Saturday, March 31, 2007
For example, scattered among the glowing praise---e.g., "I support Iran nuclear program too. US is biggest danger for all Middle East;" "Keep it up Mr.President you are our hero;"---one finds a smattering of uncensored criticism---e.g., "Mr. President, use your brain and stop supporting terrorists and stop also the nuclear program. If you dont, your country will overcome the same as Germany in Hitlers time."---and even, oddly, criticism of the blog for censoring comments---e.g., "Its great to see the definition you have of a forum? Your censure is reviewing every message before posting it. Is that liberty of opinion?"
I didn't post a comment myself, even under a false name, out of fear that I or my IP address would end up on some scary list.By far the most astounding comment from a reader is the following: "Mr President - it will be great if you can tell the person whos maintaining this website not to use ASPx (Windows Technologies - American dictators) There are far better Open Source projects PHP etc." That's right, here we have someone who thinks it a good use of his time to read and comment on the blog of Mahmoud Ahmadinejad, and finding nothing objectionable in Iran's treatment of women, its Holocaust denial, its support for Hezbollah, or its nuclear program, complains about Microsoft!
Friday, March 30, 2007
Iran's parading of the British captives on television reading what were no doubt scripts would clearly violate the Geneva Conventions' prohibition on humiliating treatment---IF BRITAIN AND IRAN WERE AT WAR. But they're not, at least not yet, and so Iran can plausibly argue that its treatment of the British captives (though not their capture itself, if British gps readings are accurate) is legal. Yet what possible purpose is served by affording military captives less protection if their captors and their home country are not technically at war than they would be entitled to if there were a war on? To me, this sort of hairsplitting is all too reminiscent of our own administration's efforts to evade the Geneva Conventions and domestic law governing treatment of captives.
Is there a relation here? Is it possible that our own parsimonious interpretation of Geneva gives the Iranians cover to engage in similar shenanigans against our guilty-by-association British allies? One might think not on the ground that the Iranians don't care about public opinion or reciprocity. There's certainly something to that. Indeed, Ahmadinejad seems to enjoy defying world or at least Western opinion. Yet that doesn't make our own dancing around Geneva quite irrelevant. For one thing, Iran is not a completely irrational state. For years, the U.S. and Iran, as well as our respective nationals and companies, peaceably settled commercial disputes at the U.S.-Iran Arbitral Claims Tribunal. And for another thing, even if the Iranian government does not itself care about international law, the public in Europe and the rest of the world does. To the extent that perceived U.S. disrespect for international law lowers the bar for the adversaries of the U.S. and its closest ally, that weakens support for tough measures.
Maybe such measures are doomed because there's no way the Russians will go along in the Security Council under any circumstances. And maybe tough talk with Iran is actually counter-productive. But at least to the extent that we and our allies will sometimes want to be able to invoke international law credibly, the current crisis illustrates that we're less able to do so than we would have been had we generously observed its letter and spirit.
Thursday, March 29, 2007
But it is experiences like that which have me worried lately. I may have just enabled a bad industry to last longer. Americans don't seem to understand it is their very existence that equals environmental and moral tradeoffs. You want to begrudge Al Gore a 10,000 square foot house? It smells a little envious to me. If you don't eat meat (and I don't either, for 12 years), how much fossil energy does it take to bring you avocados or apples in January? If you've ever eaten locally for a winter (and I did so once), how many Americans do you see doing it long term? How many could afford to? Should you feed your infant only locally grown food? If the answer is yes to all of those, does that make ending subsidies to energy-intensive agriculture into a moral issue? I think so, but I'll bet there is someone reading this blog who could convince me it is not. Of the few people I know personally who are within, say, 200% of the poverty line, none of them are vegan. We have complicated modes of being good citizens and respecting nature here: we buy Priuses and point out hypocrites--but usually only hypocrites who are richer.
When FDA found at the end of 2006 that, from its research, it had no basis for requiring the labelling of cloned meat, bloggers and others dwelled on the question for a few minutes. Lots of high rhetoric flew and people pontificated about the morality or efficiency of cloning, disclosure, and the spectrum of issues in between. Nobody I read came right out and admitted they were befuddled by the number of variables that were beginning to intertwine in our talk about "sustainability" and cruelty-free food.
Of course, FDA never said it was "safe" to shift US livestock markets to cloned subjects. And the truth is, our ability to manipulate genetic events at the molecular level is dwarfed by our ambitions to do so. It seems that clones, at least for now, have serious health problems and die prematurely at much higher rates than real offspring. Should these problems be worked out by an eventual "perfection" of cloning technology, how should the ethical omnivore respond? Is buying cloned meat an incentive for (or reward for having conducted) such lethal research or is it the support of a potentially more sustainable form of mass agriculture that reduces cruelty? In my view, practical reason may be losing its bite in the face of these dilemmas.
Beginning with a riff on the Supreme Court's famously obtuse distinction between pregnant and non-pregnant persons in Geduldig v. Aiello, the book addresses a host of sex equality issues by observing the centrality of reproduction and pregnancy (or the capacity for pregnancy) to nearly all of them. I think this is a rare and successful effort to write across the spectrum of sex equality issues. But don't take my word for it. Here are the blurbs:
"With deft writing, clear thinking, and deep knowledge, Sherry Colb illuminates the dark intersection of law and sex. She displays both journalistic verve and scholarly rigor. The result is a wonderful book that makes advanced thinking about complex controversies nicely accessible to the general reader."—Randall L. Kennedy, Michael R. Klein Professor of Law, Harvard Law School, and author of Interracial Intimacies
"In her feisty and informative exploration of pregnancy, rape, and sex discrimination, Sherry Colb flips the familiar conclusion of 'no easy answers' to the more challenging premise of 'no easy questions.' Are pro-life feminists feminist? Is male circumcision gender violence? Should assisted reproduction be prohibited? In clear staccato chapters, When Sex Counts offers readers thoughtful and thought-provoking analyses of the toughest issues now confronting women and men as their lives intersect with law."—Carol Sanger, Barbara Aronstein Black Professor of Law, Columbia University Law School
"A beautifully written and brilliant exploration of gender in American society. Professor Colb tackles all of the hard questions in a series of provocative and insightful essays about some of the most important and intimate aspects of our lives. A must read for all who care about issues of gender, sexuality, and reproduction."—Erwin Chemerinsky, Alston & Bird Professor of Law, Duke University Law School, and author of Constitutional Law (2006)
Wednesday, March 28, 2007
To his credit, Breyer showed good humor, mostly by just showing up, but he's clearly not ready for prime time. During the shmoozey part of the show, for example, Breyer gave his standard stump speech about how the Court decides hard cases and that while they often disagree, he has never heard a voice raised in anger. "The job is mostly reading and writing," he explained for no apparent reason.
Breyer's best line was actually his report of a quip by Justice Scalia. Breyer explained how, as the junior Justice for the dozen years before Justice Alito's appointment, it was his job to open the door when there was a knock during the conference. Once, he said, he opened the door to receive delivery of a cup of coffee for Justice Scalia, and brought it over. Scalia then said "well you have been doing this for a long time." Breyer replied, "yes, twelve years, I've gotten very good at it." To which Scalia jokingly replied, "no you haven't actually."
All in all, Justice Breyer acquitted himself reasonably well. He probably succeeded in humanizing the Court and projecting an image of good-natured earnestness, but I was left scratching my head about the point of his appearance. Perhaps the answer is to be found in the 1980s-era cartoons by Mark Alan Stamaty, featuring Congressman Bob Forehead, who, despite his political success, yearns to be a tv game show host. Who would have thought that Supreme Court Justices have similar ambitions?
Tuesday, March 27, 2007
Mike suggests a difference between "moral duties" and mere "policy matters" that is helpful for his exploration of the carbon offsets issue. To evaluate claims of hypocrisy, though, this difference is irrelevant. The question is whether one who advocates policies to mitigate environmental harms is a hypocrite if she continues to engage in activities that cause environmental harm. There is no satisfactory answer to that question, because this is one among many issues where even enlightened and committed people will not commit themselves to the most extreme action possible. Let's set aside the "Gore as Spokesman (and thus held to a higher standard)" angle and simply look at his actions as a consumer of energy. His house, we are told, consumes as much energy in a year as 20 Hummers. That's bad. Of course, he has enough money that he could build and heat an even bigger house and also own and drive many Hummers. Is he to be credited for being less wasteful than other very-high-income people or condemned for not doing more to reduce his energy consumption? Both. Let's not pretend, though, that he could ever satisfy everyone who might criticize him for not doing enough. If he stops flying, will he still own a car? If he owns an electric car, how dare he not remember that electricity is produced by burning coal or by splitting atoms! If he cares so much about the environment, after all, why doesn't he live in a cave?
This line of attack is a familiar one. On this blog, Sherry Colb has discussed how quickly meat-eaters attack vegetarians for any deviation from absolute purity. ("Oh, you think you're so morally superior!? Well, I see you have some leather trim on your shoes. So much for you!") Even vegans can be attacked for not setting aside everything else in their lives to devote themselves to saving animals. It's always possible to do more. Similarly, people like Warren Buffett who give large charitable contributions can plausibly be criticized (or their generosity diminished) by pointing out that they are still billionaires. Interestingly, if a person really did move into a cave, or spend her life saving animals, or give away every last penny of her wealth, she would be dismissed as a freak. Why should regular people listen to that nut, if she's willing to live in a cave and eat grubs?
Ultimately, when lines are impossible to draw, it comes down to good faith. Fox News shows no indication that it really wants Gore to be more environmentally responsible. They're just grabbing onto whatever convenient criticism they can. The rest of us can always aspire to do more -- for the poor, for the planet, for the animals, and for other good causes -- but we need not fall into the trap of setting an impossibly high bar. Gore should set his bar higher, but I'll take him over his critics any day.
Here I want to add another example. Suppose I think that it's wrong to eat animals and animal products (as in fact I do) but that I really like the taste of meat. Could I discharge my moral obligation (as I see it) to be a vegan by continuing to pack away the hamburgers and steaks but pay a carnivore to convert to veganism so that I "meat balance?" The very idea seems absurd.
But I've been wondering whether this sort of comparison is unfair to Gore. Perhaps his real mistake was in referring to global warming as a "moral issue," and thereby implying that each of us has a moral duty to future inhabitants of the planet. If global warming is just a policy matter, then all we should really care about is the bottom line. Or perhaps there is a species of moral actions that we should evaluate simply by our net impact. So that maybe it is morally permissible to buy one's way out of some obligations but not others. I certainly have the intuition that this is so. I also have the intuition that vicarious veganism clearly doesn't work, while vicarious carbon neutrality is closer to the line of the permissible. Another clear example: I can't discharge my duty not to commit murder by going on a killing spree and then saving an equal number of other lives. However, I am quite unclear about what exactly the criteria should be for deciding when a moral duty can be discharged by payment rather than directly. Or perhaps I'm simply wrong, and all duties can be discharged vicariously? (Don't worry; I'm not armed.)
Monday, March 26, 2007
Thus the irony: It's certainly true that the Court's precedents governing student speech are less than crystal clear and that this probably justifies a finding of qualified immunity here. But the reason the Court's precedents are unclear is that since Tinker affirmed a right to non-disruptive student speech, a series of fairly conservative decisions have muddied the waters. If the Court valued student free speech to a greater extent, it could have articulated a clearer rule.
And now the hilarious moment: At one point, Justice Breyer referred to the fact that Frederick had unfurled a 15-foot banner. Frederick's lawyer corrected him, pointing out that the banner was only 14 feet. To which Breyer replied, "good point." You gotta pick your battles.
Sunday, March 25, 2007
To be sure, public apathy could cut the other way: If people think the issue is no big deal, they might think the administration is overreacting by not just revealing everything there is to know about it. But I think that's unlikely. I would expect that the "prosecuting" side of an investigation benefits from public interest. This may be why Whitewater --- which almost nobody ever understood and therefore which almost nobody cared about --- lacked legs as a scandal, while the Lewinsky Affair, with its prurient appeal, played well for a Republican Congress. Conversely here, absent some salacioius revelation, apathy favors the administration.
In any event, even if we judge the public yawn as a wash, Bush's own commitment to executive privilege as a matter of ideology may be enough to ensure a genuine stalemate. My fellow FindLaw columnist John Dean has an interesting analysis of that aspect of the issue here.
Saturday, March 24, 2007
Here I want to suggest a different reading: Bush is actually making these (disastrous) decisions. After all, it's not as though Bush has been doing Cheney's bidding on EVERY foreign policy question. The decision to strike a deal with North Korea is the prime example of Bush turning away from Cheney's views, and though it's hard to know what went on within the White House, it's certainly possible that Cheney also objected to the dismissal of Rumsfeld (given their longstanding connection). So, if Bush doesn't always bend to Cheney's (presumed) will, perhaps he just happens to agree with Cheney most of the time. And if that's so, Bush should get credit for not simply succumbing to his neocon svengalis. And more importantly, he should get the blame for . . . well, you know, everything.
Friday, March 23, 2007
Continuing the animal rights theme from yesterday, I bring you polar bear cub Knut, left. Knut's mother refused to care for him, so he is being hand-fed by zookeepers at the Berlin Zoo, despite the objection of self-described animal rights activist Frank Albrecht, who says Knut should be killed because "[h]and-rearing a polar bear is not appropriate and is a serious violation of animal rights." This is the sort of stupidity that gives animal rights -- indeed, people called Frank -- a bad name.
How might it be a violation of Knut's rights to be hand-fed by humans instead of killed? Of course, there are some fates worse than death. Perhaps being in a zoo at all is such a fate. But if so, why does Albrecht object to hand-feeding rather than zoo-ing of Knut? Moreover, it's not clear to me that zoos are contrary to the interests of animals. Most modern zoos affiliate with and raise consciousness for organizations that aim to conserve the wild habitat of the kinds of animals on display. That may not justify capture of wild animals for zoo display, but it hardly warrants euthanasia of animals born in captivity.
More broadly, I can't help but wonder whether this story has gotten the press it has because it provides an opportunity to ridicule an animal rights activist. The argument goes like this: This fellow Albrecht is a nut. He loves animals in theory but in fact he wants to kill this adorable polar bear cub. Thus, animal rights is bunk. Well, as someone who believes we have moral obligations to non-human animals, let me just say that Albrecht does not speak for me. It's possible to believe in animal rights and to support the wellbeing of particular animals like Knut.
Thursday, March 22, 2007
Wednesday’s New York Times contained a letter to the editor responding to a recent article attacking modern methods of pork production. The letter, composed by the President of the National Pork Producers Council, asserts that “America’s 67,000 pork producers treat their animals humanely. They do so because it’s the moral and ethical thing to do, and it’s in their best economic interest.”
Before even considering the merits of the claim, it is worth noting -- as I do in teaching my Evidence students about the impeachment of witnesses generally -- that the letter-writer has a bias that might render anything positive she says about the production of pork suspect. Beyond this general point, it is important to respond to the claim that those who traffic in animal flesh have an economic incentive to treat their animals humanely. For many well-meaning people who consume meat and other animal products, this argument has some appeal: why would one want to treat animals cruelly? Wouldn't such cruel treatment degrade the quality of the animals’ meat?
The flaw in this argument lies in the assumption that treating a large group of living creatures humanely increases their economic value to others. To put it most basically, those who raise animals for slaughter or other use have two separate economic goals: to produce as much meat (or cheese or eggs) as possible per dollar of investment, and to produce a high-quality product. Intensive farming methods -- which produce most of the meat and other animal products consumed in the U.S. -- emphasize the former goal over the latter. Per dollar of investment, intensive farming produces an enormous amount of meat. Even if many of the animals involved die in the process, enough survive to make the "yield," in terms of meat brought to market, more profitable than it would be at an analogous but less cruel farm in which the animals all survived until slaughter. (This calculus does not take account of externalities such as pollution, let alone the animals’ suffering, because others bear these costs.)
One farmer, quoted in the very readable The Way We Eat: Why Our Food Choices Matter, by Peter Singer and Jim Mason (2006), explained that he might pay for an anesthetic when castrating his bulls if it only cost a penny or so, but it costs more than that, so he doesn't. Just think about that for a moment: in one small part of the process of producing the beef that people eat, bulls are castrated without anesthesia. If such pain were inflicted on a human terrorist suspect, it would fall easily within the definition of "torture," even under the Bybee memo's stingy definition.
To see that economics will not generate the humane treatment of farmed animals, one need only look to a relatively recent institution in the U.S. in which sentient, intelligent and emotionally advanced human beings were bought, sold, and used involuntarily to serve the needs of other human beings, much as sentient, intelligent, emotionally advanced animals continue to be used today. I speak here of slavery. Some suggested, during the time of slavery, that slave-holders could not possibly be engaging in the sorts of brutality of which they stood accused by abolitionists. Slave-holders, they argued, had a built-in incentive to treat their slaves humanely, because a person who is beaten and injured cannot be as productive as a person who is treated well. As it turned out, however, maximizing the utility of slaves did not appear to entail their humane treatment, and brutality was a routine part of a slave's existence. Indeed, as I learned recently from Harriet A. Washington, the author of Medical Apartheid: The Dark History of Medical Experimentation on Black Americans from Colonial Times to the Present, some perpetrators of slave torture continue to be celebrated today. For example, James Marion Sims, the "Father of Gynecology" and the first doctor in the U.S. to have a statue built in his honor, made many of his important discoveries while performing unanesthetized surgeries on African-American female slaves. He could have given many of them (along with slaves whom he used in other medical experiments) ether, but he did not think it was worthwhile to do so. If one is concerned only with the cost to oneself, then, the moral difference between using anesthesia and using manual restraints becomes inconsequential.
What slavery does -- whether the slave is a human being or an animal -- is to render the subjective experience of the slave irrelevant. The reports of people outside the industry who have observed and examined feedlots, slaughterhouses, and other such places confirm the irrelevance of animal suffering to the industry.
Wednesday, March 21, 2007
Sound familiar? To those few valiant readers who have struggled through my most recent paper, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, it should. This is very much the sort of argument I have advanced in the university context, as to both public and private institutions. I have argued that under some circumstances, universities ought to enjoy substantial autonomy to shape their own institutional missions and to regulate speech and other aspects of campus life in accordance with those missions. Leaving aside Mike's thoughtful earlier critique of that approach in an earlier post, let me ask: Does the fact that I have championed such an approach make me a fan of the arguments advanced by Starr and Kneedler? If universities are entitled to be treated as First Amendment institutions and granted substantial autonomy accordingly, are K-12 public schools similarly entitled?
My tentative answer is, not exactly. I am not averse to treating public schools as First Amendment institutions in a variety of ways. But there are important distinctions between public schools and universities, and those differences should shape our legal treatment of those distinct institutions. First, universities are sites for the exchange of ideas, and for the production of free speech, in the form of research, publication, speeches, conferences, and so on. Public schools, on the other hand, primarily serve the First Amendment as sites for the production of the facility for free speech: that is, they teach children so that they will have the capacity to be engaged and active citizens elsewhere and later in life.
That distinction may actually point in favor of the approach that Starr and Kneedler propose. But there are other differences that may point in the opposite direction. One aspect of my institutional approach has tended to be that a variety of speech institutions deserve greater autonomy because they are highly self-regulating, and that self-regulation takes place through a variety of norms and traditions that tend to be fairly stable, fairly disciplined, and fairly protective of and conducive to free speech values. It is not clear the same can be said of public schools and public school administrators, and there may therefore be a greater need to subject them to a greater level of constitutional constraint. Moreover, I tend to assume that there is greater room for a variety of distinct educational missions among universities, and thus greater room for a varying approach to speech rules among those universities. By contrast, it may be that the "institutional mission" of the public school is more uniform, and that this mission requires a more uniform approach to student speech, and thus calls for less deference to a public school's "autonomy," even if there are still substantial reasons to defer to a school administrator's on-the-ground judgment about particular facts. I note that the growing number of magnet schools and other mission-specific public schools might change the validity of this second argument.
In short, I don't think we should discount Starr and Kneedler's argument out of hand, but I think their particular focus on deference to a public school's "institutional mission" is more misplaced in the public school context than it would be in the university context. Deference to a public school administrator's factual judgment in particular cases is different from deference to a public school's general educational mission, and we ought not conflate the two, which I fear their argument does. There is room for a variety of educational missions and corresponding speech regimes in the wider universe of universities, and we can be somewhat assured that deeply settled norms of self-regulation, as well as market forces, will offer meaningful constraints in these circumstances; it is less clear that the same is true in the public school world.
What's my sense of how Morse itself should come out, regardless of the First Amendment institution issues? I think the focus on drugs, or even on some kind of per se rule against advocating illegal conduct, is a dead end. I certainly do not think schools should be free to suppress any and all such messages in any public school location. For example, I think a rule saying that a teacher in a lunchroom can punish a student for telling a table of classmates that he thinks the drug laws should be reformed, or that the President should authorize assassinations even where not legally authorized to do so, would be wrong, although it seems to me Justice Scalia's comments at oral argument almost seemed to favor such a rule. Certainly such an approach would eviscerate Tinker. I would rather see the Court focus on two questions: location (or context) and disruptiveness. Future conduct like that of Frederick in this case could still be prohibited under a reasonable consideration of those factors, it seems to me, without giving administrators a roving license to selectively and clumsily punish student speech in a content- or viewpoint-based manner based on their own, often dim understanding of their educational "mission."
The President offered what he called a "reasonable way to avoid an impasse." Attorney General Gonzales would testify before Congress, while White House staff, presumably including Karl Rove, would meet with members of Congress in private without taking an oath. In what sense would it be a "show trial" for Rove to go before Congress in public and under oath? The oath can't make a difference but appearing in public certainly could. Bush fears that Democrats would simply use Rove as a whipping boy. But if that's the worry, why isn't there the same worry about Gonzales? Perhaps Bush has more confidence in the ability of Gonzales to deflect Senators' questions, based on past experience. Or perhaps, more darkly, Gonzales is the designated fall guy for this scandal, and sending him up to the Hill for a "show trial" keeps the attention on Gonzales rather than Rove or Bush.
One other possibility is that Bush (or Cheney or someone else advising Bush on these matters) actually believes in the principle he has been citing. That principle, recall, is that the President needs to be able to receive candid advice from White House staff, and that public testimony undermines the incentive towards private candor. But this explanation doesn't wash because disclosure of the emails --- which has already occurred --- has the exact same impact. Given the content of the emails disclosed, there is no way that their authors thought they would ever be read outside of the White House (except perhaps by historians decades later). Here, as in other contexts in which Presidents have invoked executive privilege or its rationale, the invocation is selective, thus undermining the underlying principle. Accordingly, for now I'm going with the Gonzales-as-fall-guy theory. If Gonzales does join Libby in that category, then the Administration may soon have to start worrying about running out of fall guys.
Tuesday, March 20, 2007
Note that in McCracken, the witness was an attorney who originally refused to comply with a Senate order on grounds of attorney-client privilege. Justice Brandeis justified the upholding of the imprisonment in part on the ground that judicial review would be available. Presumably that would mean that judicial review of a claim of executive privilege would also be available if, say, the Senate were to imprison Karl Rove for contempt without referring the matter to the Justice Department or if the Justice Department declined to prosecute.
From the perspective of separation of powers, direct prosecution by a house of Congress, followed by judicial review, seems the preferable mode of proceeding, as it makes each branch put its money where its mouth is. But it does raise serious due process concerns of the sort addressed by the Bill of Attainder Clause.
Meanwhile, one of the commenters on my post on partisanship versus politics objected that he didn't buy my distinction "between 'political' and 'partisan' in this instance. If 'partisan' simply means 'benefitting the party,' then of course what Clinton did was partisan. He rewarded loyal party members with prestigious appointments, thus ensuring loyalty and dangling a carrot for the next generation of loyal dems (in that case) who want to enjoy the spoils of some future victory." This objection suggests that for my buzzword to catch on, I need to be a bit clearer. Here goes.
My claim was NOT that partisanship is never appropriate in the executive branch. Much as I dislike the spoils system, it is deeply entrenched in our political life: Presidents get to reward their political friends with plum appointments, subject to Senate confirmation for principal officers. My claim is that U.S. Attorneys are not supposed to be partisan in how they choose cases to prosecute. Likewise, it's improper for the President or AG to pressure a U.S. Attorney to act in a partisan manner in deciding which cases to prosecute, by firing or threatening to fire those who don't make prosecutorial decisions on a partisan basis. This is simply not open to reasonable debate, which explains why neither the Administration nor Republicans in Congress has flat out said anything resembling: "It's fine for prosecutions to be brought on a partisan basis." Instead, they either contend that the Gonzales 8 were fired for some other reason or obfuscate by defending the power to fire rather than the reasons for the firings. Capice?
Monday, March 19, 2007
Michael C. Dorf, a law professor at Columbia, had a similar reaction to being cited dismissively in this month’s decision striking down parts of the District of Columbia’s gun control law. On the one hand, Professor Dorf said, “there’s no such thing as bad publicity.” On the other, he said it was vexing to see his article caricatured rather than engaged.
The District of Columbia Circuit had, he said, at least tried to engage the legal scholarship on a difficult and important question. He had less sympathy for judges who have given up on the academy.
“The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable,” Professor Dorf said.That ought to win me friends in the federal judiciary!
Meanwhile, I'll be on NPR's All Things Considered this afternoon talking about executive privilege -- unless I get bumped. I'll report back on the conversation tomorrow.
The underlying distinction between politics as policy preference and partisanship is broadly familiar from the controversy over Bush v. Gore. Some hard-core legal realists (I have in mind Jack Balkin and Mark Tushnet but there were others) took the case as simply confirming what they had always thought: that judges make political decisions. But most critics of the decision did not endorse this sweeping critique. They thought that there is a difference between a judge deciding a case involvingthe constitutionality of abortion restrictions or affirmative action in a way that lines up with her policy views on these issues, and a judge deciding a case based on which political party would benefit in the particular case---as many of the academic critics and even more of the general public thought the Supreme Court did in Bush v. Gore.
It's possible that I'm over-reading the reaction to Bush v. Gore. Perhaps the public generally hold a highly formalist view of the law but don't pay much attention to Supreme Court decisions. Then, they tune in and observe partisan politics and are horrified, but had they tuned in sufficiently for other cases they would have been almost equally horrified by the ordinary politics of judging. That's possible but I actually give the public more credit. The periodic references to the judicial appointment power in Presidential campaigns suggest that at least a substantial portion of the public are at least aware of the difference that individual values make to judging. Yet (rightly or wrongly) they sensed that something different was happening in Bush v. Gore. If that's right, then the public can be made to understand the difference between politics as policy choice and politics as partisanship. But to make it work in the current context, Democrats and other critics of the Gonzales Eight Massacre need to stop calling the firings "political" --- a word that invites double-talk from the likes of Tony Snow, FoxNews et al --- and start referring to the firings as "partisan."
Saturday, March 17, 2007
The crisis in Pakistan over General Pervez Musharraf’s “suspension” of the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, has only deepened since Mike first posted about it earlier this week, but it continues to garner surprisingly little news coverage in the United States. Musharraf has still offered no details of the allegations against Chaudhry, but his suspension came one day after the now “non-functional” Chief Justice gave notice that he intended to investigate allegations of disappearances at the hands of Pakistani security forces, which have increased dramatically since 2001. (On the surge in disappearances, the Guardian has chilling details.)
The move to dismiss Chaudhry is hardly the first time in the postcolonial history of the subcontinent that judicial independence has been threatened. In each of Pakistan’s four periods of military rule, the coup leaders have moved with some success to legitimize their usurpation in the courts, which have elaborated what Tayyab Mahmud has aptly termed a “jurisprudence of successful treason.” Nor has interference with judicial independence in Pakistan come solely from the army. Only two years before he was deposed by Musharraf, former Prime Minister Nawaz Sharif’s ugly dispute with (and effort to remove) one of Chaudhry’s predecessors as Chief Justice culminated in a physical attack by a mob of Nawaz’s supporters on the Supreme Court building.
When asked to legitimize the army’s interventions into domestic politics, Pakistani judges have frequently acquiesced — as judges have, to be sure, in other countries during emergency-like moments, such as the United States in the face of internment and India in the face of Indira Gandhi’s Emergency. While such acquiescence has usually been discredited over time in other countries, in Pakistan the result seems to have been the validation of a central role for the army in domestic affairs. Those Pakistani judges who have tried to resist typically have been sidelined by the military regime; when Pakistani courts have acted somewhat more assertively in response to the army's claims, it has tended to happen after civilian rule has been restored, and without repudiating the notion that military intervention into politics is valid and legitimate.
So far, that basic script has been followed once again under Musharraf's regime, with the Supreme Court validating his coup in a March 2000 decision. However, during Chaudhry’s twenty-one month tenure as Chief Justice, the Supreme Court of Pakistan has increasingly shown the potential to become a thorn in the regime’s side. Since Musharraf already has significantly weakened the civilian bureaucracy and provincial governments, the judiciary is, along with the media, one of the few institutional power centers with the capacity to pose a challenge to the role of the army.
In Pakistan, the clichéd adage goes, politics is often driven by three As: Army, Allah, and America. Here in the United States, we like to focus (that is, if we are paying attention at all) on the first two, variously condemning the army’s interruption of the democratic process and raising the specter of Muslim extremists using Pakistan as a staging area for terrorism or even ascending to power in Musharraf's place. As Americans, however, perhaps we should be devoting greater attention to the third A, and in particular how the role of the United States may be interacting with the role of the army and of religion in Pakistani affairs. Here’s what U.S. officials initially had to say about the current crisis in Pakistan:
The US State Department on Monday described the government’s action against Chief Justice Iftikhar Mohammad Chaudhry as Pakistan’s ‘internal matter’ and refused to comment on the development. “We won’t be offering any comment on that. It is an internal matter,” a State Department official told Dawn when asked for comments. [link]
In this particular instance, however, it is an “internal matter” whose triggering event -- an investigation into post-2001 disappearances -- may well have been influenced or more directly shaped by U.S. policy:
[U]ntil 9/11, disappearances were rare. Then, in late 2001, as al-Qaida fugitives fled from Afghanistan into Pakistan, Musharraf ordered that the agencies show full cooperation to the FBI, CIA and other US security agencies. In return, the Americans would give them equipment, expertise and money.
Suddenly, Pakistan's agencies had sophisticated devices to trace mobile phones, bug houses and telephone calls, and monitor large volumes of email traffic. "Whatever it took to improve the Pakistanis' technical ability to find al-Qaida fighters, we were there to help them," says Michael Scheuer, a former head of the CIA's Osama bin Laden unit.
* * *
The al-Qaida hunt became a matter of considerable pride for President Bush's close friend, the president of Pakistan. "We have captured 672 and handed over 369 to the United States. We have earned bounties totalling millions of dollars," wrote Musharraf in his autobiography last year. (The boast sparked outrage at home in Pakistan and was scrubbed from later Urdu-language versions of his book.) Prize captures included the alleged 9/11 mastermind Khalid Sheikh Muhammed, who has apparently confessed to a string of terror plots after four years as a captive, and Abu Faraj al Libbi, another alleged bin Laden lieutenant. But certain innocents were also swept up in the dragnet.
* * *
The truth is that the American government still quietly supports the disappearances of al-Qaida suspects, says Ali Dayan Hasan of Human Rights Watch, which has documented many cases. "The abuse has become even more brazen because of US complicity," he says. He claims that American officials are regular visitors to ISI safehouses in Islamabad, Lahore and Rawalpindi where torture has occurred. They have supervised interrogations from behind one-way mirrors, he says. In FBI internal documents, he says, torture is referred to as "locally acceptable forms of interrogation".
For some detainees the safehouses are the back door to the mysterious world of CIA "black sites" - secret prisons in Afghanistan, eastern Europe and across the Arab world where torture is allegedly rife. [link]
There is some irony that, in a week in which Khalid Sheikh Muhammed’s confession has received so much media attention in the United States, the deepening political fallout in Pakistan triggered by an investigation into the very policies and practices associated with his capture have received so little. It seems possible that, like the investigations in Italy and Germany into extraordinary rendition, an investigation into post-2001 disappearances in Pakistan could reveal information that the U.S. government would prefer the public not to know. The broader point is that there are many ways in which Pakistani political developments are being shaped by what the United States is doing, even though those influences may often be far from our public consciousness.
* * *
To echo Mike’s comment about the courage of Pakistani lawyers and others resisting Chaudhry’s suspension and house arrest, the scenes in Pakistan are quite remarkable. (Here is a particularly vivid set of photos.) Prominent and distinguished lawyers in India have expressed their solidarity with the “courageous lawyers in Pakistan who are opposing this frontal assault on the judiciary,” and they deserve the active support and encouragement of American lawyers as well.
I want to stress a separate point reflected in these two paragraphs:
Yoo's memo was leaked to the press in the summer of 2004, in the aftermath of the publication of pictures of U.S. soldiers torturing Iraqi detainees inside Abu Ghraib prison. Overnight, he became a celebrity - but for all the wrong reasons. He was held personally responsible for Abu Ghraib's horrors: The disgusting behaviour of U.S. service personnel was seen as the bottom of the slippery slope down which Yoo had started America's military sliding when he wrote the torture memo.
"That was totally absurd," he told me when we meet for lunch in a restaurant opposite his office at the Boalt School of Law in Berkeley, Calif. "Two bipartisan congressional reports and several military investigations showed that the Pentagon hadn't even read the memo. Disgraceful behaviour of the kind which took place at Abu Ghraib had nothing to do with interrogation policy. Similar things have happened in practically every war. What was different was that this time they had cameras on their cellphones to photograph it. ... But the idea that what went on in Abu Ghraib would never have happened without that memo is just silly."
I tend to agree that those who depict Yoo's OLC "torture memo" as the but-for and proximate cause of the events at Abu Ghraib are likely overstating things. It's possible, I suppose, that we might ultimately be able to find evidence establishing that sort of causal link, but I don't see it now and I doubt we ever will.
I'm not sure that's the point, though. For me, the point is that if one adheres to the reasoning in the torture memo, it's not at all clear that conduct of the sort that took place at Abu Ghraib is always forbidden. The author of the Gazette piece seemed to get this. As he described, "The disgusting behaviour of U.S. service personnel [at Abu Ghraib] was seen as the bottom of the slippery slope down which Yoo had started America's military sliding when he wrote the torture memo." To put the point more directly, whether or not stuff like Abu Ghraib happens in every war, Yoo's memo makes it harder to condemn.
Yoo calls the actions at Abu Ghraib "[d]isgraceful behaviour," but the logic of the torture memo and of his statements in the interview is that such actions are perfectly permissible if undertaken against an alleged unlawful enemy combatant as part of a program of, ahem, "aggressive" interrogation. And that's the problem: under the logic of the Yoo memo, we lose the ability to say that the "disgraceful" treatment at Abu Ghraib was categorically and in all instances wrong.
The Social Science Research Network (SSRN) is a central repository into which scholars in many fields place their written work, where other scholars can then easily search for working papers on particular subjects and download papers that are interesting and/or potentially useful in one's own scholarly work. This provides a nearly ideal internet-era medium through which scholars can interact with each other at the draft stage of their writing, soliciting feedback from both supportive and skeptical critics and basically enhancing the scholarly process in every way. I don't mean to be glib. This is truly a wonderful resource.
The problem comes from our seemingly irresistible desire to count and rank things. (Rankings can be fun, of course. See "High Fidelity" for a wonderful portrait of dysfuntional men who have a "Top 5 All Time" list for everything: breakups with girlfriends, songs about death, etc.) SSRN downloads have become a method by which individual scholars and their employers are evaluated: a large number of downloads of one's papers moves a person up the rankings, and the presence of many heavily-downloaded professors on a law school's faculty moves that law school up in such rankings. The theory is evidently that multiple downloads imply "importance" or "influence" or something that makes a scholar appear to be having a useful professional impact.
One such use of SSRN to rank faculties was Brian Leiter's "Most Downloaded Law Faculties, 2006," posted on March 6 of this year, in which Leiter compiled rankings of the top-15 law faculties based on total downloads of all papers by all of a school's faculty and on downloads per paper of all of a law school's faculty. The immediate controversy has revolved around Leiter's decision to exclude Ohio State and Emory from the rankings because their high download numbers are overwhelmingly the result of Fairman's one famous paper. (Fairman is visiting at Emory.) Paul Caron reports on the controversy on the TaxProf blog here. For what it's worth, I agree with Ann Bartow, who criticized Leiter's decision on the Feminist Law Professors blog. She points out, among other things, that Fairman's paper is a very serious piece of scholarship about the impact of language on society, noting the irony that Leiter's decision reflects one of the very issues that Fairman discusses. Fairman has also posted a commentary about the controversy, which one can download from SSRN. (I love irony.)
The more interesting issue to me, though, is the notion of using SSRN downloads as a measure of scholarship in the first place. Others have offered varying critiques, including Leiter himself, who has pointed out that SSRN tends to be used more by scholars writing in certain areas of law than others and suggesting various ways in which the results can be gamed or at least skewed. All true, I have no doubt. Even more fundamentally, the problem with download counts as a measure of importance (or quality or whatever) is essentially identical to the older practice of counting citations to assess scholarly impact. If Mike Dorf, say, writes an article that everyone thereafter cites, that must mean it's important, right? Mike (whose articles are heavily cited, for all the right reasons) will be the first to tell you that that is simply not a valid conclusion. I have seen plenty of papers in economics and in law that are downloaded heavily apparently because they're so silly or so dangerous that they need to be debunked and exposed to ridicule. That's one type of "importance," I suppose, but it seems odd to give someone credit for saying something that other people find ridiculous or scary. It is odder still because the only people who are likely to be able to say something silly yet still be cited rather than simply ignored and dismissed are scholars who already have big reputations. So a big name at a big school can enhance one's scholarly reputation by being cited (and now downloaded) for writing something absurd. Put more simply, quantity measures are not quality measures.
There is an important difference, though, between how citation counting distorts behavior and how SSRN download counts distort behavior. Citation counting has almost surely led scholars to cite their own papers and their friends' papers extensively (even when those papers are not on point), to refuse to cite high quality articles with which they disagree, etc. That is a bad result, and it makes the citation-based rankings even less well-suited to measure importance or quality than they would otherwise be.
For SSRN, though, this distortion is especially poignant. When people browse SSRN, they now know that every decision to download a paper is a vote. If I see an abstract for a paper that might or might not make a ridiculous point, for example, I would normally want to download the paper to see what the author is really saying. If the author seems to be writing in good faith but is making a point poorly or has apparently not thought about some implications of an argument, I might even try to contact the professor to discuss the paper. I hope that others will do the same for me. If I do download a paper, though, I'm voting blind. I may find myself enhancing the measured importance of a paper that turns out not to be a worthy piece of scholarship (or even coherent). Decisions to download thus become strategic, discouraging scholars from even engaging with one another because of each scholar's subjective decisions about who and what one wants to support.
And that is especially troubling, because the promise of SSRN was that it would allow scholars to interact at the stage where their work would benefit from the views of others. Counting downloads from SSRN has led to rankings based on those counts, and that undermines -- perhaps fatally -- SSRN's greatest contibution to the academic enterprise.
Friday, March 16, 2007
My first cut was straightforward: That’s more or less what Rehnquist meant by “careful” as he used the term in Glucksberg. I worked with the plaintiffs in that case and we took great pains to make clear that we were not asking the Court to recognize a right to suicide, but instead a right of a terminally ill patient to control the timing and circumstances of his or her death. Nonetheless, Rehnquist framed the case as seeking a right to suicide that includes a right to physician assistance. Once framed that way, the case was effectively over, and so Judge Pregerson could have plausibly read Glucksberg as requiring rights to be framed in a way that defeats them. (Note that I say “in a way that defeats them” rather than “narrowly” because the Glucksberg Court actually framed the right more broadly than we wanted or asked it to.)
But then, to repeat the question I asked yesterday, why did Judge Pregerson not also consider that in Lawrence the Supreme Court did not re-frame the issue in a way that undermined the plaintiffs’ claims? Instead of characterizing that case as involving, for example, a general right to sexual liberty (likely too broad to win approval) or a right to have same-sex anal sex (likely too narrow to win approval), Justice Kennedy accepted the plaintiffs’ framing of a right of intimate association that includes control over adult consensual sexual acts. The Lawrence opinion doesn’t exactly say that there is such a right, because it’s unclear what level of scrutiny the Court applies, but it also doesn’t adopt the Glucksberg framing. So what gives with Pregerson?
Professor Barnett suggested that Pregerson accepted the Glucksberg approach because he, Pregerson, was predicting that if the case made it up to the Supreme Court, there would be five votes for using that approach---at least in a case involving medical marijuana. And, Barnett said, that’s probably a good prediction in light of the questions Justice Kennedy asked during the oral argument in Raich, which were quite hostile to the plaintiffs’ arguments.
For me, this raises the question of whether a lower court judge should base his ruling in an area of uncertainty on his prediction of how individual Justices currently on the Court would vote, rather than his own best judgment about what the law is or should be. The Supreme Court decision in Raich 1 was not, after all, a holding on the substantive due process issue, and so nothing in that case bound the 9th Circuit in in Raich 2. My own view, which I argued at some length in a 1995 article in the UCLA Law Review, is that except in a few unusual circumstances, the job of lower court judges is to make their best legal judgment, not to predict the legal judgment of those who may end up reversing them. Here, I’ll just reproduce the barest core of the argument: "The prediction [approach] undermines the ideal of the impartial judge. It conceptualizes a high court as the sum total of the views of the individual judges. By contrast, the ideal of impartiality requires that judges attempt to separate their individual views from the requirements of the law. Thus, even if the high court judges are persons of impeccable character, the prediction model undermines the ideal of impartiality by equating particular high court judges' views with the law."
Thursday, March 15, 2007
The court also rejected her substantive due process claim, largely on the strength of Washington v. Glucksberg. The court plausibly read Glucksberg to require a narrow "careful" definition of the right in question, which it defined as the right to use medical marijuana. Not surprisingly, it found that society had not yet recognized any such right as fundamental.
To my mind, this only shows the poverty of the Glucksberg approach. The real question is whether the government can ban a medical treatment necessary for sustaining life on the ground that Congress by fiat declares that the medical treatment is unnecessary or not efficacious, without granting a litigant any right to present factual evidence to the contrary. The answer to that question could be yes. We might think that Congress, or a state, or an administrative agency, is better situated to make medical judgments -- even if sometimes those medical judgments are politically motivated -- than are the courts. Or we might think that the judgment of Congress is entitled to a rebuttable presumption of correctness. But under the Glucksberg approach, we don't even ask the question.
That's probably why the two post-Glucksberg cases to recognize "new" substantive due process rights, Troxel v. Granville and Lawrence v. Texas, do not define the right in its narrowest possible terms. Indeed, Justice Kennedy, speaking for the Court in Lawrence, said that doing so in that context was demeaning. Judge Pregerson -- who is as liberal as the day is long -- might have said with justification that the Glucksberg approach is not the law.
For the full version of this argument, see my 1991 book with Larry Tribe.
Wednesday, March 14, 2007
That might make some sense if there were a proposal to restrict eligibility for military service. Even if the restriction were otherwise reasonable, you could see someone thinking that during active warfare you don't want to deprive the military of fighting men and women. But given the extended and repeated tours, wouldn't this be exactly the time to question a policy that restricts service?
I'm not naive enough to think that Giuliani actually meant what he said. Obviously he was trying to say something that would appeal to religious conservative primary voters but would not be utterly inconsistent with his record as a gay-friendly mayor. My guess is that he failed on both counts.
To be sure, a threat to judicial independence is a greater threat to the rule of law than is a threat to prosecutorial independence. As noted on this blog and elsewhere, there is at least a plausible argument that prosecutors ought not to be independent of the President. It's noteworthy, though, that even AG Gonzales now acknowledges that "mistakes were made" rather than claiming that "the unitary Executive was at work." (Insert your own joke here about who made the mistakes and what made them mistakes rather than, say, impeachable offenses.)
From the Bush Administration's perspective, the coincidental timing of the Chaudhry firing and the Gonzales Eight Massacre is awkward at best. The Administration has been trying to pressure Musharraf to take more (some?) serious action against the Taliban and al Qaeda in the tribal areas bordering Afghanistan and has even been reconsidering the long-held assumption that without Musharraf, Pakistan would become an Islamic fundamentalist state. The Chaudhry affair would offer a perfect excuse to cut Musharraf loose---or at least to increase the pressure on him---were it not for the fact that, in light of the Gonzales Eight Massacre, any invocation of this particular scandal would appear hypocritical.
Meanwhile, one can only marvel at the bravery of the bar in Pakistan. Lawyers took to the streets en masse to protest Musharraf's shabby treatment of Chaudhry. Having had the good fortune of meeting with a number of visiting law students and legal scholars from Pakistan over the years, I can attest to their commitment to constitutional democracy, even in the face of repeated coups and the threat from the Islamists. More on this story later in the week from Dorf on Law South Asia expert and Fordham Visiting Assistant Professor Anil Kalhan.
Tuesday, March 13, 2007
First Runner Up: Eight Prosecutors Ousted by Eric Garber (again with an assist from me changing "men" to "prosecutors" because two of the fired prosecutors are women)
Honorable Mention: GOP for "Gonzales' Ousted Prosecutors" by Trevor Morrison (clever and catchy but ineligible because the mainstream media would never actually call a scandal by an acronym that implicates an entire political party).
Consolation Prize for Most Dogged Effort goes to Octopus Grigori for the following entries:
Pink Slip Pickle [or Prosecutor Pink Slip Pickle]
The Wrath of Miers [or The Wrath of Harriet]
The War on Justice
Thanks to everyone for playing. Be sure to refer to "The Gonzales Eight Massacre" constantly until it catches on.
Before I get to the contest, here's one thought on the merits. I noted in my Friday post on this subject that in principle the President, acting through the Attorney General, can fire a U.S. Attorney without providing a reason. In his piece yesterday on FindLaw, Carl Tobias makes a similar point. He writes that "numerous Republicans claim the events are politics as usual, pointing out that, after all, U.S. Attorneys do serve at the pleasure of the president, but ignoring the long tradition of independence that has meant U.S. Attorneys are, in practice, generally not fired for political reasons." Tobias suggests that the limitations on the President's power to fire a U.S. Attorney are simply a matter of tradition, albeit one he would like to see respected. What Tobias overlooks--and what I overlooked in my earlier post--is that the Constitution, not just politics, constrains the President's ability to fire government officials. For example, if Gonzales had fired one of the Eight because the U.S. Attorney had converted to Islam, that would have violated one or more of the Religious Tests Clause, the First Amendment's Free Exercise and Establishment Clauses, and the equal protection component of the Fifth Amendment's Due Process Clause. (Justiciability might present a problem for separation-of-powers reasons but that doesn't go to legality.) Whether firing a U.S. Attorney for his failure to bring partisan-politically motivated cases, or failure to dismiss other cases based on partisan political pressure, is another forbidden ground set against the background presumption of employment at will, is not entirely clear. It's possible that the Justice Department Eight were not entitled to keep their jobs, but that firing them as part of a plot to use the government's prosecutorial power for partisan ends--if that is what happened--violates criminal laws and/or constitutes an impeachable offense. If, for example, the President told the Attorney General to fire all U.S. Attorneys who were not disproportionately prosecuting corruption cases against Democrats rather than Republicans, that would seem a fairly clear violation of the President's duty to take care that the laws are faithfully executed.
But enough about the merits. Now for the naming contest. I confess that I've got nothing on this. Over at Daily Kos they seem to be calling it "Prosecutor Purge," which is okay but I believe we can do better. Nothing with "gate" in the end quite does it anymore. Perhaps someone can come up with something using the word "Justice" from the Department of Justice, but I've been unable to do so. Now that I've confirmed that I would not have had a successful career on Madison Avenue, I turn the matter over to commenters. I'll pick a winner (and give proper credit) tomorrow.
Monday, March 12, 2007
That said, the OpenCongress guest on On the Media was a little unfair in suggesting that Thomas is an inadequate tool. It's pretty useful by itself and, more importantly, likely to incorporate features of OpenCongress on its own as time goes by. Interestingly enough, the Sunlight Foundation (the people behind OpenCongress) would be happy for Congress itself to provide this information, and that seems to be the standard path to govt-maintained websites. For example, by now most courts maintain websites where they post recent decisions, but in the early days of the web, such materials could be found only on third-party sites. As the courts' own sites became more useful, many of the third-party sites disappeared. WestLaw and Lexis still have pay sites, mostly, I think, because of the ability to search across multiple databases simultaneously and because the official sites rarely include materials going back more than a decade. But eventually, I suspect, the business model of WestLaw and Lexis will not be viable.
In the medium term, organizations like the Sunlight Foundation are making real what had formerly been only stylized assumptions about the openness and accessibility of the legal system. As someone who follows the courts, I hope the next step will be a free, easy-to-use version of PACER, the program for accessing filings (such as briefs, exhibits, etc) in the federal district courts. I'm ambivalent about the ultimate fate of WestLaw. Because West owns FindLaw and Foundation Press, which pay me for some of my work, I have a financial interest in its continued success. But as a matter of public policy, I like the idea of freebies.
Saturday, March 10, 2007
In two late 19th Century decisions, the Supreme Court held that the Second Amendment only restricts the federal government. These decisions were consistent with the Court’s broader position – announced in Barron v. Baltimore – that the Bill of Rights did not apply to the states, and they were reaffirmed by two early 20th Century decisions. Of course, the Court soon afterward began the process of incorporation that resulted in the application of nearly all the Bill of Rights against the states. But it has still not incorporated the Second Amendment through the due process clause of the 14th Amendment. This is irrelevant in Parker because the regulation in that case was passed by the District of Columbia, and the Court has held that the Bill of Rights applies directly to the District. However, if the Court affirms Parker, its decision will not have any effect on state or local gun regulation unless the Court decides that the Second Amendment is also incorporated.
What are the chances that will happen? I’m not sure. Under the Court’s modern incorporation doctrine, a provision of the Bill of Rights will be incorporated only if it is essential to “fundamental fairness.” However, the modern incorporation cases deal with issues of criminal procedure, so the fundamental fairness standard may be inapt. As an alternative, the Court might fall back on an earlier formulation of the incorporation test, which asked whether the right at issue is “among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” I think it’s a stretch to conclude that gun ownership is a fundamental aspect of liberty akin to the right of free speech or free exercise. But gun advocates will surely point out that the right to bear arms is guaranteed in 43 of 50 state constitutions. They will also likely note – as Justice Thomas did recently in a concurring opinion – that Justice Story once referred to the right to bear arms as "the palladium of the liberties of a republic.”
There is another, intriguing alternative. A few scholars have argued that the Second Amendment is actually incorporated through the privileges and immunities clause, not the due process clause. According to these scholars, the privileges and immunities clause was designed, in part, to ensure that freedmen had access to arms so they could not be re-enslaved by the southern states. The obvious weakness in this argument is that the privileges and immunities clause has been moribund since the Slaughter-House Cases were decided more than 130 years ago. But it is not unthinkable that the Court could breathe new life into that provision. Its decision in Saenz v. Roe might be viewed as an initial step in that direction. And Justice Thomas has indicated his willingness to revisit the Slaughter-House Cases. Thus, a decision affirming Parker might revive not only the Second Amendment, but the privileges and immunities clause, too.