NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Wednesday, August 28, 2002 ::
Can a law professor give a paper on Shakespeare at a political science convention? Well, in these interdisciplinary days, why not?
Anyway, that's what I'm fixin' to do this weekend at the APSA convention in Boston, courtesy of the Claremont Institute, whose interest in the political thought lurking in great literature is enduring and commendable.
Slim postings likely here at NINOMANIA until I get back.
"Yes, but every one will, in his way -- or in her way -- plead the cause of the new truths. If you don't care for them, you won't go with us."
"I tell you I haven't the least idea what they are! I have never yet encountered in the world any but old truths -- as old as the sun and moon. How can I know? But do take me; its such a chance to see Boston."
"It isn't Boston -- it's humanity!"
-- Henry James, The Bostonians
:: David M. Wagner 6:25 PM [+] ::
...
Classes have started (for me, Constitutional Law and Criminal Law). I've had the experience of teaching Con Law to two different groups of students in one semester, but never before have I taught both of these courses to (substantially) the same students in the same semester. I guess it's no different from doing two different characters for (substantially) the same audiences during the course of a rep season, but it feels strange.
I see where the Bush administration is taking a hard stand on executive privilege with regard to presidential pardons, in response to Judicial Watch's lawsuit concerning the last-minute Clinton pardons.
Meanwhile, the 6th Circuit -- the same one that, according to some, rushed an affirmative action onto the docket before two of its most liberal members could retire -- has disallowed the closing of deportation hearings to the media on the mere say-so of the executive branch.
Not having read the background opinions, I'd venture that both of these developments show checks and balances at work. Judicial independence is a check (though not the most important one) on the executive's prosecution powers. This 6th Circuit opinion may be a tempest in a teapot, since it doesn't set a very high bar for closing these hearings: the executive branch just has to give some specific reason, beyond "We say so."
But judicial independence and a free press are not the most important checks on federal prosecutions that the Framers gave us: the most important one is political accountability. That's why independent prosecutors are such a bad idea: independent means unaccountable. (And of course, that's why Morrison v. Olson is wrong, and why Justice Scalia's Morrison dissent mega-rocks. Click on previous link and scroll down to the good stuff.)
Strangely enough, the pardon power is part of executive accountability, even when it's exercised (as it often is) by a president who is about to retire and therefore is not really *personally* accountable. Thanks to the pardon power, the President becomes in a sense personally responsible for *every* federal prosecution.
I admire Judicial Watch, and its counsel-impresario Larry Klayman; but I think their extensive document demands in this case would in the long run injure executive accountability.
:: David M. Wagner 6:01 PM [+] ::
...
:: Saturday, August 24, 2002 ::
Speaking, debating, and leaking
The Washington Post reports today about the FBI seeking the phone and appointment records of Senate Intelligence Committee members for the period just after a top secret briefing at which were discussed certain Sept-11-sensitive FBI intercepts that were not translated until Sept. 12. News of this failure appeared in the media shortly after the Committee briefing.
Quite apart from the FBI's legitimate share in the executive branch's mandate to "take care that the laws be faithfully executed," one can understand its position here. Naturally, they don't like the public forming mental images of FBI agents feverishly translating on Sept. 12 a message that says "They're going to knock down the World Trade Center." Witticisms about envelopes marked "Open Immediately" are inevitable.
One can also understand Senators' fears for the independence of their branch of government. The Anti-Federalists of 1787-88 had nightmares about the proposed Presidency with its various monarchical features (as they saw it), such as reeligibility (i.e. no term limits).
On the other hand, the extent of the President's law-enforcement powers -- and therefore of the FBI's -- is the enforcement of the laws that Congress itself makes. If Congress wants to allow its members to leak sensitive data, it can try enacting such an exemption. The President of course would veto it: checks and balances work. Congress might override the veto; in that case, I don't think there'd be all that many sensitive intelligence briefings on the Hill any more. Once again, checks and balances work.
The constitutional text most on point is the speech and debate clause of Art. I Sec. 6 clause 1: "...and for any Speech or Debate in either House, they [i.e. Senators and Representative] shall not be questioned in any other place."
As the Post points out, Sen. Mike Gravel claimed the protection of this clause when he read portions of the Pentagon Papers into the Congressional Record back in the early '70s. But this claim was rejected in the courts: not because what Gravel did was not a legitimate contribution to deliberation over legislation (the courts wisely avoid making that distinction), but because the s&d clause is not a free pass for violating an otherwise-valid law. (So what is it for? Probably, to allow debate to flow without fear of libel suits.)
Anyway, if Gravel's s&d clause claim was a loser despite his taking the trouble actually to read that dreary prose into the Record, surely the same is true of the fly-by-night phone calls -- and document drops, for aught we know -- of the present Senate Intelligence Committe members and their staffs.
:: David M. Wagner 9:50 PM [+] ::
...
More like me?
Well, I'm not changing the name of this blog, but it turns out I'm not the mouth-foamingest Ninomaniac on the block. Go here, then come back to me so I can look more moderate. (Strictly an illusion, of course!)
Thanks to Eve Tushnet for the link.
Oh, of course (where are my manners?): thanks also to Cacciaguida for linking to me.
:: David M. Wagner 2:51 PM [+] ::
...
:: Tuesday, August 20, 2002 ::
11th Amendment and the Court's new federalism
Stuart Buck has an interesting post here summarizing widespread criticisms (some voiced lately by the venerable Judge John T. Noonan of the 9th Circuit) of the Supreme Court's recent federalism jurisprudence.
He writes:
On the Court and the 11th Amendment: [A]s should be obvious, the conservative majority has extended the 11th Amendment's protection to state governments far beyond what that amendment actually says. (It says that federal courts can't hear suits brought by a citizen of one state against another state. The Supreme Court has held that this means citizens can't sue their own state, and has extended the idea to state courts as well if the suit is based on federal law.)
This is a knotty one. Buck, Noonan, and my arch-textualist colleague John Tuskey are clearly right that the 11th Amendment says nothing about barring suits in federal court against the plaintiff's own state. So why does the Court's present majority (including Justice Scalia, though usually as a silent member on this issue) interpret it as if it contains such language?
One reason is precedent, namely, Hans v. Louisiana. Can a dubiously reasoned precedent be allowed in effect to add to the Constitution's text? Most post-1960 Supreme Court case law says of course it can, and con-law scholars from then until very recently relied on that assumption in spinning their theories about how courts should remake society. But today, scholars from Lino Graglia on the textualist Right (as distinct from the natural-law Right, e.g. Richard Epstein, Randy Barnett, Hadley Arkes) to Mark Tushnet on the (insert qualifier here) Left are questioning this assumption. So, of course, has Justice Scalia, often and sharply. What makes the 11th Amendment different?
Is it a simply a question of water under the bridge? Justice Scalia holds that on some issues, water has never passed under the bridge: Roe and Casey, for example. But this, he says, is not because of the inherent horribleness of those decisions, but because they give "us lawyers" nothing to work with (what's an "undue burden," anyway?), whereas there is nothing about the 11th Am. as interpreted by Hans that is not "lawyer's work."
Well, was Hans wrongly reasoned? It interpreted the 11th Amendment in light of its undisputed history: contrary to the assurances given by Federalists during the ratification struggle, the Court held in Chisholm v. Georgia in 1793 that states were wide-open to suit in federal court. The 11th Amendment was the result - the remarkably fast result, given the deliberately protracted nature of the amendment process, and the slow communications of the day. Congress produced the 11th in a mere three weeks after Chisholm was handed down -- and this was a Federalist-dominated Congress, which might have been expected to favor the result in Chisholm.
The Court in Hans relied in part on the sheer vehemence of the nation's rejection of Chisholm to conclude that 11th Amendment in effect enacted Justice Iredell's Chisholm dissent.
Is this a good reading of the 11th? Or does it amount to the use of legislative history to add to -- almost to contradict -- the plain wording, something that Justice Scalia rejects in statutory interpretation? Is there a reason to allow wider play for legislative history in constitutional interpretation? (Maybe the greater difficulty of amending the Constitution, as opposed to passing a statute, means the Court should be more careful to give effect to what the drafter and ratifiers "really meant." But surely this cuts both ways, because the same factor means that erroneous readings of "intent" by the Court are harder to correct in constitutional cases.)
Then there's the Court's limitations on Section 5 of the 14th Amendment -- the section that provides that "Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." In a 1997 case (City of Boerne v. Flores), the Court essentially held that Congress can enforce the 14th Amendment, alright, but only if it does so to enforce the Supreme Court's view of that amendment. No disagreeing with the Court, in other words. That might sound uncontroversial, but it wouldn't have sounded so to the men who wrote the 14th Amendment. The Radicals and Republicans who adopted the 14th Amendment would have been astonished at the idea that what they had done allowed the Supreme Court, which they detested for its Dred Scott decision, to limit Congress's enforcement authority. One would expect the originalists on the Court to take notice of this. Oh well.
All true. But notice where it leaves us: if Congress can define as well as enforce 14th Amendment rights, then it is truly a government of general jurisdiction rather than one of enumerated powers. Did the framers of the 14th (which includes the states, remember) intend that?
:: David M. Wagner 1:32 PM [+] ::
...
Anyway, that's what I'm fixin' to do this weekend at the APSA convention in Boston, courtesy of the Claremont Institute, whose interest in the political thought lurking in great literature is enduring and commendable.
Slim postings likely here at NINOMANIA until I get back.
"Yes, but every one will, in his way -- or in her way -- plead the cause of the new truths. If you don't care for them, you won't go with us."
"I tell you I haven't the least idea what they are! I have never yet encountered in the world any but old truths -- as old as the sun and moon. How can I know? But do take me; its such a chance to see Boston."
"It isn't Boston -- it's humanity!"
-- Henry James, The Bostonians
:: David M. Wagner 6:25 PM [+] ::
...
I see where the Bush administration is taking a hard stand on executive privilege with regard to presidential pardons, in response to Judicial Watch's lawsuit concerning the last-minute Clinton pardons.
Meanwhile, the 6th Circuit -- the same one that, according to some, rushed an affirmative action onto the docket before two of its most liberal members could retire -- has disallowed the closing of deportation hearings to the media on the mere say-so of the executive branch.
Not having read the background opinions, I'd venture that both of these developments show checks and balances at work. Judicial independence is a check (though not the most important one) on the executive's prosecution powers. This 6th Circuit opinion may be a tempest in a teapot, since it doesn't set a very high bar for closing these hearings: the executive branch just has to give some specific reason, beyond "We say so."
But judicial independence and a free press are not the most important checks on federal prosecutions that the Framers gave us: the most important one is political accountability. That's why independent prosecutors are such a bad idea: independent means unaccountable. (And of course, that's why Morrison v. Olson is wrong, and why Justice Scalia's Morrison dissent mega-rocks. Click on previous link and scroll down to the good stuff.)
Strangely enough, the pardon power is part of executive accountability, even when it's exercised (as it often is) by a president who is about to retire and therefore is not really *personally* accountable. Thanks to the pardon power, the President becomes in a sense personally responsible for *every* federal prosecution.
I admire Judicial Watch, and its counsel-impresario Larry Klayman; but I think their extensive document demands in this case would in the long run injure executive accountability.
:: David M. Wagner 6:01 PM [+] ::
...
The Washington Post reports today about the FBI seeking the phone and appointment records of Senate Intelligence Committee members for the period just after a top secret briefing at which were discussed certain Sept-11-sensitive FBI intercepts that were not translated until Sept. 12. News of this failure appeared in the media shortly after the Committee briefing.
Quite apart from the FBI's legitimate share in the executive branch's mandate to "take care that the laws be faithfully executed," one can understand its position here. Naturally, they don't like the public forming mental images of FBI agents feverishly translating on Sept. 12 a message that says "They're going to knock down the World Trade Center." Witticisms about envelopes marked "Open Immediately" are inevitable.
One can also understand Senators' fears for the independence of their branch of government. The Anti-Federalists of 1787-88 had nightmares about the proposed Presidency with its various monarchical features (as they saw it), such as reeligibility (i.e. no term limits).
On the other hand, the extent of the President's law-enforcement powers -- and therefore of the FBI's -- is the enforcement of the laws that Congress itself makes. If Congress wants to allow its members to leak sensitive data, it can try enacting such an exemption. The President of course would veto it: checks and balances work. Congress might override the veto; in that case, I don't think there'd be all that many sensitive intelligence briefings on the Hill any more. Once again, checks and balances work.
The constitutional text most on point is the speech and debate clause of Art. I Sec. 6 clause 1: "...and for any Speech or Debate in either House, they [i.e. Senators and Representative] shall not be questioned in any other place."
As the Post points out, Sen. Mike Gravel claimed the protection of this clause when he read portions of the Pentagon Papers into the Congressional Record back in the early '70s. But this claim was rejected in the courts: not because what Gravel did was not a legitimate contribution to deliberation over legislation (the courts wisely avoid making that distinction), but because the s&d clause is not a free pass for violating an otherwise-valid law. (So what is it for? Probably, to allow debate to flow without fear of libel suits.)
Anyway, if Gravel's s&d clause claim was a loser despite his taking the trouble actually to read that dreary prose into the Record, surely the same is true of the fly-by-night phone calls -- and document drops, for aught we know -- of the present Senate Intelligence Committe members and their staffs.
:: David M. Wagner 9:50 PM [+] ::
...
Well, I'm not changing the name of this blog, but it turns out I'm not the mouth-foamingest Ninomaniac on the block. Go here, then come back to me so I can look more moderate. (Strictly an illusion, of course!)
Thanks to Eve Tushnet for the link.
Oh, of course (where are my manners?): thanks also to Cacciaguida for linking to me.
:: David M. Wagner 2:51 PM [+] ::
...
Stuart Buck has an interesting post here summarizing widespread criticisms (some voiced lately by the venerable Judge John T. Noonan of the 9th Circuit) of the Supreme Court's recent federalism jurisprudence.
He writes:
On the Court and the 11th Amendment: [A]s should be obvious, the conservative majority has extended the 11th Amendment's protection to state governments far beyond what that amendment actually says. (It says that federal courts can't hear suits brought by a citizen of one state against another state. The Supreme Court has held that this means citizens can't sue their own state, and has extended the idea to state courts as well if the suit is based on federal law.)
This is a knotty one. Buck, Noonan, and my arch-textualist colleague John Tuskey are clearly right that the 11th Amendment says nothing about barring suits in federal court against the plaintiff's own state. So why does the Court's present majority (including Justice Scalia, though usually as a silent member on this issue) interpret it as if it contains such language?
One reason is precedent, namely, Hans v. Louisiana. Can a dubiously reasoned precedent be allowed in effect to add to the Constitution's text? Most post-1960 Supreme Court case law says of course it can, and con-law scholars from then until very recently relied on that assumption in spinning their theories about how courts should remake society. But today, scholars from Lino Graglia on the textualist Right (as distinct from the natural-law Right, e.g. Richard Epstein, Randy Barnett, Hadley Arkes) to Mark Tushnet on the (insert qualifier here) Left are questioning this assumption. So, of course, has Justice Scalia, often and sharply. What makes the 11th Amendment different?
Is it a simply a question of water under the bridge? Justice Scalia holds that on some issues, water has never passed under the bridge: Roe and Casey, for example. But this, he says, is not because of the inherent horribleness of those decisions, but because they give "us lawyers" nothing to work with (what's an "undue burden," anyway?), whereas there is nothing about the 11th Am. as interpreted by Hans that is not "lawyer's work."
Well, was Hans wrongly reasoned? It interpreted the 11th Amendment in light of its undisputed history: contrary to the assurances given by Federalists during the ratification struggle, the Court held in Chisholm v. Georgia in 1793 that states were wide-open to suit in federal court. The 11th Amendment was the result - the remarkably fast result, given the deliberately protracted nature of the amendment process, and the slow communications of the day. Congress produced the 11th in a mere three weeks after Chisholm was handed down -- and this was a Federalist-dominated Congress, which might have been expected to favor the result in Chisholm.
The Court in Hans relied in part on the sheer vehemence of the nation's rejection of Chisholm to conclude that 11th Amendment in effect enacted Justice Iredell's Chisholm dissent.
Is this a good reading of the 11th? Or does it amount to the use of legislative history to add to -- almost to contradict -- the plain wording, something that Justice Scalia rejects in statutory interpretation? Is there a reason to allow wider play for legislative history in constitutional interpretation? (Maybe the greater difficulty of amending the Constitution, as opposed to passing a statute, means the Court should be more careful to give effect to what the drafter and ratifiers "really meant." But surely this cuts both ways, because the same factor means that erroneous readings of "intent" by the Court are harder to correct in constitutional cases.)
Then there's the Court's limitations on Section 5 of the 14th Amendment -- the section that provides that "Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." In a 1997 case (City of Boerne v. Flores), the Court essentially held that Congress can enforce the 14th Amendment, alright, but only if it does so to enforce the Supreme Court's view of that amendment. No disagreeing with the Court, in other words. That might sound uncontroversial, but it wouldn't have sounded so to the men who wrote the 14th Amendment. The Radicals and Republicans who adopted the 14th Amendment would have been astonished at the idea that what they had done allowed the Supreme Court, which they detested for its Dred Scott decision, to limit Congress's enforcement authority. One would expect the originalists on the Court to take notice of this. Oh well.
All true. But notice where it leaves us: if Congress can define as well as enforce 14th Amendment rights, then it is truly a government of general jurisdiction rather than one of enumerated powers. Did the framers of the 14th (which includes the states, remember) intend that?
:: David M. Wagner 1:32 PM [+] ::
...
