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November 30, 2006

The Constitution's Political Deficit

Robin West^*

Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate ¹ and the Electoral College.² Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point.

Thus, I think Levinson's claim is essentially right, and I would like to make two friendly amendments to his proposal. There is, indeed, a worrisome democratic deficit in our own constitutional scheme. I suggest, however, that there are two additional problems with our constitutional practices, besides those Levinson has flagged for revision, that also impact detrimentally our democratic commitments. Echoing Levinson's framework, I would call the first of these two additional problems a "political deficit," and the second a "legal deficit." Our current dilemma exists not only because our written Constitution clearly tilts against representative democracy in the way Levinson decries. Our constitutional practices also tilt against politics, democratic or otherwise, and the ordinary law - legislation - that is its product. These political and legal deficits also deserve our critical attention.

I. The "Political Deficit"

Current constitutional practices (not the text itself) tilt against politics by virtue of a phenomenon I have elsewhere called the "legal question doctrine."³ By the "legal question doctrine," I mean a threefold conflation of moral and political questions about the nature of good governance into constitutional questions, constitutional questions into legal questions, and ultimately, legal questions into adjudicative questions for courts. Moral and political questions about the nature of good governance thus become questions for courts, rather than questions for legislators or concerned citizens.

To elaborate very briefly, the logic of that conflation is as follows: under our current liberal constitutional arrangements, constitutional scholars, lawyers and justices quite routinely, even habitually, regard the most pressing moral and political problems facing our polity as "constitutional" questions. Thus, whether and when a state ought to criminalize abortion or hate speech, or control the flow of guns on the street, or integrate schools, or allow gay couples to marry, or allow the executive to suspend the writ of habeas corpus; or whether the state, with our tax dollars, ought to provide for health care, child care, housing, or food for needy citizens who cannot amass the dollars to purchase them in unregulated markets; or, for that matter, whether citizens in more populous states ought to enjoy equal representation in the United States Senate - all of these, and hundreds of questions like them, are clearly moral questions about good governance. But, precisely by virtue of the fact that they are moral questions about how we ought to govern ourselves, they are therefore regarded by our community of constitutional scholars, lawyers, and judges as constitutional questions. Whether a state should criminalize abortion, then, is eclipsed by a different question: whether it would be constitutional for a state to do so. Likewise, discussion about whether we should criminalize hate speech or whether we should re-write our marriage laws to allow marriage by gay couples become matters of whether the constitution so mandates, rather than what a morally decent state ought to do. Whether we should control the flow of guns on our streets becomes a question of whether the state may constitutionally do so, and whether the state should provide welfare rights becomes a matter of whether or not the constitution so requires, or, secondarily, permits. And so forth.

Second: these constitutional questions, precisely because they are constitutional, become, by virtue of the "legal" status of the United States Constitution, questions of "law."⁴ A "constitutional question" is a "legal" question - not a political or moral question about governance. So, questions regarding whether or not a state might constitutionally criminalize abortion, hate speech, and so forth, or whether a state might be constitutionally required to provide for welfare or gun control, become, by virtue of this second transformation, questions about the content and meaning of our law. Third and finally, given the legacy of legal realism, these legal questions in turn become questions about what courts will and will not do: what they understand the law to be and how they will likely decide the question, should it be presented them. Thus, by this three-fold conflation, questions that on first framing were moral or political questions about good governance - Should states criminalize this, that or the other? Do states have obligations to the needy? Should executives have a certain sort of power? - become purely legal questions about court decisions. Political questions become, through constitutionalism, questions about judicial behavior.

I have argued elsewhere that this is very bad for the content of our constitutional law,⁵ but what I want to urge here is that the "legal question doctrine" thus understood also occasions a serious "political deficit." Real moral inquiry into the nature of good governance happens in courts of law, rather than in political fora. Politics, as Aristotle envisioned, should consist of ethical reasoning among equal human beings about how to govern themselves. Understood as such, politics, practiced well, is the highest, most ennobling, most serious form of practical human reasoning that exists. But over the course of the last century, in an almost uninterrupted trajectory, we have delegated this serious, moral, ennobling work of political activity among and between political equals to the courts. And what has been the consequence? We have a library full of a hundred years of judicial reasoning, argument, and deliberation - some ennobling, some of it awfully pompous, and some just embarrassing - on the meaning of liberty, equality, democracy, and so forth. Meanwhile, Congress, a political branch, withers not so much from corruption, as from disuse. The Court reasons, ideally and occasionally, in an Aristotelian spirit: with its eye on liberty and equality, among equals, at least on the Court. The Congress, by contrast, merely acts - motivated by whimsy or by passion, for good reasons, bad reasons, or no reasons. This allocation of labor -- the Court engages in ennobling moral reasoning about good government and therefore in the philosophical and moral arts of politics, while the Congress does nothing but act, on the basis of its own or constituent "preferences" - occasions what I am calling the "political deficit." The "legal question doctrine" transforms political questions about the nature of good governance into legal questions. The work remaining for the political branch? Horse trading at best. True politics has been given over to courts.

II. The "Legal Deficit"

Although this might initially seem paradoxical, the combination of what Levinson calls the "democratic deficit" and what I am calling the "political deficit" inherent in U.S. constitutional law and practice lends aid, from time to time in our history, to profoundly lawless, asocial and destructive impulses. By so denigrating the law-maker, we denigrate her product, which is ordinary law. Thus, the "legal deficit." Of course, our constitutional text and practice have, on a handful of important occasions, given "constitutional" comfort to a highly principled natural law. In such cases, text and practice have been a friend and ally to moral and righteous civil disobedience against unjust majoritarian inclinations, as expressed in morally noxious and politically destructive legislative action.⁶ Less remarked upon, however, is that our constitutional practice has also given constitutional comfort to the anti-legalist instincts of a very different and what might be called "hyper-individualist" strand of anti-legalism: a frontier-conquering, gun-wielding, tax-protesting, border-protecting, conception of liberty, which seeks, with constitutional help, to free the individual of all obligations to the social compact, neighbors, states, and even families, much less to the very "beloved community" of which Dr. King so eloquently spoke.⁷ Likewise, these days our anti-legalistic and anti-legislative constitutional practices give aid to the President, who seeks constitutional blessing for his instinct to be freed from ties not only under the domestic law that seeks to constrain his reach, but under international laws, treaties, conventions, and covenants that might do so as well.⁸ The constitutional and, hence, anti-legalist obligations and entitlements of such a commander-in-chief might well "trump" in his own mind and in his office the petty duties of fidelity to ordinary law.

We ought to view both phenomena as dangerous. Hyper-individualism can morph into a narcissistic and costly recklessness, just as a militarist executive unleashed from legal bonds, as well as other sorts of bonds that strengthen and recognize our shared humanity, might imperil the planet. A constitutional practice that preaches relentless suspicion of ordinary, voted-upon law, that persistently sees in politics the worst in us, and sees in a document that protects us against our ordinary politics the best of us, winds up casting a pall of potential illegitimacy over the legislative product. Constitutionalism preaches distrust of both majoritarian politics and of its product, ordinary law. This effect of Constitutionalism is what I'm referring to as the "legal deficit."

The political and legal deficits are at the heart, not the periphery, of our Constitutional practices. Together they create a tension with our democratic commitments that goes beyond the Constitution's mandated composition of the Senate and the machinations of the Electoral College. In fact, the political and legal deficits that are at the core of our constitutional practices might be best understood as the deep currents that legitimate the more explicit democratic deficit in the constitutional text that Levinson rightly decries. But whether or not that is right, the twin deficits I have described do other harm as well. Those deficits compromise our political, and hence our communitarian, lives. They make it difficult for us to regard our ordinary politics as ennobling. As an historical project, they make almost impossible what would be difficult in any event, namely, the attempt to democratize Aristotle's elite vision of the art of politics as ethical governance among civic equals. They make us distrust and disavow our political selves, all in the name of a higher law, and they make us disown the legal product - the ordinary law - that is and should be the prized result of our political conversations. True political engagement and struggle, and the law that might come from it, is one of the greatest achievements of communal life among civic equals. The political and legal deficits at the heart of constitutionalism compromise not only our democratic commitments, but our communal life.

What to do about all of this? A Constitutional Convention of the sort Sanford Levinson envisions may well address this. I would urge us to consider, if we are imagining reconstructed consitutitons, both a constitutional text and a set of constitutional practices, that are far more respectful of politics and law than those we have inherited. But such a convention, whether or not it is ever feasible (and whether it would yield such a product), is surely a long way off. In the meantime, there may be other ways of skinning this particular constitutional cat.

First, and as a growing number of popular constitutionalists are now arguing, our Constitution has, in the past, been changed by all sorts of political, social, and even individual means, not just amendment, judicial interpretation, or full-blown conventions.⁹ The Constitution does not, need it still be said, speak with one voice. We are a multitude, and the Constitution has many authors. There is, I believe, a largely unacknowledged and dangerously anti-communalist, anti-legalist, and anti-political river of meaning that runs through it, which I have tried to articulate above. But there are other streams and byways of meaning. Non-judicial and decidedly non-dominant voices in our constitutional history have at times pointed us in the direction of constitutional meanings that have urged a broader, more inclusive, and more egalitarian politics, not an untrustworthy one that is at best constrained by wiser courts.

Second, a number of discarded and disused clauses in the actual text - the Privileges or Immunities Clause ¹⁰ and the Citizenship Clause ¹¹ are the clearest examples - seemingly direct us toward engaged Aristotelian politics, not away from it. These clauses impose political duties on sovereigns and fiduciary responsibilities on all of us to protect and respect our co-citizens, rather than just enumerating rights for each of us as individuals.¹² We might already possess a relatively forgotten constitution of political action, of civic obligation, and of state responsibility which exists alongside the constitution of individual rights, minimal governance, and divided powers to which the courts and commentators have given so much voice over so much of the last century. We could study our political constitution; we could magnify its message; we could interpret its clauses. More to the point, though, we could act on it.

How? At a minimum, progressive law professors, lawyers, judges, students, and scholars might seek to inform, enhance, and imbue our politics, rather than our law, with the progressive and egalitarian constitutional visions of equality, liberty, and citizenship that we have so meticulously articulated within the judicial branch. We could demand of our political representatives at all levels that they possess wisdom, demonstrate reason, and keep their collective eye on the prize of liberty, equality, and citizenship. We have, to date, expected these traits almost exclusively of our judges. I would like to see law professors and students start a conversation not only about having a constitutional convention, but also about the much more immediate objective of staffing congressional offices, no less than judicial chambers, with the best and most idealistic of our law schools' graduates. Whether or not that comes to pass, we might at least think about what the Constitution we have actually says to our representatives about the nature of the power we give them, and what they should do with it, rather than focus so exclusively on what our current or idealized Constitution might say, through the oracular view of judges, regarding what they must not do.

Were we to do so, we might conclude that a little more of the stuff of utterly ordinary, politically generated, lets-put-it-to-a-vote law, and a little less of the very high-minded constitutionalism that constricts it, might be both fully in line with unexplored constitutional aspirations and visions and, more importantly, a very good thing in itself. Ordinary but decent political struggle - organizing, politicking, debating, compromising, voting, legislating, and then respecting the product - might hold the key to taming our current, anti-communitarian, destructive approach. Perhaps we need a convention of the sort Levinson suggests, if we are ever to have a Constitution committed to the creation of both a more ennobling as well as more representative politics. If so, I believe we should join Sandy Levinson in his call to at least begin a conversation about the need to have a convention. A Constitution that would underscore, rather than undercut, the nobility and centrality of politics and law to democracy would be a more worthy one.

* Robin West is Professor of Law, Georgetown University Law Center.
1 Sanford Levinson, The Democratic Deficit in America, HARV. L. & POL'Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/levinson_01.html.
2 Id.
3 Robin West, Katrina, The Constitution, and the Legal Question Doctrine, 81 CHI.-KENT L. REV. 1127 (2006); Robin West, Unenumerated Duties, U. PA. J. CONST. L. (forthcoming 2006).
4 U.S. CONST. art. VI, cl. 2 (the Supremacy Clause).
5 See, e.g., Robin West, Katrina, the Constitution and the Legal Question Doctrine, supra note 3.
6 For a classic description of this phenomenon, see Ronald Dworkin, On Civil Disobedience, in TAKING RIGHTS SERIOUSLY (Ronald Dworkin ed., 2005).
7 M. L. KING, WHERE DO WE GO FROM HERE? CHAOS OR COMMUNITY? (1967). See generally, KENNETH L. SMITH & IRA G. ZEPP, SEARCH FOR THE BELOVED COMMUNITY: THE THINKING OF MARTIN LUTHER KING, JR. (1974).
8 See, e.g., Deborah N. Pearlstein, Saying What the Law Is, 1 HARV. L. & POL'Y REV. (Online) (Nov 6, 2006),
http://www.hlpronline.com/2006/07/pearlstein_01.htm. Of course, the President does seek such constitutional blessing from his own circle of advisors.
9 See, e.g., LARRY KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); Larry Kramer, The Supreme Court, 2000 Term-Foreword: We the Court, 115 HARV. L. REV. 4 (2001); Reva B. Siegel, Constitutional Culture, Social Movement, Conflict and Constitutional Change: The Case of the de facto ERA, 95 CAL L. REV. (forthcoming 2006).
10 U.S. CONST. amend. XIV, § 1.
11 Id.
12 Goodwin Liu, Education, Equality and National Citizenship, 116 YALE L.J. 100, 104-05 (2006).

Preferred Citation: Robin West, The Constitution's Political Deficit, 1 HARV. L. & POL'Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/07/west_01.html.

Posted by Jason at 03:07 PM | Permalink

November 19, 2006

The End of Faith

Frank I. Michelman^*

Take One, 1987. Sanford Levinson, not without misgivings, signs the Constitution.¹ He signs while pondering blights of injustice and imprudence in the constitutional understanding and practice of our day - some of those clearly, in his view, legacies of our country's historical dalliance with slavery.² In fact he signs while thinking that his name will be going not only on the post-Reconstruction instrument, but also, inescapably, on the slavery-coddling original of 1787.³ Being able, nevertheless, to discern constitutionally supported remedies for constitutional imperfections, he finds, to his apparent relief, that "I can sign."⁴

Take Two, 2004 to the present day. Sanford Levinson declines to sign the Constitution.⁵ Something, obviously, has changed in the meantime, but what? Not the Constitution. And not any make-or-break development in the body of legal doctrine that issues in the Constitution's name. Recent judicial glosses on constitutional rights are not what is driving Levinson's new-found resistance, but rather his deepening dispute with provisions in the Constitution that no mere interpretive gloss could ever mend.⁶ And what of constitutionally supported remedies? Have they vanished? They have not, and thereby hangs a tale.

In 1988, Levinson explained both his strong wish to sign if possible and the finding that he could gratify it. Start with the question of what it is that one does by signing-or-not. For Levinson at that time, the choice lay between confirmation and repudiation of membership in an identity-anchoring, American communion defined by commitment to the Constitution's ideals as expressed, say, in the Preamble.⁷ Given such a vital stake, it was lucky that one could sign without endorsing the Constitution as fault-free or even nearly so. To sign was not to send up two cheers for the Constitution, it was rather to rededicate oneself to "political conversation" aimed at redeeming those preambular ideals, in a political practice through which redemption by such means could be deemed a live possibility.⁸ And ours could be so deemed, thought Levinson then, if only because of the Constitution's commendable provision of a usable path to its own correction: not Article V standing by itself, but Article V in company with a commitment to boundless political conversation and its indefinite continuation for which Levinson quite credibly found the Constitution to stand.⁹

In Our Undemocratic Constitution, explaining again his reasons for signing in '87, Levinson mentions the Constitution's idealism and his belief at that time in its potentially redemptive openness to self-correction,¹⁰ but this time he says nothing of any dire identitarian consequence of a refusal to sign. To the author of Constitutional Faith, refusal had been tantamount to divorcing oneself from an American political fellowship: it had meant giving up one's "identity as a member" and thus, in a bit of hyperbole, "everything."¹¹ Holding such a view, it was understandable that said author would take care not to set the bar for signing too high on the scale of constitutional perfection: "The question is what deviation from perfection is tolerable, justifying inevitable compromises."¹² And the answer was that even "severe" imperfections could be signed for, in view of the Constitution's idealistic promise and its provision for self-correction.¹³ As long as even grave imperfections were open to cure by constitutionally supported means, one could keep the faith and sign.

How to account for Levinson's subsequent change in stance? Between 1987 and 2004, Levinson reports, he has become gravely concerned about barriers raised by the Constitution's major structural provisions against the practice of democracy in this country, on "any acceptable notion of democracy."¹⁴ These barriers he now finds "almost" insurmountable.¹⁵ But with that "almost," Levinson's explanation for his shifted stance only serves to reignite our question about what really has changed for him in the meantime. "Almost" insurmountable means not insurmountable. It means - in a particular way I shall soon describe - that the door is still open to a live possibility of constitutional repair by constitutionally supported means. It seems that the Levinson of Constitutional Faith would have walked through the door and signed.

That Levinson found he could sign because the severe defects he saw were reparable by changes that would not, he said, with a nod toward Article V, be "fundamental."¹⁶ The Constitution, he evidently meant, could be fixed without overthrowing it. For one does not overthrow - one rather confirms - an arrangement by moving to repair its faults (as measured by its ideals) using means the arrangement itself provides. That is not apostasy; it is, to the contrary, the essence of fidelity, of faith.

Now you think you see what has crucially changed for Levinson since then. Today, but not then, Levinson targets Article V, formerly a part of the Constitution's salvation, as itself an intolerable constitutional fault - not only in itself a direct insult to democracy but a terrible obstacle to attainment of constitutional reforms democracy cannot live without. On the terms laid down in Constitutional Faith, that factor indeed would spell the difference between signing and not signing. Or rather it would do so if Levinson means to carry his critique of Article V all the way down, so to speak. But it seems that he does not. Constitutional remedies are still, in his view, available.

Levinson today urges Americans to pressure Congress into calling a convention to propose amendments and send them on for ratification by majority vote in a nationwide referendum.¹⁷ If such a course is tantamount to rank evasion of Article V and the Constitution, then of course Levinson cannot not sign what he calls upon others to violate. For most American constitutional lawyers, I grant, that seemingly would settle matter against signing. They would say that Levinson's is indeed a program of constitutional overthrow, just as they would say the country overthrew the Articles of Confederation by its submission in 1789 and thereafter to rule under the Constitution.¹⁸ They would say so because they believe Article V neither authorizes any convention unless petitioned for by two thirds of the states, nor - and this is crucial - allows for ratification of constitutional alterations otherwise than by concurrence of three fourths of the states.¹⁹

Levinson, however, is not most lawyers; he is inveterately a thinker outside the box, one reason why we so much cherish his scholarship. In the matter at hand, he expressly takes his stand on a maverick view of the relevant constitutional legalities. Endorsing arguments advanced by Akhil Amar,²⁰ he maintains both that Article V allows Congress to summon a convention on its own motion, and that a convention once called may constitutionally provide for ratification of its product by a national plebiscitary majority.²¹

Of interest is the fact that Levinson takes these pains to establish the constitutional legality of the political program he urges. Why does he? Even if those who sign thereby bind themselves to act politically within constitutionally charted lines, Levinson is pointedly avoiding any such contract. Why, then, argue as if it binds him?

We'll come back to this question, but first we must tend to its converse. Since Levinson quite pointedly is not urging constitutional overthrow - he rather argues for the constitutional legality of his plan - why won't he sign in 2004 on the same basis as before? He still, after all, finds the Constitution offering "a rich, even inspiring language by which to envision and defend a desirable political order."²² In 1987, that was enough, along with the redemptive promise of lawful amendment and political conversation, to let him sign. Lawful amendment is still workable, he maintains, and so is political conversation (or else his book is the father of all paradoxes).

It seems the stakes have changed for signing or not. Separation from the fellowship, loss of American creedal identity, loss of "everything": those considerations have dropped from view. Where they were, or perhaps we should say overriding them, is now a scruple against any possible gesture of approbation of the Constitution "today."²³ Compare the Constitution as it aspires to be and might become, Levinson's focus in 1987. Instead of where one stands with respect to the Sisyphean project of achieving the Constitution's ideals, the key question of identity has now become "whether I wish to encourage my fellow citizens to reaffirm [today's Constitution] in a relatively thoughtless manner."²⁴ Believing as Levinson does that today's Constitution is grievously undemocratic and dysfunctional, he decides to avoid making himself, by signing, a model and teacher of "blind devotion" to it.²⁵ What formerly would have registered as a signal of faith and fellowship now registers as connivance in mass self-delusion.

Levinson's legions of fans and admirers - none bigger than me - will be variously enthused and alarmed by this somewhat dramatic change of view on his part. What we who have engaged with Constitutional Faith will at any rate understand is that Levinson cannot have come lightly - anything but - to the belief that the herd-mentality signification of signing outweighs the separationist signification of not signing. His assessment of our Constitution's democratic prospects must have turned bleak indeed.

But that then returns us to the question of overthrowing the Constitution by frankly breaking free of its "iron cage" of restraint (Article V as conventionally construed) on meaningful structural reform.²⁶ Why balk at a bit of a revolution, if things are really so bad, any more than did the framers of 1787? There are revolutions and revolutions, Charles Fried points out.²⁷ Lawyers sometimes can see them where others might not, and not all the ones that lawyers descry - as where a people makes a peaceful end-run around undoubted, regnant legal niceties of basic-law alteration - tear apart the fabric of society; some indeed may repair it. That would appear to be the teaching of Bruce Ackerman, in scholarship Levinson esteems.²⁸ Why then should Levinson go to the trouble of arguing, in company with Amar but with little hope of convincing the legal punditry, in favor of the perfect constitutional legality of the steps he urges?

Maybe simply because he believes it. Maybe because of some felt rhetorical imprudence, in the U.S. here and now, of exposing one's program to charges of revolution however precious. But the knife of rhetoric cuts both ways here, because to swim with Amar against the predictable counter-torrent of informed opinion on what Article V allows is to risk credibility across the board, including on the meaty points of constitutional structure - the Senate, tri-cameralism, the Electoral College, and the rest - about which Levinson is mainly concerned to persuade the country, on every one of which (as this symposium suggests) he will be battling other experts.

I like a different answer. Twist and turn as we will, there is something in us lawyers that just does not love a revolution, just would rather not flout and spurn the only basic law we have for the time being. Leave it to Sandy, of all people - our most resolutely antiformalist of lawyers, but a lawyer still ²⁹ - to hold up the mirror.

* Frank I. Michelman is Robert Walmsley University Professor at Harvard Law School.
1 I refer to Levinson's meditation in Constitutional Faith (1988), on a bicentennial exhibition where visitors are invited to add their signatures virtually to the Constitution, and he has to decide whether or not to join the party. See SANFORD LEVINSON, CONSTITUTIONAL FAITH 193, 184 (1988) [hereinafter CONSTITUTIONAL FAITH].
2 See, e.g., id. at 189-90.
3 See id. at 184-89.
4 See id. at 93.
5 See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 3-4 (2006) [hereinafter UNDEMOCRATIC CONSTITUTION].
6 See id. at 5-6, 9.
7 See CONSTITUTIONAL FAITH, supra note 1, at 184, 193; Frank I. Michelman, Faith and Obligation, or What Makes Sandy Sweat?, 38 TULSA L. REV. 651, 657-58 (2003).
8 CONSTITUTIONAL FAITH, supra note 1, at 193.
9 See id. at 191, 193.
10 See UNDEMOCRATIC CONSTITUTION, supra note 5, at 3-4 (2006).
11 See CONSTITUTIONAL FAITH, supra note 1, at 184 ("[O]ne gained or lost everything."). See also id. at 192 ("[R]efusal . . . would require a much deeper alienation from American life and politics than I can genuinely feel.")
12 Id. at 190-91, 192-93.
13 See, e.g., id. at 190-91.
14 See UNDEMOCRATIC CONSTITUTION, supra note 5, at 6.
15 Id.
16 CONSTITUTIONAL FAITH, supra note 1, at 190.
17 See UNDEMOCRATIC CONSTITUTION, supra note 5, at 173-80.
18 See, e.g., Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475 (1995) (showing the break in legality between the pre- and post-Constitutional regimes of governance in the United States).
19 See U.S. CONST. art. V.
20 Levinson cites Akhil Amar, Popular Sovereignty and Constitutional Amendment in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 89 (Sanford Levinson ed., 1995).
21 See UNDEMOCRATIC CONSTITUTION, supra note 5, at 173-74, 177. Levinson writes "legitimately" where I wrote "constitutionally," but the two terms can safely be deemed equivalent for him in this context, because he is expressly endorsing Amar's legalist view.
22 Id. at 5.
23 Id.
24 Id.
25 Id.
26 Id. at 165.
27 See Charles Fried, The Supreme Court, 1994 Term-Foreword: Revolutions?, 109 HARV. L. REV. 13, 20-27 (1995).
28 See, e.g., UNDEMOCRATIC CONSTITUTION, supra note 5, at 22, 177.
29 See Michelman, supra note 7, at 661-63.

Preferred citation: Frank I. Michelman, The End of Faith, 1 HARV. L. & POL'Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/michelman_01.html.

Posted by Jason at 01:37 PM | Permalink

The Politics of Levinson's Constitutional Convention

Mark Tushnet^*

Sanford Levinson asks us to imagine a constitutional convention called to consider revisions in structural provisions that he considers unsound and hard-wired. That the provisions are hard-wired is important to his argument, because he acknowledges that we've dealt by interpretation with other provisions he considers unsound.¹ We can deal with the hard-wired provisions only by amending the Constitution.

Levinson also argues that at least some of the changes he proposes are unlikely to be adopted through the traditional amendment process, that is, by proposal from supermajorities in Congress and ratification by a supermajority of the states. The reason is that these changes would reduce the power of congressional incumbents -- at least enough incumbents to exercise an effective veto over proposed amendments. So, he argues, the people of the United States should organize themselves outside the Constitution's framework to adopt these revisions by means of a non-Article V convention and ratification process.

I have no quarrel with the theory of non-Article V amendment processes,² But I have questions about the politics associated with Levinson's proposals, on two levels: First, what are the political conditions under which his convention would convene,³ and second, what are the politics associated with the proposals the convention might advance for ratification by the American people? I suggest that Levinson's convention would take place only if the American people came to believe that we were facing a crisis of governance caused by the structural defects Levinson identifies, and that the politics of the convention would be affected by concerns - risk aversion, the mobilization of affect by crisis, and more - that simultaneously suggest cautious pessimism and cautious optimism about the convention's prospects.

Begin with the convention itself. European constitutional theorists distinguish between the pouvoir constituant - for present purposes, the people convened to create a constitution - and the pouvoir constitueé, the government and, specifically, the form of government called into being by the pouvoir constituant. The important theoretical point is that the pouvoir constituant cannot be controlled by positive law, because positive law is the embodiment of the pouvoir constitueé, even if the positive law is the constitutional provision for amending the constitution. The only tricky question is a practical not a theoretical one: How do you know when the pouvoir constituant has awakened and changed the constitution? The answer is provided by an analysis of social facts, as H.L.A. Hart's jurisprudence suggests.⁴ So, the American people have the legal authority to bring about a constitutional convention outside the Article V framework if that's what we want to do.

Consider these scenarios: (1) The Supreme Court holds that statutes making it a crime to burn the American flag as a means of political protest violate the First Amendment. And, lo and behold, people simply ignore the decision. Prosecutors continue to prosecute, juries continue to convict, jailors refuse to comply with judicial orders directing that they release the offenders, jurors refuse to award the offenders civil damages against their persecutors for violating their constitutional rights. How should we conceptualize this scenario? Maybe as one of widespread violation of fundamental law. The difficulty, though, is that the violation, if such it be, is too narrowly focused. Better, I think, to say that the people, acting as the pouvoir constituant, have amended the Constitution, redefining the scope of the First Amendment.

This example shows that we don't have to think of the pouvoir constituant acting solely in a revolutionary manner, completely replacing an existing constitution with an alternative.⁵ Rather, the people can tinker with the constitution outside the bounds of the amendment process set by positive law.

(2) There is a groundswell of support for the election of Arnold Schwarzenegger as President, something plainly barred by the Constitution. But, fearing political retaliation by the voters, state election officials ignore court decisions saying that Schwarzenegger, being ineligible for election, should not be placed on the ballot, and do so anyway in thirty or forty or fifty states. Schwarzenegger wins (or loses narrowly, and perhaps only because he was not placed on the ballot in a few states). Here too, I think we should see this as a case in which political practice has amended the Constitution.

This second scenario provides the transition to my larger questions about Levinson's enterprise. The people of the United States, acting as the nation's pouvoir constituant, could convene ourselves into Levinson's convention, and could consider making only small-ish adjustments in the hard-wired structural provisions he discusses. The Schwarzenegger scenario describes a set of political conditions under which the pouvoir constituant might mobilize itself to override a specific hard-wired provision of the Constitution with which it disagrees. What are the political conditions for the convening of Levinson's convention?

Pretty clearly, the political conditions cannot be created merely by popular agreement that Levinson's proposals are good ideas (if they are). One can generate all sorts of good-government reforms, but good-government reforms are actually adopted only when the political circumstances are ripe. Reflecting on the theories associated with Charles Sabel and his colleagues, I suggest that the conditions for convening Levinson's convention are two: First, nearly everyone agrees that something has to be done, and second, nearly everyone agrees that nothing that's been tried so far works, and that nothing on the horizon holds out much prospect for success either. Mere policy gridlock won't satisfy the first condition, because gridlock is fine if not enough people think that something has to be done. Perhaps the agreement that something has to be done occurs in connection with structures themselves,⁶ but that need not be so. People might agree that something has to be done about some substantive matter. Here the second condition gets more complicated: People have to agree that nothing works, and that the reason for the failure lies in the hard-wired structures that we use to select among policy proposals, which prevent us from adopting proposals already "in the air" but not "on the table" because of those structures.

The "nearly everyone" could be the people of the United States, or it could be political elites, comprised mostly but not exclusively the people's representatives. Consider a convention convened because elites conclude that something has to be done.⁷ Of course, members of Congress could have used the provisions in Article V for individual amendments - proposal of discrete amendments by Congress and ratification by the states -- to do something about the hard-wired structures.⁸ Would an elite-driven convention adopt constitutional revisions that could not have been adopted through the individual-amendment Article V process? We can assume that membership in such a convention would overlap substantially with membership in Congress, that some of the non-congressional members would probably aspire to such membership, and that some of those members might even see participation in the convention as a springboard for their political careers. And, other members, we can assume, would be elites associated with existing power structures, including Congress.

Despite all this, the convention might produce revisions in the hard-wired provisions. And yet, perhaps no convention would be needed, were the conditions I've described to exist. Both as members of Congress and as members of the convention, elites should calculate what their prospects would be under the revised Constitution. The anchoring heuristic, risk aversion, and the status quo bias probably make it hard for members of Congress today - that is, when the conditions I've described don't exist - to calculate accurately what their prospects are under a revised Constitution. They will anchor their estimates about what is likely to occur to what they already know, which is how existing institutions confer how much power on them. The anchoring heuristic suggests that their estimates about the impact of changes will be closer to the anchor than the impact would actually be; that is, members of Congress may underestimate the changes' effects. Risk aversion might offset that, leading them to overestimate the effects. So, on balance, perhaps members of Congress - or, perhaps better, Congress in the aggregate - can indeed accurately calculate the effects of changing hard-wired provisions. At that point, the status quo bias, both on the individual level and as an aggregate effect, might kick in: Those more affected by the anchoring heuristic might say, "The changes aren't going to be that large, so why bother?," and those more affected by risk aversion might say, "The changes could be disastrous, so why bother?"⁹

Note, though, that the "something has to be done" assumption provides the answer to the question, "why bother?" That is, were the political conditions I've described to exist, political elites would have reason to bother with either making small but potentially beneficial changes, or larger but riskier ones. Crisis conditions mobilize fears and anxieties that can offset risk aversion and the status quo bias. Perhaps, then, if political conditions conduced to convening a convention, we wouldn't need to hold one.¹⁰

The individual-amendment Article V scenario may be more promising than convention one for an additional reason: It makes possible consideration of a more limited number of amendments than in a convention. Recall that the pouvoir constituant can't be controlled by positive law. If a convention understands itself to be exercising the constituting power - which is, as I've suggested, a matter of social fact, not legal theory - it can consider anything, not simply the proposals that motivated its convening.¹¹

With the possibility of placing everything on the table, what would a convention do? For the reasons I've sketched, a convention dominated by political elites might confine itself to good-government proposals like Levinson's - again, given the condition of widespread agreement that something has to be done. A more populist convention might well range more broadly, because its members would not have the detailed knowledge about how politics works within specific institutional contexts that elites, who conduct politics within those contexts, do have.

Among political elites, it is common to fear a populist convention because it would go out of (elite) control and repudiate fundamentals of constitutional democracy.¹² Perhaps so, although developments in political technology provide mechanisms that, if used prior to or in conjunction with a convention, might show that such fears are exaggerated.¹³ A different skepticism is that a populist convention would end up doing almost nothing. Constitutional design is difficult, and the revisions Levinson proposes have their merits and faults. Even if Levinson's proposals are on balance good ideas, a populist convention might conclude that coming up with a package that makes sense is too difficult.

And yet: Designing the 1787 constitutional proposal was difficult as well. But, in a setting where nearly everyone in the relevant elites and perhaps beyond did indeed think that nothing was working and that something had to be done, the Philadelphia Convention came up with a workable Constitution. Were those political conditions to recur, perhaps those called to deliberate on improving the original design might succeed.

* Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School.
1 Some have been interpreted virtually out of existence, such as the Contracts Clause. See, e.g., Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934). But see Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978). Others have been rendered essentially toothless, such as constitutional protection of core property rights. But see Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (Kennedy, J., concurring in the judgment and dissenting in part).
2 In my view, U.S. constitutional theorists have struggled too hard to make sense of what is basically a simple theory. See, e.g., Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043 (1988); Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 95 COLUM. L. REV. 457 (1995); BRUCE A. ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
3 Some criticisms of Levinson's proposals might arise because he presents the proposals as good-government reforms, floating free from any politics at all. But, as I suggest, once we identify the political conditions under which the idea of convening a convention might have some traction, we might understand why Levinson's proposals would not be merely good-government proposals in that environment.
4 See H.L.A. HART, THE CONCEPT OF LAW 112 (2d ed. 1994) (describing the "rule of recognition" as a social fact).
5 Or, if you like, we could conceptualize the scenario, with what I think is unnecessary complexity, as one in which the people wiped out the old Constitution entirely, then re-enacted it with the single change with respect to flag-burning.
6 This would be so, for example, if Levinson's belief in a substantially more populist form of democracy than the one we have in the United States became quite widespread.
7 They might do so to forestall the convening of a non-Article V convention. See also note 9 infra.
8 I believe this to be true even of the equal representation of the states in the Senate, for reasons identical to those I sketched in connection with the flag-burning example. Briefly: (1) Consider the use of Article V in two steps, in the first of which Congress proposes and the states ratify the repeal of the restriction on possible amendments contained in the last phrase of Article V, and in the second of which Congress proposes and the states ratify a population-based apportionment of the Senate. (2) Now collapse those steps into one, in which Congress proposes an Article V amendment with two provisions, the first of which is the repeal and the second of which is the apportionment. (3) Now eliminate the first provision, on the ground that the only sensible way of understanding an apportionment proposal is as an implicit repeal of the restriction on amendments.
9 I have framed my argument with reference to members of Congress, but I think it holds as well for political elites in the states during the ratification process.
10 This argument is, I think, independent of another, which might also have some force: Members of Congress would propose constitutional amendments to forestall the convening of a convention in which they might have less influence than they would over proposing amendments themselves.
11 For discussions, see William W. Van Alstyne, Does Article V Restrict The States to Calling Unlimited Conventions Only?, 1978 DUKE L. J. 1295; Walter E. Dellinger, The Recurring Question of the "Limited" Constitutional Convention, 88 YALE L. J. 1623 (1979).
12 In the context of Levinson's work, see Cass R. Sunstein, It Could Be Worse, The New Republic, Oct. 16, 2006, at 32.
13 A more complete account would have to explain the political conditions under which these mechanisms would be used prior to or in conjunction with a populist convention. One currently available technology is the deliberative poll. For a description, see JAMES S. FISHKIN, DELIBERATIVE POLLING®: TOWARD A BETTER INFORMED DEMOCRACY, http://cdd.stanford.edu/polls/docs/summary/. Another model is the "citizen assembly" of 160 randomly chosen voters convened to consider changes in the electoral system in British Columbia. For a description, see CITIZENS' ASSEMBLY IN ACTION, http://www.citizensassembly.bc.ca/public/inaction. The assembly proposed a major change, which would have gone into effect upon approval by 60 percent of all voters and by simple majorities in 60 percent of the province's 79 electoral districts. It was approved by majorities in 77 districts, but received only 57.69 percent of the total vote, and therefore was not enacted. For the results, see ELECTIONS BC, FINAL REFERENDUM RESULTS: REFERENDUM ON ELECTORAL REFORM - MAY 17, 2005, available at http://www.elections.bc.ca/elections/ge2005/finalrefresults.htm.

Preferred citation: Mark Tushnet, The Politics of Levinson's Constitutional Convention, 1 HARV. L. & POL'Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/tushnet_01.html.

Posted by Jason at 01:11 PM | Permalink

November 18, 2006

Second-Best Democracy

Adrian Vermeule^*

Sandy Levinson argues that our Constitution is undemocratic, and that this is a bad thing.¹ In his essay for this symposium and in his new book,² Levinson's principal targets are the hopeless malapportionment of the Senate, the strong status quo bias produced by our quadricameral lawmaking structure (House, Senate, presidential veto, and judicial review), the episodically harmful influence of the electoral college, life tenure for Supreme Court justices, the excessive aggrandizement of presidential power, and, related to the last, the Constitution's failure to set up any real regulation of emergency powers or provision for government continuity in case of a catastrophic attack. The solution is a citizen-initiated convention that will give us a new Constitution, informed by our democratic commitments and by the last two centuries of experience with constitution-making around the world.

Levinson's iconoclasm and his bent for present-oriented or forward-looking law, as opposed to ancestor-worshipping law, are refreshing. However, his indictment of the Constitution may not succeed even if his theoretical premises are right. Levinson offers a piecemeal critique, walking through the Constitution's central features and condemning them one by one. This procedure overlooks that our constitutional order may be more democratic than the sum of its parts. Interactions among institutions that are undemocratic, taken one by one, can produce a kind of emergent democracy at the aggregate level. This possibility arises because second-best effects cause our Constitution's democratic failures to offset each other, at least in part.

Put conversely, adopting all of Levinson's proposals would produce a first-best democracy, by Levinson's lights. But if political constraints rule out even some of his many proposals, then it need not be best, even on Levinson's criteria, if the remainder are adopted. Where political constraints rule out full attainment of the first-best regime, the general theory of second best entails that there is no general reason to prefer moving as close as possible to the first-best.³ Indeed, further departures from the first-best will sometimes be necessary to compensate for the initial departures. Unless all of Levinson's proposals succeed, Jeffersonian democrats like Levinson might have good reason to prefer our current, democratically-flawed constitutional order to a regime that tried to approach the first best as closely as possible. For Jeffersonians, although our current constitutional democracy is imperfect, it may well be a tolerable second-best. At least that is the next conversation Jeffersonians need to have, even if they are convinced by everything Levinson says.

I. Offsetting Failures of Democracy?

Levinson argues that each of our national institutions is undemocratic, taken one by one, because those institutions fail to implement the preferences of current national majorities. Even if this is right, not much follows, not necessarily anyway. It is wrong to suppose either that (1) if the constitutional order is democratic, each or even some of its component institutions must themselves be democratic; or that (2) if some or all of the component institutions are undemocratic, the product of their interaction cannot be democratic. These are fallacies of aggregation: respectively the fallacy of division in case (1), of composition in case (2).⁴ An array of institutions might produce a system that is more democratic than any member of the array.

Two mechanisms might produce emergent democracy at the aggregate level, even if the underlying institutions are democratically objectionable. One possibility involves second-best offsets or compensating adjustments: an institution that departs from the democratic ideal (whatever it may be) in one respect might serve to cancel out the undemocratic effects of another institution in the array. Another possibility is that by distributing undemocratic power widely, to a range of different groups, the Constitution might produce political interactions that are tolerably democratic overall. These possibilities are speculative, but they spotlight some tensions within Levinson's thesis.

To begin with, some of the undemocratic arrangements that Levinson condemns are themselves the cures for other arrangements that he also condemns. Levinson, for example, does not like the status quo bias of our national lawmaking system.⁵ The main cure for this, which culminated during the New Deal, is lawmaking by the executive branch through administrative agencies that combine legislative, executive, and judicial powers-the very fusion that the unwieldy quadricameral system was designed to prevent. The benefit of executive-branch lawmaking is that within the bounds of broad and vague statutory delegations, it bypasses the vetogates and can thus be adjusted to changing circumstances as new administrations, with new views, succeed each other over time.⁶ The cost is inflated executive power; critics of executive lawmaking routinely invoke the so-called "nondelegation doctrine" to argue that the administrative state dilutes "democratic accountability," here equating democracy with congressional policymaking.⁷

Levinson dislikes the New Deal's pumped-up executive, but that is just the byproduct of the New Deal's attempt to cure the status quo bias he also dislikes. Of course the first-best, from Levinson's perspective, would be to restrict executive power and also to abolish bicameralism or in some other way reduce status quo bias. But a regime with both status quo bias and a strong executive is better, not worse, than a regime with only one of those two features, according to Levinson's own criteria. The piecemeal critique misses this interaction effect and thus ranks the possible regimes incorrectly.

Similar things can be said about political parties, about which Levinson seems appropriately ambivalent.⁸ At least under unified government, political parties lubricate the wheels of the quadricameral system and thus partially offset the excessive status quo bias, or bias against implementing the preferences of current majorities, that Levinson identifies. That effect may or may not obtain under divided government as well; but under divided government political parties at least exercise some oversight of the executive branch, which Levinson thinks especially desirable in an era of emergencies.

In related writings Levinson praises proportional representation (PR) and condemns the Anglo-American "first past the post" system of plurality voting in single-member electoral districts.⁹ However, one of the clearer findings of comparative politics is that the combination of a presidential system with PR is dangerous one, because PR tends to produce multiple small parties and thus removes a counterweight to presidential power that a single major opposition party provides.¹⁰ This evidence comes mostly from Latin American democracies that are often shaky in other ways, but conditional on having an independently-elected executive, there is real tension between praise for PR and fear of presidential autocracy. First-past-the-post systems reinforce checks and balances in a presidential system.

Under the second mechanism I mentioned, the broad distribution of undemocratic power may produce a tolerable approximation of democracy, by allowing many groups a privileged forum in which to express their grievances, or by forcing all holders of democratically unjust entitlements to come to the bargaining table. Levinson writes that "the dreadful fact is that none of the great institutions of American politics can plausibly claim to speak for the majority of Americans, even though all assert such claims."¹¹ But even if the various constitutional arrangements that Levinson condemns all depart from the democratic ideal, specified in majoritarian terms, they do not all depart in the same way, or in the same direction. The varying departures may cancel each other out or even push the overall system towards, not away from, the democratic ideal.

Consider that the Senate favors small states; the Electoral College favors groups with influence in battleground states (which may or may not be small states); the administrative state favors groups who can organize to influence agencies and congressional committees; the prestige and power of the Supreme Court benefit the legal elites who feed in the Court's wake. However, there is no one group or interest or social class that is uniformly favored by each of these undemocratic institutions. Just as the only real restraint on predation by feudal lords was competition from other feudal lords, so too the undemocratic power of the favored groups, within their domains, is checked by the fact that other groups have undemocratic power in other domains. Getting rid of all feudal lords was best, but failing that, many feudal lords would be better than one or a few.

Here the quadricameral lawmaking system does useful service by forcing many of these groups, each with power that is by hypothesis undemocratic in some domain, to argue or bargain together in order to jointly agree on national policy. Economic models of the separation of powers suggest that where several players, each with dictatorial power in its domain, must agree to a common policy, the results may improve social welfare as compared to a system that relies on elections alone.¹² The domain-specific dictators, even if elected, do not act democratically in Levinson's sense within their individual domains; because of information asymmetries and the imperfections of elections as a disciplining technology, they do not always do what current majorities would prefer. But so long as all must agree on a common policy, the interaction between or among them pushes the whole system closer to satisfying popular preferences, producing a kind of second-best democracy.

The conceptual point that failures of constitutional democracy can be mutually offsetting is not offered to explain the genesis of the relevant institutions or structures. I do not claim that one failure produced the other, although in some cases that may be so. I do suggest, in justificatory or normative terms, that the constitutional order is quite plausibly more democratic than the sum of its parts.

II. The Constitutional Status Quo as a Second-Best

There is a corollary of all this: even given everything else Levinson says, it is not obvious that Jeffersonian democrats should hope for a constitutional convention. I put aside the Burkean claim that a popular constitutional convention might produce disastrous results, such as a constitutionally mandated theocracy.¹³ Although that is sometimes cast as a claim about the unintended consequences of mobilizing citizens to effect constitutional change, Burkeans would not approve of the product of such a convention even if it worked precisely as intended by producing a genuinely Jeffersonian democratic order, which is Levinson's hope.

Instead I offer a narrower point: unless all of Levinson's prescriptions are adopted,¹⁴ even a committed Jeffersonian might prefer the current constitutional order on second-best grounds. In the examples above, the worst scenario for a Jeffersonian might arise if the convention adopts some of Levinson's prescriptions but not all. If, for example, the convention reins in executive lawmaking but leaves quadricameralism unchanged, status quo bias will strangle current majorities; if it retains a powerful presidency but abolishes the Senate and adopts proportional representation in the new truncated Congress, a real worry about executive dictatorship would arise.

This caution, rooted in the theory of second-best, does not show that bad consequences will always result from piecemeal reform; all it shows is that piecemeal reform is not always best, because approximating the good as closely as possible can sometimes produce the worst possible outcomes.¹⁵ It then becomes necessary to go beyond Levinson by offering a detailed institutional analysis of the conditions of American constitutional democracy to see whether particular reforms will improve matters. The caution remains operative at this stage, however. Suppose that because of the causal forces that operate in politics, constitutional changes must be effected through "interdependent packages."¹⁶ If so, then simply urging as many piecemeal Jeffersonian changes as possible may produce far worse results, even on Jeffersonian grounds, than the constitutional status quo. The first-best must not be made the enemy of the tolerable, even if we agree with Levinson that the status quo is woefully undemocratic.

* Adrian Vermeule is Professor of Law, Harvard Law School. Thanks to Frank Michelman, Mark Tushnet and Abby Wood for helpful comments, and to the Harvard Law Roundtable for helpful discussion.
1 Sanford Levinson, The Democratic Deficit in America, 1 HARV. L. & POL'Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/levinson_01.html.
2 SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006). For a similar argument, see ROBERT DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2002).
3 R.G. Lipsey & Kelvin Lancaster, General Theory of Second Best, 24 REV. OF ECON. STUD. 11, 11-12 (1956).
4 For an introduction to these aggregation fallacies, see generally Adrian Vermeule, The Judiciary is a They, Not an It, 14 J. CONTEMP. LEGAL ISSUES 549 (2005).
5 LEVINSON, supra note 2, at 29-49.
6 Cf. Chevron U.S.A v. Natural Res. Def. Council et. al., 467 U.S. 837 (1984); Motor Vehicle Mfrs. Assn. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 (1983).
7 David Schoenbrod, Politics and the Principle that Elected Legislators Should Make the Laws, 26 HARV J. L. & PUB. POL'Y. 239, 279-80 (2003).
8 See LEVINSON, supra note 2, at 62-66. For an excellent account of the second-best role of parties in structural constitutionalism, see Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311 (2006).
9 Sanford Levinson, "Imposed Constitutionalism": Some Reflections, 37 CONN. L. REV. 921, 929-30 (2005).
10 Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 656-57 (2000). Levinson notes this evidence. See Levinson, supra note 9, at 930.
11 LEVINSON, supra note 2, at 49.
12 Torsten Persson et al., Separation of Powers and Political Accountability,112 Q. J. ECON, 1175-92 (1997).
13 Cf. Cass Sunstein, It Could be Worse, NEW REPUBLIC Oct. 16, 2006, at 32.
14 At least the major structural proposals. The point about second-best effects does not apply to all of Levinson's recommendations - for example, his suggestion for abolishing the bar on foreign-born citizens serving as President - but I have argued that it covers the most important ones.
15 See Avishai Margalit, Ideals and Second Bests, in Philosophy for Education 77 (Seymour Fox ed. 1983).
16 Vicki Jackson, Narratives of Federalism: Of Continuities and Comparative Constitutional Experience, 51 DUKE L.J. 223, 272-79 (2001). See also Mikhail Filipov, Peter C. Ordeshook, & Olga Shvetsova, DESIGNING FEDERALISM: A THEORY OF SELF-SUSTAINING INSTITUTIONS 300-01 (2004) (emphasizing that because institutions are interdependent, the constitutional designer cannot evaluate them piecemeal). Thanks to Mark Tushnet for these references.

Preferred citation: Adrian Vermeule, Second-Best Democracy, 1 HARV. L. & POL'Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/vermeule_01.html.

Posted by Jason at 10:57 AM | Permalink

November 17, 2006

The Democratic Deficit in America

Sanford Levinson^*

I. Introduction

The term "democratic deficit" has become a staple of contemporary political analysis.¹ Most often used to analyze presumed deficiencies within the political order of the European Union,² it has all too much application as well to our own political order within the United States. Some analysts would no doubt point to the unseemly and often corrupting role played by money in our electoral process; others might note the continuing concerns simply about the reliability of counting the votes that are cast in our elections. No one, unfortunately, could come out of the last two presidential elections or the 2006 mid-term elections with unalloyed confidence that we meet this most basic test of democratic self-government.³ Other analysts have focused on the degree to which the partisan gerrymandering of legislative districts in effect allows representatives to choose their voters rather than the other way around.⁴ Though I agree that campaign financing, partisan gerrymandering, and the potential of election-day chaos present significant problems for anyone concerned about the future of American democracy, we are deluding ourselves if we believe that solving these problems alone would remove the root causes of our democratic deficit. Indeed, to a significant extent, the American democratic deficit is a function of the Constitution itself.

A provision of the New York Constitution in effect requires the New York electorate every 20 years to answer yea or nay to the question, "Shall there be a convention to revise the constitution and amend the same?"⁵ The constitution also sets out procedures for holding the convention should the electorate vote in the affirmative.⁶ The New York constitution is not unique among American state constitutions in offering what one writer has described as a "mandatory referendum" that "enforce[es] the people's right to reform their government."⁷

Imagine that the United States Constitution contained such a sensible provision and, therefore, that we had the same opportunity as New Yorkers and the residents of thirteen other states to take part in such a referendum. Or imagine being in a similar position to voters in France, Holland, Iraq, and Kenya, four nations that in the past two year years gave their publics the opportunity to ratify proffered constitutions, either national (Iraq and Kenya) or transnational (France and Holland with regard to the draft constitution for the European Union). Should we have such an opportunity ourselves, I would vote "yes" myself and heartily advocate that everyone else do so as well. It is well past time to call a new convention authorized to consider the multiple ways in which the Constitution does not adequately protect, in 21st century terms, what we would like to believe is our national commitment to democratic self-government. And, it is worth noting, my zeal to call such a convention is not abated in the least because of the Democrats' victory in the recently concluded mid-term elections. Indeed, a major point of what follows below is that those victories, however welcome, will have far less impact on the actual course of American politics because of the undemocratic features of the Constitution that I will be highlighting. The fact that Democrats will now be able to prevent some truly awful legislation does not in the least translate into the proposition that Democrats have become empowered actually to enact into law the kinds of progressive legislation presumably supported by most members of the American Constitution Society.

I note at the outset that I have no particular desire to engage in "Founder bashing" or harsh criticism of those who decided in 1787-88 to vote to ratify the constitution placed before them.⁸ The issue is not at all the sagacity of those men in meeting the challenges of their era; it is whether we should continue to be trapped in the particular constitutional cage they bequeathed us.

The Founders themselves would scarcely be surprised by my questions and criticisms. "Is it not the glory of the people of America," Madison wrote in Federalist #14, "that . . . they have not suffered a blind veneration for antiquity [or] for custom . . . to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?"⁹ Madison was, of course, speaking to his own compatriots, but there is surely no reason to believe that the "glory of America" would come to an end with the ratification of the Constitution. Even more telling is a letter written within two months of the Philadelphia Convention by its president, George Washington, to his nephew Bushrod:
"The warmest friends and the best supporters the Constitution has do not contend that it is free from imperfections . . . [t]he People (for it is with them to Judge) can, as they will have the advantage of experience on their Side, decide with as much propriety on the alteration and amendment which are necessary. I do not think we are more inspired, have more wisdom, or possess more virtue, than those will come after us."¹⁰

We should accept Madison's and Washington's invitation to talk about some of the "lessons" of our experience with the current Constitution.

What follows consists of two parts. The first part sets out what lawyers might call a "bill of particulars" against the Constitution. What are the particular features of the Constitution that most contribute to a serious democrat deficit in our country today? The second part asks in many ways a more difficult question: How indeed can We the People correct these deficiencies?

II. A Bill of Particulars

The easiest way of setting out the bill of particulars is by asking a series of questions.

1. Even if you support having a Senate in addition to a House of Representatives, do you support giving Wyoming the same number of votes as California, which has roughly seventy times the population? Can a country ostensibly committed to "one person one vote" justify such a system of political representation in the 21st century?

2. Are you comfortable with an Electoral College that, among other things, has regularly placed in the White House candidates who did not receive a majority of the popular vote? Since World War II alone, that list includes Harry Truman, John F. Kennedy, Richard Nixon, Bill Clinton (twice), and George W. Bush. Whether one admires or disdains these presidents, one can scarcely describe them as "the people's choice" if that term suggests majority support.
Moreover, almost all of these elections were close enough that the shifts of relatively few votes in certain states would have created deadlocks in the Electoral College, requiring, under the Twelfth Amendment, the ultimate decision to be made by the House of Representatives. Assuming the existence of the Electoral College in the first place, one might find this reasonably sensible. But can you possibly believe that the crucial votes in the House should be taken a "one state one-vote" basis? There is no defense for Vermont's Peter Welch, good Democrat that he is, for having an equal say in such a momentous decision as the entire thirty-two person (and majority Republican) delegation from Texas, or for Alaska's Don Young being able to offset the fifty-three (and majority Democratic) delegation of representatives from California.

3. Is it appropriate that a president can frustrate the will of a majority of both houses of Congress by vetoing legislation with which he disagrees on purely political grounds? American law professors endlessly obsess about the "countermajoritarian" difficulty allegedly posed by the fact that the Supreme Court has, over our 220-year history, invalidated approximately 165 federal laws.¹¹ Presidents, on the other hand, have vetoed 2,501 laws, many of them of great import.¹² Of course, the threat of impending veto directly shapes more ongoing legislative battles than does the possibility that a court will overturn legislation at some indefinite point in the future. In any event, anyone who expects great things from the now-Democratic Congress should be aware that a fire-breathing dragon can emerge at any moment from the White House and negate any legislation that the Democrats can pass.

4. Is it a desirable feature of the Constitution that the impeachment clause enables us to rid ourselves of a criminal president, but leaves us at the tender mercies of an incompetent one until the conclusion of his or her fixed term of office? Might we not have something valuable to learn from the great majority of countries that have some mechanism by which sufficient loss of confidence in the nation's primary political leader can lead to the termination of his or her tenure in office?

5. Does it make sense that an incumbent defeated in a national election maintains the presidency for a full ten weeks beyond election day, fully capable of making policy decisions that may drastically effect the future of the United States? We the People recognized that the original March 4 inauguration day disserved the nation, and we added the Twentieth Amendment to the Constitution. But January 20, both literally and metaphorically, is far closer to March 4 than it is to the first Tuesday in November. One might contrast our approach with Great Britain's, where a new prime minister literally replaces a defeated incumbent the very next day. One might, incidentally, ask similar questions about "lame-duck" Congresses, including the discredited Republican Congress that will meet one last time in November-December 2006.

6. Do you really want justices on the Supreme Court to serve up to four decades and, among other things, to be able to time their resignations to mesh with their own political preferences? Almost no other country has genuine life tenure. Most have mandated retirement ages, and many countries have specific terms of service.¹³

7. Do you support the ability of thirteen legislative houses in as many states to block constitutional amendments desired by the overwhelming majority of Americans and, potentially, by eighty-six out of the ninety-nine legislative houses in the American states?

These questions are largely rhetorical. If and only if you answer affirmatively to all of them are you an unequivocally proud supporter of our Constitution; in that event, you should without hesitation cast a vote in a national referendum to retain it. If, however, you share my own negative response to all, or even some, of the issues I highlight, you recognize that ours is a distinctly imperfect Constitution and that we should, as Washington and other luminaries suggested, spend less time celebrating our Constitution and more time asking if it is indeed serving us well. As a matter of fact, the really difficult task is not to criticize the Constitution but, rather, to suggest feasible ways of responding to its many imperfections.

III. The Pathways of Change

The Constitution contemplates its own amendment in Article V, but renders it virtually impossible. One political scientist has determined that the United States has the most difficult-to-amend constitution in the entire world.¹⁴ Bruce Ackerman has noted the extent to which "non-Article V" amendments may have occurred over our history with regard to new conceptions of national power, as occurred during the New Deal.¹⁵ Ackerman is undoubtedly correct, but he does not pay adequate attention to the basic imperviousness of the "hard-wired" structural aspects of the Constitution, as set out above.

Article V offers one crucial alternative to the ordinary amendment process, namely, a new constitutional convention, which Congress must call upon the petition of two-thirds of the states. It is unlikely that thirty-four states will agree to a full-scale convention, not least because the fourteen smallest states would not tolerate revision of the Senate. After all, the organization of the Senate assures that highly populous states will receive far less in federal per capita revenues than the less populous, and thus more represented, states. Ross Perot's colorful terminology of the "giant sucking sound"¹⁶ adequately describes dollars moving from New York, California, and other large states to Wyoming, Idaho, and the Dakotas. Indefensible boondoggles like the "bridge-to-nowhere"¹⁷ are directly traceable to the Constitution's allocation of voting power in the Senate.

The kind of change that the United States needs will come only if the public mobilizes itself behind the possibility of a new convention and, in effect, forces Congress to call one even in the absence of state petitions.¹⁸ Only if serious discussion begins now and the long, hard work of political mobilization begins soon will it be thinkable, as the country faces ever further fundamental crises, to rise to the example of our courageous and visionary Founders and craft a Constitution that is suitable for the 21st century. I do believe that, should a convention take place, the participants would be well advised to emulate the Founders and establish a new ratification procedure for its handiwork. Just as the Founders paid no attention to the unwise unanimity requirement set out in Article XIII of the Articles of Confederation,¹⁹ so should the founders of a constitution adequate to the 21st century ignore Article V in favor of a national referendum.

I conclude with some observations on two very common reactions to my proposal. The first expresses fear at the possibility of awakening the slumbering giant that is "We the People" and actually taking popular sovereignty seriously enough to contemplate the possibility of a genuine national conversation about the adequacy of our Constitution. I fear that those who describe themselves as "progressive" in their politics have become basically Hamiltonian in their fundamental mistrust of their fellow citizens. A movement that fears the people can scarcely hope for success-at least in a democracy. Lincoln spoke of government by the people as well as for them. Are we more comfortable, at the end of the day, embracing the second vision of politics than the first?

A second, linked, response is to point out that the United States is not in fact committed to "democracy" but, instead, is a "republic." There is a reason, after all, why the term "democracy" appears nowhere in the Constitution, whereas Article IV does guarantee to each State a "Republican Form of Government."²⁰ In some sense, this point is absolutely correct. The founders were in fact committed to some version of a "Republican Form of Government," and not to what we would today recognize as a modern democracy.

But the point is that we have, almost entirely for the better, wandered far from our 18th century "republican" roots. The 18th century version of the republican form of government was, among other things, racialist and patriarchal, not to mention religiously skewed.²¹ For the most part, only propertied, Protestant white men were invited into the republican experiment. Everyone else was pretty much an onlooker. Nor, of course, was there any nonsense about "one person, one vote."

I do not accuse contemporary partisans of "republican" (as distinguished from "democratic") government of supporting such outmoded and rejected institutions as slavery or the subordination of women. Still, I wonder whether the impulse to emphasize that the Founders never intended to create a "democracy" is not mired in the same kind of worship of tradition that led earlier generations to oppose prior important changes in our polity. These have included such fundamental changes as the abolition of slavery, the lifting of racial and gender bars to the suffrage, and the turning over of election of United States senators to the populace. In all instances, defenders of the status quo argued that the changes violated our "republican" commitments.

I do not rule out the possibility that my particular suggestions for eliminating the policy veto, the electoral college, the equal-vote allocation of power in the Senate, etc., are not only debatable, but even out-and-out bad. That said, I am confident that simplistic reminders that "we are a republic, and not a democracy," do not contribute to the public debate unless they are accompanied by a robust theory of precisely how the anti-democratic, anti-majoritarian features of our Constitution serve important public values beyond simply making it difficult for the majority to rule.

I suggest, then, this final act of imagination: you have been invited to consult with a new country trying to draft a constitution. Its leaders describe themselves as devoted to "democratic values." Do you try to talk them out of that commitment? And, whatever your answer, would you suggest that the "hard-wired" structural features of our own Constitution - in contrast to explicit rights protecting clauses such as those in the Bill of Rights - offer a good model for their country? To the extent that you would veer away from presenting our own Constitution as a model, it is worth asking what besides blind faith would suggest that it is altogether adequate to our own situation.

* Sanford Levinson is W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair at the University of Texas at Austin.
1 A search for "democratic deficit" on Google produces about 454,000 entries.
2 See e.g., Jennifer Mitchell, The European Union's "Democratic Deficit": Bridging the Gap between Citizens and EU Institutions, available at http://www.eumap.org/ journal/features/2005/demodef/mitchell/; Andrew Moravscik, Is There a 'Democratic Deficit' in World Politics? A Framework for Analysis, 30 Gov't and Opposition 336 (2004), available at http://www.princeton.edu/~amoravcs/library/framework.pdf.
3 There is, perhaps appropriately, given the 2000 election fiasco in Florida, a raging dispute about the operation of voting machines and the accuracy of the vote count in the 13th Congressional District in Florida, which had been represented by Katherine Harris, the Florida Secretary of State who oversaw the election at the time of George Bush's "victory" in 2000. See Jeremy Wallace, Political Staffs Head to Sarasota, LAKELAND LEDGER, November 11, 2006, available at http://www.theledger.com/apps/pbcs.dll/article?AID=/20061111/NEWS/611110461/1003/NEWS01.
4 See, e.g., the classic article by T. Alexander Aleinikoff and Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 Mich. L. Rev. 588 (1993).
5 N.Y. CONST. art. XIX, § 2.
6 Id.
7 See Robert J. Martineau, The Mandatory Referendum on Calling State Constitutional Conventions: Enforcing the People's Right to Reform Their Governments, 31 Ohio St. L. J. 421 (1970).
8 If I were going to be critical of the Founders, it would be because of the compromises made with regard to slavery, an issue no longer before us.
9 THE FEDERALIST No. 14 (James Madison) (Clinton Rossiter ed., 1961).
10 Letter from George Washington to Bushrod Washington (Nov. 9, 1787), in THE PAPERS OF GEORGE WASHINGTON, http://gwpapers.virginia.edu/index.html.
11 For one compilation of invalidations of federal laws, see THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 2117-2150 (Cong. Ref. Service, Library of Congress, 2004) (158 cases); for another, see Lee Epstein et al., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS, AND DEVELOPMENTS 163-166 (3d ed. 2003) (162 cases).
12 See Michael A. Sollenberger, Congressional Overrides of Presidential Vetoes, Congressional Research Service Report for Congress, April 7, 2004, available at http://72.14.209.104/search?q=cache:aCbNW7VBpNUJ:www.senate.gov/reference/resources/ pdf/98-157.pdf+%22Congressional+Overrides+of+Presidential+Vetoes% 22&hl=en&gl=us&ct=clnk&cd=1.
13 See e.g., TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 40 (2003).
14 See Donald Lutz, Toward a Formal Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 237 (Sanford Levinson ed., 1995).
15 See Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION, supra n. 14, at 63 (1995).
16 See JEFFREY J. MONDAK, NOTHING TO READ: NEWSPAPERS AND ELECTIONS IN A SOCIAL EXPERIMENT (1995).
17 See Carl Hulse, How to Unite Congress: Spend Billions on Roads, N.Y. TIMES (March 11, 2005), at A1, available at http://select.nytimes.com/gst/abstract.html?res= F20816FE3F580C728DDDAA0894DD404482.
18 I do not read the Constitution to say that Congress can call such a convention only if the states petition it to do so. Rather, Congress must call a convention should the petitions come raining in. But Congress always has the option to call a convention on its own.
19 Articles of Confederation art. XIII, para. 1.
20 U.S. CONST. art. IV, § 4.
21 An indispensable book on this point is ROGERS SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN AMERICA (1997).

Preferred citation: Sanford Levinson, The Democratic Deficit in America, 1 HARV. L. & POL'Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/levinson_01.html.

Posted by Jason at 04:32 PM | Permalink

November 13, 2006

From Steel Mills to Military Commissions: Congressional Responsibility under Youngstown and Hamdan

Eric R. Haren

In Hamdan, the Court made clear that the Judiciary will not accept wartime assertions of exigency or emergency without evidence, and ensured that the courts will remain engaged in inter-branch debate on matters of national security. This was envisioned by the Framers and reiterated in Justice Jackson's famous concurrence in Youngstown.

The Supreme Court's decision last term in Hamdan v. Rumsfeld¹ represents a powerful shift toward congressional responsibility, and away from executive prerogative, in America's struggle against Al-Qaeda. Fifty-four years had passed since the Supreme Court of the United States last repudiated a significant executive measure taken to protect national security during ongoing hostilities. In that case, Youngstown Sheet and Tube v. Sawyer, the Court struck down President Truman's seizure of the steel mills during the Korean Conflict.² In his concurring opinion in Youngstown, Justice Robert Jackson devised a three-category analytical framework that became the controlling law in this area.³ While the majority in Hamdan did not rely on Jackson's analysis ⁴ in striking down the President's military commission regime, its opinion adds substance to Jackson's three-category framework in a manner that restricts executive authority and demands clearer action from Congress. Additionally, the Court in Hamdan firmly cemented the Judiciary's role in answering wartime separation of powers questions. The net result requires Congress to legislate, rather than delegate, on wartime matters, and ensures the continued existence of a judicial check on governmental action. Hamdan strengthens the separation of powers doctrine that underlies our national government.

I. Justice Jackson's Three-Category Framework

Our constitutional system was designed to foster inter-branch debate. However, after September 11^th, 2001, that system came under strain, principally from ambitious assertions of sole executive power. The President sought, on his own exclusive authority, to conduct extensive electronic surveillance; to detain for years, without trial, American citizens on American soil; and to try alien enemy combatants by military tribunal, with the potential penalty of death. The merits of those policies aside, presidential arrogations of those powers, without clear authorization from Congress, constituted an extraordinary challenge to the separation of powers doctrine, the "essential precaution in favor of liberty."⁵

Hamdan represents a judicial circumscription of those ambitious executive assertions in three critical ways, all derived from the legal test that long has governed wartime separation of powers law. That test comes from Justice Jackson's concurring opinion in Youngstown, which articulated a three-category analytical framework for evaluating the legality of executive action.⁶ In the first category:

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.⁷

In the second category:

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.⁸

In the third category:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.⁹

This framework has served as an important mode of analysis for determining the legality of executive action in the national security arena.¹⁰ Jackson's analysis turns on whether Congress, in the proper exercise of its own constitutional power, has expressly or impliedly approved or prohibited presidential action. The institutional focus on Congress is the proper mode of analysis, even on national security questions, for two reasons. First, although both elected branches possess power related to military force and foreign affairs, only Congress possesses Article I powers to declare war, to provide for the armed forces, to make rules and regulations for the land and naval forces, and to define and punish offenses against the law of nations. Second, only Congress possesses the sweeping grant of implied power contained within the Necessary and Proper Clause.¹¹ That clause grants power to Congress to pass laws that are "Necessary and Proper" not only to the execution of congressional power, but also to powers vested in the other branches.¹² And, because the President must faithfully execute the laws of the United States under Article II, he cannot contravene the word of Congress expressed in law unless the authority in question is exclusively assigned to the President.¹³ As a result, as Justice Kennedy recognized in his Hamdan concurrence, Jackson's focus on congressional action is the proper way to assess the legality of executive action, even in wartime.¹⁴

Although the majority in Hamdan did not focus on Jackson's three categories, the Court reaffirmed a key principle of Youngstown: that the President may not disregard congressional limitations on presidential action when Congress properly acts pursuant to its own power.¹⁵ The Hamdan majority made two relevant determinations in that regard. First, it held that neither Congress's Authorization for the Use of Military Force ¹⁶ ("AUMF") after September 11^th nor its passage of the Detainee Treatment Act of 2005 ¹⁷ ("DTA") constituted sufficiently clear authorization for the President's military commission regime.¹⁸ Second, it held that the military commission regime violated the Uniform Code of Military Justice ("UCMJ") by (1) contravening the statutory principle that commission procedures should be as uniform as practicable for court-martial proceedings and (2) by violating the Geneva Conventions' Common Article 3 requirement (incorporated by reference into the UCMJ) of a "regularly constituted court."¹⁹

Those holdings make clear that Congress must clearly authorize extraordinary exercises of war powers and that the President must follow every legislative restriction properly enacted by Congress. Thus, by any measure, Hamdan is a watershed separation-of-powers decision. However, much of Hamdan's language is specific to the tensions among the President's military commission regime, the UCMJ, the Geneva Conventions, and the law of war. As a result, in future cases presenting different questions, courts likely will reach in the first instance for more abstract modes of analysis. As Justice Kennedy noted in his Hamdan concurrence, the "proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson."²⁰ As a consequence, it is a worthwhile exercise to ask how that framework interacts with the Hamdan decision.

II. Hamdan's Impact on Justice Jackson's Categories

Although the Hamdan Court did not expressly base its analysis on Justice Jackson's framework, the Court's reasoning - basing the legality of the President's actions on whether he contravened congressional enactments - is precisely the course of reasoning mandated by Jackson's framework. From that perspective, the Hamdan decision adds substance to each of Jackson's categories.

First, by imposing a clear-statement requirement on Congress, at least in areas as restrictive of liberty as military commissions, Hamdan limits the degree to which the Executive successfully can argue that an action is in the first category.²¹ The Hamdan Court considered both the AUMF and the DTA and could have determined that either statute constituted congressional authorization for the President's military commission regime. Indeed, the AUMF had already been interpreted in an earlier case to have authorized detention of enemy combatants as a fundamental incident of waging war.²² In addition, the DTA was specifically passed to limit jurisdiction over habeas corpus petitions by Guantanamo detainees.²³ Either statute could have served a congressional authorization for military commissions had the Court been inclined in that direction.²⁴ However, the Court took a different course, requiring Congress to speak more clearly before authorizing a presidential regime that raised "separation-of-powers concerns of the highest order."²⁵ Such a clear-statement requirement should hinder future presidential efforts to draw expansive power from nebulous congressional enactments. Wartime presidents thus will be forced to involve Congress more often and more extensively, a result that reinforces a system that creates policy through "a deliberative and reflective process engaging both of the political branches."²⁶

Second, Hamdan makes clear that courts should not simply defer to presidential claims of military exigency, adding considerable substance to Justice Jackson's second category.²⁷ The question in this category is whether, in the absence of a congressional voice, the courts should take as preclusive the President's word that a certain measure is imperative. In Hamdan, the President cited the "danger posed by international terrorism" as a justification for departing from standard court-martial procedures.²⁸ Hamdan had been detained for several years without charge and was not charged by military commission until after he filed suit seeking his release. Without any substantial evidence that military exigency necessitated a departure from court-martial proceedings in Hamdan's case, the Court refused to defer to the President's assertion. That refusal adds substance to Jackson's second category because it implies courts actually should inquire into the "imperatives of events" rather than granting total deference to executive assertions. Thus, post-Hamdan, when Congress is silent, at least the courts can serve as a counterweight to expansive assertions of executive power.

Third, Hamdan narrows the range of exclusive executive powers, which are the only presidential actions than can survive Jackson's third category. With respect to this category, the President generally argues that his exclusive Article II powers are broad enough to withstand judicial scrutiny, even if Congress has prohibited a particular executive action. In support of that claim, the Executive often suggests that the courts should construe broadly the clauses vesting the "executive Power"²⁹ and the "Commander in Chief"³⁰ power in the President. That argument's theoretical underpinnings rest on a historical understanding of the meaning of "executive Power" when the Constitution was ratified. On this view, "executive Power" meant those powers possessed by the British Crown. Thus, the argument goes, the President's "executive Power[s]" under Article II must include every royal executive power except those expressly taken away and granted to Congress by Article I.³¹ In Hamdan, President Bush argued that Article II provided exclusive authority for instituting military commissions,³² meaning that the military commissions were legal even if Congress had clearly barred their use. Had a claim to sole executive power found favor with a majority of the Court, the President's military commission regime necessarily would have been upheld.³³ The Court said as much two years earlier in Hamdi v. Rumsfeld, when it wrote, concerning detention authority, "We do not reach the question whether Article II provides such [exclusive] authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF."³⁴ And yet, even though the Hamdan Court found that Congress had barred the Executives action, the majority again struck down the President's actions without addressing the Executive's claim to exclusive authority. Thus, by necessary implication, the Court clearly was unwilling to validate any claim to exclusive Article II authority,³⁵ which, as noted above, is the only type that can survive analysis under category three of Jackson's framework. Based on the Court's clear unwillingness even to consider the Executive's sole authority argument in Hamdan, the range of actions that can withstand category-three analysis is probably quite narrow. As a result of the foregoing, Hamdan fleshes out Justice Jackson's three-category framework and helps explain much of the substantive law that will apply in future cases.

III. Hamdan's Impact on Future Judicial Review of Military Commission Determinations

For Hamdan's substantive impact to have significance, however, courts must be able to hear new cases and render decisions. In that regard, Hamdan is also significant because it makes clear that courts can continue to review military commission proceedings broadly, at least after the commissions make their determinations. First, the Hamdan majority engaged in a rather strained analysis to establish that the DTA did not deprive the Court of jurisdiction to hear cases pending on the date of the DTA's enactment. That result suggests that the Court will accept nearly any plausible argument to sustain its own jurisdiction in cases where curtailing jurisdiction would raise serious constitutional questions.³⁶

Second, in the military commission context, Hamdan establishes that recent congressional enactments provide for broad, substantive judicial review of commission determinations. Justices Scalia, Thomas, and Alito, seeking to stave off jurisdiction over Hamdan's particular case, indicated that judicial review of military commission determinations would be quite searching. In particular, those justices argued that the DTA granted jurisdiction to the Court of Appeals for the D.C. Circuit to review every aspect of the military commissions for consistency with the Constitution and laws of the United States.³⁷ The Military Commissions Act of 2006 ³⁸ ("MCA"), recently passed by Congress in reaction to Hamdan, authorizes judicial review in the D.C. Circuit and in the Supreme Court with language nearly identical to that in the DTA.³⁹ The justices in the Hamdan majority certainly are unlikely to take a more restrictive view of that language than did the dissenters. Thus, extrapolating from the dissenting justices' interpretations of the DTA in Hamdan, the judiciary can continue post-conviction review of every aspect of military commission proceedings to examine their consistency with the Constitution and laws of the United States. That result ensures judicial participation in the inter-branch debate that sustains our system of separated powers.

IV. Conclusion

Hamdan will encourage accountability both between branches and between our government and its people. It requires the Executive to seek authorization from Congress more frequently, increasing executive accountability both to the legislature and to the people. Additionally it requires that, when Congress acts, it must act with greater clarity and specificity, thus making legislators more accountable to their constituents. Hamdan also makes clear that the judiciary will not accept wartime assertions of exigency or emergency without evidence, and ensures that the courts will remain engaged in the inter-branch debate. Legislators and executive officials should, as a result, be expected to make more reasoned judgments and provide more substantial evidence for their decisions.

To be sure, we face a dangerous enemy who often hides, blends in with civilian populations, and wears no uniforms. Nevertheless, the drafters of our Constitution did not create an all-powerful Executive with the exclusive authority to deal with every national security problem. Madison thought our government's structure of separated powers was the most effective safeguard of our liberties. In Hamdan, the Supreme Court vindicated that principle in two critical ways. First, the Court gave substance to all three of Justice Jackson's analytical categories in a manner that restricts executive authority and demands clear congressional participation. Second, the decision makes clear that the judiciary remains committed to ensuring that governmental action remains within statutory and constitutional boundaries, both generally and specifically to the military commission context. Congress has responded to Hamdan by passing extensive legislation, which the President undoubtedly will enforce. The judiciary will then apply the reasoning developed in Hamdan as it works its way through individual cases. Such inter-branch tension was the vision of our founding generation. Because of the Hamdan decision, that vision is no longer in immediate jeopardy.

* Eric R. Haren is a Law Clerk to Chief Judge Danny J. Boggs, United States Court of Appeals for the Sixth Circuit.
1 126 S. Ct. 2749 (2006).
2 343 U.S. 579 (1952).
3 Id. at 634-643 (Jackson, J., concurring).
4 In his concurrence, Justice Kennedy did base his analysis on Jackson's Youngstown categories. Hamdan, 126 S. Ct. at 2799-800 (Kennedy, J., concurring).
5 THE FEDERALIST NO. 47 (James Madison) (Clinton Rossiter ed., 1961).
6 Jackson, a former Attorney General under President Franklin Roosevelt, formerly was a strong advocate of executive power. See generally Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39 Op. Att'y Gen. 484 (1940) (arguing that the president had unilateral authority under the law to dispose of naval vessels in exchange for the acquisition of rights from the British government to establish military bases abroad). Nevertheless, the three-category test Jackson penned as a justice focuses on congressional authorization, rather than executive prerogative, in assessing the legality of executive action.
7 Youngstown, 343 U.S. at 636-37.
8 Id. at 637.
9 Id. at 637-38.
10 See Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); Hamdi v. Rumsfeld, 542 U.S. 507, 562-63 (2004) (Scalia and Stevens, JJ., concurring); id. at 583 (Thomas, J., dissenting). See also Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE L.J. 1259, 1274 (2002); Curtis A. Bradley & Jack L. Goldsmith, The Constitutional Validity of Military Commissions, 5 GREEN BAG 249, 253 (2003).
11 See generally McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
12 See U.S. CONST. art. I, § 8, cl. 18 ("To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof") (emphasis added).
13 Youngstown, 343 U.S. at 637-38 ("Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject.").
14 126 S. Ct. at 2800 (Kennedy, J., concurring).
15 Justice Stevens, writing for a four-justice plurality in Part V of Hamdan, cited Justice Jackson's Youngstown concurrence. Id. at 2774 n.23 (citing Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). Justice Kennedy, concurring with Justice Stevens's majority opinion except as to Parts V and VI.d.iii, relied more heavily on Jackson's Youngstown concurrence. Id. at 2800 (citing Youngstown, 343 U.S. at 635-37 (Jackson, J., concurring)).
16 Pub. L. No. 107-40, 115 Stat. 224 (2001).
17 Pub. L. No. 109-148, §§ 1001-1006, 119 Stat. 2739, 2739-44 (to be codified at 42 U.S.C. 2000dd to 2000dd-1) [hereinafter DTA].
18 Hamdan, 126 S. Ct. at 2776.
19 See id. at 2789-98.
20 Id. at 2800 (Kennedy, J., concurring).
21 See supra text accompanying note 7.
22 See Hamdi, 542 U.S. at 518 ("We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use.").
23 See DTA § 1005(e).
24 Cf. Hamdi at 519-20.
25 See Hamdan, 126 S. Ct. at 2800 (Kennedy, J., concurring) (citing Loving v. United States, 517 U.S. 748, 756-58, 760 (1996)).
26 Id. at 2799 (Kennedy, J., concurring).
27 See supra text accompanying note 8.
28 126 S. Ct. at 2792.
29 U.S. CONST. art. II, § 1, cl. 1.
30 Id. at art. II, § 2, cl. 1.
31 See, e.g., John C. Yoo, The Continuation of Politics By Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 197, 270 (1996) ("In adopting a new Constitution, the Framers consciously acted in the context of the British Constitution, under which they had lived as English colonists. . . . The Philadelphia Convention intended to modify, rather than transform, the political relationship between the executive and legislative branches in the realm of war powers . . . ."). See also Alexander Hamilton (Pacificus), Pacificus-Helvidius Debate, GAZETTE U.S., June 29, 1793 ("The general doctrine of our Constitution . . . is that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.") (emphasis added), available at http://teachingamericanhistory.org/library/ index.asp?document=429.
32 See Brief for the Respondent at 21, Hamdan, 126 S. Ct. 2749 (No. 05-184) ("The President's war power under Article II, Section 2, of the Constitution includes the inherent authority to create military commissions even in the absence of any statutory authorization, because that authority is a necessary and longstanding component of his war powers.").
33 See Youngstown, 343 U.S. at 637-38 ("When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling the Congress from acting upon the subject.").
34 542 U.S. at 517.
35 Indeed, only Justice Thomas's dissent came close to addressing a claim of independent and exclusive presidential power to institute military commissions under Article II. See Hamdan, 126 S. Ct. at 2849 (Thomas, J., dissenting) ("The President's findings about the nature of the present conflict with respect to members of al Qaeda operating in Afghanistan represents a core exercise of his commander-in-chief authority that this Court is bound to respect.").
36 Cf. generally INS. v. St. Cyr, 533 U.S. 289, 305 (2001) (applying a clear-statement rule to avoid the conclusion that Congress had suspended the writ of habeas corpus).
37 Hamdan, 126 S. Ct. at 2818-19 (Scalia, J., joined by Thomas and Alito, JJ., dissenting) (The DTA "grants the D.C. Circuit authority to review, 'to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States'. . . . [T]he 'standards and procedures specified in' Order No. 1 include every aspect of the military commissions, including the fact of their existence and every respect in which they differ from courts-martial. . . . The D.C. Circuit thus retains jurisdiction to consider these claims on post-decision review, and the Government does not dispute that the DTA leaves unaffected our certiorari jurisdiction under 28 U.S.C. § 1254(1) to review the D.C. Circuit's decisions.").
38 Pub. L. No. 109-366, 120 Stat 2600 (2006) (codified in scattered sections of 10 and 18 U.S.C.) [hereinafter "MCA"].
39 Compare DTA § 1005(e)(2)(C) ("The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of . . . to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.") with MCA 3(a)(1) (refer specifically to amended § 950(g)(c)) ("The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of (1) whether the final decision was consistent with the standards and procedures specified in this chapter; and (2) to the extent applicable, the Constitution and the laws of the United States.").

Preferred Citation: Eric R. Haren, From Steel Mills to Military Commissions: Congressional Responsibility under Youngstown and Hamdan, 1 HARV. L. POL'Y REV. (Online) (Nov. 16, 2006), http://www.hlpronline.com/2006/07/haren_01.html.

Posted by Jason at 06:22 PM | Permalink

November 01, 2006

Mobilizing Against the Military Commissions Act of 2006

Stephanie Brewer, James Cavallaro, Fernando Delgado, Yukyan Lam, Martha Minow, and Deborah Popowski

Students and professors mobilized against the Military Commissions Act of 2006, submitting a petition to Congress with the signatures of more than 600 legal academics.

On September 28, the Senate passed the Military Commissions Act of 2006 ¹ by a 65-34 vote. The House of Representatives had approved the bill the day before by a vote of 253-168. On October 17, President Bush signed the bill, codifying severe restrictions on fundamental rights.

As the bill made its way through Congress, we asked ourselves, and each other, what we could do about it. How could we respond most effectively to the clear threat to human rights and the rule of law posed by the bill and by President Bush's treatment of detainees? We decided to take action. We drafted a letter to Congress and sought support from legal academics throughout the country. Hundreds of faculty members welcomed the chance to criticize Congress' acquiescence to the President's detainee regime. The bill passed and was signed into law, but our experience demonstrates that lawyers, law students, and others are willing to act quickly when the stakes are high. Tapping that energy for meaningful political action plays a critical role in our democracy.

I. Background

The Military Commissions Act of 2006 emerged in response to the Supreme Court's rejection of the Executive's conduct in Hamdan v. Rumsfeld;² the Court had explicitly invited such a Congressional response by criticizing the Executive for acting without Congressional authority. Leading Republicans initially opposed the Administration's proposed legislation, but then worked out a "compromise" bill. Despite that moniker, the bill won little in terms of oversight, review, or constitutional guarantees, allowing the President to exercise enormous unchecked power.

We describe here how we drafted, circulated, distributed, and publicized a letter of opposition to this so-called compromise. We hope to learn from this mobilization experience, to prepare ourselves better for future battles over fundamental rights, and, in the very act of writing about our experience, to take another step in standing up and speaking out against the grave danger to liberty in this country.

II. From Opposition to "Compromise" to Rushed Legislation

It all happened very quickly. Media sources reported on Thursday, September 21 that Republican Senators John McCain, John Warner, and Lindsey Graham, who had opposed President Bush's proposed military commissions legislation, had compromised with the White House and sought to pass revised legislation in a week's time. The text of the compromise, however, appeared to make very few concessions to the Senators, and many of those seemed cosmetic rather than substantive. The Administration's positions remained virtually unchanged: amnesty for United States officials who may have committed war crimes under American statutes;³ decriminalization of a broad spectrum of violations of the Geneva Conventions;⁴ presidential power to deem individuals, including citizens, as enemy combatants;⁵ elimination of the writ of habeas corpus for foreigners deemed enemy combatants by the President or his agents;⁶ and the continued possibility of capital trials based on secret ⁷ or coerced ⁸ evidence.

We met to discuss possible courses of action and asked professors to help. Professors Minnow and Cavallaro volunteered, but the question remained as to what kind of action could or should be taken. The bill itself used purposefully opaque language, presenting real challenges for analysis and advocacy. Moreover, Congressional leaders and the White House rushed the legislation, confident in the unity of the Republican majority. Passage seemed to be a fait accompli.

Nevertheless, we ultimately decided to draft an open letter to Congress, hoping that this vehicle would provide a time-sensitive way to develop a dissenting argument. As quickly as we could, we analyzed the bill and related legal materials, drafted an initial letter, and began to formulate plans for its distribution.

III. The Advocacy Message: What to Include?

It turned out to be a challenge to decide which arguments to include in order to secure a broad array of professors' signatures. We balanced our desire to voice all of our objections to the bill's provisions against the competing need to keep the message focused on a few fundamental advocacy points that would garner support from potential signers and would also resonate with Members of Congress and the American public.

A prime example of this tension arose with the provision of the bill that provides blanket immunity for certain war crimes committed by U.S. officials since 1997.⁹ Under the provision, individuals who have violated Common Article 3 of the Geneva Conventions ¹⁰ - but whose violations do not fall within the limited universe of "grave breaches" created under the new Military Commissions Act - are immunized from prosecution for their crimes. The bill thus denies many victims who have suffered cruel, inhuman, or degrading treatment at the hands of U.S. agents the chance to bring their abusers to justice, despite the express illegality of the conduct at the time.

Many of us strongly objected to this aspect of the bill, but we recognized early that we had to weigh our revulsion at this blanket amnesty with the need to rally support. Initial feedback from a few faculty members generally sympathetic to the effort indicated that even they would not want to raise objections to this provision. We concluded that our message would be more broadly compelling if we omitted our own objections to amnesty for past war crimes and instead focused on condemning the bill's authorization of future objectionable acts. Prospective violations, we believed, would be viewed as a higher priority by many in the legal and political communities. This, then, is the argument reflected in the final letter.

Another dilemma we confronted was how best to portray the range of interrogation techniques that would become legal under the proposed bill.¹¹ On the one hand, much of our motivation for opposing this bill stemmed from our conviction that its language could be used to attempt to provide domestic legal cover for techniques - such as waterboarding - that, in reality, are prohibited forms of torture or cruel, inhuman, and degrading treatment or punishment. If this is the case, then one advocacy strategy would have been to highlight this reality in the starkest possible terms so as to generate more, and more intense, opposition to the bill's passage. On the other hand, given the likelihood that the bill would be signed into law, our own characterization of the bill as potentially condoning such atrocious conduct could undercut future legal arguments that the statute is more restrictive. Although on its face, the bill's text might perhaps permit waterboarding, it is also sufficiently ambiguous to allow conscientious lawyers in the government and elsewhere to argue that the bill does not give such permission. Indeed, some of the key Republican Senators believed that the compromise had outlawed waterboarding.¹²

In its final form, the letter navigated this difficulty by stating our concern that the Military Commissions Act could be read to permit specific types of abusive treatment (such as beatings to the point of leaving bruises). We did not, however, characterize the bill as legalizing torture or cruel, inhuman, or degrading treatment or punishment. We regarded some of the conduct arguably condoned by the bill as violations of the Geneva Conventions and, therefore, absolutely impermissible. But we also knew that some potential signatories had doubts whether the relevant portions of the Geneva Conventions, as a matter of U.S. law, bind American agents now or will do so in the future. Thus, we found ways to point to the bill's potential shortcomings, while neither arming those who would exploit the statute's weaknesses nor undermining those who could argue to limit its scope in application. There also remained core elements of the bill we wanted to condemn in no uncertain terms, of course. For example, the letter criticizes provisions of the bill that allow the use of evidence obtained through coercion ¹³ and that deny defendants full access to exculpatory evidence in the government's possession.¹⁴ Both of these provisions violate historic understandings of U.S. Constitutional law under both the Due Process Clause and the Fifth Amendment.¹⁵

The final letter thus condemned some of the bill's most objectionable provisions, while still, we hoped, inviting broad support. Although among ourselves we had discussed many finer details, we ultimately focused on the most salient points, seeking to unite, rather than divide, the group of potential supporters of the effort.

IV. Gathering Signatures, Reaching Congress

Initially, it was not clear whether many members of the Harvard Law faculty would sign the letter. We first circulated it to a small group of people who had criticized the treatment of detainees publicly in the past. By Tuesday morning, 24 hours after we started working, only 10 professors had indicated that they would sign. With the agreement of this core group of writers and contributors, we finalized the draft for circulation to faculty members beyond Harvard beginning Tuesday night, September 26.

We ran an around-the-clock effort to contact law professors around the country, share the letter, and seek support. We started with a list of several hundred professors who had signed a 2004 letter denouncing the use of torture at Abu Ghraib prison in Iraq. We gathered e-mail addresses of other law professors who might be interested in opposing the bill. Time was short, so we prioritized finding faculty at schools with reputations for political engagement; we also sought geographical diversity. As the night wore on, we focused on scholars in the central, then mountain, then pacific time-zone states in order to increase the chance of a quick response.

After sending e-mail solicitations throughout the night, by Wednesday morning, we had received over 300 signatures. Previously uninvolved colleagues and friends from other schools volunteered to help. We spread out around the campus to fax the letter to Senate offices and to make follow-up calls. We called our own senators, urging them to oppose the bill, and to filibuster if necessary.

As the number of signatures climbed to more than 500, we enhanced our lobbying efforts, gaining access to increasingly higher level Congressional staffers working for Senators Arlen Specter, Ted Kennedy, and Harry Reid. We targeted Senator John Kerry, who at 4:00 pm on Wednesday, the day before the crucial Senate votes would begin, had not taken a position on the bill. Ultimately, Senator Kerry spoke vocally against the bill on the Senate floor, but such opposition proved to be too little, too late.

V. Reflections

The bill passed. Advocacy efforts-not just those of law students and professors, but more generally-had also started too late, and had failed to engage broad segments of the population. However, we learned how a handful of engaged students and professors can swiftly provide a platform for others who want to voice opposition. The rapid and widespread response of solicited faculty around the country - over 600 willing signatories replied in roughly 24 hours - suggests that people will not take for granted the jeopardizing of fundamental American legal values by the political branches.

* Stephanie Brewer, Fernando Delgado, Yukyan Lam, and Deborah Popowski are students at Harvard Law School. James Cavallaro is a Clincal Professor of Law at Harvard Law School. Martha Minow is Jeremiah Smith, Jr. Professor of Law at Harvard Law School.
1 Military Commissions Act of 2006, Publ. L. No. 109-336, 120 Stat. 2600 (codified in scattered sections of 10 and 18 U.S. C.) [hereinafter "MCA"].
2 126 S. Ct. 2749 (2006).
3 See MCA § 6(b).
4 Id.
5 MCA § 3(a)(1) (refer specifically to amended § 948(1)(A)).
6 MCA § 7.
7 See MCA § 3(a)(1) (§ 949j(c), (d)).
8 See id (§ 948r(c), (d)).
9 See MCA § 6(b).
10 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316.
11 See MCA § 6(b).
12 For instance, Senator McCain states that he is "confident that [the Military Commissions Act] will criminalize certain interrogation techniques, like waterboarding and other techniques that cause serious pain or suffering that need not be prolonged." Press Release, Senator John McCain, McCain Urges Final Passage of the Military Commissions Act of 2006 (Sept. 28, 2006), available at
http://mccain.senate.gov/index.cfm?fuseaction=NewsCenter.ViewPressRelease&Content_id=2456.
13 See MCA § 3(a)(1) (§ 948r(c), (d)).
14 See id (§ 949j(d)).
15 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); Mister Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977); Note: Secret Evidence in the War on Terror, 118 HARV. L. REV. 1962 (2005).

Preferred Citation: Stephanie Brewer, James Cavallaro, Fernando Delgado, Yukyan Lam, Martha Minow, & Deborah Popowski, Mobilizing Against the Military Commissions Act of 2006, 1 HARV. L. & POL'Y REV. (Online) (Nov. 6, 2006),
http://www.hlpronline.com/2006/06/minow_01.html.

Posted by Jason at 11:52 PM | Permalink

A Pretense of Respect for the Geneva Conventions

Joseph M. McMillan

The supposed clarifications in the Military Commissions Act of 2006 are simply evasions of long-standing treaty obligations. In passing the MCA and signing it into law, Congress and the President have undercut our national commitment to protecting fundamental human rights.

In a speech at the White House in early September, President Bush confirmed the existence of a secret C.I.A. program for the detention and interrogation of "a small number of suspected terrorist leaders,"¹ including those believed to be the architects of the September 11th attacks. The President said that, after one such suspect stopped cooperating, the C.I.A. used "an alternative set of procedures" to extract additional information from him. Mr. Bush declined to identify the procedures used, or where this interrogation occurred. He did say, however, that the recent United States Supreme Court ruling in Hamdan v. Rumsfeld² "put in question the future of the C.I.A. program."

The President was right to be concerned about the legality of the C.I.A. program and the "black sites" where such alternative procedures are employed. In Hamdan, over vigorous opposition from the Bush Administration, the Supreme Court held that Common Article 3 of the Third Geneva Convention Relative to the Treatment of Prisoners of War,³ which provides a minimum level of protection for anyone captured during an armed conflict regardless of whether that person is entitled to full protection as a prisoner of war, applies in the war on terror. At issue in Hamdan was the Common Article 3 requirement that if detainees are tried for alleged crimes, they must be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."⁴ The Supreme Court held that the President's initial scheme for military commissions failed that test.

The President has now obtained legislative authorization for a new round of military commissions. The Military Commissions Act of 2006 ⁵ ("MCA") was rushed through Congress in late September just prior to Congress' recess. President Bush signed the bill into law on October 17. Though the President and Congressional leaders pay lip service to the long-established standards of the Geneva Conventions, and to American due process values, the rules of evidence and the commission procedures established by the MCA nevertheless violate Common Article 3 and offend basic notions of fundamental fairness.

President Bush's initial proposal would have permitted the military to exclude the accused from his own trial, and permitted convictions on the strength of evidence not disclosed to him.⁶ Such a scheme certainly would have denied detainees "the judicial guarantees recognized as indispensable by civilized peoples."⁷ As Brigadier General James C. Walker, Staff Judge Advocate to the Commandant of the Marine Corps, explained to the House Armed Services Committee last month: "the Judge Advocates General [have] steadfastly maintained that a system which would permit the introduction of evidence against an accused, outside of his presence, is objectionable."⁸ No civilized country would countenance such a procedure, and the Unites States should not be the first. Opposition on this point from powerful members of the Senate Armed Services Committee, including Republican Senators McCain, Graham, and Warner, forced the Bush Administration to eliminate these components of its proposal.

Unfortunately, the highly-touted compromise reached between the White House and those Republican Senators failed to address numerous grave problems with commission procedures. While the defendant's right to be present at trial has been strengthened, the measure still permits the introduction of evidence long considered untrustworthy. For example, commission rules allow for the admission of evidence obtained through "coercion"⁹ despite the longstanding recognition in American jurisprudence that such testimony is inherently unreliable.¹⁰ In addition, the MCA reverses the traditional presumption against the admissibility of hearsay evidence, placing on the party opposed to the admission of such evidence the burden of proving its unreliability.¹¹ Despite that reversal, the MCA does not provide the defendant with a fair chance to carry the burden, as the prosecution is permitted to keep sources and methods used to obtain evidence secret.¹² These problems alone are sufficient to nullify the Common Article 3 guarantee of a fair process.

Even more fundamentally, the legislation Congress sent to the President undermines the prohibition against "violence to life and person," "cruel treatment and torture," and "outrages upon personal dignity, in particular, humiliating and degrading treatment" set forth in Common Article 3.¹³ The clear implication of the Hamdan ruling is that all of these provisions must be respected. If a detainee is to be punished under the laws of war (which include the Geneva Conventions), he must be afforded their procedural protections as well. Though the President has not disclosed the nature of the "alternative procedures" to which he referred in his speech, there is evidence (including the photographs from Abu Ghraib, the statements of military interrogators, and the deaths of detainees in American custody) to suggest that the secret C.I.A. interrogation program violates the minimal standards of decency set forth in Common Article 3. Furthermore, the "alternative procedures" may also run afoul of Article 17 of the Third Geneva Convention, which provides that "No…form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever."¹⁴

In addition to authorizing military commissions that violate both international and domestic norms, the MCA amends the War Crimes Act. Prior to passage of the MCA, the War Crimes Act ¹⁵ implemented the Geneva Conventions by making it a federal crime to violate any provision of Common Article 3.¹⁶ The MCA limits war crimes to a subset of Common Article 3 violations.¹⁷ Conspicuously excluded are the prohibitions against "humiliating and degrading treatment" and against trials that fail to provide essential guarantees of due process. Contrary to the views espoused by the administration, the decriminalization of such conduct - which applies retroactively to 1997 - will not assist the U.S. in its fight against terrorism. Rather, it will embarrass our allies and be trumpeted by our enemies as evidence of American hypocrisy and disregard for the rule of law, and will expose our own troops to greater risk of abuse should they fall into enemy hands. In an amicus brief filed in Hamdan, retired Generals and Admirals emphasized this point.¹⁸

Well aware of the political risk of abrogating the Geneva Conventions, Congress and the President sought political cover in the text of the legislation itself. The MCA contains recitals proclaiming that its provisions satisfy U.S. treaty obligations under Common Article 3.¹⁹ It also purports to invest the President with "the authority for the United States to interpret the meaning and application of the Geneva Conventions."²⁰ However, such proclamations invade the judicial function. As Chief Justice John Marshall said in Marbury v. Madison, "It is emphatically the province and duty of the judicial department to say what the law is."²¹ In Federalist No. 22, Alexander Hamilton made the same point specifically with respect to treaties:

Laws are a dead letter without courts to expound their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.²²

Thus, it is outside the competence of the legislature to dictate what Common Article 3 means or requires, or to delegate such authority to the President. Nevertheless, we can expect this purported grant of authority to result in an Executive determination that aggressive interrogation procedures used at C.I.A. black sites do not constitute "humiliating and degrading treatment" within the meaning of Common Article 3. Because the MCA prohibits any person from invoking the Geneva Conventions as a source of rights enforceable in any American court,²³ it is an open question whether courts will ever rule on the effect of such an executive determination or the legality of the conduct it authorizes. These provisions make treaty-based rights a matter of Executive grace, or as Hamilton correctly observed, a dead letter.

The generation of Americans that ratified the Geneva Conventions did not think compliance with these standards overly burdensome. Indeed, the Senate Foreign Relations Committee, in recommending ratification in 1955, said:

Our Nation has everything to gain and nothing to lose by being a party to the conventions now before the Senate, and by encouraging their most widespread adoption…. The practices which they bind nations to follow impose no burden upon us that we would not voluntarily assume in a future conflict without the injunction of formal treaty obligations."²⁴

There was nothing wrong with the language of Common Article 3 in 1955, and there is nothing wrong with it now. The supposed clarifications in the MCA are simply evasions of solemn treaty obligations. The standards established in Common Article 3 are no more vague than many of the most fundamental ones in our domestic legal tradition, including "due process," "equal protection," "unreasonable search or seizure," and "cruel and unusual punishment." Courts are perfectly capable of interpreting and applying such standards, and have done so throughout our history to ensure that basic rights are protected across changing times and circumstances. The same ought to be true of Common Article 3. To paraphrase former Justice Potter Stewart, though they may not be able to precisely define humiliating and degrading treatment, courts know it when they see it. Unfortunately, in passing the MCA, Congress has undercut our national commitment to protecting basic human rights. Black sites, disappearances, and "alternative procedures" are not tools this country needs, or has ever needed, to defend its values and way of life. On the contrary, they are profoundly antithetical to our values and way of life. If we are, as the President says, "fighting for the cause of humanity," we must do so in a way that humanity can recognize and support.

* Joseph M. McMillan is a partner at Perkins Coie LLP in Seattle. He has represented Salim Ahmed Hamdan from the inception of his lawsuit in April 2004.
1 President George W. Bush, White House Speech Regarding Military Commissions (Sep. 6, 2006).
2 126 S. Ct. 2749 (2006).
3 Geneva Convention Relative to the Treatment of Prisoners of War [hereinafter Third Geneva Convention], Aug. 12, 1949, 6 U.S.T. 3316.
4 Third Geneva Convention, supra note 3.
5 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified in scattered sections of 10 and 18 U.S.C.) [hereinafter "MCA"].
6 H.R.6054, 109th Cong. (2006).
7 Third Geneva Convention, supra note 3, art. 3.
8 Military Commissions and Standards Used in Trying Detainees: Hearing on H.R.6054 Before the H. Comm. on Armed Services, 109th Cong. (2006)(statement of Brigadier General James C. Walker).
9 MCA § 3(a)(1) (refer specifically to amended § 949a(b)(2)(C)).
10 See, e.g., Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2681 (2006) ("We require exclusion of coerced confessions both because we disapprove of such coercion and because such confessions tend to be unreliable."); Rochin v. People of California, 342 U.S. 165, 173 (1952) ("Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law.").
11 See MCA § 3(a)(1) (§ 949a(b)(2)(E)(ii)).
12 Id. (§ 949d(d)(2)(A)).
13 Third Geneva Convention, supra note 3, art. 3.
14 Third Geneva Convention, supra note 3, art. 17. The Bush administration has long insisted that the detainees in the war on terror are not prisoners of war ("POW") and, accordingly, would contend that Article 17 is inapposite. However, Article 5 provides that, should any doubt arise concerning a detainee's status as a POW, "such persons shall enjoy the protections of the present Convention until such time as their status has been determined by a competent tribunal." Third Geneva Convention, supra note 3, art. 5. In Hamdan, the Supreme Court did not need to reach the question of whether Article 5 conferred presumptive POW status on the defendant, and expressly reserved judgment on that issue. See Hamdan, 126 S. Ct. at 2795 n.61. The MCA makes no explicit provision for Article 5 hearings, but appears to inaccurately characterize the decisions concerning combatancy made by Combatant Status Review Tribunals ("CSRT") as POW status hearings required by Article 5. See MCA § 10.
15 18 U.S.C. § 2441 (2000).
16 Id. at § 2241(c)(3).
17 See MCA § 6(b).
18 See Brief of Retired Generals and Admirals and Milt Bearden as Amici Curiae Supporting Petitioner, Hamdan, 126 S. Ct. 2749 (No. 05-184).
19 See MCA § 6(a)(2).
20 MCA § 6(a)(3)(A).
21 5 U.S. (1 Cranch) 137, 177 (1803).
22 THE FEDERALIST No. 22, at 150 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
23 See MCA § 5(a).
24 S. Exec. Rep. No. 84-9, at 32 (1955).

Preferred Citation: Joseph M. McMillan, A Pretense of Respect for the Geneva Conventions, 1 HARV. L. POL'Y REV. (Online) (Nov 6, 2006),
http://www.hlpronline.com/2006/07/mcmillan_01.htm

Posted by Jason at 11:32 PM | Permalink

Saying What the Law Is

Deborah N. Pearlstein

In the Military Commissions Act of 2006, Congress suggested that the Geneva Conventions are still good law while simultaneously denying the courts the authority to say what the Conventions mean. Congress and the President cannot have it both ways.

Passed in response to the Supreme Court's landmark ruling in Hamdan v. Rumsfeld,¹ the Military Commissions Act of 2006 ² (MCA) is by far the most sweeping legislation on the books bearing on the Executive's power to detain, interrogate, and try suspected terrorists. Yet instead of grappling seriously with the issues that have plagued U.S. counterterrorism policy since September 11th, the bill is a creature of political circumstance, advanced in the wake of a devastating loss for the President in the Supreme Court on the eve of midterm elections that amount to a referendum on the political branches' handling of national security. Given the stakes for the President and Congress, it is unsurprising that the Act's most radical provisions take aim at the federal courts.

Indeed, sections of the Act purport to strip the courts not only of jurisdiction to decide core questions of executive authority, but also of the power to "say what the law is" in the cases properly before them. In this respect, Administration lawyers have their work cut out for them as they begin to draft briefs seeking to dismiss numerous habeas cases and civil actions where plaintiffs have challenged Administration detention and interrogation practices. For a statute that purports to protect the courts' Article III judicial power but deny courts the authority to look at all the law before them challenges one of the fundamental tenets of Marbury v. Madison³ itself.

Consider for example Section 5 of the new law, which provides that "[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer . . . is a party as a source of rights in any court of the United States." Cases involving treaties pose questions about the supreme law of the land, and thus clearly fall within the express judicial power of the U.S. federal courts to decide.⁴ It is therefore not at all clear what the Act means when it establishes that this particular set of treaties cannot be invoked as a "source of rights" in any U.S. court.

On one reading, Congress may mean that the Geneva Conventions will not afford litigants a private right of action - a route into federal court - for a particular kind of remedy, like damages. Indeed, some of the bill's legislative history could be invoked to support this view.⁵ While the effectiveness of the statutory language in accomplishing this goal is open to debate, the notion that not all treaties come equipped with built-in "get into court" cards is quite familiar to American jurisprudence.⁶

But another reading, one that Administration lawyers advanced as a matter of treaty interpretation as Hamdan made its way through the courts before the MCA, would have this provision mean that the Geneva Conventions cannot be invoked as a rule of decision in federal courts. Put differently, Administration lawyers may hope Section 5 lends support to the idea that even in the course of a federal criminal prosecution or habeas action, the courts may not look to the Geneva Conventions in interpreting the scope of federal statutory law, imposing limits on the President's Article II powers, or even declaring that certain U.S. government conduct is inconsistent with a treaty's text.⁷ Indeed, when viewed alongside various other provisions of the MCA like § 6(a)(2), which purports to forbid courts from relying on foreign or international law in interpreting the federal War Crimes Act, or § 6(a)(3), which affords the President the "authority for the United States to interpret the meaning and application of the Geneva Conventions," it seems plausible to imagine that the Administration would like to deny courts the power to look to whole bodies of law in the cases they decide.

Apart from the significant debate surrounding statutory interpretation that such a reading would provoke, interpreting Section 5 and analogous MCA provisions in this way would fly in the face of one of the core holdings of Hamdan itself: that whatever the enforcement mechanism, treaties are part of the law of the land binding on the U.S. government. And when a federal court exercising proper jurisdiction believes executive action violates a treaty obligation, the court has, at a minimum, the power to say so. For example, in rejecting the President's arguments that the military commissions convened at Guantanamo Bay were properly authorized, the Hamdan Court looked in part to a federal statute expressly invoking the law of war as limiting the President's authority to convene military commissions. "[R]egardless of the nature of the rights conferred on Hamdan," the Court held, the Geneva Conventions are "part of the law of war. And compliance with the law of war is the condition upon which the authority set forth in [the statute authorizing military commissions] is granted."⁸ Where Congress has specifically pointed to international law as defining the meaning of a statute (such as the War Crimes Act), the courts must look to that law in determining what the statute means.

Yet Hamdan appropriately goes further than this. Expressly overturning the Court of Appeals holding that "the Geneva Conventions are not judicially enforceable," both the majority opinion (signed by five justices) and Justice Kennedy's concurrence emphasized that, whatever the mechanisms for enforcing treaty requirements, as far as the federal government is concerned, "requirements they are nonetheless."⁹ There is a critical - evidently constitutional - difference between the assertion that a treaty provides no private right of action and the assertion that a court cannot look to a ratified treaty as providing the rule of decision. The latter, Hamdan suggests, may be beyond Congress' power to do.¹⁰

The rule could scarcely be otherwise. As scholars like Carlos Vazquez have pointed out, the whole idea of the Supremacy Clause was to make clear that treaties were fair game for the domestic courts.¹¹ Treaties' "true import, as far as respects individuals," the great executive power expansivist Alexander Hamilton wrote in Federalist No. 22, "must, like all other laws, be ascertained by judicial determinations."¹² While this idea hardly resolves the question whether a particular treaty, standing alone, can get a party into court, it strongly supports the idea that once in the courthouse door, a party is entitled to at least a decision on what the law bearing on his case says.

The alternative rule would be strange indeed. Imagine that Congress enacts, for example, a criminal law establishing that those who provide abortions to minors must be sentenced to 30 years in jail. At the same time, Congress instructs the courts that the very same law cannot serve as the basis of a federal indictment. Such a set of laws would seem on their face contrary to the judiciary's Article III powers to interpret the law, and the President's duty to faithfully execute it. But more than this, they would allow Congress (and potentially the Executive) to effectively reap the political benefit of appearing tough on crime without bearing the political cost that might accompany the successful prosecution of a doctor. But when it comes to law enforcement, the Supreme Court has urged against interpretations that would produce just such a result. In requiring that the maximum sentence accompanying a given crime be provided by the legislature and proven to a jury - rather than affording judges the discretion to exceed the sentence provided by statutory law - the Court insisted that our democratic structures discourage legislatures from saying one thing while enabling the courts to do another. Rather, a state is required "to make its choices concerning the substantive content of its criminal laws with full awareness of the consequence, unable to mask substantive policy choices" behind having adopted the underlying law in the first place.¹³ In such a way, the Court noted, "[t]he political check on potentially harsh legislative action is then more likely to operate."¹⁴

The Geneva Conventions are, to be sure, more to protect than to punish, but the principle of democratic accountability for the law on the books is the same. By insisting that the obligations of the Geneva Conventions remain binding on the United States while purporting to deny the Courts the power to say what the Conventions mean, the MCA would avoid precisely the political check the Apprendi Court had in mind. Centrally at issue in the MCA debates was whether the United States would abrogate or otherwise reject Common Article 3 of the Geneva Conventions - treaties ratified by every nation on earth - which provide a baseline standard for the humane treatment of detainees caught up in armed conflict. For many, the international political cost of being seen as running from the Geneva treaties while in the midst of a war in which international counterterrorism cooperation was essential was too great a risk.¹⁵ For others, particularly retired military leaders who advocated vigorously against a provision in the Administration's original draft of the MCA that would have expressly redefined the scope of Common Article 3,¹⁶ any express U.S. effort to limit its Common Article 3 duties would badly undermine the chances that American troops would avoid mistreatment if they were captured by a foreign enemy.¹⁷ From the Administration's perspective, legislation that would tell our allies we were adhering to the Geneva Conventions without permitting the courts to invoke those Conventions to limit U.S. government conduct would seem an ideal solution to the debate.

As long as the judiciary really has the power to "say what the law is," however, Congress cannot simply ask the courts to ignore certain laws just because it is too afraid to bear the political consequences of taking them off the books. If Congress wanted to terminate U.S. participation in the Geneva Conventions (since Common Article 3 under the treaty is non-derogable), it enjoys that power. But it cannot pretend Geneva is still good law while denying the courts the authority to say what it means. It is for that reason, among many others, that any attempt to construe the MCA as forbidding the courts from considering what rights exist under the Geneva Conventions, should fail.

* Deborah Pearlstein is a Visiting Scholar at the Woodrow Wilson School of Public and International Affairs, Princeton University, and Director of the Law and Security Program at Human Rights First.
1 126 S. Ct. 2749 (2006).
2 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 [hereinafter "MCA"].
3 5 U.S. (1 Cranch) 137, 177 (1803).
4 U.S. CONST. art I, § 2; U.S. CONST. art. VI.
5 See, e.g., 152 CONG. REC. S10, 414 (daily ed. Sept. 28, 2006) (statement of Sen. McCain) ("This legislation . . . would eliminate any private right of action against our personnel based on a violation of the Geneva Conventions. The intent of this provision is to protect officers, employees, members of the Armed Forces, and other agents of the United States from suits for money damages or any other lawsuits that could harm the financial well-being of our personnel who were engaged in lawful--I emphasize 'lawful'--activities.").
6 See, e.g., Sanchez-Llamas v. Oregon, 126 S.Ct. 2699, 2677 (2006) (citing Head Money Cases, 112 U.S. 580, 598 (1884)).
7 Bush Administration lawyers have not historically been shy about arguing that "new" security challenges have made it essential to have a governmental structure where the Executive is free to act in security matters "without any interference from the federal judiciary." See, e.g., John C. Yoo, War, Responsibility, and the Age of Terrorism, 57 STAN. L. REV. 793, at 794 (2004).
8 Hamdan, 126 S.Ct. 2749 at 2794 (2006) (citing 10 U.S.C. § 821) (noting President's authority to convene military commissions extends only to those who may be tried by such commissions pursuant to statute or to the law of war).
9 Id. at 2798.
10 Id. See also id. at 2802 (Kennedy, J., concurring) ("The provision is part of a treaty the United States has ratified and thus accepted as binding law."); cf. Sanchez-Llamas v. Oregon, 126 S.Ct. at 2684 (2006) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) at 177 (1803) ("If treaties are to be given effect as federal law [under our legal system], determining their meaning as a matter of federal law 'is emphatically the province and duty of the judicial department,' headed by the 'one supreme Court' established by the Constitution."); Williams v. Taylor, 529 U.S. 362, 378-79 (2000) (opinion of Stevens, J.) ("At the core of [the judicial] power is the federal courts' independent responsibility--independent from its coequal branches in the Federal Government, and independent from the separate authority of the several States--to interpret federal law.").
11 CARLOS VAZQUEZ, HAMDAN AND THE GENEVA CONVENTIONS (Georgetown Law Faculty Blog) (June 30, 2006), http://gulcfac.typepad.com/georgetown_university_law/
2006/06/hamdan_and_the_.html.
12 THE FEDERALIST No. 22, at 150 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
13 Apprendi v. New Jersey, 530 U.S. 466, 490 n.16 (2000) (quoting Patterson v. New York, 432 U.S. 197, 228-29 n.13 (1977) (Powell, J., dissenting)).
14 Id.
15 Senator John Warner declared on the Senate floor: "What we do today will impact how we conduct the war on terror for as long as it lasts . . . It will fundamentally impact our relationships with our allies. It will fundamentally impact the image of the United States of America in the eyes of the world. It is crucial to our ability to keep America safe. It will speak most loudly about the core values, the principles of this great Republic known as the United States of America." 152 CONG. REC. S10245 (daily ed. Sept. 27, 2006) (statement by Sen. Warner). See also, e.g., Letter from Families of 9/11 Victims to the Senate Opposing Administration Efforts to Undermine the Geneva Conventions (Sept. 14, 2006), available at
http://www.humanrightsfirst.info/pdf/06918-etn-911-fam-sigs.pdf; Richard Simon, Julian E. Barnes, & Janet Hook, Senate Panel Rebuffs Bush on Detainees, L.A. TIMES, Sept. 15, 2006, at A1.
16 See Brief of Retired Generals and Admirals and Milt Bearden as Amici Curiae Supporting Petitioner, Hamdan, 126 S. Ct. 2749 (No. 05-184).
17 Senator John Warner said on the Senate floor, "Such an action [reinterpretation of the Geneva Conventions] could open the door to statutory reinterpretation by a host of other nations with less regard for human rights than the United States, and would result in possibly our U.S. troops being put at greater risk should they become captives in a future conflict." 152 CONG. REC.. S10246 (daily ed. Sept. 27, 2006) (statement by Sen. Warner). See also, e.g., Letter from 40 Retired Military Leaders to Sen. John Warner and Sen. Carl Levin (Sept. 12, 2006), available at
http://www.humanrightsfirst.info/pdf/06913-etn-military-let-ca3.pdf; Letter from Gen. John Vessey to Sen. John McCain (Sept. 12, 2006), available at
http://www.humanrightsfirst.info/pdf/06914-etn-vessey-geneva-ltr.pdf; Letter from Gen. Colin Powell to Sen. John McCain (Sept. 13, 2006), available at
http://www.humanrightsfirst.info/pdf/06914-etn-powell-ltr-com-art-3.pdf; Letter From Gen. H. Hugh Shelton to Sen. John McCain (Sept. 20, 2006), available at
http://www.humanrightsfirst.info/pdf/06920-etn-shelton-ltr-mccain-ca3.pdf; Editorial, A Crucial Choice, WASH. POST, Sept. 14, 2006, at A20; Editorial, Listen to McCain and Powell, CHI. TRIB., Sept. 17, 2006, at C6; Editorial, Do Not Compromise on Torture, DES MOINES REG., Sept. 20, 2006, at 12A; Editorial, Stampeding Congress, N.Y. TIMES, Sept. 15, 2006, at A24.

Preferred Citation: Deborah N. Pearlstein, Saying What the Law Is, 1 HARV. L. POL'Y REV. (Online) (Nov 6, 2006),
http://www.hlpronline.com/2006/07/pearlstein_01.htm

Posted by Jason at 10:47 PM | Permalink

Paper Ballots Address a Fundamental Threat to Democracy

Mary Howe Kiraly

Voters should demand paper ballots that election officials can count manually and in a transparent fashion. Nothing less than our democracy is at stake.

In 2001, after the Supreme Court settled the tumultuous presidential election and George W. Bush took office, a consortium of major media outlets sponsored a review of the nearly 172,000 disputed ballots in Florida. That review, undertaken by the National Opinion Research Center of the University of Chicago, produced contradictory findings. It first concluded that, had the hand count of the ballots proceeded as per the order of the Florida Supreme Court, George W. Bush would have been declared the winner by fewer than 500 votes. Its second conclusion was that, had the intent of the voters been accurately captured by the ballots, Al Gore would have won by more than 10,000 votes.¹ The dilemma of the 2000 election haunts Americans to this day.

The good news in 2000 in Florida was that there were paper ballots available to be hand counted. The bad news was that a hand count could not produce a definitive answer as to who had rightfully "won" the election. The Florida recount controversy shocked the national consciousness and led to the quick passage of the Help America Vote Act of 2002 (HAVA).² HAVA may have been well intended, but it has produced elections systems that are in a continuous state of confusion, reaction, and crisis.

American elections have always been vulnerable to manipulation. In the past, however, an effort to change an election outcome required either access to individual ballot boxes and the forging of thousands of ballots or making physical alterations to individual mechanical voting machines. Following passage of HAVA and the rapid shift to electronic voting systems, the potential for large-scale vote manipulation became a serious concern. Given the opacity of the computerized systems through which votes now pass, a false election outcome might be impossible to detect. This fall, with electronic voting technologies in place in the vast majority of states, concerns about resolving "voter error" have been replaced by concerns that a small group of maliciously motivated individuals, or even a single well-placed person, could completely change an election outcome.

HAVA provided billions of dollars in incentives for states to abandon punch card and lever voting systems and to adopt modern technologies accessible to voters with disabilities. With billions of dollars from the federal government at stake, and additional hundreds of millions from the states, a poorly regulated market for electronic voting technologies emerged, practically overnight.

In my view, at this point in time the election system can be protected most by a return to hand counted paper ballots. This is a fundamentally practical solution, advocated by computer scientists, auditors, statisticians, and election integrity activists.³ The dual goals of those who advocate paper balloting are accuracy in recording votes and transparency in the vote count. Voters must be permitted to mark their ballots in secret, but ballots must be cast and counted in a transparent process that is open to impartial observation. Computerized voting systems hide the tabulation process from voters and candidates. As Stanford University Professor David Dill has said, "The real purpose of an election is not to convince the winners that they won, but to convince the losers that they lost."⁴

Documented vulnerabilities in computerized election systems offer the most dramatic reason for seeking simpler, more transparent, more manageable systems that will provide durable paper ballots for audits and recounts. The e-voting system most criticized for its lack of transparency is the paperless touch screen voting machine.⁵ Computer and election systems expert Douglas Jones has described direct recorder electronic voting machines (DREs) as, "little more than repackaged personal computers with touch screen input and special software to make them function as voting systems."⁶ The vulnerabilities of personal computers are well known. These vulnerabilities are the reason we create paper copies of our important documents and still have filing cabinets in the computer age.

Paperless DREs were first deployed on a large scale in states in 2002. In January of that year, Diebold Corporation purchased Global Election Systems and entered the voting equipment market. Maryland implemented the Diebold AccuVote TS paperless touch screen system in four counties that year. In Allegany County, the long-serving Speaker of the Maryland House of Delegates was defeated by a little known challenger running for election for the first time.⁷ The margin of victory was several hundred votes. In Georgia, which used the same system, Senator Max Cleland lost his reelection bid despite pre-election polls showing him to be well ahead of his challenger.⁸ Because these systems produced no paper ballots that could be confirmed by the voter, no meaningful audit or recount was possible. Dramatic upsets do occur in politics. However, unverifiable outcomes in 2002 were the beginning of a series of controversies that have arisen over the security, accuracy, and verifiability of electronic voting systems.

Existing testing and certification standards are largely controlled by the manufacturers. None of the many flaws and vulnerabilities in e-voting systems has been disclosed as a result of testing or certification regimes. In fact, the voting systems laboratories that comprise the Independent Testing Authority (ITA) are paid by the manufacturers and have comprehensive non-disclosure agreements with them.

To protect voting equipment requires many steps: oversight of a lengthy chain of custody; processes involving special numbered sealing tapes and locks; separate packaging for memory cards and voter access cards; and lengthy start up and end of day procedures. Voting machines are often transported to polling stations days in advance. In some states, poll workers have taken them home or stored them in garages. Only a few minutes are needed for a knowledgeable and motivated person to access the system and change an election outcome. Moreover, the volunteer election officials and poll workers who have traditionally managed the election process are generally unqualified to address problems that arise on Election Day. States are often dependent on the technicians provided by manufacturers to service machines.⁹ Increasingly, every aspect of our election process is controlled by private for-profit corporations, accountable to stock holders rather than to voters. Some even claim ownership of the electronic voter database that is created in an election.¹⁰

Moreover, even if election workers abided by all of these protective measures, voters would still have cause to doubt the security of the voting system for a critical reason: manufacturers deem the source codes that run their voting systems proprietary trade secrets and do not permit independent authorities to inspect the codes for errors, viruses, or malicious programming.

For all of these reasons, the implementation of a paper ballot-based system that can be hand counted or audited has become the gold standard for computer professionals and voting integrity activists. More than 95% of the 80,000 members of the Association of Computing Machines (ACM) support paper ballots with an automatic audit provision for tabulation verification.¹¹

The constitutional authority to administer elections rests with the states. States have long had processes for printing, marking, counting, and storing paper ballots. State governments should implement better ballot design, greater simplicity and uniformity in ballot marking procedures, and efficiency and standardization in the processes for hand counting. State legislatures should pass legislation making the paper ballot the official ballot of record and authorizing the hand counting of ballots for election audits and recounts. Unfortunately, in the aftermath of the hanging chad debacle of 2000, some states have enacted legislation which actually prohibits the hand counting of the paper ballots that are produced in optical scan voting systems. This must change.

The ultimate goal should be to have paper ballots counted by hand. In the interim, an optical scan system that enables an audit in which one in ten ballots is hand counted at the voting precinct on election night would be an acceptable way to verify the election outcome.

We have been dealing with the repercussions of the 2000 election for six years. Our goal should be to return the management of Election Day processes to the civil servants in our local boards of elections, and to the volunteer poll workers who operate the precincts. We should demand to be allowed to observe a transparent vote count. We should guard against implementing any system that further removes the voter from the outcome of the election. Our democracy is at stake.

* Mary Howe Kiraly has worked with nonpartisan national organizations advocating a paper ballot.

1 Kirk Wolter, Diana Jergovic, Whitney Moore, Joe Murphy & Colm Muircheartaigh, Reliability of the Uncertified Ballots in the 2000 Presidential Election in Florida, 57 Am. Statistician 1 (2003), available at http://www.amstat.org/misc/PresidentialElectionBallots.pdf. See also, Dan Keating, Democracy Counts: the Media Consortium Ballot Counting Project (American Political Science Association Annual Meeting, Working Paper, August 2002), available at
http://www.aei.org/docLib/20040526_KeatingPaper.pdf.
2 Pub. L. No. 107-252, 116 Stat. 1666 (codified in scattered sections of 2, 5, 10, 36, and 42 U.S.C.).
3 See, e.g., BRUCE O'DELL, ELECTION DEFENSE ALLIANCE, AUDITABILITY: WHAT DOES AUDITABILITY REALLY MEAN FOR ELECTIONS?,
http://www.electiondefensealliance.org/auditability.
4 Voter Verification in the Federal Elections Process: Hearing Before the S. Rules Comm., 109th Cong. (2005) (statement of David L. Dill), available at
http://rules.senate.gov/hearings/2005/Dill062105.pdf.
5 Even optical scan systems that use paper ballots pose a risk. The famous demonstration "hack" performed by Harri Hursti on a system in Leon County, Florida, was accomplished on such a system.
6 Douglas W. Jones, Associate Professor, University of Iowa, Address to the League of Women Voters of Johnson County: Counting Votes with Computers (May 16, 2001), available at
http://www.cs.uiowa.edu/~jones/voting/lwv.html.
7 Ivan Penn and Stephanie Desmon, Contenders Vie to Take Job as House Speaker, BALTIMORE SUN, Nov. 7, 2002.
8 See Thom Hartmann, Exit Polls Right, Tallies Wrong?, ALTERNET (Nov. 5, 2004), available at http://www.alternet.org/election04/20416/.
9 See, e.g., Deborah Hastings, Problems Plague Election Administrators, ABCNEWS.COM (Oct. 20, 2006), available at http://abcnews.go.com/Politics/wireStory?id=2591877.
10 See, e.g., Lisa Demer, State Rebuffs Raw Vote Demand, ANCHORAGE DAILY NEWS (Jan. 24, 2006), available at http://www.adn.com/news/alaska/story/7386582p-7298824c.html (recounting the refusal of the Alaska Division of Elections to give the state Democratic party the electronic voting file).
11 David L. Dill, Testimony Before the Commission on Federal Election Reform (American University Carter-Baker Commission) (April 18, 2005), available at
http://www.verifiedvotingfoundation.org/article.php?id=5987.

Preferred Citation: Mary Howe Kiraly, Paper Ballots Address a Fundamental Threat to Democracy , 1 HARV. L. & POL'Y REV. (Online) (Nov. 1, 2006),
http://www.hlpronline.com/2006/06/kiraly_01.html.

Posted by Jason at 08:08 PM | Permalink | Comments (0)