Insurrection and Assembly: Reflections on the Revolution in Egypt

By Mike Dorf


In District of Columbia v. Heller, Justice Scalia, writing for a majority of the Supreme Court, identified self-defense as "the core lawful purpose" of the arms that the People are entitled to keep and bear in their individual capacities.  The ruling thus vindicated an individual right view of the Second Amendment, but not the individual right for which many gun enthusiasts had long agitated.  They had argued that the right to keep and bear arms may have been incidentally useful for self-defense but that its core purpose was insurrection.


Although I am on record as expressing doubt about the historical basis for any individual right view of the Second Amendment, I would say that there is better historical evidence for the insurrectionist view than for the self-defense view.  Most prominent is Madison's Federalist No. 46.  In the course of explaining why the People ought not to fear an overreaching federal government, Madison argues that the federal government will be reined in by the States if the former attempts to exceed its constitutional limits.  He first calculates the maximum strength of the federal standing army at no more than 30,000.  He then states:

To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

Now I don't think this passage establishes the individual  insurrectionist view of the Second Amendment because it's clear that Madison is imagining state-organized resistance to the federal government, but it's at least possible to argue that in light of statements of this sort, the core purpose of the Second Amendment was to protect a right of individual firearm ownership so that firearms could be used by the people in their state militias when fighting against the national army.  There's nothing nearly this specific in the Founding era documents with respect to a right to personal self-defense.  The best that Justice Scalia can do in Heller is to cite state constitutional provisions from the period, most of which are clearly discussing the common defense, not individual self-defense.

To be sure, that absence of direct evidence doesn't prove Heller is wrong.  The Court's main move is to say that it doesn't really matter what the main purpose of the Second Amendment was; its language includes a right to self-defense.  I tend to think that this analysis is flawed, but I want to bracket that disagreement here.  (I do think there was a common-law right to self-defense and that much of it should be understood as having been constitutionalized, but that's a story for another day.) Instead, I want to ask why the insurrectionist view of the Second Amendment--which is quite prominent in some of the writing of the scholars responsible for the modern resurrection of the Second Amendment--is invisible in Heller.  (The word "insurrection" occurs twice in Justice Scalia's Heller opinion, and in both places he is talking about the value of an armed militia for suppressing insurrections.)  The answer, I think, is that the insurrectionist view seems nuts to all of the Justices.   Simply put, the idea that the Constitution would protect the right of the people, on their own initiative and acting contrary to or at least without any government authority, to take up arms for the purpose of revolution, appears to make the Constitution a suicide pact.

And yet recent events in Egypt have gotten me thinking that perhaps the Constitution is a suicide pact in just this way--and not simply via the Second Amendment but via the First Amendment as well.  Thus, it may be useful to think hard about why exactly an outdoor rally is an effective means of making a point.

Partly it's a show of strength.  When hundreds of thousands of people turn out for an anti-war, civil-rights, anti-tax, or other political rally, they demonstrate not only that there are a lot of people who hold their view but that there are a lot of people who hold their view intensely.  Rallies and marches register preferences in ways that opinion polls do not.

But that's not all that they do.  A peaceful rally or march is also a ritualized threat of something much more serious.  Larry Kramer's The People Themselves describes how in both England and the colonies, "mobbing" was an accepted form of political activity, and though Kramer says that there were understood differences between mobbing and rioting, both involved violence.  As Kramer notes, mobbing fell out of fashion very early in American constitutional history, as popular energy was channeled into parties, but it is not difficult to understand how the generation that had just fought the Revolutionary War would think it perfectly natural to protect a right of the people to gather out of doors, even if what begins as a peaceful rally eventually turns bloody.

Of course, the First Amendment, by its terms, only protects a "a right of the people peaceably to assemble," (emphasis added), and then only so that they may "petition the government for a redress of grievances."  Once the people turn violent, or demand not that the existing government redress their grievances but that it succumb to immediate regime change, the government can respond with force.  Thus, it cannot really be said that the First Amendment protects a right of insurrection.

But it may go quite a way in that direction in its practical effect.  Because the government is forbidden from banning mass demonstrations so long as the demonstrations are peaceful, the police and military may be unable to put the lid back on a large demonstration that begins peacefully and turns violent.  In a country with a long tradition of democracy, it's hard to imagine a truly mass movement turning violent in this way while retaining the support of the majority, but that's because it's so unnecessary: However flawed our democracy, the people can turn very unpopular leaders out of office at the ballot box; thus they needn't resort to the mob.

None of this bears directly on Egypt, where the people have no right of assembly, peaceable or otherwise.  But there too, we can see the logic of critical mass at work.  We still don't know how things will end in Egypt, but if Mubarak is forced from power, it may well be because he did not crack down immediately.  Having not taken sufficiently brutal steps to prevent the people from more or less peaceably assembling, he will have left himself without the ability to stop them from using force or the threat of force to remove him.  As a matter of international law, freedom of assembly may be a universal right, as President Obama observed, but as a matter of facts on the ground, it is hardly surprising that autocratic regimes generally do not recognize it.  They can't afford to.

By contrast, a functioning democracy can afford to grant the people the right to assemble because they are not likely to turn into a mob, and if they do, the police and armed forces will remain loyal to the government, as the mob loses general public support.  The First Amendment is not a suicide pact after all.

What Are They Teaching in Our Schools?!

-- Posted by Neil H. Buchanan

A friend of mine is enrolled in a certificate program at a top-10 U.S. business school. This friend recently sent me an email, the pertinent part of which reads:

The instructor [in the "Investments" course] is a very handsome young man, in his mid- to late-thirties. He has the well-dressed, privileged, but sweet look I was used to on Wall Street in the 80s. The kind of young man so beloved by his fraternity brothers, his trust fund advisors, and his Brooks Brothers tailor that he is secure and happy and isn't even aware he might be a little outside the mainstream of American workers.

So anyway--at last week's class, he made some passing comment about how tax cuts for the rich stimulated the economy more than tax cuts for the poor.

I perked up because I was pretty sure that was the opposite of what I usually hear, and I wanted to make sure I had heard him right.

I raised my hand and said, "But isn't it true that lower-income people spend a much higher percentage of their income, so extra money in their pockets means more money poured into the economy? While well-off people already have their needs covered so more money flowing to them just means they invest or save it?

He said no.

He said rich people are always spending. They go on vacation even when times are tough.

He also said that poor people have so much credit card debt anything extra they get just gets plowed into debt payments and doesn't really stimulate any new purchases.

And finally, that rich people just have so much more money than poor people, that anything affecting rich people has a much bigger total effect on the economy.

So I ended up puzzled. I did not think I was saying anything controversial. It's not even something I've thought a lot about. I just thought I had always heard that lower-income people spend incrementally more of whatever they get.

But the professor made me think about it. It's true that rich people have more money than poor people so they spend more money. So maybe it's true that anything rich people do has a more significant effect on the overall economy . . . ?

Am I missing something?

I have to give my friend credit for being open to new evidence and arguments. It turns out, however, that what the professor said is simply wrong -- although it is wrong in a few interesting ways. As I am not a regular consumer of opinions from the editorial page of The Wall Street Journal or Fox Business Channel, I understand that these beliefs might be held more widely than by one ill-informed (or ill-motivated) business school professor. In any case, this certainly seemed a worthy topic for a blog post.

Professor Privilege made three points, each of which I consider presently:

(1) "He said rich people are always spending. They go on vacation even when times are tough."

This is a true statement that simply does not support the argument to which it is being applied. Recall that Professor P offered this as a reason to believe that "tax cuts for the rich stimulated the economy more than tax cuts for the poor." That rich people spend a large amount of money, and continue to do so during recessions, tells us nothing about how tax cuts will be spent. The reason that rich people go on vacation even when times are tough is that they have more than enough money to do so. They are not spending-constrained, which means that they can keep doing what they would normally do, even when other people are pinched. That means that any weakness in the economy shows up, if at all, as a reduction in their savings. (Of course, we know that the current recession has not even cut into the overall incomes of many of the wealthiest Americans, making it possible to maintain their lifestyles while increasing their saving and net worth.)

If the rich receive a tax cut, therefore, there is no reason to expect them to use that to buy themselves yet another vacation (or anything else). In technical terms, Professor P's error is in confusing total consumption with "marginal propensity to consume." Wealthy people spend a lot in absolute terms, more than the poor (though not as a percentage of their income -- and, as a group, probably not even as a percentage of total spending, although I have not checked the numbers recently). They do not spend much (or any) of the "next dollar of income," which means that they do not spend tax cuts. Giving the rich tax cuts will not, therefore, stimulate the economy.

(2) "He also said that poor people have so much credit card debt anything extra they get just gets plowed into debt payments and doesn't really stimulate any new purchases."

From the standpoint of someone who has more than enough money to spend every month, this probably seems like it simply must be true. It is just good money management, after all, to use additional income to pay down existing debt. Of course, this simply ignores the financial reality of not only the poor but the middle- and even upper-middle-classes in this country. Even if people would dearly love to be in a position where they could "plow" money into repaying debts, they are not. Giving them additional spendable money through tax cuts gives them money to spend immediately on items that they have had to do without or have cut back -- medicines, clothes, food -- because of their tenuous financial conditions.

For many, that paycheck-to-paycheck reality (with personal debt levels rising or, one desperately hopes, barely holding steady) predated the recession. The Great Recession and its aftermath -- continued high unemployment, stagnant or falling wages, costs of health care shifted onto workers -- have only increased the number of people who have no hope of being able to use a tax cut to pay down personal debts.

Again, Professor P's technical error is in not understanding marginal propensity to consume. Most of the non-rich at this point will spend nearly 100% of every dollar they receive (in tax cuts or otherwise). That stimulates the economy. It also, as a passing matter, slightly improves the lives of millions of people living on the edge.

(3) "And finally, that rich people just have so much more money than poor people, that anything affecting rich people has a much bigger total effect on the economy."

It is certainly true that rich people have more money than poor people. (As one of my favorite movie lines puts it: "Does the word 'duh' mean anything to you?") Being a big part of the economy does not, however, mean that rich people's spending is necessarily a driver of the economy. Again, this is an error about marginal effects. Consider an analogy: Even though there are many more people over 25 than under 25 in this country, offering subsidies for higher education is going to affect many more young people than old people. Being "big" does not make something a "change agent" (to use an ugly buzzword that would surely be ever so welcome in a class like Professor P's).

I wish that I could say that I am surprised by my friend's story. One would hope that professors of business would know better than to spout such nonsense. It is possible, of course, that the professor in question actually knows that he is lying, but chooses to do so for ideological reasons. There really is no reason, however, to think that he has ever learned the basic economics necessary to understand this. Being good at, say, describing the relative advantages of debt and equity in a client's portfolio does not require any knowledge of macroeconomics.

And every other incentive in such a person's life pushes him in the direction of believing that which is reassuring: helping poor people is neither necessary nor useful. Nothing that penetrates such a person's consciousness will ever allow him to believe otherwise.

Obama's Department of Everything

By Mike Dorf

During his State of the Union, President Obama proposed shaking up the government's organizational chart.  He said:

We live and do business in the Information Age, but the last major reorganization of the government happened in the age of black-and-white TV. There are 12 different agencies that deal with exports. There are at least five different agencies that deal with housing policy. Then there's my favorite example: The Interior Department is in charge of salmon while they're in fresh water, but the Commerce Department handles them when they're in saltwater. I hear it gets even more complicated once they're smoked.

There may well be good arguments for re-rationalizing the organization of federal agencies to spur competitiveness (as suggested here).  But the President's examples don't demonstrate that.

The administrative state emerged because of the complexity of the modern world.  A Congress of generalists cannot craft intelligent regulations at the level of detail needed to be effective.  Accordingly, Congress delegates to agencies with expertise in various subject areas.  We have a Department of Defense, a Department of Energy, a Department of Agriculture, a Department of Education, and so on, with further specialization within departments.  For example, the Department of Transportation houses the National Highway Traffic Safety Administration, the Federal Aviation Administration, and other agencies as well.

Even if we optimized the agencies, we would still have the "salmon problem."  Consider the question of computer support.  The federal government uses a lot of computers.  At any given time, some of them are not functioning properly, or need to have new software installed, and thus each agency is going to need IT support.  Should each agency have its own IT department?  That would seem redundant.  "Why does the federal government need 357 IT departments?," one can hear the President or other bureaucracy critic asking.    But consider the alternative: A single IT department for the entire federal government, with standardized rules and procedures that would themselves be experienced as stultifying bureaucracy by agency heads who wanted to, say, use Macs when the federal IT department only supported PCs.  Requirements of coordination across agencies will themselves be experienced as red tape within agencies that want flexibility to respond to newly emerging problems.

Furthermore, some jurisdictional overlap is inevitable in any scheme of categorization.  Here's an example from state government: The schools are in charge of disciplining children if they get into fights while on school property but if they fight on the sidewalk while walking home from school, the police handle them.  And if they get into a fight at one of their homes, the parents are in charge.  That looks just like the President's salmon example, doesn't it?  And yet the division of authority here is perfectly sensible because even though there is some overlap between policing, education, and parenting, there are enough differences to warrant this particular separation of responsibilities.

The only way to ensure that every potential object of regulation is regulated by just one government agency would be to have just one agency in charge of everything: the Department of Everything.  But of course the very factors that lead Congress (or a state legislature) to delegate power to agencies in the first place--the impossibility of omniscience--would prevent the Department of Everything from accomplishing much of anything.
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Postscript: In discussing the President's example, I have put aside my objection as a vegan to the assumption that salmon are simply a resource for human exploitation and consumption.  I imagine that most readers share that assumption.  The very existence of the almost-word "pescetarian" shows what a hard sell empathy for fish is, notwithstanding the evidence that they are similar to mammals and birds in their capacity to suffer.  People who formerly denied that fish feel pain now commonly say that a being cannot really feel pain unless it understands that it is experiencing pain.  To my mind this gets things exactly backwards: the most searing pains render one incapable of understanding pain or anything else; they are raw sensory experiences, and much the worse to experience as a consequence of that fact.

SOTU 2011

By Mike Dorf

Here is a brief stream-of-consciousness reaction to the State of the Union.

1) Justice Scalia should send chocolates and flowers to CJ Roberts and Justice Kennedy.  By joining the Court's four Democratic appointees in showing up at the SOTU, they prevented an extremely awkward scene of seeming partisanship on the Court.  That story would have resonated strongly with the criticisms that some have leveled at Justice Scalia for his appearance at Michele Bachmann's Constitutionathon, giving the latter story a longer shelf-life.

2) The pre-speech analysis I heard (on NPR) foretold of President Obama's metaphor of a plane and its engine. I thought it was a pretty clunky metaphor but figured it would be better when the President presented it.  It wasn't, as the chamber's non-reaction confirmed.  The core problem was that the metaphor made a muddle of the central message of the speech, which is that the economy has averted disaster and now we need to turn to addressing long-term issues with the can-do American spirit.  The idea that the American economy is a plane that's about to crash unless the engine is fixed doesn't fit that message.  The "Sputnik moment" line worked better.

3) The most daring--one might say reckless--part of the speech was the President's claim that the U.S. stands with the people of Tunisia.  If Tunisia were unique, this would have been sensible.  They've already ousted their strongman, so U.S. diplomacy ought to position us to have a chance at friendly relations with whatever new regime emerges.  But Tunisia doesn't stand alone.  Was no one in the White House watching the news from Egypt, where people are drawing inspiration from Tunisians to take to the streets to demand that Mubarak go the way of Ben Ali?  It is undoubtedly in the long-term interests of the U.S. for a stable pro-Western democracy to emerge in Egypt.  But that does not seem like the most likely outcome of Mubarak's departure.  I suppose the best that can be said for including the line about Tunisia is that nothing the President said would have had much of an impact on events on the streets of Cairo.  Still, I thought the President was playing with fire here in much the same way as his immediate predecessor did in casting democracy as a cure-all for the Middle East.

A Big Victory in a Little Case

Last week, the New York Court of Appeals rejected a request for discretionary review in People v. Hoffstead, a June 2010 decision of the Appellate Term (an intermediate appellate court in New York State).  Having done a fair bit of pro bono work on this case over the last several years, I was very gratified to see it end in a way that benefited my client.


Eric Hoffstead, a homeless man, asked a New Rochelle police officer for a dollar, whereupon he was arrested for violating a New York state statute forbidding all begging, including peaceful, non-threatening begging.  A search incident to arrest revealed a small quantity of a controlled substance.  Hoffstead was charged with begging and drug possession.  Through his lawyer, he successfully urged the trial court to dismiss the begging charge on the ground that the begging law was unconstitutional under the First Amendment as made applicable to the states via the Fourteenth, as well as under the New York State Constitution, and that the pipe was inadmissible as the fruit of an invalid arrest.


That decision got some play in the news, in no small part because the D.A. argued that the trial judge was wrong to rely on the 1993 decision of the U.S. Court of Appeals for the Second Circuit in the Loper case, which had found the begging law under which Hoffstead was charged to be unconstitutional.  I found out about the case when a NY Times reporter asked me whether that was right.  I said it was--decisions of the federal appeals courts and the federal trial courts do not bind the state courts in which they sit, at least not as a matter of precedent--but that I thought the trial judge nonetheless got it right because the law was unconstitutional.  In other words, Loper wasn't binding precedent, but it was correct legal analysis: The Supreme Court precedents protecting charitable solicitation as free speech should be understood to protect peaceful begging.


Nevertheless, I realized that there was enough wiggle room in the doctrine for the New York courts to say that begging is not protected speech.  I wrote an Op-Ed for the Times in which I said that it would be quite messy if New York's begging prohibition were unenforceable in federal court but enforceable in state court.  I argued that the cleanest way to avoid such chaos would be for the state legislature to repeal the law.


One person who read my Op-Ed was Carl Birman, the attorney who represented Hoffstead.  He called, we talked, one thing led to another, and for over three years, I provided him with assistance on the appeal, aided in turn by a couple of my very able former students (Neal Hannan and Ryan Fahey) now in private practice.  The case was delayed considerably by personnel changes on the appellate court but when we finally won in June, I fully expected that our next stop would be the New York Court of Appeals.  I wasn't exactly sure how we would argue to that court that it should deny review in a case invalidating a state law, but I viewed it as a win-win proposition: If the court denied review, that would be great for our client; if the court granted review, we had an excellent set of arguments for a constitutional right to beg that would apply throughout the state and potentially beyond.


But then something unexpected happened.  After the D.A. announced that he was seeking review in the NY Court of Appeals, but before our response was due, the New York legislature repealed the begging prohibition along with a number of other provisions of the state's vagrancy law.  To my amazement, D.A.'s were among the proponents of repeal, even though police around the state had been using these laws to arrest  the homeless.  In the interim, and at Carl's urging, I had written a white paper for the state legislature urging repeal (this time aided by another top student, now very able attorney, Silvia Babikian).  I have been unable to ascertain whether the white paper had any effect.


Once the begging law had been repealed, there was little reason for the New York Court of Appeals to hear Hoffstead's case--or so we argued in our opposition to the review petition.  Yet it took months for the Court finally to deny review, and with each passing day I began to worry that the Court might decide to take the case after all.  I half-hoped it would, looking forward to a chance to make what I figured would be good law, even as I knew that Hoffstead's best interests would be served by the Court's accepting our arguments against review.  (Here we see the familiar conflict between the cause of a "cause lawyer" and the interests of his client.  Ethically bound to pursue the client's interest, we did just that, even as we were aware that the broader cause might be better served by a statewide ruling).


Last week's decision to deny review is mostly an anti-climax but the timing is nonetheless appropriate, coming days before a brutal cold snap brought sub-zero temperatures to much of the Northeast.  For readers of this blog, such weather is a nuisance and perhaps a conversation starter.  For the likes of Eric Hoffstead, it is a threat to survival.  I don't kid myself that begging is any kind of an answer to homelessness.  But the criminalization of peaceful begging is a worse answer.  As the Second Circuit said in Loper:

Begging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation. Even without particularized speech, however, the presence of an unkempt and disheveled person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance. 

New York's begging prohibition was mostly about suppressing that message of need and was thus rightly deemed a violation of the First Amendment.  In these times of strained state and local government finances and manufactured federal austerity, that need may well go unmet, but at least the message has a chance of being heard.

The Survivor's Way of Raising Children

By Sherry Colb

The blogosphere is now saturated with discussions of Amy Chua's new book, Battle Hymn of the Tiger Mother.  Everyone has an opinion about what Chua describes as parenting "the Chinese way," by insisting on excellence, obedience to authority, achievement of the highest grades, and intensive study and musical practice throughout childhood.   Some think this a terrific method for building highly competent, self-assured adults who will know, through a virtuous cycle, that they can do anything to which they set their minds.  Others view it as an exercise in child abuse that will regularly yield self-hatred, burnout, and social ineptitude.  And still others see it as a quaint but doomed attempt to wield influence over the next generation when in truth, peers affect the trajectory of a child’s important actions and choices much more than anything parents attempt to do.

At lunch last week, my colleagues and I were discussing Chua's book, and someone asked me whether I planned to weigh in on the discussion of how to be a good parent.  My initial reaction was that I had nothing to contribute to the debate.  My parenting is far less organized and goal-directed than anything that could be called a "system" or a "way."  Some days I am strict and demanding (though perhaps not up to Chua's standards).  Other days, I try to just enjoy my kids and let them do what they want, even if I think their time could be better spent skill-building.  But this is not the product of a philosophy, and I indeed wonder sometimes whether I should be more deliberate and systematic about my parenting choices.  In short, I have far too many doubts about my own parenting to hold it up as a model of anything.

Nonetheless, I do think I have something to contribute to this discussion of parenting styles, not as a mother but as a daughter.  I grew up in an unusual setting, because (a) my parents were both Holocaust survivors, (b) my parents had me almost 16 years after having their first child and almost 13 years after having their second (in a time, unlike now, when almost no one had children in their 40’s and 50’s), and (c) my father - in his mid-50’s when I was born - died when I was 6 years old and was extremely sick for several years prior to that, so my Holocaust-survivor, older mother was also a single parent at a time when single-parenting was rarer than now and divorce still stigmatized.  My two dearest friends in elementary school were a girl whose parents were divorced and another girl who was raised by her grandparents.

I guess I would call my mother's approach to parenting me "The Survivor's Way."  Both of my mother's parents and all four of her brothers were murdered by the Nazis.  (My father's parents, brother, sister, and baby nephew were also killed).  My brothers were both raised in a community of other survivors, but I was not - no one that my mother knew was raising a child in the 1970’s in "The Survivor's Way."  In that sense, my mother was a double immigrant - she first physically migrated from Poland after World War II, and then she socially migrated out of the community of Holocaust survivors after my father died.  Like Amy Chua, my mother was therefore raising me in a manner that differed fundamentally from what everyone else around her at the time was doing.

So how did she raise me?  Let me start by saying that she never grounded me, never took away a toy or threatened to cancel a birthday party, and never stopped giving me my weekly allowance.  She nonetheless conveyed to me that if I did not excel, if I did not shine, then the fact that she had survived the War while so many others had perished would come to mean nothing.  I might as well have never been born, and the deaths of her brothers, her mother, and her father would have been utterly in vain.  When I watched her read my report cards at the end of each term at school (starting in the fourth grade), any grade less than an A produced a look on her face of such desolation and misery that I might as well have been displaying a criminal record listing multiple murders and treason.  There was no greater motivator than that look, and it haunts me to this day, almost two years after her death.

Do I recommend the Survivor's Way to others?  No.  I would not condemn my mother for it, both because she did it out of love and because I do not believe there was much choice involved.  She loved me dearly, and she wanted me to be happy, healthy, and successful.  She sacrificed her own comfort at every turn to provide me with the opportunities she not only never had but never even dreamed of having as a child.  Her wishes reflected a profound fear of disappearing into the ether.  If I was not special, then it would be as though Hitler had succeeded in annihilating our family.  She drove me in the way that anyone fighting for the life of her family would do - relentlessly and effectively; she could not imagine doing otherwise. 

Under normal circumstances, though, in a prosperous country, people do not have to live as though an unproductive day or a short break in one's concentration could result in the deaths of millions of people.  The Survivor's Way provides for an exhausting and insecure childhood of the sort that I would not wish on others, regardless of how productive it might make them, and I suspect, deep down, that it shares this in common with the Chinese Way, as described and enacted by Amy Chua.

False Equivalence from Down Under

-- Posted by Neil H. Buchanan, from Melbourne, Australia

I have spent the last week in Australia, officially to present a paper at the Australian Treasury on Wednesday, and to deliver a speech at the Australasian Tax Teachers' Association annual conference today. (Unofficially, who wouldn't love a job that entails the occasional free trip to enjoy a week of summer in January?) It has been a fascinating and delightful experience.

While I have been here, I have taken some effort to read the Australian newspapers, to get a sense of how they view the U.S., and how they cover the rest of the world. (Interestingly, the Australian newspapers are still broadsheets, 16 inches across. The American papers have truly experienced what George Costanza would ruefully call shrinkage.)

Two amusing comments appeared in the same column in The Sydney Morning Herald's Business Section (not a likely source of comedy) on Monday, January 17. In "US surfs on choppy recovery and we catch the wave," in which Ian McIlwraith (love the name!) wrote about the surprisingly robust Australian economy (5% unemployment), the "big sentence" (the publishing term for the sentence within the text that is reproduced in large print to tease the reader) read as follows: "We cannot often claim the US is at least 18 months, and perhaps two years, behind Australia." The self-effacing humor was especially notable because I had been watching local TV at night, where they seem to show exclusively US programming ("Two and a Half Men," "The Simpsons," "Bones," "Family Guy," etc.), along with soccer, cricket, and tennis. (The Australian Open began in Melbourne this week.) The movie theaters also run the whole range of Hollywood releases, some current, but many ("Unstoppable," for example) months behind.

The topper, however, was McIlwraith's description of the US stock market: "Both the S&P 500 index and Rupert Murdoch's much narrower Dow Jones index hit two-year highs last week." The Dow Jones is Rupert Murdoch's? Technically, this is true, in that News Corp. now owns the Dow Jones Company (and the Wall Street Journal). But how bizarre is that choice of descriptions, given that the Dow (and its narrowness) had been around for decades before Murdoch came along? It struck me as one of those things that regional newspapers and TV news shows use to make their readers feel important. ("Two Toledoans were among those who watched the ball fall in Times Square on New Year's Eve." Woo hoo!) Such self-aggrandizement is, of course, the defensive flipside of the self-effacement noted above.

More substantively, The Herald included some coverage and commentary on the Tucson shootings. What most stood out to me was the paper's attempt to play the same game of false equivalence that U.S. news sources have fallen into. For example, The New York Times's Matt Bai wrote an article last week in which he suggested that Democrats were also guilty "of the rhetorical recklessness that permeates our political moment." His example? Someone (not an officeholder or party official) evidently referred to Gabrielle Giffords as being "dead to me" after Giffords did not support Nancy Pelosi as House Minority Leader. As a subsequent letter to the editor pointed out, however, the word "dead" in that phrase in no way connotes violence or even death, as it simply describes a person's deep disappointment with another person's decision -- a disappointment so profound that the wronged party simply will no longer acknowledge the other person's continued existence. (According to the letter writer, the phrase is sometimes used by parents of Jews who marry outside the faith.)

Bai's literalism mirrors Jon Stewart's insistent attempts at false equivalence, as he continues to describe Keith Olbermann's "Worst Person in the World" segment as an example of over-the-top rhetoric -- even though Olbermann explicitly and repeatedly points out that his title for that segment is a reference to an old comedy routine and is clearly not literal. (Apparently, however, Olbermann has decided that people's continued belief that he is being literal is reason enough to rename the segment, while continuing the satire.)

I should add that there are examples of rhetoric on the Right that could wrongly be swept up in Bai's false equivalence, such as the chants of "Kill the bill!" during the health care debate last year. As much as I worry about this rhetoric, it is abundantly clear that simply using the word "kill" does not put a person in the same category as those who refer to, for example, "Second Amendment remedies."

The Sydney paper, despite running the blurb headline "America's Hate Society" next to a photo of Sarah Palin, went for the same false equivalence. In an editorial on Monday, The Herald assured its readers (and chose for its big sentence): "The truth is, no side of politics has clean hands when it comes to invective." They offered no evidence to support this claim; but their columnist Simon Mann, in an article in the January 15-16 Weekend Edition, offered this: "The Democrats were not immune from offering similar [gun-toting] imagery, the most noteworthy bit of lunacy a TV campaign ad released by ex-governor Joe Manchin in the coal-mining state of West Virginia that showed the Senate candidate firing his rifle at a copy of his own party's cap-and-trade energy policy 'because it's bad for Virginia' [sic]." When a Democrat deliberately defies his own party and acts like far too many Republican candidates, that shows that Democrats are not immune from the lunacy? Again, this is literally true. Manchin is a Democrat, and his ad was insane. But this is the case for the "no clean hands" claim?

In the rush to assure us that they are not claiming a link from the violent rhetoric and imagery on the Right to the tragedy in Tucson, the press -- including, much to my surprise, at least one prominent non-US newspaper -- conflates being unbiased with being incapable of describing the weight of the evidence. Should we feel better, or worse, knowing that journalistic standards are degraded outside of the United States, too?

Constitutional Putty

By Mike Dorf


In yesterday's SCOTUS opinion in NASA v. Nelson, Justice Alito's majority opinion assumes that there is a constitutional right against government collection and disclosure of private information--what the Court calls "informational privacy"--but that the procedures used by NASA to screen job applicants did not violate that assumed right because: a) the government had a legitimate basis for seeking the information; and b) safeguards are in place to prevent the government from disclosing private information to third parties.


There is no dissent from the result but Justice Scalia, joined by Justice Thomas, goes at Justice Alito's reasoning pretty hard in a concurrence in the judgment.  Much of the Scalia opinion attacks the majority for assuming the existence of a constitutional right rather than first deciding whether it exists and only evaluating the particulars of the case if the answer is yes.  Eugene Volokh nicely excerpts the relevant portions of the concurrence in the judgment and the majority opinion.


On the procedural point, I'll just say that it's hard for me to see why anyone would get so worked up.  Certainly there are circumstances in which it's sensible to assume the answer to one question in order to decide another, and circumstances in which it's better to decide the threshold issue first.  The Court (unanimously and sensibly) said something of this sort with respect to qualified immunity two years ago in Pearson v. Callahan.  I could see how one might think that in NASA v. Nelson it would have been better to decide rather than assume the answer to the threshold question--as Justice Scalia thinks--but it seems a bit over the top to suggest, as Justice Scalia does, that the Court's procedure harms its "image."  I daresay that the vast majority of Americans will never hear of NASA v. Nelson, much less follow the decision procedure with sufficient care for it to have any impact whatsoever on their image of the Court.  Indeed, were it not for Justice Scalia's having called attention to the procedure here, even most Court-watchers would have likely paid the issue no heed.



To my mind, the more interesting action in Justice Scalia's concurrence in the judgment concerns the merits.  Justice Scalia says that there is no right to informational privacy, which, when pressed, the respondents' lawyer had located in the Fifth Amendment's Due Process Clause.  Justice Scalia will have none of that.  After all, he thinks that there is no such thing as substantive due process--except insofar as it incorporates the Bill of Rights, which he accepts because it permits him to strike down state gun control laws of stare decisis.


What about the Fourth Amendment?  In protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," doesn't it obviously manifest a concern with privacy, including the informational sort?  Justice Scalia responds that it does, but he (correctly) notes that a government request that third parties provide the government with information about a job applicant is not a "search" (or for that matter, a "seizure") within the meaning of the Fourth Amendment.  So Justice Scalia is right that the Fourth Amendment itself doesn't protect informational privacy.


Does that mean that nothing in the Bill of Rights protects informational privacy against other methods by which the government might acquire information?  Justice Scalia quotes County of Sacramento v.  Lewis to dispatch this possibility:

Where a particular Amendment provides an explicit textual source of constitutional protection against  a particular sort  of  government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.

Justice Scalia then pithily sums up the foregoing principle from Lewis thus: "Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the  protections  provided by other constitutional provisions."


To my mind, that is a fair use of Lewis, but Lewis itself is profoundly wrong--or at least quite inconsistent with any sensible approach to unenumerated rights.  That's fine for Justice Scalia, I suppose.  He doesn't believe in unenumerated rights--notwithstanding the fact that the Ninth Amendment looks very much like putty.  But he hasn't (yet) persuaded a majority of the Court to abandon substantive due process outside the context of incorporation of the Bill of Rights, and so Lewis should be regarded as highly problematic.  It is at the very least hard to square with the key passage of the opinion widely regarded to be the font of modern substantive due process, Justice Harlan's dissent (on procedural grounds) in Poe v. Ullman.  He wrote:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional provisions, since that character must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of  history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. 

Putty indeed.

Against Habeas Originalism

By Mike Dorf


Last week, I posted about Judge Griffith's DC Circuit dissent  from the denial of en banc review in Abdah v. Obama.  In comments and private emails, various readers took issue with my use of Abdah to discuss detention by U.S. officials at one site rather than another, given that the case law to date has mostly dealt with transfers from U.S. custody to foreign custody.  The leading decision is 2008's unanimous Munaf v. Green, which held that: a) U.S. courts have habeas jurisdiction to hear petitions from U.S. citizens held by U.S. forces participating in a multilateral force and seeking to prevent being transferred to a foreign sovereign seeking to vindicate its criminal law; but b) that such allegations did not, as a matter of substantive law, entitle them to relief.


I agree that cases like Munaf are different from cases in which a petitioner objects to being transferred from one place to another while remaining in U.S. custody, but I raised the latter issue in connection with Abdah and related D.C. Circuit cases because much of Judge Griffith's reasoning in Abdah was more general: The principles invoked and language used to argue against permitting the government to transfer custody to another sovereign apply as well to circumstances in which the government seeks to evade the writ by maintaining U.S. custody over a detainee but transferring him from a place the writ reaches (e.g., Gitmo) to one it does not (e.g., Bagram, if the courts accept the govt's argument that Bagram is constitutionally different from Gitmo).


My core point in my last post on this subject was that the place of detention should not be given talismanic significance in determining whether the writ is available to a particular detainee (and if so, whether the custody is lawful).  And my underlying concern was that the Executive can choose the detention site with an eye towards evading judicial review.  That issue was bracketed by Judge Randolph in his DC Circuit opinion in Al Maqaleh v. Gates.  He said there that "perhaps . . . manipulation by the Executive" of the custody site "might constitute an additional factor" in determining whether a particular petitioner is entitled to habeas under Boumediene v. Bush.


That "perhaps" is pretty stingy given that the original sin that has led to nearly a decade of litigation (with no end in sight) over who gets what kind of legal process in war-on-terror cases was the Bush Administration's decision to house detainees at Gitmo--far enough away from where they were apprehended to make it nearly impossible for an innocent detainee to gather evidence showing that he should be released but also, prior to the Supreme Court's rulings in Rasul, Hamdan, and Boumediene, seemingly beyond the jurisdiction of the U.S. courts.


As I noted in my last post, the courts still have not devised a satisfactory framework for sorting out who gets what process.  My main point in this post, as in my last one, is that too much emphasis has been placed on situs, and in turn, on the scope of the common law writ circa 1789.  The Supreme Court majority opinions in these cases have been careful to point out that the constitutional right to habeas covers at least what it covered in 1789, but potentially more.  Justice Kennedy's Boumediene opinion states:  "The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ."  That's right, and yet so much of the writing about the scope of habeas--by lower court judges, lawyers, and academics--addresses itself only to the question of what is the minimum content of the constitutional right to habeas, i.e., what it protected in 1789.


Eventually, the Supreme Court will have to confront a case in which petitioners urge an interpretation of the constitutional right to habeas that is broader than the common-law writ circa 1789.  At that point, one can expect most of the Court's conservatives to say that the constitutional dimension of the writ has not evolved since 1789 (or to fall back on the view expressed by Justice Scalia in dissent in the St. Cyr case: that there is no constitutional right to habeas).  One can also expect at least some of the Court's liberals to argue that the historical evidence actually shows that the writ's scope in 1789 was broad enough to cover whatever circumstances are presented.


But one hopes (or at least I hope) that someone will forthrightly make the argument that times change: Modern means of transportation make it possible to transport prisoners over great distances much faster than they did in 1789; modern means of communication make it possible for courts to inquire into the lawfulness of detention from afar, even while affording all parties a fair opportunity to be heard; and perhaps most importantly, the fact that the enemies of the U.S. are now regularly guerrilla forces means that we can no longer assume that most detainees will obviously be lawfully held as prisoners of war or the equivalent.  In short, here we deal primarily with evolution through changed circumstances rather than through changed values.  Thus, the qualms Justices feel about invalidating laws based on evolving values should have much less room to operate when it comes to the evolution of habeas than when it comes to some other rights.


To be sure, there remain other reasons for hesitancy by the courts, especially the worry about the competence of courts in second-guessing the political branches with respect to military matters.  But the Supreme Court crossed at least part of that bridge in the cases rebuking the Bush Administration.  A robust non-originalist understanding of the Suspension Clause would not be a substantially greater challenge to separation of powers than is a robust (and contested) originalist understanding of the Suspension Clause.

The Government's Abeyance Motion in the DADT Litigation

By Mike Dorf

Last week the Justice Dep't asked the 9th Circuit to hold in abeyance the appeal of an earlier district court ruling invalidating Don't-Ask-Don't-Tell (DADT) while the steps to implement the policy's repeal are taken.  The plaintiffs Log Cabin Republicans oppose the motion on the ground that so long as DADT remains in effect--which it does given the statutorily prescribed delay in implementation along with an existing stay of the district court order--service members suffer unconstitutional harm under the policy, and so the appeal should proceed as scheduled.  All things considered, I think the government probably has the better of the argument here, although the question of when it is appropriate to continue litigating over a repealed law or policy can be complicated.

The decisive consideration here, I think, is the fact that DADT almost certainly will be gone before the current litigation can realistically be expected to conclude.  This is not a case in which P sues D to enjoin some action A by D, then D stops doing A, or agrees to stop doing A, the litigation is dropped, and then D goes back to doing A again, leading to a new cycle.  Delay of a month or so really will permanently moot the case, whereas proceeding on the 9th Circuit's expedited schedule would likely drag on for many more months, potentially years if the Supreme Court were to get involved either in the substantive or remedial issues.

Moreover, although this is not a factor that bears directly on the abeyance motion, it's also not clear to me that the interests of current and future gay and lesbian service members would be served by pressing on with the litigation.  In light of the deference traditionally shown to the political branches with respect to military matters, it's quite possible that the eventual outcome of DADT litigation would be upholding the policy.  By contrast, repeal of DADT can fairly be understood as an exercise in "constitutional politics."  Just as non-renewal of the Sedition Act in 1801 can be read to mean that the People judged the Act unconstitutional, so repeal of DADT can be read as a similar popular judgment with respect to that law.  If DADT were now to be upheld by the courts, that ruling might eclipse the popular judgment, devaluing it from an exercise in constitutional politics to a mere policy judgment.

But leaving well enough alone in this way is not always the right course.  Consider the coram nobis petition brought by Fred Korematsu to overturn his conviction nearly forty years after it was affirmed by the Supreme Court in the infamous case that bears his name.  As Judge Patel noted in her opinion granting relief, she could not change the legal principles announced in the 1944 ruling, though she could void the underlying factual determinations based on the misrepresentations in the record.  The case was worth bringing, in my view, because it nonetheless did "overturn" the earlier Supreme Court ruling, at least symbolically.  And that's despite the fact that even in 1944, even on the basis of a falsified record, Justices Roberts, Murphy, and Jackson could see their way to the right result.  As Jackson explained, the Korematsu ruling (as opposed to the underlying exclusion and internment) was an affront to justice by the courts, and so it took a judicial act to atone.

Whether the district court decision in the coram nobis proceeding was sufficient atonement is an open question.  The Supreme Court has never formally overruled Korematsu--and the modern doctrine applying principles of equal protection against the federal government as well as the strict scrutiny test itself are arguably traceable to the opinion.  But it is also true that the actual holding of the case has not been invoked favorably in many years.  Citations of Korematsu, when they appear in the U.S. Reports, are negative citations, typically used by dissenters accusing their colleagues in the majority of something dreadful, in the same way that Dred Scott, Plessy, and Lochner are cited.

There is no comparably well-known martyr to DADT--although certainly many of the patriotic men and women who have been discharged under the policy would be candidates to bring actions to clear their names.   But I'd prefer to see them vindicated by the armed forces themselves--or better yet, by Congress: Many in the services have long regarded DADT as foolishness imposed on them by the political branches.  It is a small blessing that during the many years that gay and lesbian Americans were prevented from serving their country, the Supreme Court never took the opportunity to sanctify that injustice, and so it need not now make amends.

Battle Hymn of the Black Swan

By Mike Dorf


[Spoiler Alert: This post gives away the endings of the films Black Swan and The Wrestler.  If you haven't seen the films--and want to--stop reading now, see the films, then resume reading.  Now, on to my post . . .]

I have thus far resisted the urge to remark on the controversy over Yale Law Professor Amy Chua's book, Battle Hymn of the Tiger Mother and her recent Wall Street Journal op-ed.  I'll leave for the seemingly millions of commenters the questions of whether what Chua calls the traditional "Chinese" mother's approach to child-rearing is cruel and/or effective, and if effective, at what.  Here I want to examine the other side of the coin, what Chua characterizes as the contemporary "Western" approach to raising children, with its supposed emphasis on praising children for mediocrity and undue attention to their self-esteem.

Now, I happen to agree with Chua and others that some of the self-esteem business is rather silly and can be harmful in the long run.  Here's one example among many that any American parent could certainly cite: Each of my two daughters received two gold medals per year--one for the "winter showcase" and one for the "summer showcase"--for as long as they took gymnastics; so did every one of the many other kids taking gymnastics.  And because the first wave of children raised this way is now old enough to be showing up in the workplace (and in law school), one observes young workers who need to be praised and rewarded simply for showing up on time.  I've noticed that in the nearly 20 years since I started teaching law school, I've become much gentler in my remarks on student papers and comments in class, as, over the years, I've seen students become (on average) less able to handle forthright criticism.  And I continue to have a reputation for being somewhat tough; many of my colleagues are much gentler still.

But one need not invoke a Chinese or otherwise minority cultural pattern to find a reaction against the self-esteem-promoting permissive style of parenting.  Writing in the Sunday NY Times magazine, Judith Warner correctly locates Chua's position as part of a largely home-grown parenting counter-revolution. And of course, Chua herself is Chinese-American.

At the same facility where my daughters received their semi-annual gold medals, a select few child gymnasts practice for hours upon hours daily, with the coaches heaping verbal abuse on them that makes some of what Chua describes in her op-ed look all warm and fuzzy.

You can see the counter-current in American culture more broadly.  Consider the 2004 animated feature The Incredibles.  In the course of the action, the film's hero repeatedly laments the mediocritization of American life, including the constant award of medals.

If that's too low-brow a cinematic example for you, consider Black Swan. Natalie Portman's "Nina" gradually cracks up under the pressure to perfect her role as the Swan Queen in Swan Lake.  On the surface, Black Swan looks like a critique of the Chua method.  In relatively brief screentime, Barbara Hershey, playing Nina's mother, makes clear that she was very much a "Chinese mother" to Nina as a child.  Indeed, the continued obsessive control over, and resultant infantilization of, Nina appears to be a driver of Nina's madness, ultimately leading to her death at her own hand (albeit somewhat inadvertently: Nina hallucinates that she is stabbing her rival when really she is stabbing herself; think Edward Norton and Brad Pitt in Fight Club).

Thus, one could come away from Black Swan thinking that madness is the price of driving children to excel--much in the way that some wags have opined that Chua's pronouncements of success with her own children are premature: Perhaps she has inflicted long-term mental health costs, they accuse.

But I don't read critique as the only message in Black Swan.  It is a tragedy, yes, but it has another meaning.  In the final scene, Nina dies happy.  She knows that it has cost her everything, even her life, but she doesn't care.  She has finally lost herself in the part and thus has achieved perfection.  Just so the message isn't lost on the audience, Nina actually says that.

The ending of Black Swan thus clearly evokes another film by the same director, Darren Aronofsky: 2008's The Wrestler.  In the final climactic scene in that film, Mickey Rourke's "Randy the Ram" hurls his broken and dying body off of the turnbuckle and into flight, knowing that this will not only finish off his opponent in the match but will end his own life.  He doesn't care.  For him the moment is worth it.  One last taste of glory is everything.  Having seen Randy's inability to thrive outside the ring, the audience understands Randy's choice, even if not fully endorsing it.

I don't pretend that most Americans who went to see The Wrestler or Black Swan came away thinking "Yeah, that was definitely worth dying for."  But I do think the message of each film resonates with a deep current in Western culture: That achievement of excellence or transcendence--in whatever field--is the ultimate satisfaction, that it can justify anything, even the sacrifice of life itself.  From that viewpoint, Chua's values are hardly alien to Western culture.

I Guess You Can Take That Away From Me

-- Posted by Neil H. Buchanan

News reports last week indicated that five countries in Europe have begun to "seize" the assets of citizens' retirement accounts, in an effort to fill state budget gaps. While there is reason to suspect that these reports are misleading or overblown, I will accept arguendo the veracity of the reports. This raises several interesting issues.

Any discussion of pensions anywhere seems automatically to implicate the debate over Social Security in the United States. According to last week's news, two countries saw their governments take over public pension assets that had been designated for individuals, while three others took ownership of the assets of private retirement accounts. That these five are all being taken as essentially equivalent is, however, itself an interesting phenomenon.

Recall that former President Bush, when he proposed a partial privatization of Social Security six years ago, used the rhetoric of ownership to distinguish Social Security entitlements from private accounts. We need private accounts, the former President told us again and again, because only then would people have something that cannot be taken away from them. Social Security was supposedly based on "worthless pieces of paper" in a drawer in a government repository in West Virginia, while money in the bank is a solid asset.

If the reported events in Europe are true, therefore, they are not an argument for privatizing Social Security. They are an argument that people do not really know whether their pensions will be there when they retire, no matter the financial system used to account for those putative assets.

Is there a way to save for the future that is not subject to such seizure at some future point? In a word, no. First, most of what people need in retirement is access to services (medical care, entertainment, travel, and so on) and perishable goods (food, medicines), which means that it is not possible to hoard what one needs to live on during retirement. Second, if one only hoards non-perishable things, in the hope that they can be traded for goods and services in retirement, there is the distinct risk that -- either through policy or pure luck -- the goods that one hoards will lose value. Gold, the favorite "hard" asset of many, is subject to fluctuations in value based on market psychology, policy manipulation, and simple geology. (A big gold discovery, for example, could have a more devastating impact on a person's gold-based pension plan than the Crash of 2008 had on financial assets.) Third, if we are really talking about seizing assets, physical assets can be taken away from people, too. That it is easier to hide physical assets must be traded off against the costs (direct and opportunity) of hiding them, weighed against the risk that an attempted seizure might one day occur.

If the lesson from last week is, "See, government can take things away from you!" then the answer must be, "Yes, and ... ?" It certainly is not obvious why new evidence of that fact would be an argument to change from public to private pensions. And, other than a few apocalyptic types, there is no serious claim that we should return to safety deposit boxes and mattresses as our means of saving for retirement.

More to the point, the intuitive feeling that financial assets are insecure applies to situations where the government does not gain when a person loses her savings. Banks have every incentive to try to seize assets, too. They have taken in the money and credited the accounts with interest or dividends, but they would dearly love to be relieved of the obligation to repay. How to do this? Why not create fees that did not exist before? Why not make them retroactive? Putting one's money into a bank is, after all, a fundamental act of trust. When banks in Iceland froze assets during the recent crisis, British account holders discovered just how ephemeral their money really was. (And not just because it is fiat currency. Safe deposit boxes can be sealed as well.)

Who prevents depositors' trust from being abused? The law. That is, the government. In yet another application of the Murphy/Nagel principle, it is the government that sets up and enforces the rules that make it possible for people to have a financial system that is relatively transparent and that can be relied upon to repay depositors their money. The government can also change those rules or refuse to enforce them, which could allow financial institutions to take some or all of depositors' funds. Whether or not they would bother to justify their actions as, say, "necessitated by market conditions" has no effect on the bottom line, which is that ownership is a legal construct.

Which raises an interesting question of rhetoric. If a bank were to begin claiming ownership of depositors' assets under one or another justification, I would fully expect a public outcry, and denunciations in the press. I strongly doubt, however, that such actions would be called "confiscations" or "seizures" of assets, even though that is precisely what they would be. We might call a new government law that changes how much money citizens must pay to the government a seizure, if we like. It is, however, no more a seizure than is a private seizure of assets. In either case, we must have a functioning government to make sure that any such changes in people's ownership rights are enacted properly.

Habeas Fundamentals

By Mike Dorf

On Tuesday, the DC Circuit denied en banc review in Abdah v. Obama.  An earlier ruling (in Kiyemba v. Obama) had held that a Gitmo detainee has no right to notice that he is about to be transferred to a place--such as Bagram Airbase in Afghanistan--where it may be impossible to obtain habeas relief because the Congressional judgment to provide for no statutory jurisdiction is valid under the Suspension Clause.  In a dissent from the denial of en banc review, Judge Griffith (joined by Judges Rogers and Tatel) argued that detainees do in fact have such a right to notice of the impending transfer.  Judge Griffith reasons in two key steps: 1) Boumediene v. Bush recognizes a right of detainees to all of the protections of habeas circa 1789; and 2) under English common law as received by the colonies circa 1789, the writ included the right to notice of, and thus an opportunity to protest against, such a transfer.

Indeed, in a nice piece of legal jujitsu, Judge Griffith relies on Justice Scalia's dissent in Boumediene: Scalia wrote then that the writ should not run to Gitmo because at common law the right against being gaoled beyond the courts' jurisdiction was protected by the right to be protected against being sent to such a place in the first instance, and not by a right to habeas outside the realm.  Justice Scalia's ultimate conclusion in Boumediene was rejected by the majority: Boumediene establishes that Gitmo is like Virginia so far as the Suspension Clause is concerned.  But because Justice Scalia would say that habeas protects detainees in Virginia against transfer beyond the writ's purview, taking the result in Boumediene as given, a proposed transfer from Gitmo to someplace beyond the writ's cognizance entitles the detainee to challenge the transfer (and the underlying custody) in a federal court, even under the Scali view.  Or at least so say the DC Circuit dissenters.

Given the premises, I think there is much to what Judge Griffith says--and were his view to become the law, that would protect detainees currently at Gitmo against having their habeas rights stripped away by the government's simply shipping them somewhere beyond the scope of the writ.  But Judge Griffith does not say, nor has the Supreme Court yet said, whether the writ runs to Bagram.  The Obama Administration has said it does not, angering many people who thought it would opt for a more substantial change of course from the Bush Administration.  Thus, even if Judge Griffith's view were accepted by a majority of the Supreme Court, that would not prevent an Administration decision to hold detainees apprehended overseas at Bagram or some other place beyond the reach of the writ in the first place--unless the Court were to extend Boumediene to such places.

For my money, there is a very difficult policy problem here.  On the one hand, it is simply not practical for the government to afford access to habeas or its equivalent for every person detained during wartime, at least where the war leads to the capture of thousands of detainees.  On the other hand, there is something profoundly troubling about the executive branch of the government being able to decide to evade judicial review of its detention decisions by choosing where to hold detainees.  A satisfactory solution--or compromise policy--should not create incentives for the government to hold detainees close to an active theater of war simply as a means of evading judicial review.  Yet that is the position taken by the Obama Administration: habeas runs to Gitmo but not Bagram, even when the decision to house a prisoner in one locale or the other is being made entirely with an eye towards the consequences for judicial review of detention decisions.

It is not obvious to me that the site of custody (as opposed to the site where a person first was taken captive by the U.S. or its allies) should be relevant to the determination of whether there is a constitutional right to habeas in any given case--although I suppose that there are at least historical grounds for thinking that it should be.  If so, I would count it a step forward for the doctrine for the courts to ask why someone is being held in a particular site.  If the government cannot advance legitimate, non-litigation-related reasons for a particular site, then it might be suitable to hold that the writ runs to that site.

Cross-Gender Strip Searches Part 3: Implications for DADT

By Mike Dorf
(NB: This post is expanded from its original form in response to a comment.)


In this, my third and final post on the Ninth Circuit en banc decision in Byrd v. Maricopa Cty Sheriff's Dep't, I consider whether the privacy interests that the court found sufficient in that case to declare non-emergency cross-gender strip-searches of pre-trial detainees unconstitutional under the Fourth Amendment would also justify the now-defunct Don't Ask Don't Tell (DADT) policy (which has not been phased out yet).


In an earlier post on DADT, I argued that the privacy rationale for the policy--members of the armed services supposedly don't want to be ogled in the shower by a person who could be sexually attracted to them--did not withstand serious scrutiny.  Here I want to ask what will almost certainly turn out to be a purely hypothetical question: If DADT were somehow to come before a court in the 9th Circuit, would Byrd strengthen the anti-ogling rationale?  I think the honest answer has to be that yes, Byrd does make the anti-ogling argument somewhat stronger, though the case would certainly be distinguishable in a challenge to DADT.  Here are four distinctions:


1) As I discussed in yesterday's post, the decision in Byrd--considered in tandem with the Supreme Court's 1977 ruling in Dothard v. Rawlinson--arguably implies that female guards could be excluded from positions in which conducting strip-searches is a substantial portion of the job description.  But even if so, this hardly amounts to a blanket exclusion of all women from the job of jail or prison guard, or even from the job of jail or prison guard in facilities housing male inmates.  So DADT--which is a blanket exclusion of out gays and lesbians from the armed forces--has/had a much greater impact on gays and lesbians than any exclusion of women from performing strip-searches would have.


2) Forbidding female guards from strip-searching male inmates absent an emergency is well targeted to address the interest in preserving the privacy interests of those inmates, insofar as they invoke social norms that create more embarrassment when one exposes one's body to persons of the opposite sex than to persons of the same sex (in a non-sexual and non-medical context).  By contrast, DADT was/is poorly targeted to addressing the ogling fear because it doesn't prevent secret ogling by closeted service members.  Indeed, one might think that DADT exacerbated the concern because it made service members who are concerned about ogling worry that any of the other people in their unit could be an ogler.  That risk will remain after the abolition of DADT, because some gay and lesbian service members will likely remain closeted, but it will at least be reduced.


3) There is what seems to me to be a normative difference between the two situations.  Suppose that we control for the distinctions identified above.  Imagine that a pre-trial detainee or prison inmate objects to being strip-searched by a guard who is openly gay but professional in the way in which he conducts the strip-search.  Would we be prepared to say that for the state to permit openly gay guards to perform strip-searches in a jail or prison violates the Fourth Amendment because such a search is, absent an emergency, "unreasonable?"  I don't think so--and the reason is that the stated concern for privacy from observation by gay persons of the same sex is tied up in negative stereotypes of gay people, in a way that a concern for privacy from observation by persons of the opposite sex is not.  Admittedly, that's a statement about social meaning which I'm simply positing here, but I think it is broadly true.  In the U.S., from very early in life, children are sex-segregated with respect to nudity, and the practice continues through adulthood. This sends an unmistakable message that cross-gender nudity is embarrassing. There is simply nothing comparable with respect to sexual orientation. Thus, the social meaning of wanting to shield one's naked body from strangers (or non-intimate acquaintances) of the opposite sex is simply modesty, whereas the social meaning of wanting to shield one's body from gay people is a kind of revulsion that bespeaks prejudice.


4) To be sure, it can fairly be said that a strip-search is not a matter of mere "observation."  That's fair.  But what it shows, first, is that Byrd has very limited implications for DADT: after all, the privacy concern voiced w/r/t DADT concerned mere observation, not touching of genitals.  Moreover, I continue to think that the Fourth Amendment would not be interpreted to bar openly gay prison guards from conducting non-emergency strip-searches on the grounds of privacy.  I think that any guard who conducted a strip-search in a sexualized manner would thereby violate the rights of the detainee or inmate.  And it's probably the case that the strip-searchee is more likely to perceive the strip-search as sexualized if he knows that the guard conducting it is gay.  But tragedies like the Abner Louima case show that male detainees are at risk of sexualized abuse from their captors regardless of the captors' orientation.

Cross-Gender Strip Searches Part 2

By Mike Dorf


In yesterday's post, I explored the light that analysis of the 9th Circuit decision in Byrd v. Maricopa Cty Sheriff's Dep't sheds on the nature of reasonableness under the 4th Amendment.  Here I consider the implications of the court's conception of privacy for sex equality claims by third parties.  Recall that the case holds that a non-emergency cross-gender strip search of pre-trial detainees is unreasonable absent an emergency that precludes waiting for a guard of the same gender as the detainee to perform the strip-search.


Byrd--the plaintiff detainee in the case--made a half-hearted attempt to raise a sex discrimination claim, arguing that the defendant permitted female detainees to insist on a female guard to perform the strip-search but denying the same right to insist on a same-gender guard to male detainees.  However, that claim was not sufficiently developed and accordingly the 9th Circuit made short work of it.


But consider a different sex discrimination claim.  Because about 90% of jail and prison inmates in the U.S. are male--and because inmates are sex-segregated--most opportunities for work as a jail or prison guard are in jails and prisons (or units within jails and prisons) housing male inmates.  Suppose that as a result of the 9th Circuit ruling in Byrd, women are excluded from some fraction of the guard positions in jails and prisons.  In Dothard v. Rawlinson, in 1977, the U.S. Supreme Court found that an Alabama administrative rule forbidding women from serving as guards in "contact positions" guarding male prisoners in maximum security prisons did not violate Title VII because it fit into a narrow exception under the statute for bona fide occupational qualifications.  The Court explained:

In a prison system where violence is the order of the day, where inmate access to guards is facilitated by dormitory living arrangements, where every institution is understaffed, and where a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, there are few visible deterrents to inmate assaults on women custodians.

Dothard was a statutory, not a constitutional, case, but it seems highly likely that the Dothard Court would also have upheld the Alabama regulation against an equal protection challenge on the ground that the need to maintain prison discipline and concerns about the safety of female guards satisfy heightened scrutiny.


I'm not sure that's the correct decision.  As Justice Thurgood Marshall argued in dissent in Dothard, much of the danger to female guards in the Alabama prisons resulted from the fact that conditions there were so terrible--indeed they had been separately adjudicated unconstitutional.  For Justice Marshall (joined by Justice Brennan), the state should not have been allowed to invoke its failure to respect the 8th Amendment rights of inmates as justification for failing to treat female guards equally.


But Dothard apparently remains good law (at least on the BFOQ question; the case also involved a disparate impact claim regarding other rules, and those have been somewhat superseded).  Presumably the case could be invoked by jail and prison officials to defeat the equal protection or Title VII claims of any putative female guards excluded from positions in which they would be performing strip-searches on male inmates as a result of the 9th Circuit holding in Byrd.


Yet even though the Dothard defendants cited inmate privacy concerns to justify the exclusion of women from contact positions, the majority did not rely on (or even mention) them.  Instead, the Dothard majority found that the concern for female guards' safety rendered the exclusion a BFOQ.  The only Justice who discussed the privacy argument was Justice Marshall in dissent.  He was dismissive, stating that it "is strange indeed to hear state officials who have for years been violating the most basic principles of human decency in the operation of their prisons suddenly become concerned about inmate privacy."  So to use Dothard as a precedent, the defendants would first need to establish that inmate privacy is comparable to guard safety, and thus justifies sex discrimination.


Of course, the Maricopa Sheriff's Dep't is in a pretty strong position with respect to the privacy concerns of inmates.  Having just been told by a federal appeals court that the 4th Amendment forbids non-emergency strip-searches, surely that holding counts as a sufficient justification for the Sheriff's Dept in defending against a lawsuit by female guards.  Otherwise we would put the Sheriff's Dep't in a damned-if-they-do-damned-if-they-don't position, and the only way to avoid liability one way or the other would be to forego strip-searches.  I happen to think that would be okay, but it's pretty clear that the 9th Circuit thinks that the jail and prison officials have good reason to conduct strip-searches, even absent particularized suspicion.  Thus, the result in Byrd at least tacitly precludes the sort of sex discrimination case I've described here.


But if the privacy of inmates justifies exclusion of women from positions as guards who conduct strip-searches, does that suggest that, in the days before Don't-Ask-Don't-Tell was repealed, DADT would have been justified based on the privacy concerns of heterosexual service members who feel it is an invasion of privacy to share close quarters with other service members of the same sex who are gay or lesbian?  I know I promised yesterday to address that issue today, but this post has gone on long enough, so I'll make this a 3-parter and consider the DADT analogy tomorrow.  Stay tuned . . . .