single-season and career home run records have substantially increased. To some extent, this is simply a matter of evidence. Should Bonds be convicted or plead guilty, there will be no reasonable doubt that he in fact used performance-enhancing drugs. The basis for the perjury charge, after all, is that Bonds was lying when he said that he did not knowingly use the drugs, so a conviction for lying will be the equivalent of a conviction for using the drugs. There will no longer be any basis for plausible deniability.

But I suspect that some number of people will also think that the fact of a conviction itself (if one is obtained) will be a reason to keep Bonds out of the Hall and strip him of his records, apart from what it says about his use of performance-enhancing drugs. Being branded a felon will, in their eyes, make him unworthy of the Hall and keeping his records, quite apart from what it says about his drug use. At some level, this makes little sense. Perjury and obstruction are serious offenses but no more serious than other offenses committed by professional athletes (including acts of violence) that do not completely tarnish their athletic achievements.

Not that I'm defending Barry Bonds. I'd only do that if he had played for the Yankees.

Posted by Mike Dorf

It's 1980 on the NY Times Op-Ed Page

Readers of the NY Times may have noticed that lately three of the regular columnists have been arguing over the symbolic meaning of Ronald Reagan's decision to open his general election campaign for the Presidency with a speech including praise for "states' rights" in Philadelphia, Mississippi, the site of the infamous murder of three civil rights workers in 1964. The Times intramural brawl began with the publication of Paul Krugman's new book, The Conscience of a Liberal (reviewed positively here), in which Krugman noted the seemingly obvious effort to appeal to white racism that the visit entailed. Then Krugman's colleague David Brooks, without mentioning Krugman by name, wrote a column calling Krugman's account a "slur . . . spread by people who, before making one of the most heinous charges imaginable, couldn’t even take 10 minutes to look at the evidence." Krugman responded in a blog entry that, in turn, did not mention Brooks by name, referring only to a "campaign . . . to exonerate Ronald Reagan from the charge that he deliberately made use of Nixon’s Southern strategy." Krugman pointed to instances of other appeals by Reagan to racial prejudice, both before and after the Philadelphia, Mississippi speech. And to pile on, Bob Herbert then wrote a column in which he provided his own examples, concluding :"Throughout his career, Reagan was wrong, insensitive and mean-spirited on civil rights and other issues important to black people. There is no way for the scribes of today to clean up that dismal record." Herbert does not mention that the leading scribe trying to clean up is his colleague Brooks.

What's going on here? As a perceptive (and amusing) piece by Columbia Law School 2L Ethan Frechette explains, whatever else might be said by those Republicans who seek to don Reagan's mantle today, they cannot contend that they believe in "states' rights" in any serious sense. Federal displacement of state regulatory prerogatives has become a staple of the modern Republican Party, leading one to conclude that Republicans formerly liked the states because they were seen as more conservative on the merits than the federal government, but abandoned that stance when they realized they could achieve more conservative results at the federal level. The reverse is largely true of Democrats as well. Principled support for decentralization is hard to find.

Fair enough, but the pissing match among the NY Times columnists is not about federalism; it's about racism. Whether Reagan was a racist matters because Republican Presidential candidates (and some Democrats) want to appeal to conservative voters and others who remember Reagan fondly without being saddled with racist views. There is an easy way to do this, of course. A 2007 candidate for office could say "I moslty believe what President Reagan believed, and I'll follow his example on X, Y and Z, but I don't want to endorse everything Reagan stood for." Certainly a contemporary politician who invokes the example of or quotes George Washington, Thomas Jefferson or James Madison is understood not to be endorsing their willingness to own slaves during their lifetimes, even without the disclaimer. So why wouldn't an express disclaimer work with respect to Reagan?

Because 1980 was not 1780 (or 1787 or 1800 or whatever). By 1980, civilized Americans were on notice that express appeals to racism were beyond the pale. That's the reason why a serious candidate for President who wanted to signal his support for racists had to do so in code. And of course, that's even truer today than it was 27 years ago. Thus, the ax that people like Brooks have to grind is not so much for Reagan as it is for his heirs. They (and it's not important to me whether this is true of Brooks himself) want to deny that Reagan spoke in code in 1980 so that they can deny that they are speaking in code today. Look for an explosion of this issue should Sen. Obama end up as the Democratic nominee and look for coded appeals to sexism should Sen. Clinton end up as the Democratic standard bearer.

Posted by Mike Dorf

Away From Her

Away From Her is a bittersweet film about a woman named Fiona (played by Julie Christie) suffering from Alzheimer's Disease who, notwithstanding the misgivings of her devoted husband of over 40 years, checks herself into a nursing home. The home has a policy forbidding family members to visit for the initial month, so that the patient can become acclimated to the new surroundings. During that period, Fiona forgets her husband and falls in love with one of the other patients. The film includes some funny scenes, such as when Fiona's husband Grant and Fiona's boyfriend's wife (played by Olympia Dukakis) try their own romance, but it is overall, profoundly sad, as one would expect from the subject matter.

News reports now indicate that Justice O'Connor's husband John has fallen in love with another Alzheimer's patient in his Arizona assisted living facility. The stories quote the O'Connors' son Scott, who reports that Justice O'Connor is pleased that her husband is comfortable in his current surroundings. Scott O'Connor's willingness to talk to reporters about this story complicates what would otherwise be a simple case of inexcusable press interference with a profoundly private issue. It's possible that he talked to the press as a means of getting ahead of the story once it had become a matter of public knowledge, in which case it seems that the appropriate reaction is one of disgust with whoever thought this was a newsworthy story.

However, given the remarkable openness of the statements attributed to Scott O'Connor, it's also possible that he hopes his father's experience can serve as a teaching opportunity. The latest evidence (summarized here) indicates that one in seven adults aged 71 or older has dementia, which means that most Americans will, at some point in their lives, either suffer this debilitating symptom or see a close relative or friend suffer with it. As numerous works of memoir and fiction relate, the descent into dementia is almost always tragic, but when it is complete, there is at least the comfort that the patient is so "far gone" as to be beyond suffering.

Stories like those involving the fictional Fiona and the real-life John O'Connor paint a more complicated picture. That patients who have lost the memory of who they were can nonetheless find comfort in human connections provides some hope that the journey into dementia is not so much a descent as it is simply a profound change. At the same time, though, the fact that patients with advanced Alzheimer's form familiar-looking relationships undercuts our ability to assure ourselves that they are beyond suffering.

Justice O'Connor has not spoken publicly about John O'Connor's relationship with the patient at his care facility, and one hopes (vainly, to be sure), that the press will not hound her for a comment. In the past, she has spoken openly about her husband's disease and the role it played in her decision to retire from the Court. It is also not unreasonable to suppose that her son consulted with her before agreeing to talk to the press about the current situation. In either event, Justice O'Connor's grace in absorbing what I can only imagine must be an extraordinarily painful blow simply underscores the loss the nation felt when, still at the height of her powers, she stepped down to care for a husband who would soon be beyond her help. And those who (like myself) valued the moderating influence she exerted during her final years of active service, can only lament that the Court seems bent on moving ever farther away from her.

Posted by Mike Dorf

Lawyers March in Washington for Pakistan's Lawyers

I received the email below announcing a march in Washington, D.C., tomorrow morning (Wednesday, Nov. 14) in support of the Pakistani lawyers who are standing up for the rule of law. The email is from the current president of the American Bar Association. (I think the suggestion to wear a black suit is brilliant.)

Posted by Neil H. Buchanan

Dear fellow lawyer,

On Wednesday, November 14, the ABA is holding a lawyers’ march in Washington, D.C., to support the rule of law and lawyers in Pakistan. We need your participation to make it successful. A critical mass of lawyers will gather at the James Madison Building before walking around the Supreme Court. Lawyers across the country are participating in similar marches in their communities.

What: Lawyers’ march for the rule of law in Pakistan
When: 11:30 a.m., Wednesday, November 14
Where: Meet at Plaza of James Madison Building (101 Independence Avenue SE) before walking around the Supreme Court
Attire: Black suit

Please confirm your attendance by clicking here.

For more information, please visit the ABA website at www.abanet.org.

Thank you in advance for your support.

Sincerely,

William H. Neukom,
President, American Bar Association

Lawyers to the Barricades - II

Last week, Mike noted that Pakistan's lawyers have not simply been joining the demonstrations against Musharraf's anticonstitutional declaration of martial law, but have been leading the fight "at considerable and entirely predictable cost to themselves." In today's New York Times, Jane Perlez profiles one of those courageous lawyers, Aitzaz Ahsan:

Twenty-five years ago, when President Reagan treated Pakistan’s dictator, Muhammad Zia ul-Haq, to a White House state dinner, a promising young lawyer out of Cambridge University languished in jail. He had protested too loudly, and too often, about the lack of democracy in his country.

Now grayer and at the peak of his profession, the lawyer, Aitzaz Ahsan, 63, sits in a Pakistani jail once again, reduced to seeing family visitors for 20 minutes a day, and accepting bags of fruit and bedding for some basic comfort.

His crime is the same: making too much noise about democracy under the nose of a military ruler whom Washington has deemed indispensable to its strategic and security interests in the region. [link]

This is Ahsan's second profile in the Times in less than four months, which must be a record of some sort. (I'll bet SAJA can tell us if it is. The first profile, by Somini Sengupta, came at a more hopeful moment, in the immediate aftermath of the reinstatement of Chief Justice Iftikhar Muhammad Chaudhry.)

Reports have indicated that Ahsan and other leaders of the Pakistani lawyers' movement may be at risk of torture at the hands of Pakistan's military intelligence services. However, despite these risks, Ahsan continues to speak out forcefully against Musharraf's anticonstitutional coup from his jail cell:

"It doesn’t matter where I have been or I would be kept in prison by the dictator, who breaches the Constitution twice and humiliated the judiciary many times." Aitzaz said it was a great misconception on the part of the Musharraf regime that by putting thousands of lawyers, civil society members and political party activists in prison and by torturing them, it can avoid the massive resistive movement against their unconstitutional moves.

"Lawyers are already protesting and fighting against the dictatorship," Aitzaz said and added: "The day we will come out of prison we will join the already fighting lawyers and will intensify the movement to restore the judiciary."

"We want the rule of law, rule of the Constitution, an independent judiciary and a free media and we will fight for this till the last drop of our blood...."

He said Justice Iftikhar Muhammad Chaudhry was the real chief justice of Pakistan. "I and the whole nation salute all the 13 judges who refused to take oath under the PCO." He said they are all great judges and are still the judges of the Supreme Court, Aitzaz said, adding: "The whole nation will become united to restore the real judges of the Supreme Court as it does not accept those as judges who took oath under the PCO." [link]

Thirty-three members of the United States Senate have called for Ahsan's release in a letter to Gen. Musharraf. If you're in New York, you, too, can demonstrate your support for Ahsan and the rest of Pakistan's lawyers' movement by attending a solidarity rally being held today, Tuesday, November 13, from 1:00pm-1:30pm at the New York County Courthouse, 60 Centre Street. The lunchtime demonstration is being organized by the New York City Bar Association, the New York State Bar Association, and the New York County Lawyers’ Association, in conjunction with other organizations. Ahsan's son, Ali, who is a lawyer in New York, will be speaking at the rally. More details here, here, and here.

If you're outside of New York, the "We Oppose Emergency" blog may have announcements of future events. Lawyers to the barricades, indeed.

Posted by Anil Kalhan

Gun Control Backlash?

During my panel at the conference on the Presidency and the Supreme Court earlier today, Judge Michael McConnell took the position that Roe v. Wade, Lawrence v. Texas and other "culture war" cases benefit the Republican party by providing a target around which to organize activists. (The term "culture war" was supplied by the conference organizers and resisted a bit by Judge McConnell who correctly observed that it lumps together some quite different issues.) Although Professor Heather Gerken and I disagreed with some of McConnell's premises, we did not quarrel with the proposition that there can sometimes be a tradeoff between a movement's success in the courts and in the political process. The basic dynamic is one of backlash: prevented from getting what they want at the state and local level by Supreme Court decisions constitutionalizing their issues, Christian conservatives (and others) mobilize at the national level behind Presidential and Senate candidates so as to change the character of the Supreme Court.

McConnell, Gerken and I ended up mildly disagreeing about the frequency of backlash (though agreeing that none of us really knew) as well as mildly disagreeing about how, if at all, lawyers and judges ought to take account of predicted backlash in their respective decisions. For those interested in the precise contours of this and other disagreements, I suggest that you watch this space for an announcement regarding the C-SPAN airing of the conference. (The conference was recorded but no word yet on when it will be shown.) Here I want to reframe my skepticism about backlash with a different example: gun control.

As reported by Linda Greenhouse, the Court will very soon decide whether to grant cert in the D.C. gun case, Parker v. District of Columbia. Given the existence of a pretty clear circuit split and the fact that both sides favor review, a grant seems likely. As Greenhouse says, if the Court takes the case, it could find itself "back on the front lines of the culture wars with an intensity unmatched even by the cases on abortion and race that defined the court’s last term." Conventional wisdom (with which I agree) then holds that a victory for the District of Columbia, i.e., a loss for the gun rights side, would benefit the Republican candidate in the general election, because it would mobilize NRA types to vote on this issue.

But is the converse true? Would a victory by Parker--i.e., a decision constitutionalizing the gun question---mobilize those who favor gun control in the way that the decisions constitutioalizing abortion and gay rights mobilized those who favor abortion control and (for lack of a better term) "gay control?" I tend to think not. Instead, if I had to bet on the matter, I would say that the Parker decision will benefit Republicans no matter which way the Court rules. Any ruling by the Court will bring attention to the gun issue, which is helpful for politicians who favor gun rights both because the electoral map makes that position crucial with swing voters in purple states and because NRA types are much more likely to consider this a make-or-break issue than are those who favor gun control.

More broadly (and more speculatively), I tend to think that cultural conservatives simply care more about "culture war" issues than liberals do. Accordingly, Judge McConnell may be right in suggesting that as a litigation strategy, liberal activist groups should worry about backlash, but he can't be right about the normative implications for judges: If backlash only happens when the Court issues "liberal" rulings, then a judge who worries about backlash would worry about issuing liberal rulings but not worry about issuing conservative rulings. Such a decision rule can hardly be defended on grounds of judicial restraint.

Finally, I want to inoculate myself against a possible critique of the foregoing analysis. No doubt some conservatives will say that the difference between abortion and gay rights decisions, on the one hand, and a putative decision recognizing gun rights, on the other hand, is that the latter would be clearly rooted in the text of the Constitution, while the former are not. To which I say: hogwash. That's exactly the question that's at issue in Parker: What does the Second Amendment mean? Does it have anything at all to do with individual rights? Or, as I put the point in the conclusion to a 2000 law review article:

What infuriates the individual right scholars who oppose gun control--and embarrasses those who favor it--is their perception of a political double-standard. Even if we grant that the Second Amendment's text does not unambiguously guarantee an individual right of firearm ownership and possession, they say, surely there is greater textual support for such a right than for other rights the Court has recognized, such as the right to contraception, the right to abortion, or the right of minor first cousins to live together with their grandmother.

Note the understanding of constitutional interpretation implied by this criticism: surrounding the core of each textual provision are concentric circles of related values; if a right is recognized at some distance from the core, then a fortiori, all rights at lesser distances must be recognized as well. Thus, if contraception lies a distance X from the Fourth Amendment (and other provisions), recognition of a constitutional right to contraception implies recognition of a right of armed self-defense, provided that such a right lies a distance less than X from the Second Amendment.

Although this view of constitutional interpretation finds some superficial support in the Court's discussion of “penumbras” and “emanations” in Griswold v. Connecticut, it is deeply flawed. The right to scream profane threats at passersby is arguably closer to the text of the First Amendment than is the right to publish on the Internet a statement of political support for a presidential candidate; the former is literally “speech,” while the latter neither employs vocal chords nor a printing press. Yet no one would seriously argue that protection of the latter implies protection of the former. To the extent that talk of penumbras and emanations leads us to think that constitutional interpretation in hard cases is a matter of measuring the distance from the text, it is simply another unsuccessful effort to banish value judgments from constitutional interpretation.

The existence of a large body of Supreme Court decisions recognizing constitutional rights that are not expressly articulated in the text means that we cannot rule out the individual right view of the Second Amendment on textual grounds alone. The champions of the individual right view are entitled to have their arguments heard. However, that does not mean that they are entitled to have their arguments accepted, unless, as judged by the admittedly somewhat value-laden criteria of constitutional interpretation, the arguments are convincing. As I have endeavored to show throughout this Article, on the whole these criteria point away from the individual right interpretation.


Posted by Mike Dorf

"Positive Steps"?

George Bush continues to astound when it comes to Pakistan, showing an inexhaustible supply of either patience or lack of concern:

"I haven't spoken to President Musharraf since I did earlier this week, but he knows my position, and he knows the position of the U.S. government," Bush said. “I do want to remind you that he has declared that he'll take off his uniform, and he has declared there will be elections, which are positive steps... We also believe that suspension of the emergency decree will make it easier for the democracy to flourish. And so our message is consistent and clear." [link]

The Bush approach to Pakistan is fast becoming the mother of all faith-based initiatives, a far cry from "trust but verify":

Bush was asked if he is at all concerned that Musharraf may not live up to the promises he has made....

"I take a person for his word until otherwise," Bush replied. "I think that's what you have to do. When somebody says this is what they're going to do, then you give them a chance to do it." [link]

It's difficult to fathom what would have to happen for Bush to decide that "otherwise" has transpired. We've already seen that Musharraf's primary aim in declaring martial law is not fighting the "war on terror," but eviscerating the independence of the judiciary and targeting regime opponents, particularly in the legal community. We've also seen that Musharraf is amply willing to subject a number of those opponents -- including Muneer A Malik, Aitzaz Ahsan, Tariq Mahmood and Ali Ahmed Kurd, all distinguished lawyers at the highest levels of the Pakistani bar -- to incommunicado detention without charge, where they are likely to be tortured by Pakistan's military intelligence. Musharraf has apparently moved some of those detained leaders to undisclosed, remote locations -- making public scrutiny of their detention and contact with lawyers and family members even more difficult. For similar reasons, he also has started to transfer some of the detained Supreme Court justices out of Islamabad to more remote areas.

Now, how has Musharraf responded to Bush's latest vote of confidence?

Pakistan's military ruler has amended a law to give sweeping powers to army courts to try civilians on charges such as treason and inciting public unrest ... [The] decision to amend the Pakistan Army Act ... would allow military courts to try people accused of treason, sedition, or "giving statements conducive to public mischief." [link]

More details from Pakistani human rights lawyer Asma Jahangir:

The promulgation of the amendments to the Army Act, are alarming. These amendments give wide powers to military courts. Civilians can be tried for a number of offences including for expressing views that citizens of Pakistan comprise of more than one nationality by military courts. Antiquated laws that had lost their teeth through judicial reviews are now being resurrected and made punishable to be tried by the military. Trials will not be open to public hearings; lawyers will only be allowed to represent the accused in the capacity of a friend. Investigation will be carried out by military personal and ordinary rules of evidence will not apply.

* * *

The amendments made under the Army Act are blatantly violating all norms of human rights and the Constitution of Pakistan. In order, to settle scores with lawyers, human rights activists and defiant journalists the law is given effect from January 2003. This also allows the government to legitimize the illegal acts of disappearances carried out by the intelligence agencies with impunity.

* * *

The new amendments fully support the assertion that General Musharaf has not declared emergency, but imposed martial law and that it has pointedly targeted a vocal civil society. Zia's draconian laws have also been activated and offences under them will be tried under the Army Act. In 1984 Zia made amendments in the Penal Code making expressions of 'disaffection' against the government and those 'prejudicial' to Pakistan punishable. Those accused of expressions or acts that are 'prejudicial' or offensive towards the government will now be tried by the military.

The Attorney General justified these amendments on the grounds that these were essential for combating terrorism and that similar laws also exist in the United Kingdom and the USA. First, two wrongs will never make right. Secondly, the UK and the USA have an independent judiciary that has also struck down provisions of the Patriot Act. The military courts in the UK or the USA do not try their own citizens. Moreover, journalists, lawyers and activists in the UK or the US have not been charged for terrorism or treason. In Pakistan, police has filed reports accusing several lawyers and activists of terrorism. There are at least three FIRs against me under the Terrorist Act. Judges of superior courts are not under house arrest in either the UK or the US.

Granting military courts jurisdiction to try offences from murder to libel is an expression of the government's own lack of confidence in its selected PCO judges. The onslaught on the courts was not because they were obstructing trial of terrorists but because they dared to give relief in some cases. A dictator seeks absolute obedience and fears his own shadow too. As such no amount of appeasement or repression will out their minds at rest. There is little doubt that the Musharaf regime is no mood to change course. They want absolute power. They will tolerate no dissent and will continue to use the terrorist card to keep the international community at bay. How long will the bluff and a state of self-denial work?

Posted by Anil Kalhan

Controlling the Courts, American-style

Tomorrow (Sunday Nov 11) begins a two-day conference on the Presidency and the Supreme Court to be hosted by the Franklin D. Roosevelt Presidential Library and Museum. The program features historians, law professors, journalists and a keynote address by Justice Sandra Day O'Connor. I'll be on a panel on Monday with Judge Michael McConnell and Yale Law Professor Heather Gerken, moderated by NPR's Nina Totenberg. We'll be talking about what the organizers of the conference have called The Presidency, the Supreme Court and the "Culture Wars", and part of our discussion will focus on what exactly makes something a "culture war" issue.

For my part, I intend to say (among other things) that whether an issue is part of the culture wars is (rather obviously) subject to change over time. Today's issues include abortion, church-state relations and gay rights, but national politics has picked up and dropped various issues over the course of American history. (Race has been a central issue from the very beginning but there's a separate panel on that topic, so we have been asked to bracket it, to the extent possible.)

It's not entirely clear to me whether we should count economic issues as culture war issues. In some sense, the whole notion of cultural issues arose out of a sense that real national politics focuses, or ought to focus, on the regulation of the economy, but that idea, I think, was itself a product of the victory of the Progressives and New Dealers in the culture wars of the first half of the 20th century. In a real sense, the divisive domestic policy issue in that period was the proper role of the federal government (and government at any level) in regulating the economy. Although the country ultimately rejected a substantial role (of the sort promoted in the early New Deal by the NIRA) for the federal government in actually planning the economy, the idea that the federal government should, through fiscal and monetary policy, promote economic growth is part of the conventional wisdom of the last 65 years or so. (Alan Brinkley's The End of Reform nicely shows how, by the end of the New Deal, promotion of economic growth had become just about the only uncontroversial task of the federal government.)

Here I want to note how little the rhetoric used by Presidents to criticize the courts has changed. In his Fireside Chat of March 9, 1937, President Roosevelt offered the following as a justification for his Court-packing plan:

The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress - a super-legislature, as one of the justices has called it - reading into the Constitution words and implications which are not there, and which were never intended to be there. . . . I want - as all Americans want - an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power - in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.

Although FDR's Court-packing plan failed, as a rationale for appointing like-minded Justices when an opening became available, he essentially followed the script that has, since the political valence of the charge of "judicial activism" flipped during the Warren Court, been followed by Republican Presidents beginning with Nixon.

Posted by Mike Dorf

Civilian Control Over the Military

In addition to Anil's point that rescheduling elections is not, by itself, nearly sufficient to restore some semblance of democracy to Pakistan, it's worth pondering another issue that has continually arisen: whether the Pakistani Constitution permits the same person to be both President and in charge of the armed forces. I'm hardly an expert in the (for-now defunct) Constitution of Pakistan, but it does strike me that this is clearly the wrong question.

In the U.S. (as one waggish Dorf on Law reader noted in a comment a few days ago), the President is head of the military, but we rightly regard this as a protection for, rather than a threat to, civilian rule. Since at least the time when the Roman Republic gave way to the Roman Empire, small-d democrats the world over have justifiably worried that in a pinch (or perhaps even without a pinch), military leaders will displace civilian ones. The remedy is to create a military culture in which everyone understands that the civilian authorities stand at the top of the chain of command.

In the U.S., we accomplish this feat by making the elected President the Commander in Chief of the armed forces. He or she is not actually in the military (as President Clinton discovered to his woe when he tried to argue that the Soldiers and Sailors Civil Relief Act temporarily immunized him from the lawsuit by Paula Jones), but that's not the key point. The key point is that the President is Commander in Chief in virtue of being the legitimately elected President, not the other way around.

Thus, putting aside issues of the meaning of particular provisions of the Pakistani Constitution, the operative question is not so much whether Musharraf can remain President and head of the military, but whether, in the event that there is a free and fair election that leads to someone else becoming President, Musharraf will answer to that elected President by taking orders from him or her, including an order relieving Musharraf of command.

Posted by Mike Dorf

Ecology: The Dismal Science

Let me offer a respite from the unfolding crisis in Pakistan: the eventual end of humanity. In a 2004 call to arms, The Death of Environmentalism, two lefty political consultants, Ted Nordhaus and Michael Shellenberger (N&S), called out Democratic leaders, foundations, and the major environmental nonprofits for their narrowed perspective and fatalist views toward societal growth and ‘prosperity.’ The main driver of this finger wagging was global warming which, at the time, was in the cellar of public opinion. At that point it was polling in its importance to respondents below, for example, the Spears/Federline marriage.

In their new book, Break Through: From the Death of Environmentalism to the Politics of Possibility, N&S swing for the fences again. What is intriguing about this book is how much it gets right. And I mean really right. They start with the language we use: what does “environmental” really mean anymore? If it means the natural world excluding people, then it is a pointless word (one that is a little misanthropic): the earth’s ecosystems are all being altered more and more by civilization which relies for its survival on the health of those ecosystems. If it includes people, then it is just a “poor synonym for everything.” (p. 10). On this point, I couldn’t agree more. Ecology has been a dismal, if absolutely necessary, science. All it ever does anymore is reveal humanity’s footprint and that, in turn, has locked “environmentalism” into a discourse of limits, risks, and doom.

In leveling this critique, though, N&S unfortunately swing at a few pitches in the dirt. They spend too much time demolishing things that have already been demolished (some by the very people they’re addressing). Jared Diamond’s deeply flawed book, Collapse, for example, was knocked out cold right after it was published—best by Partha Dasgupta in this LRB review. (Diamond was a pathbreaker in biogeography, but not so much in the “human sciences.”)

The other lifeless equine N&S flay is the “environmental justice” claims that corporate leaders intentionally aim pollution into communities of color and/or that pollution is a distinct, dire threat to people of color on the order of, for example, tobacco, alcohol, and diet. In the realm of fact, both of these claims have been in the “debunked” column for years. African Americans are at greater risk for many environmentally influenced diseases like asthma (and they care about ‘the environment’ about as much as white Americans—which is to say: not much). But pollution turns out to be a smallish contributor in the suite of environmental influences behind such diseases. (Public health professionals, incidentally, use “environmental” to include every outside influence on the body, including indoor air, diet, etc.) More importantly, though, like many other ailments afflicting different kinds of Americans, asthma pales in comparison to poverty, obesity, alcoholism, and diet-related cancer in terms of its impact on one’s health and happiness. (EJ as a discourse has evolved away from the intentional and toward the many forms of unintentional discrimination, perhaps because the factual record on intent is so thin.)

The distractions are unfortunate. Because what N&S have to say in the rest of this book is quite simply electrifying. We really must not conceive of global warming as an “environmental” or “pollution” problem. It is about our continued evolution, not pollution. If what we end up doing after taking so long to do anything about global warming is treat it like a pollution problem, we will commit a monumental error of likely catastrophic proportions. Americans treat their pollution as a gadget-on-the-end-of-the-pipe sort of problem. This response to (some) pollution has been relatively effective, although our successes are now being overshadowed by the inherent limits of such strategies. And for gases like carbon dioxide, sulfur oxides, methane, and water vapor (gases that are ubiquitous in a fossil fuel economy), such a strategy is no strategy at all. Not only will people lack the collective will needed to scrub these emissions effectively. We will probably lack the know-how for too long for any technological breakthroughs doing so to matter much.

N&S motivate most of their analysis, though, with a particular social-psychological theory: Maslow’s famous “hierarchy” of human needs. Material needs like food, shelter, and security come first. After that, esteem, belonging, status, and eventually purpose and fulfillment are sought. Maslow posited that people all attend to these needs in roughly the same order. Affluent people, N&S argue, are the only ones trying to protect the integrity of rainforests; they alone care about monkeys as something more than bushmeat. Wonder why the Amazon is so at risk? Because Brazilians, by and large, have only its short-term commodity values on which to eek out a living. Solve Brazil’s social, political, and economic ills and you’ll go a long way toward saving the Amazon.

And here’s where I’d like to ask for help. Do any Dorf on Law readers know of a real (whether psychological, sociological, or economic) overthrow of Maslow’s thesis? (This is where Dorf on Law schwag might come in handy!) I share the sense that people generally put little priority on what most conservationists believe is of obviously high priority. But do readers think there is something else going on there? You’d at least have my sincere gratitude for any responses!

Posted by Jamie Colburn