PrawfsBlawg

Anna Nicole Goes to the Supreme Court

I don't have much to say about it, but it seemed blogworthy.

Debate Club

Coinciding with this week's Scopes II trial in PA, the Legal Affairs Debate Club takes up the issue of the legality of teaching intelligent design in public schools this week.  Participants are Bekcwith and Laycock.  Looks promising.

Kelo Debate

Will Baude recently live-blogged a debate on Kelo between professors Nicole Garnett and Thomas Merrill for the Yale Federalist Society. 

Although live-blogging has never really connected with me, Will does an admirable job.  The post is worth reading, as Garnett and Merrill cover some really intriguing ground.

Now you are concerned about legalisms?

David Kopel (over at Volokh) was one of the very first to propose shooting the Katrina looters, even though such action would be plainly illegal.

Today he applauds a consent decree in which everyone agrees that it was illegal to confiscate guns in the aftermath of Katrina.

I guess the laws are worth upholding, except when they aren't.

Scopes II

The first trial over a challenge to the introduction of "intelligent design" into the public school curriculum gets under way today in Harrisburg, PA.  This will be worth watching.

And so what if she did?

Some folks (including here at prawfs) seem awfully concerned with whether Justice Ginsburg ever favored lowering the age of consent to 12.

My response: So what if she did (or does)?

Don't get me wrong.  I'm as horrified as anyone else at the idea of legalizing sex with a 12 year old.

But why should anyone care about Justice Ginsburg's policy preferences on this question?  After all, there's been no hint that she would (never mind whether she possibly could) impose such a preference from the bench.  Indeed, the only evidence that she ever espoused such a view emerges from a piece of legislation she may once have supported--and is not, to my knowledge, reflected in any argument she ever made as an attorney arguing a case to judge, let alone as a judge herself.

Conservatives especially should applaud her restraint, for she evidently has no intent to legislate this from the bench.  Isn't that what conservatives always demand, judges who check their policy preferences when they put on the robes?  Recall that were Justice Thomas a legislator, he would vote against bans on homosexual sodomy; and yet the very same religious right that demands such bans just can't get enough of Thomas, because he understands the difference between a judge and a legislator.  These same people should give Ginsburg a medal for recognizing that it isn't her job to decide the age of consent, whatever her policy preferences are.  Instead, they just give her grief.

If you don't like her policy views on this question, don't vote for her for senator.  Luckily, she's not running.

Married in Massachusetts, Moved to Connecticut

I'd like to follow up on this post, wherein I discussed the Connecticut Attorney General's determination that Connecticut will recognize Vermont and California civil unions, but not Massachusetts same sex marriages.  His reasoning was that Connecticut's legislature clearly rejected same sex marriage, and therefore did not intend to recognize same sex marriages from other states.  I suggested that an equally plausible interpretation and application of Connecticut law and legislative intent would be to convert Massachusetts same sex marriages to civil unions at the Connecticut border.

Let me explain why I think my interpretation is not only equally plausible, but indeed preferable.  As I understand the Attorney General, Connecticut would allow a person married under Massachusetts law to move to Connecticut and "unionate" (whatever the proper verb is here) with someone else, since the Massachusetts same sex marriage has no legal implications in Connecticut.

I do not believe that this is consistent with the Connecticut legislature's intent.  Although the legislature did reject same sex marriage, it also unequivocally chose to respect and recognize strong marriage-like bonds between people of the same sex.  The most reasonable way to apply this "split the baby" approach to the "Married in Massachusetts, Moved to Connecticut" question would be to give Massachusetts marriages the same legal status as Vermont, California, and Connecticut civil unions.

Reminder: This discussion is not about the normative or constitutional questions surrounding same sex marriage.  Those discussions are for another day.

Amar on Slate on Originalism

Akhil Amar joins in Slate's ongoing discussion of originalism and constitutional interpretation.  Regular readers will know that I've been tracking this series.

Amar argues that liberals do a disservice to themselves and to the Constitution when they proclaim that originalism is for conservatives. 

He makes two major moves.  First, as he puts it, "text without context is empty," and argues that originalism is the most legitimate method of interpretation.  Second, he reminds us that liberals can win the originalist debate too.  That is, you can be a liberal and also an originalist.  (Along the way he also takes Jack Balkin's position on the matter head on.)

I mostly agree with Amar, but I do have two thoughts. 

It is a sneaky move to argue that originalism is both more legitimate philosophically and also practically consistent with the liberal agenda.  That wraps up the bow a little too neatly.  Which is it: are we to be originalists because it is a more legitimate and cohesive interpretive technique, or because it gets us the results we want?  The real test is when our principles conflict with our practical political preferences, as they inevitably do.

Second, what is often missing from the debate about constitutional interpretation and change is missing from Amar's post as well (though I realize that this is just one post on Slate): any real discussion of the mechanism by which we can most legitimately change the meaning of the Constitution, namely the amendment process, and how that plays into the debate.  In my view, leaving constitutional change to the Court takes too much of the burden off of The People.

Full Disclosure: Amar was my Con Law professor.

UPDATE: As has been mentioned previously, prawfsblawg will soon be holding a group discussion of Amar's new book, and we hope that Professor Amar will participate as well.

Funny Letter

There was a funny letter in Sunday's NYT Book Review.  (Let me be clear: I don't agree with the letter; and I suspect the author himself meant it tongue in cheek, at least in part.  But it is funny.)

Screwing Up America
To the Editor:
In his review of Bernard Goldberg's ''100 People Who Are Screwing Up America'' (Aug. 28), Richard Brookhiser makes a welcome and eloquent plea for elevated debate. He goes on to say, ''The challenge of our lifetime is a religious totalitarian death cult.'' While it is a relief to see an intelligent conservative finally point a finger at the Bush administration, I do feel that Islamic extremists are part of the problem, too.
PETER ATKINS
Los Angeles

God's Payback

Some figures on the religious right, including some within the orthodox Jewish community, claim that Katrina was God's payback for everything from the U.S. pressuring Israel to withdraw from Gaza, to the California legislature's embrace of same sex marriage, to a judge's decision concerning the word's "under God" in the Pledge.

(This is by no means the mainstream opinion within orthodox Judaism, by the way.  That is something worth clearing up at the outset.)

Let us assume for a moment that these fanatical claims are true.  Why on earth would anyone want to associate with a God who murders hundreds of innocents, displaces and impoverishes thousands more, and causes the rest of the havoc associated with Katrina--for no reason other than payback for sins that these individuals did not commit?  And wouldn't we be forced to conclude that God just hates poor people, blacks especially, such that they pay the heaviest price for the sins of the rest of society?

I always thought that disasters like Katrina are likely to make people more agnostic rather than more strident in their religious beliefs.  Perhaps I was wrong.

Civil Unions and Full Faith and Credit

As many of you know (particularly if you are avid readers of this blog), Connecticut recognizes same sex civil unions.  These unions are virtually identical to "marriage" (for state purposes), with some minor (though not unimportant) differences.

Connecticut Attorney General Richard Blumenthal issued an opinion today regarding recognition of same-sex relationships from out of state.  The short end of the stick is that Connecticut will recognize Vermont and California civil unions (whatever official names they go by), but not Massachusetts same-sex marriages.

The basic reasoning:

At present, our courts will conclude that Connecticut law and the Full Faith and Credit Clause of the United States Constitution require Connecticut to recognize Vermont civil unions and California same-sex domestic partnerships. Other out-of-state, legally authorized same-sex domestic partnerships may be recognized as civil unions in Connecticut depending on how specific provisions of other States' laws compare to ours.

. . . .

The Connecticut General Assembly has specifically determined that same-sex marriages are contrary to Connecticut law. Because the legislature has determined that marriages in Connecticut may only be between a man and a woman, same-sex marriages performed under laws of any other State violate Connecticut's expressly articulated public policy and are not required by the Full Faith and Credit Clause of the United States Constitution to be recognized here.

Putting aside whatever you think about same sex marriage in general (I'm in favor, as I've said many times), and the constitutionality of bans on same sex marriage (I'm torn), and focusing just on the intent of the Connecticut legislature, I think this does make some sense.

I wonder, however, if it would make more sense for same sex couples married in Massachusetts to automatically attain the status of "unioned" in Connecticut.  It seems to me that while the Connecticut legislature did not want to recognize same sex marriages, it clearly did want to convey the benefits and responsibilities associated with marriage on same sex couples who committed themselves in the manner we normally associate with marriage.  So why not just convert the marriages to civil unions at the border? 

There is an argument that it would be the province of the legislature to make that call; but remember that Attorney Blumenthal is advising State employees and residents as to how the legislature's words should be implemented in this case.  Converting foreign same sex marriages to the local category of civil unions seems as plausible (not to mention efficient) as refusing to recognize them altogether.

Is this a joke?

Read this interview with comedian Bill Maher.  Look at the pictures of his gorgeous home.  Scan through his description of his routines, needs, and interests.

Then read the last sentence of the interview.

Is he joking?

And You Thought Thomas Was a Conservative

I can't be the first to have noticed this, but I just read the Thomas dissent in Kelo again, and this struck me:

This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

That's right.  According to Thomas, it is suspicious that something good for Pfizer would also be good for jobs, the tax base, and the local economy.

Wha?!  Isn't that the central tenet of free market capitalism?  Don't get me wrong: there's all kinds of problems with unrestrained free market capitalism.  But the idea that businesses create jobs is kind of, um, central to the whole thing.

Turns out that Thomas is something of a . . . socialist?  Who knew?

Thoughts on the Pledge

Ethan beat me to the punch (while I was drafting this post, I might add!), but I can't resist adding my two cents on the Pledge ruling.

First, my prediction.  One of three things will now happen:

1.  The 9th Circuit will send it back to the district court since it is not, in fact, bound by the 9th Circuit's previous ruling;

2.  The 9th Circuit will reverse on the merits;

3.  The 9th Circuit will affirm.  In which case the Supreme Court will bounce it back since the district court was not, in fact, bound by the 9th Circuit's previous ruling.  From there, whatever happens, the decision will ultimately be reversed on the merits.

Second, as always, the religious right must end up fighting with itself.  On the one hand, it must refer to the invocation of God as mere "ceremonial deism."  On the other hand, it insists that it really does mean we are a nation under God.  This same tension plays out every time in Ten Commandments and religious display cases.  You find lawyers for the most religiously observant people making arguments in court like "No, no, no.  We don't really care if people believe in God or not; we just want to acknowledge as a historical matter that Madison believed in God."  And then you find the clients on the courthouse stairs making statements to the media like "God is all powerful, and if the godless judges don't affirm that, the end is nigh."  Don't get me wrong: the godless left is hardly immune to hypocrisy (suddenly we all love states' rights!).  But, from the perspective of someone sitting in the stands rooting for one team over the other, I can't help but enjoy myself at watching these knots be tied.

Finally, the big normative question.  Frankly, I think Ethan is wrong.  While I do wish we had a real and deep commitment to religious pluralism (including the non-religious), the bottom line is that we do not.  Christmas is a national holiday.  'Nuff said.  The rest of us are outsiders.  One or two fewer displays of the Ten Commandments isn't going to change anything. 

I do not quite agree with Noah Feldman that we should be altogether comfortable with religious displays and invocations of God (and I certainly do not believe that his solution to the Church-State problem actually solves anything); but insofar as he argues That's Just The Way Things Are, I agree with him.

Getting Kelo Wrong

From this week's Time Magazine:

Bucking a U.S. Supreme Court ruling on eminent domain that curtailed private-property rights, the Texas legislature passed a bill in August that would restrict government seizures of private land (thus joining several states in a backlash against the ruling). But two exemptions made it into the bill, one involving the Cowboys' construction plans for a new $650 million stadium. About 50 property owners are refusing to sell their homes to the city of Arlington, blocking the Cowboys' bid to build the stadium on their land. If the bill becomes law, those homeowners may be forced to leave, suggesting that the property-rights movement is alive and well in Texas--so long as football revenues aren't at stake.

Two comments.

First, this blurb presents a perfect example of how the mainstream media misrepresents important legal issues.  A legislative decision to prevent Kelo-type takings does not buck the Supreme Court.  Indeed, just the opposite: it takes the Court's invitation to legislate according to the will of the people.  Kelo obviously did not require federal, state, or local governments to allow such takings; but that's the impression that is created by this and other stories in the wake of Kelo.  (Not unlike the prevailing belief that if Roe is overturned, abortions become illegal.)

Second, if the Cowboys get a special dispensation, you have to wonder how much people really care about Kelo.

Miracle Baby?

Perhaps you are aware of the tragic story of  Susan Rollin Torres, who was declared brain-dead while pregnant.  She was kept on life-support for three months in order to allow the baby to be delivered.

The baby, Susan Anne Catherine Torres, was delivered by c-section about two months prematurely.  Yesterday, she died at just under 6 weeks old from an illness associated with premature birth.

This story is very very sad, and in no way should a discussion of the issues it raises overshadow the tragedy this presents to many people, none more so than the father.

But it does raise interesting questions.  I, for one, was very happy when the baby was born.  For perhaps this baby would bring solace to the remaining family and live a long and healthy life.  And yet when the story ends in this tragedy, with the baby no doubt in pain for her entire young life, I wonder whether the decision to undertake extraordinary measures to deliver the baby was worthwhile.  Not for me to decide, of course; but it implicates issues that do concern me, like abortion, medical technology, theodicy, and the meaning and value of life.

It is not easy to have these conversations respectfully given the deep rift in our society; but I don't see how we can avoid it.

But mostly, right now, I am sad.

Awesome Line of the Day

From Dahlia Lithwick's rundown of the confirmation hearings (the kicker comes at the end):

The Senate Judiciary Committee has complaints about judges. For one thing, Republicans on the committee appear to think that "activist judges" are more dangerous to America than terrorism, hurricanes, and chemical weapons. Jeff Sessions, R-Ala., vigorously condemns the "post-modern philosophy" of judicial activism, excoriating the "activist Supreme Court judges" who interpret the Constitution in light of "evolving standards of decency." (He offers no better constitutional test for interpreting the Eighth Amendment because, um, there isn’t one). Charles Grassley, R-Iowa, hurls contempt upon the "Internet Age," including those of us with the ability to download "thousands of documents" and read them—according to him—in "an inaccurate way." Damn readers. And John Cornyn, R-Texas, expresses serious doubt about the judgments of "nine judges isolated behind a monumental marble edifice, far removed from the life experienced daily by average Americans." So, just to recap, the Senate thinks judges are capricious, activist, postmodernists who are dangerously out of touch with the average American.

Thank goodness we have a Senate, then, to speak clearly, think lucidly, and act with selfless devotion to sort out the real-world issues that matter most to you and to me.

Indeed.

The Nuclear Threat

My good friend (and new Harvard prawf) Jed Shugerman published this op-ed in the Boston Globe concerning confirmation hearings and the nuclear prospect.  Jed's intriguing proposal:

The filibuster is designed to keep debate open procedurally, but the threat of a filibuster should be used to foster debate substantively. The Senate Democrats should announce that they will filibuster a nominee who evades questions, answers questions inconsistently, or seems to be dishonest. If the nominee prevents debate from beginning, the senators should block it from ending.

But the flip side is that if the nominee candidly espouses views that seem extreme, the Senate Democrats should commit themselves to defeat the candidate only by an up-or-down vote. If they cannot muster 51 votes after an open hearing, then either the candidate is not so extreme or they need to campaign on these issues in the next election and win.

As something of a populist proceduralist, this idea appeals to me, for it properly recognizes that procedure is to be used in the service of substance.  It uses procedural rules to force us to debate substance--and then to take the substantive debate to the people if we lose.  The only trouble with this proposal is that it skirts certain political realities.  Democrats will use the filibuster if it serves their political interests, and not otherwise. 

More on the Legislature vs. Prop. 22

Andrew Sullivan writes:

Schwarzenegger's argument is that Proposition 22 already settled the question. No, it didn't. When Proposition 22 was passed, there were no marriage rights for gay couples in California: they were already banned. Prop 22 was not about legalizing marriage rights for gay couples in California. The point and origin of Prop 22 was to prevent marriages in other states being automatically recognized by California. In the official arguments for and against the Proposition, the proponents argued:

When people ask, "Why is this necessary?" I say that even though California law already says only a man and a woman may marry, it also recognizes marriages from other states. However, judges in some of those states want to define marriage differently than we do. If they succeed, California may have to recognize new kinds of marriages, even though most people believe marriage should be between a man and a woman.

In the same document, they even underlined this point in capital letters:

THE TRUTH IS, UNLESS WE PASS PROPOSITION 22, LEGAL LOOPHOLES COULD FORCE CALIFORNIA TO RECOGNIZE "SAME-SEX MARRIAGES" PERFORMED IN OTHER STATES. That's why 30 other states and the federal government have passed laws to close these loopholes. California deserves the same choice.

The debate at the time centered entirely around that question. You can see that from the actual legal code that added Prop 22. Section 300 defines civil marriage. Section 308 defines recognition of out-of-state marriages. Proposition 22 was inserted at Section 308.5.

(emphasis added)

If he is correct, and I do not know whether he is, it sounds like a pretty reasonable argument on legislative construction.  At the very least, it supports Ethan's point (contra Kate) that some people might not have known what they were voting for.

If anyone wants to review the public arguments made regarding Prop. 22 at the time, I'd be very interested in seeing it.

We Love Courts, Yes We Do!

Because the issues of same-sex marriage and legislatures vs. courts are of deep interest to me, I am going to address Dan Markel's question in this post rather than in a comment.

Dan writes:

A spokeswoman for Mr. Schwarzenegger, Margita Thompson, said after the vote that the governor believed that the issue of same-sex marriage should be settled by the courts, not legislators, but she did not indicate whether that meant he would veto the legislation. The bill did not pass with enough votes to override a veto. "The governor will uphold whatever the court decides," Ms. Thompson said. 

I confess I am curious about how the Governor reached this decision to punt it to the courts.   Presumably, those people who say that abortion rights should be determined in state legislatures not courts (and this would include liberals and conservatives) would agree that marriage rights should similarly be determined in the state house, and not the court house.  After all, the thinking goes, neither of these issues are directly addressed in the federal Constitution.  (I'm not sure if the CA constitution has something directly on point).  Anyone have an idea for a political and/or legal rationale for Arnold's views here?

More on Race, Class, and Katrina

Dave Hoffman's powerful indictment of the media's take on race in Katrina coverage (you know the one: the black guy is described by the media as "looting," whereas the white people are merely "finding") has attracted a great deal of attention, and rightfully so.

Here's more on media coverage of race and class as it pertains to Katrina.

Balkin on the Living Constitution

Slate is breaking out the big guns for its series on the status of the Living Constitution, starting with Professor Jack Balkin.  His essay is strong stuff, but since reading it earlier this week, some elements have been bothering me.  I finally figured out what they are.

First, as Orin Kerr has already pointed out, the piece is more of an argument against originalism than it is an argument for living constitutionalism.

Second, Professor Balkin seems to conflate originalists with originalism, and argues that because today's originalists (most notably Scalia and Thomas on issues like affirmative action, Bush v. Gore, and the New Deal) sometimes betray originalism, originalism must be unworkable.  It is certainly fair game to attack Scalia, Thomas, and others for displaying hypocrisy; but it is another thing altogether to declare that hypocrisy of some (or even most or all) shows that originalism itself is bankrupt and without force.

Finally, let me turn to Balkin's strongest argument:

And that brings us to the real secret of why we have a living Constitution. In the long run, the Supreme Court has helped secure greater protection for civil rights and civil liberties not because judges are smarter or nobler, but because the American people have demanded it. When social movements like the civil rights movement or the feminist movement convince the center of the country that their claims are just, the court usually comes around. Sometimes it gets ahead of the center of public opinion, and sometimes it's a bit behind. But in the long run it reflects the national mood about the basic rights Americans believe they deserve. The great engine of constitutional evolution has not been judges who think they know better than the American people. It has been the evolving views of the American people themselves about what rights and liberties they regard as most important to them.

Rather than a set of shackles designed by long-dead slave-owners, the framers bequeathed to us a Constitution that could adapt to the needs and aspirations of each succeeding generation. Their faith in the possibilities of the future, and our enterprise in realizing that future, have made us the great and free nation we are today.

This strikes me as more of a defense against the attack that the Court is radical than an argument in favor of the Court's applying living constitutionalism.  If the Supreme Court usually reflects public opinion--sometimes just ahead of the curve, and sometimes just a bit behind--then why do we need the Court to speak on these issues?  Why can't the democratic processes (including the amendment procedure) adequately reflect public opinion?  One imagines that were the Court to roll back the New Deal under the banner of originalism, The People might have something to say about that.  Let them.

I know, I know.  There are all kinds of constraints on real life democracy.  And at times, the Court must step in where those constraints prevent The People from expressing their will.  But it simply cannot be argued that all constitutional decisions made under the Living Constitution theory were made to remove constraints on democracy.

Note that I'm not arguing originalism is right.  Instead, I'm just asking why "The People want it this way" today is an argument in favor of living constitutionalism.

I'd argue that The People expect and demand a measure of living constitutionalism today because We are used to having it that way.  It may be, then, as a practical matter that we can't do without the Living Constitution; but it is only because we have created a culture wherein we turn to the Court to address our problems.  That's not much of a philosophical case in favor of Brennan's Living Constitution.

Merck: What Now

Slate offers an interesting look at the decisions facing the various Vioxx litigants in the wake of the August 19 whopper of a judgment (discussed by us previously).

Over the coming months, Merck and the lawyers representing Vioxx plaintiffs will have a series of crossing-the-Rubicon decisions to make in this litigation: Each side will have to choose between expensive piecemeal litigation, expensive class-action litigation, expensive settlement, or expensive bankruptcy. And they'll make those choices with precious little information, while their costs spiral upward. So here's a little backgrounder on the calculus behind Merck's and Vioxx plaintiffs' fight-or-flight decision-making.

The article is useful as a window into the Merck litigation, but the points it makes--particularly about various strategic decisions that must be made with incomplete information--can be generalized to all types of civil (and to a lesser degree, criminal) litigation.  It should be used in introductory procedure courses as an illustration of the choices lawyers and litigants must make and the factors that go into making those choices.

The debate on the Living Constitution: When will it end?

Never, apparently.  Dahlia Lithwick keeps up her barrage, and promises yet more.

It's Alive!

Dahlia Lithwick has just published her summary of the replies to her question, highlighted here by moi, Is the living Constitution dead?

As it happens, my contribution did not make the final cut.  So here it is for you, dear readers.  Think of it as an exclusive perk for prawfsblawg readers: content not available anywhere else on the web!

I'm not sure the arm's-length at which liberals now hold the Living Constitution is due so much to embarrassment as to a strategic reassessment. 

See, the trouble with the Living Constitution is that both sides can play that game. 

Liberals look at conservative 11th Amendment jurisprudence (which is decidedly not textualist), Scalia's take on affirmative action (which is hardly originalist), and the majority and concurring opinions in Bush v. Gore (which is difficult to square with odes to federalism, minimalism, and originalism), and wonder whether it makes more sense to place some obvious constraints on judges.

Liberals look at the conservative backlash to Roe v. Wade and see that contemporary politics is now organized along the NARAL/Family Research Council axis and wonder whether a little democratic populism and judicial minimalism might be a good thing.

Indeed, taking a broader view of this country's history, it is not clear that we can expect courts to be out in front on progressive values and causes through the march of time.  And, putting aside that history, it is even less clear why anyone would think that a bunch of graying and balding lawyers who answer to no one--no matter how good and well-meaning they are--would be.

(Lawyerly caveat: There are times when a Living Constitution would be nice. . . .)

Now tell me, are you surprised?

(Oh, and now she asks for submissions arguing that the Living Constitution, if it is alive, should be executed.)

Is the Living Constitution Dead?

Dahlia Lithwick asks whether there can be a spirited and reasonable defense of a Living Constitution--or whether Scalia is right.

She writes:

A Nexis search for the words "living Constitution" turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it's hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.

Is it because the words "living Constitution," like the words "feminist" or "liberal," have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Many prominent liberal thinkers have retreated from William Brennan's soaring language about the need for a "living Constitution," because, I think, it embarrasses them. The idea that, as Brennan wrote, "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on the application of principle to specific, contemporary questions," has been rebutted roundly with the notion that it's even more arrogant for nine unelected officials to gauge anything at all. Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.

So, I turn to you, dear readers, smart thinkers, and posters of great wisdom in the Fray, to ask simply: Is the living Constitution dead? Are the critics correct—was it all just a great drunken binge of Brennan and Thurgood Marshall's? What is left in its place? Is there room for a Brennan-esque defense anymore? Or am I correct in guessing that Scalia is right this time? Send replies to [email protected] . The best of your answers will be coming soon to a Jurisprudence near you.

Go join in the fun . . . and tell her I sent you.

Iraq's Founding

With all of the news about Iraq's Constitution swirling about, I'm a bit surprised that more hasn't been said on the various blawgs (or, at least, the ones that I read regularly).

The American constitutional experience suggests that there must be more to a Founding than simply a blueprint for government--though there must certainly be that. There must also be a founding mythos; a powerful story and looming personalities whose philosophies, experiences, and personalities can rally a nation--for the first generation and beyond. Where would we be without Jefferson, Hamilton, Washington, Madison, Adams, and the rest? Where would we be without Valley Forge, Washington's cherry tree, the Declaration of Independence. . . ?

I most definitely do not mean to suggest that we ought to look at the American Founding solely through the Great Men lens. Nor do I suggest that the American experience must necessarily be repeated in other cultures. But it seems plain that a well-grounded procedural and substantive document alone cannot sustain a nation. After all, given America's tumultuous history, replete with foreign wars, civil wars, existential crises, and competing visions, it is only through reference and resort to our unifying founding mythos that we retain our commitment to the Constitution itself (for better and worse).

I wonder what the Iraqi story will be. My prediction is that the precise contours of Iraq's Constitution will matter less for the future than the presence or absence of unifying mythos and personalities surrounding the Founding and the Framing.

What is Jury Reform?

The Vioxx case seems to have attracted the attention of our intrepid blawgers; and, more broadly, the Tort Reform alarm has been sounded again. 

The refrain goes like this: Exhibit A: McDonald's hot coffee.  Exhibit B: Vioxx. . . .  Of course, the Reformers will no doubt fill the comments section with many other examples to add to the list.  Let's assume that the Reformers are right, and all of these awards are indeed indefensible.

My question is rather simple: Why is it only the perceived overcompensatory awards that raise the hackles of the Jury Reformers?  Why don't the Jury Reformers seem to care about the undercompensated and non-compensated victims?

A Speluncean Follow-Up

Has anyone noticed that the statute at issue in the Speluncean Explorers case is clearly overbroad?

Whoever shall willfully take the life of another shall be punished by death.

By these terms, isn't the executioner subject to the death penalty?

Revisiting the Speluncean Explorers

No doubt you've come across Lon Fuller's brilliant and famous jurisprudential puzzle, The Case of the Speluncean Explorers, at some point in your legal education. 

It strikes me that a blog presents a unique opportunity to discuss the possibilities in greater depth than a classroom allows, and so I open the comment forum to discussion.  If we generate interesting debate, I will blog a follow-up post with further discussion.

Please share which of Fuller's opinions you would join or present a different position entirely.  (Indeed, there is a small cottage industry devoted precisely to offering alternative opinions.)  Assume there are no constitutional defenses.  Assume necessity is not a defense.  Consider whether it makes any difference whether the judges are appointed or elected. 

For extra credit, guess which opinion I would join.

A brief refresher of the salient facts:

Five cave explorers were caught underground after the tunnel collapsed.  They learned through radio contact that the rescuers were at least ten days away, and that they could not survive that long without food.  They further learned that they could survive if they were to eat one from among them.  They radioed to the outside to ask whether it would be legally and/or morally permissible to kill one among them to sustain the others, but no one above ground would answer the question. 

One of the explorers, Whetmore, suggested that they throw dice to determine who should be eaten, and they all agree.  Just before the dice were thrown, Whetmore suggested that they wait until they are closer to death before proceeding; but he was outvoted, and a die is cast on his behalf.  Everyone, including Whetmore, agreed that the dice where thrown fairly.  Whetmore lost. 

When the rescuers finally reached the explorers, they found that Whetmore had been killed and eaten. 

The remaining explorers were put on trial for murder under the jurisdictions statute, "Whoever shall willfully take the life of another shall be punished by death."  They were found guilty and sentenced to be hanged. 

The case is now on appeal to the Supreme Court.  What should the Justices do?

After the jump, I briefly review the various positions offered by Fuller.

Note: What follows is a very brief description of each opinion.  For further detail and nuance, consult the original.

Chief Justice Truepenny: Would affirm the conviction and sentence.  The murder statute obviously applies to the defendants' conduct, and it is not within the Court's province to ignore the statute.  The executive may provide clemency.  Indeed, given the facts of the case, the executive is likely to provide clemency, and the Court should formally encourage the executive to do so.

Justice Foster: Would reverse.  The statute is inapplicable for two reasons.  First, once the explorers were cut off from society, they returned to a state of nature, and society's laws did not apply to them.  Alternatively, the purpose of the statute would not be served by applying it in this case.  (Read the article for the complete argument.)

Justice Tatting: Would recuse.  The statute clearly applies, but he could not live with himself if he voted to affirm because the result would be evil.  Therefore, he recuses.

Justice Keen: Would affirm.  It is not the judge's role to tell the executive what to do (contra Truepenny), other than to offer her opinion as a private citizen.  It is also not the judge's role to determine whether the explorers' actions were "good" or "bad," or whether the statute is good or bad policy.  The judge's role is to apply the statute, which very clearly applies on its own terms to this case.

Justice Handy: Would reverse.  The statute clearly applies, but the judge must exercise common sense.  Further, public opinion overwhelmingly supports reversal, and it is clear (contra Truepenny) that the executive will not grant clemency.  Therefore, it falls to the court.

What would you do?

Update:  In addition to the articles and books linked above (and mentioned by D. Solove in the comments), Professors Paul Caron and Rafael Gely have an interesting article available on SSRN.

Coming at the case from a different perspective, Caron and Gely explore the connections between the opinions offered by Fuller in The Case of the Speluncean Explorers and the opinions in Grutter v. Bollinger.  They propose a jurisprudence of humility that recognizes that judges and lawyers hold no monopoly on wisdom and that, in certain situations, institutions other than courts may be better positioned to resolve a particular issue.  They draw some surprising connections between the two cases and try to bridge the gulf in legal literature between statutory construction and constitutional interpretation.  As Solum says, get it while it's hot!