Originalism Versus Straight Talk

In my post yesterday, I said that I would read the "natural born Citizen" provision of the Constitution's Article II to require that a President must have been "born" a citizen---regardless of whether that person acquired citizenship at birth because he or she was born in the United States or because he or she, while having been born outside the U.S., was born to U.S. parents. On this reading, John McCain is clearly eligible while Arnold Schwarzenegger---who was an Austrian citizen at birth and only acquired his U.S. citizenship later, via naturalization---is clearly ineligible.

Here I want to note how the best arguments for my McCain-friendly reading of the provision rely on a method of constitutional interpretation that McCain himself purports to dislike. First, let's establish McCain's bona fides as a potential President who would appoint judicial conservatives. Below are a few quotes from his campaign website. From a page called "Human Dignity & the Sanctity of Life, we learn:

John McCain believes Roe v. Wade is a flawed decision that must be overturned, and as president he will nominate judges who understand that courts should not be in the business of legislating from the bench. ... As president, John McCain would nominate judges who understand that the role of the Court is not to subvert the rights of the people by legislating from the bench.

Then, on a page describing McCain's "Strict Constructionist Philosophy":

[T]he rules we have agreed to live by are those made by the people themselves, not a small elite that claims to be wiser than everybody else. Our laws are legitimate precisely because they reflect decisions solemnly made by the people: in the case of Constitutional law, through the process of ratification and periodic amendment; in the case of statutory law, through their elected representatives in the legislative process. When applying the law, the role of the judge is not to impose their own view as to the best policy choices for society but to faithfully and accurately determine the policy choices already made by the people and embodied in the law.

In other words, McCain is an originalist. Okay, so, under the original understanding of the "natural born Citizen" clause, does McCain qualify? There is almost no contemporary evidence of what the framers and ratifiers thought the precise contours of the limit were. The leading scholarly treatment of the issue says that "no explanation of the origin or purpose of the presidential qualification clause appears anywhere in the recorded deliberations of the [Constitutional] Convention." The article, called "Who Can Be President of the United States: The Unresolved Enigma," was written in 1968 by Charles Gordon, then General Counsel of the INS and an adjunct law professor at Georgetown. It was published in the Maryland Law Review. [The article is not freely available on the web, alas, but you can find it in any decent law school library.]

Gordon ultimately concludes as I do, although along the way he is troubled by a number of doubts. For one thing, under the background English common law, the status of subject was acquired by birth in England (jus soli), although statutory modifications had also conferred
such status by birth to children of English subjects living abroad (jus sanguinis). (Apologies to Scots: Gordon uses "English" and "British" interchangeably, and I haven't independently figured out which is correct, though I suspect it's "British.") Gordon thinks that when the American Constitution referred to "natural born citizens" it meant to incorporate the broader rather than the older British notion, but this is mostly speculation on his part.

Second, a variety of American statutes adopted in the early Republic used language that could either be interpreted to mean that Congress thought that it needed to provide special legislation to confer citizenship on persons born outside the U.S., or that Congress assumed such people were "natural born citizens," and was merely confirming this assumption in legislation. Again, as Gordon himself concludes, the evidence of the original understanding is unclear.

What does a good originalist do when the evidence of the original understanding is unclear? Originalists aren't in full agreement on this point. Most of them usually say, in essence, that even if it's unclear what the original understanding was, judges (and other constitutional interpreters) should press on, and do their best to guess what it was. Others (perhaps this group doesn't quite deserve the name "originalists") allow for instrumental and normative arguments if the evidence of original understanding is truly indeterminate.

However, if one is not burdened by the label of "originalist," then this is a pretty easy question. The "natural born citizen" requirement manifests a distrust of the foreign-born that, in a nation of immigrants, can only be derided as repugnant. I both "reject" it and I "denounce" it! It's still part of the Constitution, however, and therefore we need to try to figure out what it means. My frankly normative move would be to limit the damage by limiting the scope of "foreign-born." There's no plausible way to read the provision to permit Schwarzenegger and other naturalized citizens to become President. There is a ready (if not 100% clearly the original) way to read it to permit Americans born abroad to U.S. parents to become citizens. Too bad for John McCain he can't in good conscience just say that. For though my position is straight talk, it's not exactly originalism.

Posted by Mike Dorf

Alexander Hamilton Was Eligible to Be President

The controversy over whether John McCain is, in the words of Article II of the Constitution, a "natural born Citizen," and thus eligible to be President, despite having been born on a military installation in the Panama Canal Zone, has sparked all sorts of interesting commentary, and a NY Times story detailing the ambiguities of the requirement. For the record, I will say that I regard this limit as one of the worst features of our Constitution. Until it is amended, I would favor reading it so as to make eligibility for the Presidency as wide as possible. The best reading---although not necessarily the original understanding---would be to say that anybody who was a citizen at birth (whether because born in the U.S. or because born to U.S. parents overseas), should qualify as "natural born." Thus, in my view, McCain is eligible to be President.

Here I want to note a historical puzzle. It is frequently said that the "natural born Citizen" requirement was inserted in the text of the Constitution to prevent Alexander Hamilton---who was born in the West Indies---from becoming President. Some scholars note that this account is probably not true, but when they do so, they still tend to assume that Hamilton was not eligible to be President. For example, GW Law Prof Jonathan Turley says on his blog: "It is clear that the Framers considered natural born to refer to a birth on U.S. soil. Indeed, Alexander Hamilton was viewed as ineligible due to his birth in the West Indies."

Turley may well be right that Hamilton's contemporaries thought Hamilton ineligible for the Presidency. Reputable historians have said as much. But if so, Hamilton's contemporaries were surely wrong. It's true that Hamilton wasn't a "natural born Citizen," but the Constitution says that to become President one must be EITHER a "natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution . . . ." (boldface added). The boldface language was included because, at the time of the adoption of the Constitution, nobody who was old enough to be President had been born a citizen of the United States, there not having been a United States until July 4, 1776.

So, was Hamilton a Citizen of the United States in 1789, when the Constitution was adopted? Well, the Constitution contained no criteria of citizenship at that time. (Indeed, even today, it contains only partial criteria in the Fourteenth Amendment.) And by definition there were no federal statutes defining citizenship yet at the time of the Constitution's adoption. So it's not entirely clear where we look for citizenship criteria, but at the very least, it appears that State citizens were citizens of the United States. (This statement would later be called into question for African Americans when the Court said, in the Dred Scott case, that they are not citizens of the United States, even if a State treated free blacks as citizens, but that point doesn't affect the status of the white Hamilton.) And of course, in 1789, Hamilton was a citizen of New York, and thus a citizen of the United States.

We are thus left with the mystery of how, given what seems very clear constitutional language, people could have thought that Hamilton was ineligible for the Presidency.

Posted by Mike Dorf

On Trying to Keep Quiet

First, a confession: I actually watched a few minutes of Tuesday's Ohio debate between Senators Clinton and Obama. I don't usually watch the debates, which doesn't make me especially virtuous. I just find them to be a combination of boring and sickening. But I managed to watch for about fifteen minutes on Tuesday. Here's what I noticed: Tim Russert (who was asking most of the questions while I was watching) is very good at trying to pin the candidates down. This is not entirely a good thing.

If a candidate, or for that matter, an elected official who is not in the midst of an election campaign, says one thing to one audience ("I love NAFTA," for example) and the opposite to another audience ("I hate NAFTA"), the press does its job by pointing out the inconsistency. This enables voters to realize that the candidate is insincere---itself valuable information---and also to look for other sources of information about what the candidate will actually do. Good interviewers ask follow-up questions (as Russert does) to pin down politicians who are otherwise trying to appear all things to all people (which is what most politicians want to do much of the time).

But there are some times when politicians legitimately don't want to take a public position. Take the NAFTA case. Russert got both Clinton and Obama to say, under pressure, that they would threaten to withdraw from NAFTA if Canada and Mexico don't renegotiate its terms. Neither Clinton nor Obama exactly said that she or he would carry out the threat of withdrawal, because each said that a credible threat would induce Mexico and Canada to renegotiate.

I took from their answers that both Clinton and Obama have the following preferences: 1) Renegotiate NAFTA; 2) Keep NAFTA as it is; 3) Withdraw from NAFTA. Forget about whether this is the priority of preferences that Clinton and Obama actually hold, and also forget about whether this is the right preference priority. Assuming I'm correct in my assessment of what they actually think, and that they're right to think so, is it a good idea for a journalist to dig dig dig until we get the answer from the politician? Of course not. Revealing to Canada and Mexico that the worst outcome for the U.S. would be withdrawing from NAFTA renders the threat to withdraw not credible, and thus eliminates pressure on them to renegotiate. Here, the politicians' preference for caginess is not an effort to deceive voters but to maintain a strong bargaining position.

Transparency from our elected leaders is generally a good thing, and evasiveness is often duplicitous, but not always.

A Blog Post Combining Two of My Esoteric Interests

In response to my post and my FindLaw column on the Supreme Court's decision in the Danforth case last week, a reader asked the following interesting question:

Why can't a state constitution incorporate any law that it wants, so long as it doesn't go below the U.S. Constitution's floor? The U.S. Constitution has been held to incorporate a certain amount of English law from the time of the framing; there are undoubtedly other examples that don't immediately come to mind; the concept is not new.

Good question, o reader. The key here is that much of U.S. constitutional law applies to the states of its own force. That's true, for example, of the underlying right in Danforth: the requirement that in criminal cases, the accused be afforded the opportunity to confront his accuser. This right is contained in the 6th Amendment, which, the Supreme Court has held, is made applicable to the states via the Fourteenth Amendment.

Federal law that applies to states of its own force stands on a different footing from federal law (or, for that matter, English law or Finnish law) that the state, of its own volition, chooses to incorporate. Where federal law applies of its own force, the dissenters argue in Danforth and I agree in my column, the question of whether that law applies retroactively should also be a federal question. By contrast, if a state decided, in an area in which it was not bound by federal law, to voluntarily incorporate some federal doctrine---the Seventh Amendment civil jury trial right, say---the state would then also be free to incorporate that federal doctrine only partially. The state could give greater or less retroactive effect to U.S. Supreme Court rulings on the meaning of the Seventh Amendment because the state, having voluntarily decided to make federal law its own, can decide to incorporate a "distorted" version of the federal law.

As I noted in another recent blog post, I have written a law review article on the phenomenon of Dynamic Incorporation of Foreign Law. That article, which will appear in the University of Pennsylvania Law Review in the fall, addresses many aspects of state decisions voluntarily to incorporate foreign (including, for these purposes, federal) law, but does not take up this particular aspect of the problem: what we might call "partial" incorporation. Perhaps I'll tackle this issue in a future law review article---or perhaps one of you, blog readers, will do so, and give credit to this blog post and the reader (a gentleman named Bob Moss) who posed the question above.

Posted by Mike Dorf

Don't Give Me That Old Time Religion

The Pew Center on Religion & Public Life released the results of a survey yesterday that made headlines by revealing that more than a quarter of Americans have left the faith in which they were raised, and that figure is 44% if one counts movement from one Protestant sect to another. Perhaps the bigger news in the survey is that all Protestant sects combined make up only 51.3% of the population.

Or do they? "Unaffiliated" Americans account for 16 percent of the population, breaking down as follows:
Atheist: 1.6
Agnostic: 2.4
Secular Unaffiliated: 6.3
Religious Unaffiliated: 5.8

It's probably a fair bet that slightly over half the "religious unaffiliated" Americans are unaffiliated Protestants, which brings the combined number of American Protestants to more like 54%.

Maybe the biggest news is that over 10% of Americans are not religious at all. That's roughly equal to the number of Americans who are ex-Catholics. Indeed, there is likely considerable overlap in those groups.

What the survey may miss is the difference between religious and cultural identity. For religious groups with strong ethnic components (e.g., Judaism, Greek Orthodox, Native American religions), one can well imagine a survey respondent self-identifying in one of these groups without affirming any of the religious tenets thereof. A secular Catholic or Jew, for example, could self-identify as Catholic or Jewish, even though she should also count as an agnostic (say). But because the percentages sum to 100%, the survey wouldn't register this respondent as an agnostic. That, in turn, may suggest that the aggregate proportion of non-believers and doubters is larger still.

Finally, note that the survey results by age show that older people are much less likely to be atheists or agnostics than younger people. It would be interesting to learn whether the current younger generations are simply less religious than earlier ones, or whether this fact reflects a change that occurs in lifetimes: If the latter, that would mean that as people get older, they worry more about their mortality, and are more likely to place Pascal's wager.

Posted by Mike Dorf

Can Justices Invoke Their Own Incentives?

My latest FindLaw column attempts to explain the issue and the result in last week's Supreme Court decision in Danforth v. Minnesota. The case holds that state courts are free, on state habeas, to give retroactive effect to U.S. Supreme Court rulings that, according to the Supreme Court, they are not required to treat as retroactive. This is a very technical and confusing area of law, and so writing about it for a lay readership may be a fool's errand, but if so, I'm just the fool to do it!

In the course of explaining the background law, my column gives the following argument for the rule of Teague v. Lane, which generally forbids federal district courts from granting habeas relief to state prisoners based on "new rules" of federal law announced after the date on which the prisoner's conviction became final:

A contrary rule [c]ould . . . create a disincentive for the Justices to recognize constitutional rights: If recognizing a new constitutional right required new trials for defendants who had originally been tried decades earlier, then the Justices would be very reluctant ever to recognize new rights.

This sort of argument about the proper incentives for doctrinal development is not novel. For example, Virginia Law School Dean John Jeffries advanced a version of it in a 1999 essay in the Yale Law Journal in a slightly different context, explaining why our legal regime favoring injunctions against future violations, but disfavoring money damages, makes sense. Jeffries said there:

[L]imiting money damages for constitutional violations fosters the development of constitutional law. Most obviously, the right-remedy gap in constitutional torts facilitates constitutional change by reducing the costs of innovation. The growth and development of American constitutionalism are thereby enhanced.

Perhaps not surprisingly, the Supreme Court has not (to my knowledge, though I'd be happy to be corrected) offered this justification for its own doctrine. It would, after all, be awkward for the Justices to admit that they are trimming their best judgment about what the Constitution requires in order to avoid results they don't like. Indeed, in Danforth itself last week, Justice Stevens, quoting an earlier concurrence in the judgment by Justice Scalia, ringingly endorsed formalism as accounting for its own decision-making process. Justice Scalia, quoted approvingly in full by Justice Stevens, wrote:

To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it; and when, as in this case, the constitutionality of a state statute is placed in issue, the question is not whether some decision of ours 'applies' in the way that a law applies; the question is whether the Constitution, as interpreted in that decision, invalidates the statute. Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense.

Sure, in some sense that's what they have to say, but of course the very existence of a body of a doctrine governing the application or non-application of "new rules" of constitutional law shows that this is at best a legal fiction.

Posted by Mike Dorf

The Math of Rollback

This week, the people of Pakistan have raised the stakes in their nation's constitutional politics. However, the Bush administration, John McCain, and others seem not to quite understand the significance and meaning of this week's election results:

The US and Britain are pressing Pervez Musharraf’s victorious opponents to drop their demands that he resign as president and that the country’s independent judiciary be restored before forming a government.

In a strategy some Western diplomats admit could badly backfire, the Bush administration has made clear it wishes to continue to support Mr Musharraf even after Monday’s election in which the Pakistani public delivered a resounding rejection of his policies....

Yesterday morning, a US diplomat based in Lahore spent two hours with Aitzaz Ahsan, leader of the lawyers movement, laying out the US position. [link]

**

US Senator John McCain, the Republican Party presidential hopeful, has rejected calls for the resignation of President Pervez Musharraf following Monday's elections, saying he is a "legitimately elected" Pakistani leader. [link]

Perhaps none of this should be all that surprising, given that both Bush and McCain have been wildly wrong about Pakistan at just about every turn. Still, after an election in which the Pakistani people are experiencing a profound "moment of hope," having turned out in apparently record numbers to give Musharraf and his backers an anti-incumbent thumping unlike anything seen in Pakistan's history, Bush and McCain seem to lack a grip on reality as they continue to stand by their man so obstinately.

Pakistan's leading politicians have treated the Bush administration's efforts to plead Musharraf's case as the punchline to a bad joke, agreeing to form a coalition government that doesn't include any lingering remnants of Musharraf's party, as Washington would have preferred. Reports indicate that the framework underlying the new coalition government will be a revived version of the Charter of Democracy, a preconstitutional declaration signed by Nawaz Sharif and Benazir Bhutto on behalf of their parties in 2006 (and about which I've written previously). The Charter -- which, among other things, pledges to restore the Pakistan Constitution to its pre-Musharraf state and proscribes its civilian signatories from seeking military support for partisan political advantage -- was almost rendered a nullity by the Bush administration's efforts to broker a deal between then-army chief Musharraf and Bhutto. With an agreement between the major political parties for its revival, however, the prospects for rolling back the legal and institutional damage wrought by Musharraf's Emergency may now be considerably increased.

What would rollback entail? Personality-driven media reports in the United States have emphasized the possibility of impeaching and removing Musharraf from office. Such a move -- which might be understood to implicitly concede the legitimacy of Musharraf's highly contested reelection as president -- would require a two-thirds majority vote in the National Assembly, which the coalition may or may not attain, and sufficient support in the Senate, which remains stacked with Musharraf supporters. However, in speculating about impeachment, these news reports seem to have the math of rollback precisely backwards. Far from being a "legitimately elected" president, as McCain would have it, Musharraf's suspension of the Constitution in November "by use of force or show of force or by other unconstitutional means" has rendered him potentially guilty of "high treason" under Article 6 of the Pakistan Constitution. In the past, Pakistani coup leaders (including Musharraf himself after his first coup) have avoided prosecution for treason by strongarming the incoming parliament into amending the Constitution specifically to indemnify their extraconstitutional actions -- an act which itself requires a two-thirds vote. Musharraf's opponents, therefore, do not need two-thirds support in parliament to resist him. Rather, it is Musharraf himself who needs two-thirds support from parliament to avoid the possibility of being charged with treason. In a parliament now dominated by Musharraf opponents, that indemnification obviously will not be forthcoming, although it is possible that the parliament would be willing to indemnify him in exchange for his resignation or other concessions.

The only thing potentially standing between Musharraf and a treason prosecution, other than the exercise of prosecutorial discretion, is his own unilateral order purporting to indemnify himself. That decree is of highly questionable legality, but if the new parliament nullifies the many laws and constitutional amendments that Musharraf tried to decree during the Emergency, then that order would in any event be swept away as well. (Indeed, the Charter of Democracy pledges to go even further by rolling back Musharraf's earlier constitutional amendments, some of which grabbed power for the presidency and the army at the expense of parliament and the prime minister.) Moreover, if the new parliament restores judicial independence, by reinstating the approximately 60 judges who refused to swear loyalty to Musharraf in November, then it is unlikely that the Pakistan Supreme Court would uphold Musharraf's attempt at self-indemnification. (Most notable among these judges, of course, is Chief Justice Iftikhar Muhammad Chaudhry, whom Musharraf, carrying himself in a highly presidential manner, recently called "the scum of the earth, a third-rate man, a corrupt man" in an interview with Jemima Khan.) A restored Supreme Court might even invalidate Musharraf's reelection as president, as it apparently had been poised to do on the eve of his crackdown in November.

Would either the invalidation of Musharraf's decrees or the restoration of Pakistan's ousted judges require a two-thirds vote of parliament? Both Chaudhry and Aitzaz Ahsan say no, and it would be rather odd if the answer were otherwise. (For his part, Musharraf has opined that "[l]egally there's no way this can be done," but we can safely leave his legal opinion to one side for the moment.) Even if Pakistanis were to avert their gaze from the extraconstitutional illegitimacy of Musharraf's actions -- and the election results seem to demonstrate, rather decisively, that they have not done so -- there seems no reason why the incoming parliament could not invalidate those actions by a simple majority or even just an order by the prime minister, especially given the massive repudiation of the legitimacy of Musharraf's Emergency by the Pakistani people. As Chaudhry has said, "I was deposed by an Executive Order and I can be restored by an Executive Order. There is no need of two-thirds majority of Parliament."

Math aside, how far the new government will be able and willing to go in directly confronting Musharraf remains unclear. The extent to which the Pakistan Army will back Musharraf in any constitutional confrontation also remains somewhat uncertain. Ahsan and the lawyers' movement have called on the new parliament to restore the ousted judges before March 9th, the one-year anniversary of Musharraf's initial attempt to oust Chaudhry, and have indicated that they will conduct a "long march" to Islamabad if that doesn't happen.

Clearly, the election results and formation of a new coalition government are only the first steps towards rollback. The intensity of Pakistan's constitutional politics remains high, and the path to fully achieving rollback remains a challenging one. Still, many Pakistanis now rightfully feel, with Mohsin Hamid, "a cautious, soul-gladdening optimism." Maybe even the "audacity of hope."

Posted by Anil Kalhan

The Tide is Turning?

Two days ago, I was sitting in a Parisian cafe reading about a relatively new French ‘school’ of economics known as the ‘regulationist’ school, when I dimly became aware that the cafe’s television was showing the final movements from Roger Water’s 1990 “The Wall” performance in Berlin, which he had organized to mark the wall of the Berlin Wall. I had listened to that performance live on the radio in NYC, and still remember it vividly. The visuals did not disappoint.

It’s interesting to contrast the way that the fall of the Wall and the end of the cold war has been interpreted by American and European intellectuals. By and large, Americans see the ‘Cold War’ as a competition that we ‘won’. Europeans, by contrast, see it as an experience that they survived. In the areas of constitutionalism and regulation, the American perception is well expressed by Francis Fukuyama’s famous phrase (and essay title), “the end of history” – for the American consciousness, the end of the Cold War affirmed the absolute truth of our political, economic and constitutional understandings. There was no longer anything significant that need to be learned in these areas – hence the ‘end of history’. As he stated it, Fukuyama’s thesis was a little too arrogant even for American tastes. But I think it turned out to be a generally accurate description of how that event affected American understandings of law, development and constitutionalism. For the most part, today, American discussions of law and develop, including constitutional law and development, revolve around a single developmental paradigm, one that we might loosely associate with ‘liberalism’. We may snipe at its edges – disagreeing with some of its variants (like the neo-liberal economics of the IMF), but we no longer recognize any real regulatory alternatives to liberalism per se (such as Marxism or corporatism) the way we did in the 70s and 80s.

This, I would argue, is not a good thing. It is characteristic of a general loss of cultural capacity for learning. The most dramatic example of this in Western history is the Dark Age, which came about with the Catholic Church’s paradigm for social organization and sustenance grew to become Europe’s only paradigm. I have argued – perhaps a little over-dramatically – that American regulatory and constitutional thinking is similarly, for these reasons, in danger of entering its own dark age.

But Europe’s response has been very different. I suspect because Europe does not conceptualize the ending of the Cold War as a kind of victory, it has not interpreted that event as anointing the particular regulatory ideologies of the victor as universally superior and true. Regulatory (and constitutional) discourse here is much more pluralist in its governing paradigms. The regulationist school, for example, is very open about its Marxist influences.

At the closing of the Berlin performance of The Wall, the ensemble sang a song not from the original Wall score entitled “The Tide is Turning.” At least for those of us of a certain age, listening to that song at that time and on that occasion remains one of the most moving moments we are ever going to experience. At the time, I thought that the turning being referred to was from East to West. But now, I wonder if it wasn’t really, in the long term, ultimately going in the other direct, from an increasingly mono-cognate American east to a Europe which has been much better able to retain its conceptual pluralism.

posted by Mike Dowdle

Canadians Again, This Time Compared to Serbians

It's hardly surprising that Serbia would reject as unlawful the declaration of independence by Kosovo. Countries with restive minority populations almost invariably resist separatist movements---and sometimes with good reason. For example, where the national majority (here Serbs) forms a substantial minority in the would-be breakaway nation, the larger nation may legitimately worry that independence will bring persecution of those of their group in the new country. The larger country may also worry that the very tensions that lead to an independence movement in the first place will continue post-independence, with a risk of war thereafter. More problematically but not irrationally, the would-be breakaway may have natural resources that the larger country does not wish to lose.

But sometimes resistance to independence may be irrational, simply a reflexive nationalism. Surely there are circumstances in which holding onto the would-be separatists is itself the source of much of the animosity. Certainly that is how many Russians feel about Chechnya, for example.

Conversely, the one true success story is the dissolution of Czechoslovakia into the Czech and Slovak Republics. As is frequently the case, so too here, the ethnic group that was less materially successful (the Slovaks) wanted out, and as so rarely occurs, the Czechs had the good sense to let them go. Both countries---but especially the Czech Republic---have done well since.

Where the country from which severance is sought is a non-democratic state, it's hard to see that any tears should be shed when the smaller unit leaves. But in a democracy, the desire of an ethnically-based majority of a geographic sub-unit to part ways can be experienced by the larger polity as a shock or even an insult. This, I think, may explain the Canadian dynamic. It is by no means clear that Canada would be worse off if Quebec (and perhaps the maritimes) were to become a separate nation. But Anglophone Canadians experience Quebec separatism (such as it is) as a challenge to their conception of Canada as multicultural country in which nationality is not ethnically based.

Posted by Mike Dorf

Democrat and Canadian

Last night, I was reading an article in the New York Post (a paper that I do not ordinarily read, but a complimentary copy of which someone left in front of my door). It was a rant about Michelle Obama's "pride problem" and the supposedly elitist tendency among the Democratic base to be ashamed of the United States. Nothing unexpected appeared in the article -- just more of the nonsense on which people seem to enjoy focusing when they can't find anything substantive to say. Among the many things about the U.S. in which this particular writer expressed "pride" (by contrast to Mrs. Obama) was the pharmaceutical industry. What irked me about the article, however, was its use of the word "Democrat" as an adjective to describe a Democratic candidate for president, though I am not exactly sure why this usage made me so angry. I will hazard a guess (and provide a link here to a New Yorker article in which Hendrik Hertzberg examines the phenomenon at greater length), but I am interested in hearing readers' theories (or, alternatively, readers' feelings about the usage itself and whether it bothers them as well).

My theory is that using "Democrat" in place of "Democratic" conveys the view that it is Republicans rather than Democrats who get to decide what the Democratic party is to be called. Like a child in the school yard who bullies another by distorting his name, it is the presumptuous claiming of the right to name that is so offensive, rather than the name itself. The name, then, which may be meaningless, becomes a stand-in for all of the nasty names that one could imagine inserting in its stead. Once Republicans have the power to say what the Democratic Party is to be called, in other words, the name they come up with seems to serve as a kind of fake euphemism for the ugly names that they have in mind but would not say.

Though the following analogy is hardly perfect, it captures something for me. There are apparently people who refer to African Americans as "Canadians." I know this because someone was widely disseminating an email in which someone else had criticized the heavily "Canadian" jury in some criminal case for being excessively pro-defendant. At first glance, the email made no sense (why were Canadians on an American jury? and why would Canadians be especially pro-defendant?). In response to such puzzlement, it was explained that the word "Canadians" is used to denote "African Americans." Upon learning this, I found myself extremely offended by the use of the word "Canadians" in this way, not because I have anything against Canadians (I do not), but because this use of the word struck me as very much like use of the "n" word. As with the "Democrat party," however, I cannot quite articulate how the word "Canadian" -- when used to refer to African Americans -- sounded to me so much like a racial slur.

I realized just how much the "Democrat party" usage bothered me when I was listening to a speech by Rudy Giuliani (whose presidential aspirations terrified me) and heard him say "Democratic party." I smiled to myself and thought, "maybe he isn't that bad." If I were a fan of Hillary Clinton (or at least of her tactics), I might come up with a name for the Republicans that would have the same tone as the offending usage, but alas, I support Obama, and I thus leave it to other to propose a word to insert in place of "Republican."

Posted by Sherry Colb

Congress Needs Law Professors

So say my former Rutgers-Camden colleague Michael Livingston (R) and (possibly) Stanford Law Prof Larry Lessig (D?). Michael emailed me directly to promote his candidacy and I found out about the Lessig possibility from the Volokh Conspiracy, which has an entry that would be suspiciously like this one, were it not for the fact that it was posted first. So who's Deval Patrick and who's Barack Obama in this relationship?

BTW, this post is not an endorsement of either the Livingston candidacy or the potential Lessig candidacy. That coveted prize will require more lobbying and promises from the candidates.

Posted by Mike Dorf

Dynamic Incorporation of Foreign Law

My latest law review article (yes, I still write those when I'm not blogging or writing FindLaw columns), is called "Dynamic Incorporation of Foreign Law." You can download the full paper by following one of the links at the bottom of the SSRN page here. Meanwhile, here is the abstract:

Lawmaking bodies in one polity sometimes incorporate the law of another polity "dynamically," so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. However, dynamic incorporation delegates lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such sessions entail a democratic loss. Accordingly, dynamic incorporation of foreign law has proven controversial both within federal systems and at the international level. The problem is most acute when nation-states agree to delegate lawmaking power to a supra-national entity. In order to gain the reciprocal benefits of cooperation and coordination, the delegation must be functionally irrevocable or nearly so. Representation of the member nation-states within the decision-making structures of the supra-national entity can ameliorate but cannot fully compensate for the resulting democracy losses suffered by those nation-states. More broadly, the benefits of dynamic incorporation must always be balanced against its costs, including the cost to self-governance.

Among other things, the paper distinguishes among "upward" incorporation (e.g., a state income tax code defines income as whatever the federal definition is), "downward" incorporation (e.g., the federal Assimilative Crimes Act incorporates the state criminal law in which federal land is located), and "horizontal" incorporation (e.g., a newly independent country uses the law, including post-separation law, of the mother country, to fill gaps in its own law for some period). I say in the paper that true examples of horizontal incorporation are unusual, even though, from a theoretical standpoint, it raises roughly the same accountability/democracy/sovereignty/delegation issues as upward and downward incorporation. I would be grateful to any readers (of this blog entry but especially of those who slog through the paper) for additional real examples of horizontal dynamic incorporation and/or theories as to why it is less common than upward and downward dynamic incorporation.

Posted by Mike Dorf

Why Not Get An Abortion?

In my FindLaw column today, I discuss a film, currently in theaters, called "4 months, 3 weeks, and 2 days." The title refers to the point during pregnancy at which a college woman, with the help of her roommate, seeks an illegal abortion in Ceausescu's Romania (where abortion, contraception, and sex education were illegal between 1966 and 1989). In my column, I take up the question of whether a person might be both "pro-life" (opposed to abortion) and "pro-choice" (opposed to criminalization) at the same time, suggesting that the underground abortion industry so dramatically rendered in "4 months" makes an argument for this seemingly contradictory position.

In this blog post, however, I want to discuss a different question: why doesn't any of the popular, recent "accidental pregnancy" films -- like "Waitress," "Knocked Up," and "Juno" -- tell us what motivated the heroine of each story to proceed, respectively, with her pregnancy? In "Juno," the main character is apparently persuaded by a pro-life classmate protesting in front of a clinic, who tells her that her fetus already has fingernails. In the other two films, we do not even hear this much of an explanation. In each film, there are plenty of reasons for the woman to terminate her pregnancy -- one is a high-school student, a second is a domestic abuse victim, and the third has nothing in common with the Peter Pan father of the pregnancy (and only coupled with him in the first place because she was so inebriated). Not one of the three appears to want a child, at least in the beginning. Yet abortion is either never considered at all (as in "Waitress") or is considered briefly but then rejected ("Knocked Up" and "Juno").

This strange juxtaposition between these popular films in the modern U.S. and Ceausescu's Romania has led some critics to praise "4 months" as refreshing in dealing with the realities of unplanned pregnancy rather than the fantasy of "happily ever after" that infuses the other films. One crucial distinction that may help explain the disparity between the films is that when abortion is illegal, people do not have the luxury of making a moral decision. They are either compelled by the law to take their pregnancies to term or, if they are desperate enough, they are driven to a back-alley business that is so costly and so dangerous that moral introspection is virtually impossible for those involved. In a time and a place where abortion is legal, safe, and available, by contrast, women do have a choice and can feel the full force of whatever moral implications their conduct entails. When you are being forced to make the "right" decision, in other words, you are unlikely to identify with that decision; it is not truly "yours," after all.

The three films about unplanned pregnancies and happy endings, then, may demonstrate the success of a pro-life movement operating within a pro-choice regime. Though they are doubtless manipulative (without in fact explaining the choices that are made), they are infinitely preferable -- in all of their fantasy -- to the reality of the back-alley.

Posted by Sherry Colb

Presidents Day Honors Lawbreakers

As far as the federal government is concerned, today officially marks George Washington's birthday. Washington was in fact born on February 22, and because Abraham Lincoln was born on February 12, some states split the difference by celebrating today as "Presidents' Day." Both of my daughters' schools in turn celebrate "Presidents' Week," because, you know, it's hard to make it all the way from Christmas/New Year's break to spring break without another week-long break in between. Of course, other than the idle rich, as a professor with May, June, July, and most of August off from teaching (but not blogging!), I'm among the most poorly positioned people in the world to begrudge the school teachers and kids their R&R.

And I don't. My topic today is entirely different: How both Washington and Lincoln were lawbreakers. Washington was the leader of a revolution against the established British government---for which he himself had fought valiantly in the French & Indian war---and almost surely would have been hanged as a traitor had the Revolutionary War ended differently. Lincoln suspended habeas corpus without prior Congressional authorization and announced a justification---"are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?"---that prefigured rationalizations of later tyrants such as Stalin ("you can't make an omelette without breaking a few eggs" was said about Stalin but could as easily have been said by him), Mao ("A revolution is not a dinner party"), and most directly and recently, Pervez Musharraf quoting Lincoln ("By general law life and limb must be protected; yet often a limb must be amputated to save a life.")

One could take from such parallels the view that one person's revolutionary or even terrorist is another person's freedom fighter or statesman, and while there is some truth to that view, there is also significant foolishness. Washington and Lincoln fundamentally believed in constitutional democracy and the rule of law but also thought that in some drastic circumstances, the letter of the law has to be sacrificed to preserve its spirit. That certainly cannot be said about Stalin or Mao, and I highly doubt that this would be an accurate account of Musharraf's thinking either, whatever his public posturing.

Interestingly, the idea that the letter of the law must sometimes be broken in order to preserve society (and law too), has appeal across the political spectrum. Conservatives who want to read civil rights narrowly or ignore them altogether when faced with what they regard as an existential threat echo (and often invoke) Lincoln. But liberals can and do make the same sorts of arguments. Yale Law Professor Bruce Ackerman's views about constitutional change map perfectly onto the lawbreaking of Washington and Lincoln. Washington presided over the Constitutional Convention that produced a document that was essentially illegal under the Articles of Confederation and though Lincoln did not live to see the 13th Amendment ratified, he supported it actively. Because of the inconsistent treatment of the Southern States with respect to ratification of the 13th and 14th Amendments, Ackerman views the Reconstruction Amendments, like the Founding, as a template for constitutional change that bypasses the letter of the law while keeping faith with its spirit. More broadly, across a wide swath of issues in both private and public law, liberals tend to be sympathetic to the idea of furthering the law's spirit even if at the expense of its letter.

Thus, when liberals object on formal legal grounds to conservative rationalizations of torture or the curtailment of habeas corpus, as when conservatives object on formal legal grounds to broad readings of individual constitutional liberties, we should see these objections for what they really are: objections to the underlying substantive values to which the letter of the law is being sublimated. We all agree that sometimes formal legal bounds must be slipped or even broken; we just disagree about when.

Happy Presidents' Day.

Posted by Mike Dorf

No Such Thing as Bad Publicity?

From the AP story on the NIU killer:

Jason Dunavan, a tattoo artist in Champaign, said he spent hours as recently as last month creating tattoos for [the killer]. His work included an image of the macabre doll from the horror movie "Saw" riding a tricycle through a pool of blood with images of several bleeding cuts in the background.

Dunavan said he was so proud of the tattoo that he enlarged a photo of it and placed it on a wall in his shop — a move he is now rethinking.

"I don't know if I still want that picture on my wall," said Dunavan, who also described [the killer] as timid and apologetic.

Rethinking? Don't know? What would it take to associate Mr. Dunavan's handiwork sufficiently with evil for him to conclude for sure that this is bad publicity?

Note that the media coverage of this tragedy---including the detailed picture of the killer and extensive use of his name and likeness---is nearly certain to contribute to copycatting. Indeed, this killing is itself quite possibly a copycat event. And no, I'm not calling for censorship, just a bit of self-restraint. The press has shown itself capable of voluntarily not releasing exit polls until polls close, so self-restraint is possible.

Posted by Mike Dorf

No Doubt Roger Clemens Doesn't Enjoy Sqrat or Juggling Either

Perhaps the most bizarre scene before Congress in recent years---excluding every time Alberto Gonzales testified--- is the following testimony of Roger Clemens before the House Committee on Oversight and Government Reform (available at page 148 here):

Mr. Braley. Have you ever been a vegetarian?
Mr. Clemens. I am not a vegetarian.
Mr. Braley. Have you ever been a vegan?
Mr. Clemens. A what? I'm sorry.
Mr. Braley. A vegan.
Mr. Clemens. I don't know what that is. I'm sorry.

Yes, it's a sad day when the most famous pitcher in America doesn't know what a vegan is. Doesn't he even read Dorf on Law?!

Of course, the question on the minds of everyone who encountered this snippet out of context is why the Rocket was being asked if he was a vegan. The answer, as explained shortly after this exchange, is that veganism is one of the few reasons why someone might take vitamin B-12 supplements. I take them in yummy mint form. For the letter from PETA to Clemens, click here.

Posted by Mike Dorf

Wiki Me

In my con law class earlier this week, I asked a student to report back to the group his thoughts on a question that involved the "Madisonian Compromise." The next day, said student reported cheekily that there was no Wikipedia entry for "Madisonian Compromise," but he nonetheless successfully discovered that the term refers to the language in Article III of the Constitution that permits but does not require Congress to create lower federal courts. (This was a compromise at the 1787 Constitutional Convention between those who wanted the Constitution to create lower federal courts and those who didn't want lower federal courts; the issue was punted to Congress, which, in the Judiciary Act of 1789, established lower federal courts, although their jurisdiction was relatively narrow until after the Civil War.)

The exchange led me to think, once again, about Wikipedia as a source of knowledge, which --- along with vanity --- in turn led me to "Wiki" myself. I was taken first to the disambiguation page, which lists three Michaels Dorf: 1) me; 2) the Michael Dorf of Knitting Factory fame (with whom I have exchanged bemused correspondence in the past); and 3) Michael Dorf, the Mossad agent who participated in the assassination of the Munich terrorists, as portrayed most famously in Steven Spielberg's film Munich.

I'm flattered to have a Wikipedia page at all, even if it is only a "stub." Still, in perhaps what should lead one to be a little skeptical of the accuracy of Wikipedia generally, my entry contains one clear (albeit minor) error of fact and one joke masquerading as fact. The error is that it says I used to teach at Rutgers-Newark Law School. In fact, I was on the Rutgers-Camden faculty. The two Rutgers law schools are separate entities.

The joke is the last line of the entry, which says that I "enjoy[] sqrat, veganism and juggling." Some years ago I did give my civil procedure class a written and oral exercise involving claims of copyright and trademark infringement by the alleged creator of "sqrat" (a supposed cross between a squirrel and rat) and the makers of the film "Ice Age," which features a vaguely similar looking animal called "scrat." (See a description of the case here.) To say that I "enjoy sqrat" is thus, in some sense, rooted in truth; I enjoyed teaching the exercise. But I do not presently enjoy sqrat, whatever that would mean.

As for veganism, well I am a vegan, and I suppose I enjoy it, but that's not why I'm a vegan. One wouldn't say that Ron Paul "enjoys libertarianism" or that John Stuart Mill "enjoyed utilitarianism." To treat an ethical philosophy as a matter of enjoyment is to trivialize it.

I will admit that I do enjoy juggling, but not very often. Of my hobbies, I'd have to put it well behind blogging, for example.

As I understand the Wikipedia rules, you're not supposed to edit your own page. That's a good thing, I suppose. It prevents Wikipedia from simply becoming another version of MySpace. But it leaves me with a challenge. A while back, Stephen Colbert inspired his fans to change the Wikipedia entry on elephants. This was obviously a joke, but I'm serious. So, would someone out there in "Dorf on Law Nation" (okay, maybe that should be "Dorf on Law Unincorporated Village" since I only have about a thousand daily readers) please correct my entry?

Posted by Mike Dorf

A slap in the face from Justice Scalia

Justice Scalia was recently in England, where he gave an interview on a wide range of subjects. You can read the overview story here and click on the audio program (or perhaps I should say "programme"), which contains some introductory material and commentary, but then proceeds mostly uninterrupted. Here are some highlights:

1) When asked whether part of his job is to safeguard the image of the United States overseas, Justice Scalia answers yes, and that he does so by traveling around the world as a good will ambassador. Given the likely reception of the rest of his comments (especially number 4 below), he might want to rethink this answer.

2) In response to a question about how politicized the U.S. judicial appointments process is relative to the process in other countries, Justice Scalia puts the blame on judicial activism. This is a familiar charge and there's a certain logic to it. If the Supreme Court only exercised technical legal judgment, then no one would care about the ideology of judicial nominees. The problem with the answer is that it ignores just about all of American history. Judicial appointments have been politically charged (albeit over different issues) since the early Republic. And of course Justice Scalia's own judicial philosophy is now (rightly) perceived as one of the political positions in that debate.

3) In response to the charge that the Supreme Court divides along left/right ideological lines, Justice Scalia insists that this is not so, invoking his decisions in cases involving the rights of the accused (specifically the Apprendi line of cases, though he doesn't mention them by name), and his decision in the flag-burning case of Texas v. Johnson. I have considerable sympathy for Justice Scalia's resistance to reducing all legal issues to conventional left/right divisions but I think these examples pretty clearly undermine his broader jurisprudential claims to neutrality.

As for Apprendi, the majority opinion of Justice Stevens in that case (joined by Scalia), relies to some extent on historical argument, but largely makes inferences from highly abstract propositions about the value of the jury right. Justice Scalia also joins a much more historically based concurrence of Justice Thomas, but it is hard to see how the historical arguments do the work, given that Justice O'Connor, in dissent, marshals strong historical arguments for the contrary result. And in Texas v. Johnson, Justice Scalia simply joins Justice Brennan's majority opinion, which doesn't make any effort at all to ground its result in the original understanding.

These cases demonstrate that Justice Scalia is not a down-the-line conservative but, as Chris Eisgruber argues persuasively in The Next Justice, they do not display the power of originalism. Instead they show that Scalia finds a certain sort of libertarianism attractive on normative grounds.

4) In response to a question about the "ticking bomb" scenario, Justice Scalia says that the 8th Amendment ban on "cruel and unusual punishment" does not necessarily apply to torture because torture for information is not "punishment." He then goes on to say that he thinks it would be crazy not to use at least some force to stop an attack on an American city (he picks Los Angeles). The level of force that Justice Scalia thinks pretty clearly permissible is a "slap in the face" and also, when asked by the interviewer, Alan Dershowitz's proposed sterile needle under the fingernail. Justice Scalia goes on to say that hard questions are posed by substantially greater force under conditions of lesser certainty.

It's not entirely clear whether Justice Scalia is making only a moral claim or also a legal claim. If he's just making a moral claim, that's fair enough. His main point here seems to be to say that when and whether to torture is a legitimately hard question, at least in theory. But of course Justice Scalia is famous for denouncing purely moral pronouncements from lawyers and judges. He wrote in the Cruzan case that "nine people picked at random from the Kansas City telephone directory" are no less moral authorities than the Justices of the Supreme Court. Accordingly, one could be forgiven for thinking that when he opines that whether to torture is a hard question, he means it's a hard legal question, and not just a hard moral question. But of course it's a fantastically easy legal question. U.S. law and international law clearly forbid torture.

In affect, Justice Scalia comes across in the interview as affable, thoughtful and funny. But his answers don't stand up very well to critical analysis.

Posted by Mike Dorf

Superdelegates and free agents

Barack Obama is on a roll right now, but the Democratic race is still incredibly close. Democrats may well be headed toward a brokered convention. Which way will the superdelegates go?

Hillary Clinton is still the “establishment” candidate among Democrats. The superdelegates represent the party establishment, so one might think that they will throw their weight behind her candidacy. On the other hand, the Sunday New York Times suggested that party establishments have lost a lot of their force to move history. Of course, it also matters which candidate ultimately garners more total delegates, which one runs the more effective charm offensive, etc. etc. In the end, they will be personal votes.

With this in mind, maybe we should also be looking at the superdelegates’ demographic profiles. Exit polls suggest (and here) that so far, Senator Obama has attracted young voters, educated voters, and black voters. Senator Clinton has attracted women, working-class voters and latino/as. Senator Obama has also taken the lead among men, including white men. Anectodally, his popularity among the (relatively) young, educated white men I know is really striking: practically everybody seems to be wildly enthusiastic about him.

535 of the Democratic Party’s 794 superdelegates are sitting Democratic members of the Congress, so for this quick and dirty estimate I’ll just look at them. (The rest of the superdelegates may more balanced, at least in terms of gender: Article 3 Section 2 of the party’s Charter sets out who they are.) Here’s a ballpark estimate, based on this and this: the House of Representatives is 68% white male, 11.5% white female, 6.4% black (male and female), and 3.4% latino/a. The Senate is 78% white male, 16% white female, 1% black (male), and 3% latino (male). Even assuming that minority and female candidates are more likely to be Democrats than Republicans, the majority of these superdelegates are still going to be white men.

How we should interpret Obama’s popularity among men, and among white men, is hard to say. It needs to be the subject of a separate blog entry. Both women and blacks can identify any number of potential identity politics-based worries about this phenomenon, but there is another, more optimistic possibility: for the first time, there is no white male candidate. In a contest that is now inevitably discussed through the lens of identity politics, this makes white men something like free agents. (Black women are in a mirror-image situation, though they are much fewer in number among the superdelegates.) Maybe this gives them a degree of perspective. Maybe, it even means that their votes will be harder to call than exit polls suggest.

Posted by Cristie Ford

Death by Military Commission?

My FindLaw column today examines the Bush Administration's decision to charge six alleged al Qaeda operatives with capital offenses. I explain why the decision cannot be justified on a deterrence rationale but perhaps can be justified in retributivist terms. Here I'll highlight a few points I gloss over in the column.

1) Section 948r(b) of the Military Commissions Act (MCA) forbids the introduction of statements obtained via torture in a military trial (except to prove that a defendant charged with having engaged in torture did so), but the Act does not expressly state whether evidence that is otherwise reliable but was derived from torture---what would be barred as "fruit of the poisonous tree" in domestic cases---is admissible. I would expect the government to argue that there is no such derivative use prohibition in the MCA and that the Constitution does not require a contrary result (because, the government will say, enemy aliens outside the U.S. charged with crimes have no constitutional rights or, if they do have constitutional rights, only weak ones). That's what I would expect, but in talking yesterday with William Glaberson of the NY Times, I learned that the government plans to argue that all of its evidence was derived independently of the waterboarding.

2) Glaberson floated the idea that defense counsel will try to make the cases all about torture. One way the lawyers might do so, he said, was by arguing that Khalid Shaikh Mohammed is so scarred by his experience that he cannot effectively participate in his own defense. If the defense makes this argument, look for the government to say that in the military commission context, a defendant has no constitutional right to be able to participate in his own defense.

3) I think a better way for the defense to make torture relevant is to rely on Section 949s of the MCA, which forbids "cruel and unusual punishment." I suggest in my FindLaw column that this prohibition incorporates by reference the 8th Amendment standard, including the Supreme Court's death penalty jurisprudence. The Court's case law, in turn, requires that defendants in capital cases must be entitled to introduce any mitigating evidence. A point I don't make in the column is that this could include evidence that a defendant who has been subjected to waterboarding has suffered enough, and so shouldn't also be executed. I don't think this would ultimately persuade a military commission to spare his life, but it certainly could inject the torture issue into the case.

Posted by Mike Dorf

Open Primaries and Duverger's Law

In an amusing piece on DailyKos yesterday, Kos notes how the Clinton campaign has an account of why each of the states that Obama has won doesn't count. Caucuses (that Obama wins) don't count because they're not really representative. States where Obama lived don't count. And states with large African-American populations don't count (because, you know, uhm, you can't count the votes of people who are your own race). Anyway, this is obvious self-serving nonsense (as would be a similar effort to disqualify Clinton's victories), but it does raise an interesting question: What are we to make of victories in open primary states?

Both Obama and McCain have benefited from the participation of independents in some of their respective party primaries, which is more or less the point of having open primaries. The danger of a closed primary is that the party faithful will pick a candidate that they like but who lacks appeal to the swing voters needed to win the general election. Permitting independents to vote moderates this effect, as the independents are turned off by party stalwart ideologues. This has worked almost exactly as predicted on both sides, with independents helping each party to pick the most electable candidate (assuming, as opinion polls have shown, that McCain and Obama are, respectively, the two parties' strongest candidates).

One complaint about open primaries is the possibility of spoilers. A conservative independent who plans to vote for the Republican nominee in the general can vote in the Democratic primary of the weaker candidate---or whichever candidate is trailing, so as to prolong the Democratic contest---in the hope of sabotaging the Democratic ticket. There is some evidence of this sort of thing happening (to and for Republicans and Democrats alike), but it is hard to say that this is a serious threat to the integrity of party primaries.

The more serious question is one of party self-definition. Recent Supreme Court precedents have treated political parties as expressive associations that have a right to control who gets a say in determining the party's standard bearers. If one wants to run with this principle, one could say that open primaries, even though constitutionally permissible, nonetheless violate the spirit of the parties' expressive association rights. Given the low barriers to joining a political party, why should people who aren't even willing to call themselves Democrats or Republicans get a say in picking the parties' candidates?

The answer, in my view, is Duverger's Law, which states that first-past-the-post elections lead almost inexorably (though not, apparently in Canada) to a two-party system. If it were very easy to find or start a party to one's liking, then it would be a sufficient answer to independents to tell them to buzz off during candidate selection time. But independents can't start their own party (yes, I know, the Whigs replaced the Federalists, and the Republicans replaced the Whigs, but that was a LONG time ago), so giving them a say in determining the shape of the general election choice will typically require that they be given a role in the major-party nominating process. Accordingly, the argument that the parties have rights of expressive association just like any other civil society organization seems quite wrong.

Posted by Mike Dorf

Is Bill Clinton the New Michael Richards?

You know you're getting old when there's no longer a question of whether you like the music of the Grammy award winners, but merely whether you've heard of them. Prior to tonight, if someone had asked me who Amy Winehouse was, I'd have either guessed "a low-cal alcoholic drink marketed to college-age women" or "a girl who went to my high school whose name I never knew." I had heard of Kanye West, but only because of what he said about George Bush in the aftermath of Hurricane Katrina.

My own cultural reference points are older. I first started teaching law in the early 1990s, and even then, most of my students looked on in uncomprehending pity at my Monty Python references. Not that this stopped (or stops) me from relying on the old touchstones, but I've tried to update my material a bit. This is made difficult by my almost complete disconnection from current pop culture, so that a "current" reference for me is to a 10-year-old Seinfeld episode.

Which brings me to today's topic. Last week in my con law class I referred to a Seinfeld episode and then got that creepy feeling I now get whenever I think about Michael Richards. It's a little like the feeling I'm sure I'd get if I were to watch a Naked Gun movie and see OJ Simpson. It goes like this: Hey, that's funny. Oh right, he turned out to be a racist (Richards)/murderer (Simpson); maybe not so funny.

And so the question now arises for another 90s celeb, arguably the biggest one of all, William Jefferson Clinton III: Must those of us who formerly viewed him as a reasonably effective President who presided over 8 years of peace and prosperity, albeit one who squandered his enormous political talents because of his personal weaknesses, completely re-evaluate our picture of the 42nd President? Where we once saw a man who was hailed with affection (if also hyperbole) as "the first black President," should we now see instead the man who, when the chips are down, exploited racial divisions? Think of candidate Clinton going out of his way to execute Ricky Ray Rector or to pick a fight with Sister Souljah and prospective First Laddy Clinton dismissing Barack Obama's South Carolina victory on the ground that Jesse Jackson also won South Carolina.

So, is Bill Clinton like Michael Richards? Not entirely. Richards, under pressure from Jerry Seinfeld, apologized. So far, no apology, and no pressure from Hillary.

Posted by Mike Dorf

Of Fish, Law and the Chinese New Year.

As the resident Sinophone, I suspect that one of my responsibilities around here is to post an annual ‘Chinese New Year’ post. As you probably know, last Thursday marked the first day of the Chinese New Year. Having been duly instructed by the ‘taitai’, then in Beijing with the family, to eat some fish (as is required), I went to the local Chinese restaurant here in a working class district in Paris to fulfill my New Year’s responsibilities. I ordered “Fish with Peppers” (please let it be Szechuan!) and – as you might expect – received something that looked Chinese, but did not really taste Chinese. It was as if the chef had been working off-of picture of a Chinese dish, without really understanding its actual ingredients.

All this reminded me of the discipline of comparative law. Over the last generate, the study of comparative law has generally been caught between two extreme positions. One, what we might call universalism, sees all law as ultimately converging on a single paradigm (often termed ‘rule of law’). The other, what we might call relativism argues the exactly the opposite, that the different cultures of the world insure that its various legal systems will be forever divergent and to a significant extent, therefore mutually incomprehensible. My initial responses to my ‘Chinese’ fish dish paralleled these two schools.

The fish dish could be seen as a metaphor for what Alan Watson has famously termed ‘legal transplantation’, a process by which one culture adopts – either by choice or by compulsion – the legal system or principles of some other system. For the last 20 years, Watson theory of legal transplantation has been one of the lightning rods around which the debate between the universalists and cultural relativists has sparked. My first impression of the dish was one of (psychic) rejection: it did not taste anything like Chinese food was supposed to taste like. Here, I was thinking like a universalist. But, once I abandoned my culturalist presumptions, I realized that even though tasting nothing like Chinese food, the fish was in fact pretty good when approached on its own terms. Score one for the cultural relativists.

But there was a twist. Turns out the chef was from China (Shanghai), and he had only lived in Paris for a short time. The fish was his interpretation of how he thought (or guessed) the French palate would want Chinese food to taste like. In this sense, it was both divergent and convergent. It was ‘divergent’ in taste. But it was ‘convergent’ in understanding (or what we might call ‘cognition’, for those of you who have read Gunther Teubner's work). To extend the metaphor, it could be seen as the chef’s effort to develop a point of communication around which the divergent French and Chinese palates could begin constructing a mutual comprehension of one another.

I suspect that this is also what is happening with regards to many of the world’s legal cultures – they are evolving structural capacities for mutual comprehension while retaining non-convergent structural identities. If so, it suggests that the study of comparative law should a third possibility in legal development, one that allows for non-convergent legal systems that nevertheless are able to develop increasingly structural capacity to engage with, ‘understand’ and even learn from each other without losing their own distinctive structural legal identity.

Posted by Mike Dowdle (who needs to recognize that sometimes a fish is just a fish).

Frivolous Tax Positions: Self-Incrimination

I've recently discussed (here and here) the outcome of the Wesley Snipes tax evasion trial. While most discussion has centered on the jury's split verdict on the criminal charges, the unexamined issue in the case is why Snipes had not paid his taxes in the first place. In the late 90's, Snipes became a tax protester -- someone who believes that Americans simply do not have to pay taxes. At all. Tax protesters have been at it for years, losing every time they go to trial under a wide variety of bizarre theories. (The IRS has helpfully summarized those theories, along with explanations of why each is baseless, in "The Truth About Frivolous Tax Arguments." That document, while not what one could call a ripping good read, is nonetheless good for some laughs.) As baseless as their theories are, David Cay Johnston of the NYT estimates that there are about 1 million people in the United States who believe some version of these theories. (Some of the more prominent believers are, of course, in jail.)

Snipes's particular argument against paying taxes is known as "the 861 position," an argument that is frankly too obtuse -- even by the generous standards of tax protest arguments -- to describe here. In the comments on my Feb. 3 post, though, a regular reader asked about another frivolous tax argument that he had heard about: that filling out a tax form constitutes self-incrimination, because it is signed "under threat of perjury." I offered some thoughts in response on the comment board, but I wanted to follow up today with some further thoughts and clarifications. (These thoughts were inspired in part by Sherry Colb's helpful comment on the same post. Given that Prof. Colb's specialty is criminal procedure, I was relieved to see that my focus on tax law had not made me completely unable to understand other areas of law.)

The 5th Amendment to the United States Constitution says, in pertinent part, that "No person ... shall be compelled in any criminal case to be a witness against himself." Some tax protesters have argued that, when a person signs a tax return "[u]nder penalties of perjury" (which is printed above the line for the taxpayer's signature) they are being forced to violate their right not to be a witness against themselves. Like all tax protester arguments, this claim has been thoroughly and repeatedly rejected by the courts, most importantly in 1927 when the U.S. Supreme Court decided United States v. Sullivan, 274 U.S. 259. The essence of the Court's position is that the requirement to provide information about income, deductions, and so on does compel testimony IN A CRIMINAL CASE. The determination of one's civil tax liability is not a criminal matter, making the 5th amendment irrelevant to the inquiry.

While the civil/criminal distinction is axiomatic, it is certainly true that civil liability can be a precursor to criminal liability. Even so, the courts have rightly held that the requirement to provide accurate information necessary to determine civil tax liability does not implicate the 5th Amendment. To understand this more clearly, it is useful to think about three different ways in which criminal liability can arise from a civil tax proceeding.

First, one can be prosecuted for perjury. As Prof. Colb pointed out, though, perjury means lying; and the government's requirement that you provide accurate information on your tax return is precisely NOT a situation in which the government is compelling you to do something that can result in your criminal prosecution. In fact, if you do what the government tells you to do -- provide accurate information about your income, etc. -- then those statements cannot possibly be used against you in a criminal prosecution for perjury. Indeed, your truthful statements would be an absolute defense against such prosecution.

Second, one can be prosecuted for criminal tax evasion. Here, as in all criminal prosecutions, criminal liability requires proof of a guilty mind, mens rea. The Supreme Court has made clear that a person can only possess the requisite criminal intent in a tax case if they know that their position is baseless. If they "sincerely believe" that they do not owe taxes, then they cannot be found guilty of criminal tax evasion, failure to file, etc. If anything, most tax scholars believe that this standard is too loose (and certainly too easy to fake); but it means that a person cannot go to jail simply because they have not paid their taxes. Possessing such "sincere belief," of course, does not mean that one can refuse to pay taxes, only that one is not criminally liable.

Third, one can be prosecuted for engaging in illegal activities (such as drug dealing, prostitution, embezzlement, and so on). Since the income tax is levied on "all income, from whatever source derived," a taxpayer is required to include income earned from illegal activities in their reported income each year. Providing such information, the argument goes, can lead investigators to evidence of illegal activity, which means that income information is at least a link in the chain that leads to criminal prosecution. The Supreme Court's direct response is that this is unusual, that most people do not implicate themselves by reporting their income. Prof. Colb rightly described this argument as unpersuasive because 5th Amendment inquiries are typically focused on the individual: "[W]ould my answering this question provide a link in a prosecution against me[?]"

It is worth noting, however, that the income tax form does not require specific information about where or how a person earned their income. If you are a drug dealer, for example, you could simply report your income under "wages, salary, tips, etc." Reporting the profits under "business income," or even "other income," which instructs filers to "list type and amount," also need not be revelatory, because the descriptions may be cryptic and non-incriminating (e.g., "wholesale sale of consumer products to retailers"). In other words, the purpose of providing this information is to produce accurate income tax calculations. Indeed, it has been reported that some illegal brothels scrupulously report their income and pay taxes. That most criminals do not do so does not mean that the tax form compels criminal self-incrimination but more likely that someone who is willing to kill a rival drug dealer is unlikely to worry about his tax liability.

Most importantly, this last kind of potential criminal liability arises from non-tax crimes. Making the argument that the tax system compels self-incrimination because it might end up revealing income from illegal sources is quite different from saying that honest, law-abiding citizens could get themselves in trouble simply by complying with civil tax requirements "under threat of perjury."

I'll close this (unusually long) post by endorsing a comment that a reader offered on my first post on the Snipes trial. He summarized the argument well: "When a tax form reads 'under threat of perjury', that's basically the government saying, 'look dude, we're asking for some facts here in this civil transaction. But if you lie, you could face criminal charges, just like you could if you lied on an affidavit (regarding your annual income, for example) during divorce proceedings. If you're indicted, we can't make you testify against yourself on the criminal charges, but we can certainly make you fill out a tax form in the first place within the preceding civil environment.'"

Posted by Neil H. Buchanan

A Conviction is a Conviction, and Wesley Snipes was Convicted

On Feb. 3, I posted some comments about the Wesley Snipes tax evasion trial, noting that media reports that Snipes had "won" were partly true (in that he was acquitted on 2 felony counts and 3 misdemeanor counts) but also partly false (in that he was convicted on 3 misdemeanor counts). Saying only that he had won, therefore, is utterly misleading.

I further argued that, while Snipes could rightly celebrate a reduction in his possible prison time, it was absurd to think that he had somehow beaten the system, because even if he were to end up serving no prison time at all (which is highly unlikely), his tax protest will end up costing him millions of dollars and will give him a permanent criminal record.

That the media have mischaracterized the outcome of the case was brought home to me later on Feb. 3, when a student came up to me and said, "So I hear that Snipes got off." If that is the message that even law students are getting from their news sources, it's no wonder tax deniers find it easy to recruit new victims.

Spread the word! Snipes was convicted, and he will be millions of dollars poorer because of his foolish decision to press a frivolous position. Respect for the rule of law is undermined when people wrongly believe that illegal behavior has gone unpunished.

I'll post some thoughts tomorrow morning on the (lack of) substance of a particular frivolous tax argument; but I felt compelled to make this much more fundamental call for clarity and sanity today.

Posted by Neil H. Buchanan

Clinton v. Obama = Bush v. Gore?

In his blog, Washington Post reporter David Achenbach suggests that if the delegate count is close enough, the Clinton campaign will start agitating for the seating of the Michigan and Florida delegates in what can only be described as Bush v. Gore through the looking glass. The Clinton mantra will be nominally the same as the Gore notion in 2000: Count every vote! Don't disenfranchise Michigan and Florida voters! But these superficial similarities to the Democratic position in 2000 will mask a deeper affinity with the brass-knuckle tactics of James Baker and the paid brownshirts sent to Florida to intimidate vote counters in 2000.

When Florida moved up its primary in violation of national party rules, the national Democratic party followed through on a threat not to seat Florida's or Michigan's delegates. Further, all of the candidates agreed not to campaign in Florida or Michigan. But just before the Florida primary, Clinton announced that she thought the Florida and Michigan delegates should be seated. She said: "I hope to be President of all 50 states and U.S. territories, and that we have all 50 states represented and counted at the Democratic convention."

How very noble. Wherever both candidates have campaigned, Obama has eaten into Clinton's early leads, so a primary in Florida in which neither candidate campaigned naturally led to a Clinton victory, and in Michigan Obama wasn't even on the ballot.

Achenbach suggests that if the DNC's Credentials Committee (which includes at least one Clinton loyalist) in fact permits the Florida and Michigan delegates to be seated, lawsuits will follow, giving Justice Scalia the chance to pick the Democratic nominee. At that point, Hillary Clinton's journey to the dark side (as described by Maureen Dowd here) will be complete.

Posted by Mike Dorf

Mostly For Obama Rather Than Against Clinton

Having outed myself as an Obama supporter in the comments yesterday (no surprise there), here I want to give an explanation. The short of it is that I knew Obama a little in law school and have great respect for him. What impresses me the most is how genuine and consistent across time his convictions are. Even back in the late 80s, he had a core belief in problem solving and dialogue, a point that Larry Tribe and I made in our book On Reading the Constitution, in which a footnote thanked Obama for elucidating for us an account of constitutional interpretation as an exercise in dialogue. So my support of Obama is principally that: support for Obama rather than opposition to Clinton.

Still, it would be odd to make a judgment about who should be President solely based on respect for a candidate's excellence as a law student. So let me turn very briefly to what I regard as the key weakness in the Clinton case. Clinton's argument that she is the more experienced candidate has been challenged in some quarters on the ground that her experience as First Lady shouldn't count for much. Maybe yes, maybe no, but there is a better argument about that experience. As First Lady, Clinton's most important policy responsibility was the formulation of the health care plan, which was a colossal failure.

Yet somehow, she campaigns on that experience as though it should count in her favor. She makes two points: 1) She has cared about this issue for a long time, which seems true enough; and 2) She has learned from her mistakes, which is open to doubt.

So what about the defining foreign policy issue of our time? The Obama campaign points out that because of Clinton's vote to authorize the Iraq war (without even reading the intelligence reports), Clinton is in a much worse position to make the case for a change in party leadership in a general election against McCain than Obama is, given his early opposition to the war. The Clinton campaign response is unpersuasive. They point to the fact that Obama voted for spending bills to fund the war once a Senator. But Obama has consistently said, quite rightly, that even though it was a mistake to go in, that doesn't mean it would be the right thing to pull out precipitously or to put our troops in danger.

The best that could be said for Clinton's vote to authorize the Iraq war is what John Edwards said about his own vote: It was a mistake. Clinton has not said this, instead blaming the Bush administration for hoodwinking her with cooked intelligence that she did not read. But she could say she made a mistake, and voters might forgive her, on the theory that the question facing us now is not what should have happened in 2002/2003, but what to do in 2009, and hope that Clinton has learned from her mistake.

But doing so would make apparent a disturbing pattern of poor judgment by First Lady Clinton and then Senator Clinton on crucial questions. As Sherry Colb put it to me in a recent conversation, the Clinton argument from experience is a little like someone who cooks two dreadfully bad dinners, and then invites you to a third, assuring you that this time the meal will be delicious because cooking the bad dinners taught her how to cook a good one.

I realize that there is some real unfairness in my evaluations. On many issues, Clinton has been an effective, consensus-building Senator. Her judgments aren't always bad, and I certainly prefer her judgments and her values to those of Senator McCain, on most issues. But if we're talking about electability, then judgments on the top issues---and health care and the Iraq war have to make the top 5 list, at least---are going to take center stage.

Posted by Mike Dorf