Showing posts from February, 2008

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 Dign

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 w

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 actuall

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

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

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 re

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 Presid

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 Col

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 t

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

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. According

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

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

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 kil

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 he

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" mysel

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 c

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 voter

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

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 th

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 Sei

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 sin

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

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

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 a

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