Eugene Volokh's Blog, page 2583
March 26, 2012
Postmodern Me?
A commenter writes, apropos my post that discussed how the word "slut" could some times be pejorative and sometimes not,
So now we've gone from offensiveness as determined by what the speaker said, through what the subject "felt", and back to what the speaker "intended". Isn't postmodernism grand?
IMHO, a word is a word. If the word has no purpose but to be offensive, then it's an insult (the C word). If the word is purely descriptive, it's not an insult — it's a description. If it's an insulting way of describing someone, it's rude/insensitive. If it's used positively by the class of persons that the speaker thinks the person would be a member of, then it may still be rude, but the subject hardly has room for much of a moral objection.
I can't claim any expertise on postmodernism, but it seems to me that my point was something that many people, postmodern, modern, and premodern, should easily agree on. "What the speaker said" generally speaking has meaning because of what listeners infer is "what the speaker intended." Likewise, "what the subject felt" is likewise influenced by the subject's judgment about "what the speaker intended." The purpose of language is communicating ideas from the speaker to the listener, so the meaning of words naturally depends on what listeners are likely to infer the speaker really intends. (The purpose of legal language is somewhat different, so I set aside here discussions about how to interpret statutes or constitutions.)
Consider the title of my original post about the Rush Limbaugh "slut" diatribe, "How Charming." What I said was "how charming." In context, though, what I intended was "how rude," since it was clear to reasonable people who read the post that my title was intended to be sarcastic. If Rush Limbaugh had read the post, he would have probably felt reproached (whether or not he would have agreed with the reproach), precisely because of what he thought I was intended. If he had said, "what Volokh said was that I was charming, so I'll take it as a compliment," we would have assumed that he either didn't read very carefully, or was being either deceptive or sarcastic in his own statement.
All reasonable theories of the meaning of words have to account for this reality — if postmodernism says so, it's only because other theories do, too. All words have multiple meanings in multiple contexts. Even "cunt" might in some contexts not be an insult, but a quotation, or (depending on one's tastes in such matters) a sexual turn-on between lovers, or other things as well. Conversely, descriptive words can often be used in an insulting context. "Jew," as a noun, is descriptive, but "don't be such a Jew" would presumably be seen as an insult both of the target and of Jews generally — unless, of course, it's said humorously.
There are no words that have "no purpose but to be offensive," and no words that are "purely descriptive." However much we might sometimes want a pure world in which each word has a unique, unambiguous meaning independent of context, that is a world of computer language or mathematical language (and then only sometimes), not of human language.
"Slut"
Snips (Being1732.com) points to what it sees as inconsistency between condemnations of Rush Limbaugh for calling Sandra Fluke a slut (see, e.g., here) and a Harvard "Sex-Positivity and Slut-Pride" event:
Harvard University kicks off Sex Week this Monday, coordinated by the student-run organization Sexual Health Education & Advocacy throughout Harvard College (SHEATH)…. One of the event's sponsors is the Harvard chapter of Law Students for Reproductive Justice(LSRJ). The Harvard LSRJ will sponsor and lead several events during the week, including co-hosting Monday's "Sex-Positivity and Slut-Pride: Sex Tips for a Modern World from Good Vibrations." …
A notable LSRJ member is Sandra Fluke of the organization's chapter at Georgetown Law. As Fluke became a national figure following her testimony before a congressional committee regarding contraception costs and her opinion on the mandate controversy, LSRJ released a statement supporting Fluke as outcry grew against radio-host Rush Limbaugh following his comments about the law student.
"Law Students for Reproductive Justice (LSRJ) is proud of our member Sandra Fluke for her courage and commitment in the face of cruelty. Fluke is the Georgetown law student whose contraceptive access advocacy has been called into question with language that falls, as Fluke said in her press statement, 'far beyond the acceptable bounds of civil discourse.' Such personal attacks are intended to shame women out of advocacy and into silence, but Fluke refuses to back down, 'No woman deserves to be disrespected in this manner. This language is an attack on all women, and has been used throughout history to silence our voices.'"
But do events hosted by LSRJ's Harvard chapter that use language like "Slut-Pride" follow the same standards advocated by the LSRJ national organization and Fluke in rejection to her critics? …
What do you think of the LSRJ national organization should do? Support the event or condemn language that some may perceive as "an attack on all women."
I don't find this argument persuasive. The problem with Rush Limbaugh's criticism of Sandra Fluke was (among other things) that he used "slut" as a pejorative to attack someone. This attack was, I argued, illogical and factually unfounded — there was no reason to think that Fluke was indeed having sex with a large number of men — but beyond that it would be rude even if it were factually sound: Whatever one might think of the moral propriety of having sex with more than some number of people, you should make these arguments substantively rather than using vulgar insults.
But not all uses of "slut" are pejorative. Sometimes they might involve humorous banter among friends. Sometimes, as here, they could be used in a context where the speaker clearly means them positively, to convey the message that there's nothing wrong with promiscuity. (Consider the Retail Slut store.) Sometimes they can have other meanings. In those situations, the criticisms aimed at using "slut" as an insult don't apply. Perhaps one might still criticize the use of "slut" for other reasons; but the analogy to Rush Limbaugh's tirade strikes me as quite inapt. The problem with insults is that they're insulting. There's nothing inconsistent about treating the same word differently depending on whether or not it's insulting.
And this is of course true for a vast range of other words. Using "nigger" to insult and using it to quote what someone is saying (or in a hypothetical such as this) are vastly different. Insulting someone whose parents weren't married to each other by calling him a "bastard" is different from using "bastard" in lots of other contexts, even when it does mean illegitimacy.
Using "yid" as an insult against Jews is different than when a Jew labels his Web site Dixie Yid. (Conversely, even the word "Jew," used as a noun, could be an insult if used in a particular context or with a particular tone, as can many other words.) The same is true for other terms that are often used as ethnic and religious pejoratives — not because members of some groups should get a free pass from the rules of civility, but because whether a term is rightly perceived as insulting understandably turns on the context in which it's used.
The notion that a word is either always bad to use or always fine to use strikes me as inconsistent with the way language operates, whether the notion comes from those on the left or those on the right (or elsewhere). "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." That's not "political correctness" or "relativism" (in any properly pejorative sense): It is simply a reality of how humans use language, and of what words mean in context.
Is the Individual Mandate Really a Mandate?
In today's argument, Chief Justice Roberts had an interesting series of questions on a matter that we debated a bit here at the blog: If the penalties for violating the individual mandate are really weak, is the regulation really a "mandate"? The exchange arose when Greg Katsas (a lawyer challenging the mandate) argued that the Tax Anti-Injunction Act does not apply because the real purpose of the lawsuit is to challenge the individual mandate, not the collection of taxes, and that the mandate and the penalty for violating the mandate should be construed as two very different things. That led to this exchange:
CHIEF JUSTICE ROBERTS: The whole point -the whole point of the suit is to prevent the collection of penalties.
MR. KATSAS: Of taxes, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS: Well prevent of the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn't seem to make much sense.
MR. KATSAS: It's entirely separate, and let me explain to you why.
CHIEF JUSTICE ROBERTS: It's a command. A mandate is a command. If there is nothing behind the command. It's sort of well what happens if you don't
file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime.
MR. KATSAS: I'm not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires and what enforcement consequences happen to you. This statute was very deliberately written to separate mandate from penalty in several different ways.
They are put in separate sections. The mandate is described as a "legal requirement" no fewer than 20 times, three times in the operative text and 17 times in the findings. It's imposed through use of a mandatory verb "shall." The requirement is very well defined in the statute, so it can't be sloughed off as a general exhortation, and it's backed up by a penalty. . . .
CHIEF JUSTICE ROBERTS: Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.
MR. KATSAS: Because Congress reasonably could think that at least some people will follow the law precisely because it is the law.
It's hard to make any firm conclusions from the exchange, of course. But the challenge to the minimum coverage provision is premised on the idea that the mandate is really a genuine mandate, not just some sort of generalized incentive, and that argument rests in significant part on seeing the mandate as separate from the penalty. We'll have to wait and see tomorrow how many Justices accept that framing of the statute.
UPDATE: A commenter suggests that the audio leaves a different impression than the transcript; you can listen yourself at the 1:15 mark. Also, it's obviously not the case that framing the minimum coverage provision together with the penalty provision as a single entity necessarily means that one doesn't see it as a mandate. But my sense is that it does change the optics of the issue.
Justices Skeptical of Claims that the Individual Mandate is a Tax
Today's Supreme Court oral argument transcript suggests that many of the justices, including at least three of the liberals, are skeptical of claims that the individual mandate is a tax. This is important not only for today's argument about the applicability of the Anti-Injunction Act (which probably does not apply if the mandate penalty is not a tax), but to tomorrow's argument about the constitutionality of the mandate. The federal government has argued that the mandate is constitutional because it is an exercise of Congress' power under the Tax Clause. Lower courts have almost uniformly rejected this constitutional tax argument, and today's questioning suggests that the Supreme Court is unlikely to accept it either.
Justice Stephen Breyer suggested that the mandate is not a tax because "Congress has nowhere used the word "'tax.'" Justice Ginsburg noted that the mandate may not be a tax because it isn't a "revenue-raising measure," and because the monetary penalty is separable from the mandate itself. Justice Sotomayor also expressed doubts about whether the mandate is a tax, as did several for the conservative justices. As far as I can tell, none of the justices seemed to support the argument that the mandate is a tax.
Thus, today's events do not bode well for the federal government's constitutional tax argument. However, there are two caveats to this conjecture. First, the justices sometimes ask questions for rhetorical effect or play devil's advocate. I don't think they are doing so here, but obviously I can't be sure. Second, it is theoretically possible that the constitutional definition of what qualifies as a "tax" is broader than the AIA definition. This is not the usual view of the matter. Indeed, the one lower court that ruled that the AIA applies to this case did so precisely because they thought that the AIA's definition of "tax" is broader than the Constitution's. However, it's not completely impossible that the Court will reach the exact opposite conclusion, and the Solicitor General actually argued for such an approach today. However, there is no indication that the justices are leaning in that direction, or that any of them believe that the constitutional definition of a tax is broader than the AIA definition.
Even if the federal government loses on the tax argument, they could still win on the Commerce Clause or the Necessary and Proper Clause. The latter is probably their strongest point. Still, it's interesting that the tax argument – which has attained great popularity among legal academics supporters of the mandate – has been overwhelmingly repudiated by the courts, including several judges who voted to uphold the law on other grounds. And it looks like the Supreme Court may well go the same as the lower courts on this issue.
SCOTUSblog With Early Argument Reports
Over at SCOTUSblog, there's lots of great early coverage on the Tax Anti-Injunction Act arguments at the Court today (aka Round 1 in the ACA fight). The SCOTUSbloggers seem to agree that there are five votes to bypass the Anti-Injunction Act and address the merits of whether the Constitution permitted Congress to enact the individual mandate. This isn't too surprising. Even if the Anti-Injunction Act arguments are strong as a textual matter, tax law is boring and arcane and the Commerce Clause is cool and high-profile. It's hard for the former to get in the way of the Court addressing the latter.
Passport Dispute Does Not Present "Political Question"
In non-mandate news, the Supreme Court issued two merits opinions today, including Zivotofsky v. Clinton, a challenge to the State Department's refusal to follow a federal statute directing the federal government to recognize Jerusalem as a part of Israel specifically by allowing American citizens born in Jerusalem to have "Israel" listed as their birthplace. The U.S. Court of Appeals for the D.C. Circuit had held that Zivotofsky's claim presented a non-justiciable political question as it involved a foreign policy question implicating separation of powers questions best resolved by the political branches. in Zivotofsky, the Supreme Court disagreed. Chief Justice Roberts wrote the opinion for the Court, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan. Justices Alito and Sotomayor wrote opinions concurring in the judgment and Justice Breyer dissented.
My CNN Column on the Individual Mandate Case
The CNN website has just posted a column I wrote on the individual mandate case. Here's an excerpt:
This week, the U.S. Supreme Court considers the case challenging the Obama administration health care plan's requirement that most Americans purchase a government-approved health insurance plan by 2014. The court should rule that this individual mandate is unconstitutional. To do otherwise would give Congress almost unlimited power….
If Congress could use [the commerce] clause to regulate mere failure to buy a product on the grounds that such inaction has an economic effect, there would be no structural limits to its power. Any decision to do anything is necessarily a decision not to do something else that might have an economic effect. If I spend an hour sleeping, I thereby choose not to spend it working or shopping. As the lower court decision in this case explained, the government's position "amounts to an argument that the mere fact of an individual's existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life."
Kiobel (II): Universality, Not More Extraterritoriality
[Cross-posted on OpinioJuris]
The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those "Piracies" and "Offenses" that have UJ status in international law. But Congress has not "defined" any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the "Define" power was given to Congress precisely because international law was too "deficient and vague" to be a common law rule.
Lower courts have discussed the application of the Alien Tort Statute to so-called "foreign-cubed" cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.
Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.
As shall be seen, Supreme Court precedents clearly apply presumptions of extraterritoriality to statutes dealing with international law violations, even universal ones. Some have argued that the Supreme Court implicitly OK'd ATS extraterritoriality in Sosa v. Alvarez-Machain, its previous major encounter with the statute. Sosa itself involved conduct in Mexico –but it was the abduction from that country by the D.E.A. and its local contractors of a man involved in torturing a federal agent to death, so that he could stand trial in the U.S. Foreign-cubed that is not: few cases could have a tighter nexus with America.
In the oral arguments on corporate liability, Justice Ginsburg suggested that Sosa OK'd extraterritoriality by citing favorably Filartiga, the break-out 1980 Second Circuit case that turned to the ATS into a tool for human rights litigation. Sosa quoted Filartiga's famous analogy between modern human rights UJ and its precursors: "the torturer has become-like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind [a phrase that was law of nations shorthand for piracy's universal cognizability]." Never mind that piracy serves as poor model for modern UJ; Sosa's quote from Filartiga is hardly decisive. The issue was not before the Court, and secondly, it could be that the ATS allows for UJ for a few norms like torture, but perhaps not for others like extrajudicial killing.
ObamaCare and the ATS: Can the Feds Regulate the Whole World?
Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government's domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch Shell, manages to raise an even broader question: Are there any substantive limits to the federal government's power to regulate matters occurring outside and having nothing do with the United States? Surprisingly, the latter question has not been generally regarded as a constitutional one.
The Supreme Court has expanded the issues under consideration in Kiobel, originally about corporate liability under the Alien Tort Statute, to include the extraterritorial application of the law. Like corporate liability, extraterritoriality had for decades just been assumed by the lower courts hearing ATS cases: now it will be fully explored.
This series of posts, also cross-posted on OpinioJuris, will focus on the constitutional/federal courts issues involved, and of course explore the early piracy precedents of the Supreme Court to get traction on the issues. In short: before thinking about the ATS, one must consider the constitutional basis for universal jurisdiction – which is quite narrow. Furthermore, there a some good reasons derived both from the constitution and precedent for interpreting the ATS narrowly, as not exercising whatever UJ power the federal government does have.
Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All's Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, and conservatives (still crudely speaking) favor the adoption of a rule from international law and practice. Then the Court asks for new arguments on extraterritoriality. Now the conservatives point to U.S. law – the judge-made presumption against extraterritoriality – and liberals point to the international status of the offenses. It is like a game of Twister.
Neither position is fully correct. There may be a place for extraterritoriality in ATS cases, but in a much narrower class of cases then where it is currently applied. The next few posts draw on much of my prior work, and I hope the reader forgives me not recapitulating the entire argument of those articles in these posts.
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