Category Archives: Law: Constitutional Law

The author at SquareState.net:: Anchor Blastocysts has got a good legal argument that I hadn't heard before regarding the movement to classify a fetus as a legal person from the moment of conception. The purpose of the rule is of course to make abortion legally murder. But there will be unanticipated consequences.

If the “Blastocysts are people too!” ballot measure passes in Colorado, the moment any undocumented worker gets pregnant, not only is that Blastocyst a person—it's also an American Citizen!

Aside from the not-so-small point that citizenship is a federal issue and it is not clear from first principles whether the federal rule should or would follow the state rule, there's obviously something powerful about this logic especially if the Colorado model were ever to be adopted on a national basis.

In that case, if a noncitizen female conceives a child in the US, presumably it would be wrong to deport the blastocyte or fetus. And that means we can't deport the mother either. At least until the kid is born after which we are, as news reports from all over show, perfectly willing to deport mothers of small citizens if the mothers lack proper documentation.

I should add that, while powerful, this logic is not inevitable. Anglo-American law has in the past been able to make various distinctions about the unborn. Although not persons for most purposes, the inheritance laws, for example, extended to children “en ventre sa mère” (the absence of the “de” is not a typo; this is Law French, not the real thing). So it remains possible that the same people who deport nursing parents, leaving the citizens to fend for themselves, would have little trouble finding a theory to deport the unborn citizens as well. Pointing to the problems of proving domestic conception (the mind boggles) is only a first step….

Guy Fawkes Day is a good time to say that people in this country take the rule of law too much for granted.

Police Battle Lawyers in Pakistan: Police armed with tear gas and clubs attacked thousands of protesting lawyers in the city of Lahore today, and rounded up lawyers in other cities as the government of the Pakistani president, Gen. Pervez Musharraf, faced the first signs of concerted resistance to the imposition of emergency rule.

Life is better for everyone when lawyers battle in court.

We have many of the good things we have because people have some basic faith in the system — or, even if they don't, most figure that the deal they are getting is not-bad enough (or the expected value of the future deal is good enough), that it's not worth rocking the boat.

The election of 2000 challenged that faith for many. I, for one, have avoided teaching constitutional law in part because I don't know how to teach Bush v. Gore in a way that wouldn't produce a dangerous cynicism in my students.

Cynicism about the rule of law is especially dangerous for beginning law students because it too-easily becomes an excuse to avoid learning the close textual work that good lawyering requires. Told that there's nothing going on but the Realist story, too many will conclude that, if 'it's all politics,' why bother? I do believe that the law retains some substantial autonomy, and thus we have the rule of law — much of the time. If, however, I believed that it was in fact the case that all cases were political, I would accept that I have a duty to tell my students that truth at all relevant times. That isn't what I believe. But it is politics sometimes, and if that happens too often, we pay for it.

Underpinning much of the elite and popular faith in the rule of law is some belief in democracy. Democratic legitimacy underwrites acceptance of the use of force that is sometimes needed to keep the peace. It is why people pay their taxes. That legitimacy is under stress at present (and, not coincidentally, voluntary tax compliance rates are in decline).

Almost two-thirds of the nation wants the US involvement in Iraq's civil war to end soon (or at least within a year) and the number keeps climbing. Yet, the narrative in DC is not about the complex mechanics of getting our soldiers out in one piece and taking the Iraqi people who've helped us out of danger, but instead about invading Iran, a sure sign that something deep is broken somewhere.

Which explains, even if it doesn't necessarily justify, signs of rising civil disobedience.

And that takes me to Crane Brinton's Anatomy of Revolution. My copy is missing, but what I remember most clearly is that among the patterns he distilled from his study of disparate revolutions is first that “revolutions occur during times of rising expectations” and second that a regime tends to fall when its contradictions become intolerable for the intellectuals and functionaries who support it. (If you're not familiar with this very readable classic, here's a link to one denatured online summary.)

We're not exactly in a period of rising expectations — 74% of those polled say the country is 'headed in the wrong direction'. And the clerks are not as yet treasonous, although even some of the most loyal refuse to go to Iraq.

Indeed, if anything, too many intellectuals are still in the tank, in a manner reminiscent of the original La Trahison des Clercs (1927). Recall Julien Benda's argument: he critiques a 19th and early 20th century world in which intellectuals become apologists for the crass nationalism and warmongering of militaristic regimes. That, of course, bears no comparison with current circumstances in which our national commentariate and our leading national media figures speak so dispassionately about political and military matters.

US Attorney General nominee Michael Mukasey has written a very lawyerly letter to the Senate Judiciary committee. The letter fails to use the word “waterboarding” although the acceptance of a cast-iron prohibition on “torture and cruel, inhuman and degrading treatment” might fairly be seen to cover banning it. The letter might be enough to peel off a few votes on the torture issue.

If you read the letter with any care, however, you will see that it very carefully refuses to say that — even in the face of the FISA legislation occupying the field — the the law can place any limits on a President who decides to wiretap US citizens, in the US, without a warrant, so long as he decides he wants to and is willing to wave the bloody shirt of national security.

This is a strikingly odd position to take in this letter, as the case against those wiretaps is based on both constitutional text and a statute, elements which sufficed to get Mukasey to unbend enough to say that both torture and not-quite-torture are illegal.

If the Senate confirms him after this, they're complicit in undermining the Constitution. Again.

The letter may, however, represent a fine-grained political judgment that there's no way for the administration to win on torture (and this is the most graceful way to lose) but that there's political capital to be had by being seen to be 'tough' on 'terror' — and that almost no one really cares about the Fourth Amendment anyway.

Orin Kerr has a thoughtful analysis of yesterday's decision in Mayfield v. United States.

I think Orin has a very strong take on the standing issue — the issue bothered me when I read the decision, and he crystallized what bothered me. I don't know enough about the criminal justice system to know to what extent if any this case differs from the (IMHO wrongly decided) Los Angeles v. Lyons case, but unless the plaintiff's lawyers can do a better job explaining why than the judge did, I think the government stands a good chance of winning on this issue at whichever higher court hears the case last.

And that's a shame. Orin sees the merits as a murky issue given the precedents, especially the Keith case, which is a fair point. Nonetheless, I see this as a pretty clear case given the underlying Constitutional principles. And I have to wonder what set of reasonably likely facts would ever give a plaintiff standing to make these claims in a post-Lyons world.

Being the sort of person who believes that in a constitutional system of government there is no legal right without a remedy (the very idea of 'right' being synonymous to me with 'claim to a remedy' and being disjoint from any issue of natural right which is an utterly separate issue), I am not at all comfortable — indeed gravely dislike — legal doctrines which shield alleged intrusions on our rights from judicial determination. Even if the court were to rule against my view on the merits, I think that's better than ducking behind ahistorical and unjustified standing rules.

There's maybe just enough in the facts here to let a court that wanted to make some new exception to existing standing rules — which are already not that coherent. But I don't see Justice Kennedy as a likely person to do that.

U.S. District Judge Ann Aiken of Oregon ruled that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they allow search warrants to be issued without probable cause.

Full 44-page opinion in Mayfield v. United States for those who want their news unfiltered.

(Thanks to JST for the tip.)