« February 2011 | Main | April 2011 »

39 posts from March 2011


Originalism on the Web
Mike Rappaport

 Jack Goldsmith on War Power.

The Sacrifice of the New Originalism
Mike Rappaport

Thomas Colby (George Washington University Law School) has posted The Sacrifice of the New Originalism (Georgetown law Journal, Vol. 99, No. 713, 2011; GWU Legal Studies Research Paper No. 534; GWU Law School Public Law Research Paper No. 534) on SSRN. Here is the abstract:

This Article argues that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The Article recounts the theoretical advances of the New Originalism and argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor. The Article further explains that these benefits have, however, come at the cost of judicial constraint. By its very nature - and to a far greater degree than its proponents have tended to recognize - the New Originalism is a theory that affords massive discretion to judges in resolving contentious constitutional issues. The Article suggests that there is something unsustainable in the current state of affairs. Originalism gains it salience in the public discourse by its continued reliance on a promise to constrain judges; it is that promise that brings it lay respect. Yet, it gains academic respect only by foregoing that promise. Originalism now garners esteem from much of both the public and the academy, but only because the public and the academy are speaking of very different things when they refer to originalism. Originalism somehow continues to thrive as both a political movement and as a scholarly theory, even though the features that make it attractive as a political movement render it impotent as a scholarly theory and vice versa.

I had the chance to read much of this article.  While it might make a good point about some of the "new originalist" theories, it neglects originalist theories that avoid the pitfalls it criticizes -- such as, the theory that I have developed with John McGinnis. 


A Fatal Loss of Balance: Dred Scott Revisited
Mike Rappaport

Daniel A. Farber (University of California, Berkeley - School of Law) has posted A Fatal Loss of Balance: Dred Scott Revisited on SSRN. Here is the abstract:

This essay focuses on three aspects of the Dred Scott opinion: its effort to ensure that blacks could never be citizens, let alone equal ones; its deployment of a "limited government" argument for a narrow interpretation of Congress’s enumerated power over the territories; and its path-breaking defense of property rights against government regulation. These constitutional tropes of racism, narrowing of federal power, and protection of property were to remain dominant for another seventy-five years. Apart from the failings of the opinion itself, Dred Scott also represents an extraordinary case of presidential tampering with the judicial process and a breakdown in fair procedure within the Court itself.

Taney's exercise in originalism highlights some pitfalls that present-day originalists would do well to avoid. His effort to read all of the Constitution through a states' rights, pro-slavery lense also dramatizes the risks of foundationalism. Taney's opinion lacks any sense of balance - a failing at any time for a judge, but particularly dangerous when the nation is poised over a historic abyss.

Sadly, Dan Farber seeks to tar originalism with Taney's opinion in Dred Scott.  But this is wrong.  Both Taney's majority opinion and Curtis's dissent were originalist opinions.  And in my view, Taney's was clearly bad originalism.  In fact, the best argument against Taney's opinion is that it was not the original meaning. 


Framing the Fourth
Mike Rappaport

Tracey Maclin (Boston University- School of Law) and Julia Grace Mirabella (Boston University- School of Law) have posted Framing the Fourth (Michigan Law Review, Vol. 109, pp. 1049-1076, April 2011; Boston Univ. School of Law Working Paper No. 11-10) on SSRN. Here is the abstract:

Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165.

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Cuddihy reviewed thousands of sources and has endeavored to identify the types of search and seizure that the Framers’ considered constitutional. However, Cuddihy’s scholarship has also triggered a sharp debate about the Framers’ intent among Fourth Amendment scholars.

This Review provides readers with some of Cuddihy’s main arguments. Part I identifies aspects of search and seizure doctrine that Cuddihy finds had a consensus by 1791 and briefly looks at other areas that were unsettled. Part II describes some of the scholarly reaction that Cuddihy’s book has ignited. Specifically, this section outlines the points of agreement and disagreement between Cuddihy and Professors Thomas Davies and Fabio Arcila. Finally, Part III compares Justice Scalia’s use of history in a recent case with Cuddihy’s findings, and offers a few comments on the guidance that Cuddihy’s book can provide to modern judges.


Declaring War and the Security Council
Mike Ramsey

In previous posts I’ve argued that the U.S. intervention in Libya requires congressional approval under the Constitution’s original meaning and that there’s no longstanding uncontested precedent that would warrant departure from that meaning.  Here I’ll consider the significance of UN Security Council Resolutions 1970 and 1973, calling for a cease fire by the Libyan government and authorizing nations to use force against the Libyan military.  Some commentators have taken these resolutions to somehow distinguish the Libya situation from earlier ones, such as the potential attack on Iranian nuclear facilities debated in 2007.

I can see two arguments that the Council’s actions might help the President, but I don’t find either persuasive.  First, the Resolutions are adopted pursuant to a treaty, the UN Charter, and thus have the force of law in the U.S.; perhaps the President, exercising his obligation to “take Care that the Laws be faithfully executed” (Article II, Section 3),  has constitutional power to enforce them without needing congressional approval.

It might pose a difficult question if a treaty itself declared war or obligated the U.S. to declare war.  The issue would be when and whether powers of Congress could also be exercised by treaty – a matter vigorously debated in the post-ratification period without producing a fully satisfactory conclusion.  But that is not the question here.  Resolution 1973 authorizes the use of force in Libya for certain purposes.  It does not obligate the U.S. (or any other nation) to use force against Libya.  Even if the President’s “take Care” power fully empowers (and requires) him to enforce U.S. treaty commitments, the President is under no treaty obligation to use force here.

Resolution 1973 addresses a distinct issue: under Articles 2(4)  and 51 of the  Charter, the U.S. has a treaty obligation not to use force against other nations except in defense of itself or its allies.  Since neither situation applies to Libya, the intervention would be illegal under these provisions but for Resolution 1973 (because using force with Security Council approval is another exception to the Article 2(4) obligation).  So the Resolution says what the U.S. as a nation may do, but it doesn’t say anything about which branch of the U.S. government should make the decision to do it.  

I suppose one could argue that the President has power under Article II, Section 3 to use the military to enforce other nations’ treaty obligations.  If so, the key resolution is not 1973 but 1970, which calls on the Libyan government to end violence against its citizens (and, by this theory, the President is “tak[ing] Care” this “Law” is executed).  That’s an extraordinarily broad claim, though, that would radically undermine Congress’ declare war power in a way clearly not accepted by the founding generation.  For example, no one thought President Adams in 1798 could attack France without congressional authorization just because France had violated a treaty with the U.S. (which it had).  The founding generations’ categorical statements that the President alone could not start a war make no sense if the President can in fact start a war to enforce a treaty – a justification that would very commonly be available.

A second argument might be that the Security Council resolutions change the nature of the conflict, so that it is no longer a “war” (and so not subject to the declare war clause).  President Truman tried this argument in 1950 in the conflict in Korea, but history hasn’t been kind to it: everyone calls that conflict “the Korean War” although Truman claimed it was a “police action” to enforce the U.N. Charter.  (Similarly the 1991 Gulf War is called a war despite being approved by Security Council  resolution.)   In any event, this argument does not get around the text and original meaning of the declare war clause.  Resolution 1973 sets the objectives and limits of the intervention, but the intervention remains the “exercise of violence under sovereign command” – the 18th century definition of “war.”  And, especially because U.S. participation in the intervention is voluntary under international law, the U.S. had to manifest “by word or action” its commitment to war – which is the 18th century definition of “declare.”

Finally, even if some conflicts fought under Security Council approval are “wars,” perhaps this one is not, because it is – as State Department Legal Advisor Harold Koh said in a recent statement – “time-limited, well-defined, discrete and aimed at preventing an imminent humanitarian catastrophe.”  As Ken Anderson explores in this post, the Resolution itself is quite vague, and it’s not clear what limits it actually provides on the intervention.    But in any event, as I argued earlier, the founding generation surely understood limited wars, and still called them “wars” subject to the declare war clause.  The limits Koh describe may make the intervention just and reasonable, but they don’t make it any less a war.  According to recent news reports, among other things we are using sustained aerial attacks to destroy Libyan army tanks and ground forces, clearing the way for rebel forces to advance.  Wherever the line between war and not-war may be, this intervention seems firmly on the “war” side.  The fact that our actions are done with Security Council approval doesn’t change their nature – it only makes this a war in pursuit of objectives blessed by the Council.

This post originally appeared at Opinio Juris.

Originalism in the Blogs
Mike Rappaport

Roger Roots on The Originalist Case for the Fourth Amendment Exclusionary Rule.

In a related post, Orin Kerr on Is the Exclusionary Rule Consistent with Originalism?


Substantive Due Process, Black Swans, and Innovation
Mike Rappaport

Toni M. Massaro (University of Arizona College of Law) has Substantive Due Process, Black Swans, and Innovation (Utah Law Review, Forthcoming; Arizona Legal Studies Discussion Paper No. 11-09) on SSRN. Here is the abstract:

Substantive due process is a vexing concept within constitutional law that has at times been mocked as an “oxymoron,” and recently re-anchored to American “tradition” and “history.” Yet the Court has refused to renounce the doctrine entirely, and has continued to apply it in a manner that considers evolutionary notions of “ordered liberty.” This Essay endorses “evolutionary” due process, though on new grounds.

It recognizes that evolutionary due process reflects our actual constitutional practices – a point made by many commentators – but it also permits innovation as necessary to cope with so-called “Black Swan” events. All “living Constitution” arguments rest on the argument that the Constitution was meant to breathe, to accommodate and sometimes hasten cultural change. But these accounts tend to reflect optimism about cultural change, and about the Court’s ability to advance that progress. 

These tales ignore another, darker kind of change, which likewise requires that decision makers innovate: ominous, potentially cataclysmic outlier events that likewise occur throughout history. These “Black Swan” events tend to be repressed or exoticized in conventional constitutional histories, rather than appearing as part of the normal life cycle of our constitutional order.

A fuller account of our history requires that we weave these outlier events into our historical narratives, and develop constitutional theories that recognize the fact of past ruptures and the inevitability of future ruptures. 

The Essay also explores the inherent limitations of the past as a guide to the future, and the special limitations of judges and lawyers to engaged in balanced historical analysis. Contemporary fascination with constitutional history as a means of determining constitutional meaning makes it especially critical that we are reminded of these inherent limitations, and that we consider more generally our forebearers’ willingness to “think anew.” This American constitutional spirit of renewal and innovation may be most apparent in times of crisis, but it never wholly disappears. Room for that spirit’s expression should be explicitly preserved in our due process principles going forward, lest we compromise future generations’ ability to cope candidly and effectively with the escalating forces of change.


Declaring War and Libya: A Comment on Past Practice
Mike Ramsey

My previous post argued that the original meaning of the declare war clause requires the President to get Congress’ approval before beginning military conflicts (including the current conflict in Libya).   I’ll now turn to two leading counterarguments: first, that Presidents have routinely engaged in low-level conflict without Congress’ approval; and second, that the President’s action to enforce a resolution of the U.N. Security Council differs from ordinary war.

I’ll take the historical practice first.  To start, it’s important to note that my reading (and basically every reading) of the declare war clause allows the President independent power to respond with force when the U.S. is attacked.  The clause only means that the President must get Congress’ authorization to begin a war (that is, to “declare” it).  As Madison said at the Constitutional Convention, the President has power to “repel sudden attacks” (though exactly how far this power extends is subject to serious debate).

Recognizing this power accounts for essentially all material presidential uses of force in the 18th and 19th centuries.  For example, in 1819 then-General Andrew Jackson attacked the Seminole tribe in Spanish Florida, as well as several Spanish posts, on the President’s orders but without Congress’ approval.  When some members of Congress objected, citing the declare war clause, Jackson’s defenders responded that the Seminoles, with Spanish support, had attacked first.  Similarly, at the outset of the Civil War, President Lincoln ordered a naval blockade of the South without Congress’ approval.  Lincoln argued that the South’s attack on Fort Sumter justified his response.

The Supreme Court accepted Lincoln’s argument in The Prize Cases, upholding the blockade.  The Court first stated the general rule that the President “has no power to initiate or declare a war.”  (67 U.S. 635, 668 (1863)).  But, the Court continued, once the other side began the war, the President could fight in response (including not just defensive but also offensive measures).  This holding is consistent with the argument of Jackson’s defenders in the Seminole conflict and Hamilton’s argument, mentioned in my last post, concerning the 1801 Tripoli conflict.

Thus longstanding historical practice – not just in the 18th century but throughout the 19th  – supports my view of the declare war clause: there was broad agreement that the President could not engage in hostilities independently unless the U.S. was attacked.  It was not until the 20th century that a practice arose of Presidents using military force without approval other than in response to attacks.  This practice of course has little bearing on the Constitution’s original meaning.

Perhaps, though, modern practice acts as a sort of precedent that allows the President’s action despite the Constitution’s original meaning.  This seems to be the core of Jack Goldsmith’s important post in support of the President’s power that I mentioned earlier.   Many attempts to apply the Constitution’s original meaning to modern circumstances must wrestle with the question of precedent.  But here I think the practice isn’t sufficient to raise the question, mostly for the reasons explained by Ilya Somin in this excellent discussion.  The short of it is, first, that there have not been all that many instances of Presidents unambiguously beginning military conflicts in the last 50 years (as opposed to sort-of-plausibly claiming to be responding to attacks or making deployments not involving actual hostilities).  And second, most of those instances have been strongly contested by members of Congress and legal commentators.

Just in the last decade, some members of the George W. Bush administration initially suggested in 2003 that the President might have power to attack Iraq without Congress’ approval, but this claim was widely criticized on constitutional grounds; the administration reconsidered and (successfully) sought approval.  Later, in 2007, there were rumors that the President might bomb Iran’s nuclear facilities.  Congressional leaders again strongly objected to any unilateral presidential action, invoking the declare war power.  Though his administration tested the boundaries of presidential power in several respects, Bush did not undertake any wars without Congress’ approval.

On this record, it seems hard to say – whatever force one gives to precedent generally – that practice has established a precedent sufficient to override the Constitution’s original meaning.  Historical practice before the 20th century gives little support to the President, and the only Supreme Court case to consider the matter expressly stated that the President lacked power to “initiate” war.  Modern practice is deeply contested, and has been at least since the Vietnam War.  As recently as 2007, congressional leaders sharply asserted Congress’ power under the declare war clause to approve a possible campaign of aerial strikes.  We’re far from a Constitution-altering consensus in the President’s favor.

There remains the question, though, whether the Libya intervention is different because it is being done by authority of a resolution of the U.N. Security Council.  I’ll turn to that question next.

This post originally appeared at Opinio Juris.

The Political Fourth Amendment
Mike Rappaport

Thomas P. Crocker (University of South Carolina School of Law) has posted The Political Fourth Amendment (Washington University Law Review, Vol. 88, No. 2, 2010) on SSRN. Here is the abstract:

The Political Fourth Amendment develops a theme from Justice Ginsburg’s recent dissent in Herring v. United States to argue for a “more majestic conception” of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. These two doctrinal goals are in clear conflict in Arizona v. Gant, with the majority opinion focused on privacy and the dissent focused on providing police officers clear rules. In order to see the Fourth Amendment as contributing to the Constitution’s protections for political liberty, and not simply as an invitation to regulate police practice, this Article examines the fact that the Fourth Amendment’s textual purpose is to secure a “right of the people,” which places it textually alongside the First, Second, and Ninth Amendments that similarly seek to protect the “right[s] of the people.” Narratives focused on regulating police or protecting privacy each risk blinding us to the Fourth Amendment’s broader constitutional setting. By looking at the historical origins of the Fourth Amendment in relation to substantive First Amendment concerns, and examining the textual significance of protecting a “right of the people,” this Article argues that the two dominant narratives overlook a central political purpose of the Fourth Amendment. The political Fourth Amendment seeks to protect the political liberties of the sovereign “People.” These liberties include the ability to assemble and interact with other people free from pervasive state interference or surveillance. But, current Fourth Amendment doctrine offers no protection to anything a person knowingly exposes to others, a hazard in an era of electronic social networking. Both pragmatists and rights essentialists have cause to be concerned with the doctrine’s increasing irrelevance to modern social life. Reading the Fourth Amendment’s political purpose back into the Constitution will make available new grounds for the Constitution’s relevance in an age of pervasive electronic surveillance.


Beyond Judicial Activism
Mike Rappaport

Margaret L. Moses (Loyola Unviersity Chicago School of Law) has posted Beyond Judicial Activism: When the Supreme Court is No Longer a Court (Loyola University Chicago School of Law Research Paper No. 2011-008) on SSRN. Here is the abstract:

Our Supreme Court, in recent decisions, has reached out beyond the cases that were put before it by litigants to decide issues that were not in dispute between the parties. The four Supreme Court decisions discussed in this article, Citizens United v. FEC, Ashcroft v. Iqbal, Montejo v. State of Louisiana, and Gross v. FBL, have frequently been criticized because of the changes in law they effected; this article, however, focuses on the process. When the Court decides its own questions, rather than those presented by the parties, it does so without the benefit of a record created below on the question, without the opinions of lower court judges, and sometimes without the briefing of the issue by the parties or amici. In the cases discussed, the Court has also ignored traditional prudential practices, such as the avoidance canon for constitutional issues, the refusal to consider issues neither pressed nor passed upon below and the rejection of issues raised for the first time in Respondents' merits brief. It has also failed to follow its own Court Rules. In effect, the Supreme Court has acted without boundaries of any kind. In so doing, it is not acting as a court. This article proposes that there should be boundaries that the Court is required to meet, and that those boundaries should be imposed by Congress, under the Exceptions Clause of Article III. The purpose would be to make judicial conduct consistent with the structure that the Constitution sets forth for the role of the judiciary. To the extent that no boundaries exist, the Justices become simply politicians in robes.